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[NOT FOR PUBLICATION]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-