USCA1 Opinion
November 15, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1204
HERIBERTO PARRA,
Plaintiff, Appellant,
v.
STATE OF NEW HAMPSHIRE, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
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Before
Cyr, Boudin and Stahl,
Circuit Judges.
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Heriberto Parra on brief pro se.
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Per Curiam. Pro se plaintiff, Heriberto Parra,
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appeals from the dismissal of his civil rights complaint
under 28 U.S.C. 1915(d) for failure to state a claim upon
which relief can be granted. Having thoroughly reviewed the
record and appellant's submissions on appeal, we affirm the
dismissal.
During the pendency of this appeal, the United
States Supreme Court decided Heck v. Humphrey, ___ U.S. ___,
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114 S. Ct. 2364 (1994). Heck applies retroactively to this
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case. See, e.g., Boyd v. Biggers, 31 F.3d 279, 282 n.2 (5th
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Cir. 1994). In Heck, the Court held that "a 1983 cause of
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action for damages attributable to an unconstitutional
conviction or sentence does not accrue until the conviction
or sentence has been invalidated." 114 S. Ct. at 2374.
Therefore, if "a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or
sentence . . . , the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or sentence has
already been invalidated." Id. at 2372.
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Notwithstanding the Supreme court's decision in
Heck, we affirm the dismissal of appellant's claims against
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the prosecutors on the ground of absolute immunity. We agree
with the Fifth Circuit that "[b]ecause absolute immunity is
properly viewed as 'immunity from suit rather than a mere
defense to liability,' Mitchell, 472 U.S. at 526, it is
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appropriate for the district courts to resolve the question
of absolute immunity before reaching the Heck analysis when
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feasible." Boyd, 31 F.3d at 284.
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Appellant alleges that the prosecutors violated his
constitutional rights by attending interviews with the
victims and their parents held after his arrest and
participating in a conspiracy to influence the victims'
statements and "brainwash" them to make false accusations and
commit perjury. Appellant argues that the prosecutors thus
had an "investigative role" in the case and, therefore, are
entitled only to qualified immunity.
We agree with the district court that the
prosecutors are absolutely immune from suit in this case.
The Supreme Court recently affirmed the "principle that acts
undertaken by a prosecutor in preparing for the initiation of
judicial proceedings or for trial, and which occur in the
course of his role as an advocate for the State, are entitled
to the protections of absolute immunity. Those acts must
include the professional evaluation of the evidence assembled
by the police and appropriate preparation for its
presentation at trial or before a grand jury after a decision
to seek an indictment has been made." Buckley v.
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Fitzsimmons, ___ U.S. ___, 113 S. Ct. 2606, 2615-15 (1993).
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The conduct alleged clearly falls within those parameters.
The Court has specifically noted that "an out-of-court
`effort to control the presentation of [a] witness'
testimony' is entitled to absolute immunity." Id. (citations
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omitted).
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Parra's remaining 1983 claims are foreclosed by
Heck and are therefore frivolous under 1915(d). The
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complaint alleges that the state actors -- the Sheriff's
Department, Police Department and its individual officers --
were "responsible for the false arrest, . . . Malicious
Prosecutorial Misconduct; Criminal Police Misconduct;
Perjurious Statements, and Testimony; Falsifying Evidence;
The Wrongful Conviction; Excessive Sentences; False
Imprisonment . . . ." It alleges that the State of New
Hampshire and its Governor are responsible for the
enforcement of the unconstitutional laws under which
appellant was prosecuted. The claims, as described by
appellant, against the non-immune state actors clearly
challenge the legality of appellant's conviction and
sentence, neither of which has been invalidated. Therefore,
the claims are not cognizable under 1983.
Although it might be argued that a judgment in
favor of Parra on his false arrest claim would not
"necessarily imply the invalidity of his conviction or
sentence," Heck, 114 S. Ct. at 2372, see United States v.
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Crews, 445 U.S. 463, 474 (1980); Guerro v. Mulhearn, 498 F.2d
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1249, 1254 (1st Cir. 1974) ("a false arrest . . . may
constitute a compensable wrong [under 1983] while not
undergirding the validity of the criminal conviction to which
it might be related."), the false arrest claim is in any
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event time-barred. A civil rights claim pursuant to 1983
must be brought within the applicable statute of limitations
period of the state within which the incident occurred. See
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Wilson v. Garcia, 471 U.S. 261, 275 (1985). In this case,
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the arrest occurred in New Hampshire and the statute of
limitations for claims of false arrest is three years. See
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N.H. Rev. Stat. Ann. 507-B:7 (1993). Under federal law,
which controls the accrual of 1983 claims, see Guzman-
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Rivera v. Rivera-Cruz, 29 F.3d 3, 5 (1st Cir. 1994), a claim
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for false arrest accrues on the date of the arrest. See,
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e.g., Rose v. Bartle, 871 F.2d 331, 351 (3d Cir. 1989);
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McCune v. Grand Rapids, 842 F.2d 903, 907 (6th Cir. 1988);
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Venegas v. Wagner, 704 F.2d 1144, 1146 (9th Cir. 1983);
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Singleton v. New York, 632 F.2d 185, 191 (2d Cir. 1980),
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cert. denied, 450 U.S. 920 (1981). Parra was arrested in
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January, 1990. He filed this claim in November, 1993, more
than three years later. Therefore, the district court did
not err in dismissing Parra's false arrest claim.
Given that there is no cause of action under 1983
against the state actors, even proper allegations of
conspiracy would not suffice to bring the private actors or
immune parties within the ambit of 1983. Therefore, even
if appellant's complaint had included more than conclusory
allegations of collusion and conspiracy between the private
defendants, the prosecutors and the local officials -- which
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it did not -- the 1983 claims against those parties would
still be foreclosed by Heck.
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We affirm the dismissal of appellant's claims under
42 U.S.C. 1985(3) and 1986 for essentially the reasons
contained in the magistrate judge's order of November 3,
1993, which was adopted by the district court in an order
dated December 8, 1993.
The district court order dated February 11, 1994,
dismissing the complaint is affirmed.
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