USCA1 Opinion
January 3, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1929
RONALD FORSTER,
Plaintiff, Appellant,
v.
STATE OF NEW HAMPSHIRE, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, U.S. District Judge]
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Before
Breyer, Chief Judge.
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Torruella and Selya, Circuit Judges.
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Ronald Forster on brief pro se.
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Jeffrey R. Howard, Attorney General, and Christopher P.
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Reid, Attorney, Civil Bureau, on brief for appellees.
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Per Curiam. Plaintiff appellant, pro se, appeals
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the dismissal of his civil rights complaint under 28 U.S.C.
1915(d). Plaintiff is currently serving a 7-1/2 year to 15
year sentence in the New Hampshire State Prison following his
guilty plea to crimes he describes only as sex offenses. The
gist of plaintiff's complaint, brought under 42 U.S.C.
1983, is that New Hampshire's sex offense laws are
unconstitutional because they permit a defendant to be
convicted solely on the uncorroborated testimony of the
victim. Plaintiff claims that the state's statutes
facilitate wrongful convictions on insufficient evidence. He
states that evidence in his own case was falsified, and
implies that the state's laws were at fault. He names as
defendants the State of New Hampshire, the Hillsborough
Police Department, various state, county and police
officials, a law firm and two attorneys who represented him
in his criminal case. Defendants are variously accused of
wrongful activities connected to enforcement of the state's
laws generally, or to plaintiff's criminal case in
particular. The complaint requests both equitable relief
(release from confinement) and damages.
Because plaintiff is proceeding in forma pauperis,
the magistrate undertook a preliminary review of the
complaint prior to completing service. See 28 U.S.C.
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1915(d); Neitzke v. Williams, 490 U.S. 319, 327-28 (1989) (to
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avoid wasteful litigation, under 1915(d) the court may
dismiss claims which are based on indisputably meritless
legal theories or delusional factual scenarios). The
magistrate found that the complaint failed to state a legally
cognizable claim under 42 U.S.C. 1983 for several reasons,
and ordered plaintiff to file an amendment curing the
defects, or face dismissal of the complaint. Plaintiff
objected to the report, stating in part that he wished to
proceed under 42 U.S.C. 1985(3), not 1983. The district
judge reviewed the matter, and affirmed the magistrate's
order. Plaintiff then complied with the order by filing an
amendment under 42 U.S.C. 1985(3). The amendment, too, was
legally deficient, but the magistrate afforded plaintiff yet
another opportunity to amend. When plaintiff's second
amendment failed to cure any of the defects, the complaint
was dismissed. See Forte v. Sullivan, 935 F.2d 1, 3 (1st
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Cir. 1991) (a district court may dismiss a complaint under
1915(d) following notice and an opportunity to amend in a
manner that would satisfy the procedural safeguards of Fed.
R. Civ. P. 12(b)(6)). We affirm.
The gravamen of the complaint is an attack on the
validity of plaintiff's conviction. The district court thus
correctly held that the sole available federal remedy for
obtaining release from state custody is a writ of habeas
corpus, which a plaintiff may seek after exhausting his state
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remedies. Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973).
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As plaintiff's amendments showed that he had yet to exhaust
his state remedies, and was simultaneously pursuing state
habeas relief, dismissal of plaintiff's equitable claims was
required. Preiser, 411 U.S. at 490-94, 500.
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As to the damages claims, they were correctly
dismissed because, soley as a matter of federal law, they
failed to state claims legally cognizable in the federal
forum. Though the pleading is vague, its overriding legal
defects are clear. Cf. Bettencourt v. Board of Registration
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in Medicine, 904 F.2d 772 (1st Cir. 1990) (although Deakins
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v. Monaghan, 484 U.S. 193 (1988) ordinarily requires the
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court to stay federal monetary claims which cannot be
asserted in a parallel state proceeding, dismissal may be
affirmed where there are adequate independent legal grounds
for the dismissal).
As the district court held, first, the claims
asserted under 1985(3) cannot be sustained because
plaintiff does not allege, but actually denies, that the
defendants' actions were directed against a protected class.
See Bray v. Alexandria Women's Health Clinic, 113 S. Ct. 753
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(1993). Second, to the extent that plaintiff is complaining
of constitutional deprivations caused by the state
defendants' misuse of state laws and procedures, there is no
cause of action under 1983 until and unless the state fails
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to provide a suitable postdeprivation remedy. Hudson v.
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Palmer, 468 U.S. 517, 533 (1984). Third, plaintiff's
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separate claims against his private attorneys for alleged
malpractice are not cognizable under 1983 because there are
no facts suggesting that their conduct was under "color of
state law." Polk County v. Dodson, 454 U.S. 312 (1981)
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(public defender is not state actor for purposes of 1983);
Malachowski v. Keene, 787 F.2d 704, 710 (1st Cir.) (court-
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appointed private attorney does not act under "color of state
law"), cert. denied, 479 U.S. 828 (1986). Finally, to the
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extent that plaintiff seeks to ground a cause of action on
the alleged constitutional insufficiency of a state rule
allowing convictions based solely on victims' uncorroborated
testimony, he has no standing to challenge the practice under
1983. Plaintiff states that his own conviction was based
on his guilty plea, not some insufficient quantum of evidence
introduced at a trial. See Adams v. Watson, No. 93-1068,
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1993 WL 497387 at *2 (1st Cir. Dec. 8, 1993) (as an
"irreducible constitutional minimum," the doctrine of
standing requires that the plaintiff show an actual injury
caused by the challenged illegality and plaintiff must have a
direct stake in the outcome of the dispute) (citing cases).
For the reasons stated, the judgment below is
affirmed. As plaintiff suffered no prejudice from
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defendant's late filing, plaintiff's motions challenging the
timeliness of defendant's brief are denied.
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