October 5, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1796
JEROME E. CASSELL,
Plaintiff, Appellant,
v.
NANCY OBER,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
Before
Selya, Cyr and Stahl,
Circuit Judges.
Jerome E. Cassell on Motion For Stay Or Injunction Pending
Appeal, pro se.
David W. Immen on Motion To Dismiss for appellee.
Per Curiam. We have before us a motion by
appellant denominated "motion for a stay or injunction
pending appeal," and a cross-motion by defendant "to dismiss
the appeal." We construe these filings as cross-motions for
summary disposition.
Appellant Cassell was convicted in a New Hampshire
state court of felonious sexual assault. While his criminal
conviction was pending on direct appeal, he brought this
action for damages under 42 U.S.C. 1983, alleging that the
defendant had conspired with the police to falsify evidence
and otherwise cause the plaintiff to be wrongfully convicted
in the state case. The district court initially determined,
on a preliminary review of the complaint under 28 U.S.C.
1915, and circuit precedent, that the federal damages claim
should be stayed pending exhaustion by plaintiff of his state
remedies. Shortly thereafter, however, the Supreme Court
resolved a conflict among the circuits by ruling that "a
1983 cause of action for damages attributable to an
unconstitutional conviction does not accrue until the
conviction . . . has been invalidated." Heck v. Humphrey,
114 S. Ct. 2364, 2373 (1994) (emphasis added); see also
Guzman-Rivera v. Rivera-Cruz, 29 F.3d 3, 5 (1st Cir. 1994).
The district court then correctly determined that application
of the Supreme Court's decision required the dismissal of
plaintiff's claim as premature.
Plaintiff's motion indicates that he is somewhat
confused about the effect of the dismissal. We explain,
first, that plaintiff is not prejudiced by the dismissal
because it does not prevent him from later filing a proper
and timely complaint for damages should he first succeed in
having his conviction reversed on direct appeal, expunged, or
otherwise declared invalid by a tribunal authorized to make
such a determination. Id. Second, plaintiff is incorrect in
assuming that the dismissal violates this court's mandate in
an earlier appeal filed by plaintiff in another case. Appeal
no. 93-16O7 (one of three consolidated appeals) involved the
dismissal, by a different district judge, of a separate
lawsuit in which plaintiff had named different defendants.
Our remand of that case for further consideration as to
whether some of the claims should be stayed, also predated
the Supreme Court's decision in Heck. The effect of an
intervening Supreme Court decision on claims pending in the
district court at the time of the decision is a question
committed in the first instance to the particular judge
presiding over each case.
Finding no substantial question presented, and for
the reasons articulated in the district court's order, the
judgment below is affirmed. See Loc. R. 27.1.
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