September 3, 1996
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-2225
RASHID A. PIGOTT,
Plaintiff, Appellant,
v.
ELIZABETH VEGA, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Torruella, Chief Judge,
Stahl and Lynch, Circuit Judges.
Rashid A. Pigott on brief pro se.
Scott Harshbarger, Attorney General, and Ellyn H. Lazar,
Assistant Attorney General, on brief for appellees.
Per Curiam. Pro se plaintiff Rashid Pigott appeals a
district court order that dismissed this 42 U.S.C. 1983
action as frivolous under 28 U.S.C. 1915(d). Pigott's
complaint sought monetary damages and declaratory and
injunctive relief on the grounds that the defendants violated
his constitutional rights by falsifying the trial transcripts
essential for Pigott's direct appeal and obstructing Pigott's
efforts to correct those transcripts.
We have thoroughly reviewed the record and the parties'
briefs on appeal. We conclude that the instant action was
properly dismissed, although not for the reasons relied upon
by the district court.1 Rather, we conclude that this
1
action essentially challenges the validity of Pigott's
conviction and that it is therefore barred by Heck v.
Humphrey, 114 S. Ct. 2364 (1994)(holding 1983 damages suit
for conduct that would necessarily imply the invalidity of
plaintiff's criminal conviction is not cognizable unless
plaintiff's conviction or sentence has already been
invalidated). Cf. Tedford v. Hepting, 990 F.2d 745, 749 (3d
Cir. 1993)(where 1983 plaintiff sought a declaration that
his constitutional rights on appeal were violated as a result
1The district court dismissed this action for the reasons
1
stated in the defendants' memorandum in support of their
motion to dismiss. That memorandum incorrectly asserted that
Pigott's claim that he was deprived of his right to appeal
was meritless because Pigott's direct appeal was then
pending. As the defendants have waived this argument on
appeal, we do not rely on it.
-2-
of falsification of transcripts, Third Circuit held that
plaintiff's civil rights suit was "a direct challenge to the
validity of his conviction and the legality of plaintiff's
confinement"); Scruggs v. Moellering, 870 F.2d 376, 378 (7th
Cir.)(upholding dismissal of 1983 claim for injunction
requiring judge and court reporter to provide accurate trial
transcripts on ground suit was an improper use of 1983
where plaintiff sought injunction solely to facilitate attack
on his conviction), cert. denied, 493 U.S. 956 (1989); Wilcox
v. Miller, 691 F.2d 739, 741 (5th Cir. 1982)(claim that trial
transcript was altered to assure affirmance of defendant's
conviction on appeal "would seem to challenge the validity of
his conviction"). As Pigott's conviction has not been
invalidated, his claims for relief are not cognizable under
1983.2
2
In addition to seeking relief for the alleged violation
of his right to a direct appeal, Pigott's complaint also
alleged that defendant Leary violated his constitutional
rights by unjustifiably delaying Pigott's appeal from the
denial of his motion for new trial. As this claim has not
been developed on appeal, we deem it waived. See, e.g.,
Barrett v. United States, 965 F.2d 1184, 1194 & n. 19 (1st
2We note that Pigott presently has a federal habeas action
2
pending in the district court and an appeal from the denial
of his motion for a new trial pending in the Massachusetts
Appeals Court. Both actions raise the same claims that
Pigott has asserted here.
-3-
Cir. 1992)(issues adverted to in a perfunctory fashion are
deemed waived).3
3
In view of the foregoing, the judgment of the district
court is summarily affirmed, see Local Rule 27.1, but we
modify the dismissal to be without prejudice. See Guzman-
Rivera v. Rivera-Cruz, 29 F.3d 3, 6 (1st Cir. 1994).
3Pigott also contends that defendant Leary maintained a
3
policy of deliberate indifference to the rights of pro se
litigants that resulted in the loss of his direct appeal and
numerous violations of the rights of other pro se prisoners.
To the extent Pigott seeks relief for the loss of his appeal,
this claim is barred by Heck. Pigott has no standing to
pursue claims on behalf of other prisoners.
-4-