Pigott v. Vega

USCA1 Opinion









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[NOT FOR PUBLICATION]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-