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[NOT FOR PUBLICATION]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
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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
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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.
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