January 10, 1996 [NOT FOR PUBLICATION]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
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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