January 10, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1345
JOSE L. RODRIGUEZ,
Plaintiff, Appellant,
v.
JUDD J. CARHART, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge] ___________________
____________________
Before
Cyr, Boudin and Lynch,
Circuit Judges. ______________
____________________
Jose L. Rodriguez on brief pro se. _________________
Walter B. Prince and Peckham, Lobel, Casey, Prince & Tye on brief ________________ ___________________________________
for appellee Judd Carhart.
George Criss on brief pro se. ____________
Lisa Poblocki and Dolores E. O'Neill on brief for appellee Robert _____________ __________________
Craig.
Scott Harshbarger, Attorney General, and Elisabeth J. Medvedow, _________________ ______________________
Assistant Attorney General, on brief for appellee Sydney Hanlon.
____________________
____________________
Per Curiam. Jose Rodriguez appeals from a district __________
court judgment dismissing his civil rights claim under 42
U.S.C. 1983, together with pendent state-law claims. His
section 1983 claim charged that prosecutor Sydney Hanlon,
defense counsel Judd Carhart, court officer Robert Craig, and
court reporter George Criss conspired to ensure his
conviction by unconstitutional means and to cover up their
misconduct by withholding, losing or altering critical
transcripts. We affirm the district court's dismissal
ruling, in accordance with Heck v. Humphrey, 114 S. Ct. 2364 ____ ________
(1994), but remand to permit entry of a judgment of
dismissal, without prejudice. See Guzman-Rivera v. Rivera- _______ _________ ___ _____________ _______
Cruz, 29 F.3d 3, 6 (1st Cir. 1994). The claim that ____
defendants conspired to procure Rodriguez's conviction by
unconstitutional means, and to cover up their actions,
essentially challenges the validity of the underlying
conviction. See Abella v. Rubino, 63 F.3d 1063, 1065 (11th ___ ______ ______
Cir. 1995) (per curiam) (dismissing, under Heck, Bivens claim ____ ______
that defendants conspired to ensure civil action plaintiff's
conviction by fabricating testimony and other evidence in
criminal trial); Boyd v. Biggers, 31 F.3d 279, 283 (5th Cir. ____ _______
1994) (per curiam) (dismissing, under Heck, a 1983 claim ____
that defendants had conspired to convict civil action
plaintiff by providing ineffective assistance of counsel and
withholding exculpatory evidence in criminal proceeding);
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Bell v. Peters, 33 F.3d 18, 19 (7th Cir. 1994) (per curiam) ____ ______
(vacating, under Heck, a judgment on the merits of section ____
1983 plaintiff's claim that his criminal conviction had been
procured by unconstitutional conduct; remanding for
determination as to whether conviction had been overturned).
The holding in Heck applies retroactively. See Abella, 63 ____ ___ ______
F.3d at 1064; Boyd, 31 F.3d at 282 n.2. ____
Since Craig and Criss had defaulted before the
district court dismissed the present action, Rodriguez
argues, citing Quirindongo Pacheco v. Rolon Morales, 953 F.2d ___________________ _____________
15 (1st Cir. 1992), that he should have been notified that
the court intended to review the sufficiency of the complaint
against those defendants. Unlike in the Quirindongo case, ___________
id. at 16, neither prior notice nor an evidentiary hearing __
would have been useful to Rodriguez since Heck required ____
dismissal of the damages claim as a matter of law.
Rodriguez argues that the claim against the court
reporter should not have been dismissed, because the failure
to deliver accurate transcripts was a "subissue" in the case
and he cannot overturn his conviction without accurate
transcripts.1 Because Rodriguez alleged that the court
____________________
1Rodriguez may be suggesting that the delay in providing
transcripts violates his due process right to a speedy appeal
and that such a claim should not be dismissed under Heck. ____
See, e.g., Harris v. Champion, 51 F.3d 901, 906, 909 (10th ___ ____ ______ ________
Cir. 1995) (considering 1983 claim for money damages
alleging excessive delay in processing direct criminal
appeals); but see United States v. Luciano-Mosquera, 63 F.3d ___ ___ ______________ ________________
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reporter conspired with the other defendants to withhold,
lose or alter transcripts necessary to show that his
conviction is invalid, he is, in essence, challenging his
conviction. See Sutton v. Lash, 576 F.2d 738, 746 (7th Cir. ___ ______ ____
1978) (per curiam) (retrial is proper remedy for claimed loss
of critical transcripts which preclude meaningful criminal
appeal); see also Wilcox v. Miller, 691 F.2d 739, 741 & n.4 ___ ____ ______ ______
(5th Cir. 1982) (claim that defendants in civil suit
conspired to alter criminal trial transcripts to assure an
affirmance of civil plaintiff's criminal conviction on appeal
"would seem" to challenge validity of criminal conviction);
accord Tedford v. Hepting, 990 F.2d 745 (3d Cir.), cert. ______ _______ _______ ____
denied, 114 S. Ct. 317 (1993) (similar). Consequently, Heck ______ ____
applies.
Since the Rodriguez conspiracy claim also
challenges the validity of his conviction, the claim for
declaratory relief was properly dismissed as well. See ___
Abella, 63 F.3d at 1066 (dismissing Bivens action for ______ ______
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1142, 1158 (1st Cir. 1995) (analyzing merits of underlying
appeal from conviction to determine prejudice resulting from
appellate delay). Because this claim was not squarely
presented to the district court, we deem it waived for
present purposes. See United States v. Ocasio-Rivera, 991 ___ _____________ _____________
F.2d 1, 3 (1st Cir. 1993). Yet another hurdle may loom in
the path of any section 1983 claim for damages based on such
a speedy-appeal claim. It may well be that Parratt v. _______
Taylor, 451 U.S. 527, 541-44 (1981), would be implicated were ______
it to appear that Massachusetts law affords Rodriguez an
adequate post-deprivation remedy. See Campiti v. ___ _______
Commonwealth, 630 N.E.2d 596, 598 (Mass. 1994). ____________
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declaratory relief against defendants, who allegedly
conspired to convict plaintiff, on ground that habeas relief
is exclusive remedy, per Preiser v. Rodriguez, 411 U.S. 475 _______ _________
(1973)). Moreover, the claim for injunctive relief against
the court reporter is moot since it is undisputed that the
suppression hearing tape had been lost and that the defendant ___________ _______ ____
court reporter turned the voir dire hearing tape over to a ____ ____ _______ ____
different court reporter who prepared and delivered to
Rodriguez a transcript based on the latter tape. See DeLancy ___ _______
v. Caldwell, 741 F.2d 1246, 1247 (10th Cir. 1984) (per ________
curiam) ( 1983 claim for injunctive relief directing
preparation of trial transcripts mooted because defendant had
provided transcripts to plaintiff after suit was filed).
As the premature section 1983 claims were properly
dismissed, we direct that the district court judgment be
modified so as to dismiss both the section 1983 claims and
the pendent state-law claims against all defendants, without _______
prejudice. No costs. _________ __ _____
So ordered. So ordered. __ _______
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