USCA1 Opinion
June 25, 1996
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-2143
JAMES PETER KYRICOPOULOS,
Plaintiff, Appellant,
v.
PHILLIP A. ROLLINS, ETC., ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
___________________
____________________
Before
Selya, Cyr and Lynch,
Circuit Judges.
______________
____________________
James Peter Kyricopoulos on brief pro se.
________________________
Scott Harshbarger, Attorney General, and William J. Duensing,
__________________ ____________________
Assistant Attorney General, on brief for appellees Philip A. Rollins,
District Attorney for the Cape and Islands, et al.
Pamela J. Fitzgerald and Brody, Hardoon, Perkins & Kesten, on
_____________________ __________________________________
brief for appellees, Town of Orleans Police Department and Lieutenant
Lucien Ozon.
Donald K. Stern, United States Attorney, Loretta C. Argrett,
________________ ____________________
Assistant Attorney General, and Gary R. Allen, Richard Farber and
_______________ _______________
Curtis C. Pett, Attorneys, Tax Division, Department of Justice,
________________
Washington, D.C., on brief for federal appellee.
Carmen L. Durso and Lynne A. Tatirosian on brief for appellees
________________ ____________________
John Perrone and Donald Jennings.
____________________
____________________
Per Curiam. Appellant James Peter Kyricopoulos
___________
appeals from the dismissal of his complaint, filed under 42
U.S.C. 1983. After carefully reading the record and the
parties' briefs, we affirm the district court's judgment,
except as to Counts 1, 3, 4, 7, 9, and 10, for essentially
the reasons stated in the court's Memorandum and Order, dated
October 5, 1995. We affirm the dismissal of these counts on
different grounds.
The district court reasonably construed Counts 1,
3, 4, 7, 9, and 10 as challenging, as unconstitutional,
plaintiff's convictions in three state cases. The court's
conclusion that these claims were time-barred, however, is
mistaken. In Heck v. Humphrey, 114 S. Ct. 2364 (1994), the
____ ________
Supreme Court held that "a 1983 cause of action for damages
attributable to an unconstitutional conviction or sentence
does not accrue until the conviction or sentence has been
invalidated." Id. 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. Heck applies retroactively to this case. See, e.g.,
____ ___ ____
Boyd v. Biggers, 31 F.3d 279, 282 n.2 (5th Cir. 1994).
____ _______
Because none of plaintiff's convictions have been
-3-
invalidated, these counts are not cognizable in a 1983
action.
Notwithstanding Heck, we affirm the dismissal of
____
counts 1, 9 and 10 on the ground of absolute immunity,
insofar as they name as defendants various District Attorneys
and assistant district attorneys. Here, Counts 1, 9 and 10
essentially allege that the prosecutors conspired to have
plaintiff falsely prosecuted. Because such conduct involves
the initiation and presentation of the state's case, these
defendants are absolutely immune from this action for
damages. See Buckley v. Fitzsimmons, 509 U.S. 259, 269, 272
___ _______ ___________
(1993).
Counts 4 and 7 make charges against two state trial
judges. These judges are absolutely immune from this action
in the absence of any indication that they acted outside
their "judicial jurisdiction." See Pierson v. Ray, 386 U.S.
___ _______ ___
547, 553-54 (1967). There is no such indication here.
Finally, we reject the remainder of appellant's
arguments. First, the district court did not abuse its
discretion in dismissing the complaint before plaintiff
conducted discovery. Fed. R. Civ. P. 12(b)(6) specifically
is designed to streamline litigation and do away with
"needless discovery" by permitting a district court to
dismiss a claim where relief on that claim could not be
granted under any facts plaintiff could prove consistent with
-4-
his allegations. Neitzke v. Williams, 490 U.S. 319, 326-27
_______ ________
(1989). Further, plaintiff had over a year in which to
conduct discovery, but did nothing. Second, appellant must
raise issues regarding the district court judge's bias in the
first instance in the district court. See Thibeault v.
___ _________
Square D. Co., 960 F.2d 239, 243 (1st Cir. 1992) (relief must
_____________
be sought in the district court before asking for it on
appeal).
The judgment of the district court is affirmed.
________
Appellant's motion for summary disposition is denied.
______
-5-
