Cassell v. Ober ( 1994 )

USCA1 Opinion

          October 5, 1994
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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        No. 94-1796

                                  JEROME E. CASSELL,

                                Plaintiff, Appellant,

                                          v.

                                     NANCY OBER,

                                 Defendant, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE


                   [Hon. Joseph A. DiClerico, U.S. District Judge]
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                                        Before

                                 Selya, Cyr and Stahl,
                                   Circuit Judges.
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            Jerome  E.  Cassell  on  Motion For  Stay  Or  Injunction  Pending
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        Appeal, pro se.
            David W. Immen on Motion To Dismiss for appellee.
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                      Per  Curiam.     We  have  before  us  a motion  by
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            appellant  denominated  "motion  for  a  stay  or  injunction

            pending appeal," and a  cross-motion by defendant "to dismiss

            the appeal."  We construe these filings as cross-motions  for

            summary disposition.

                      Appellant Cassell was convicted  in a New Hampshire

            state court of  felonious sexual assault.  While his criminal

            conviction  was pending  on  direct appeal,  he brought  this

            action  for damages under 42 U.S.C.   1983, alleging that the

            defendant had  conspired with the police  to falsify evidence

            and otherwise cause the  plaintiff to be wrongfully convicted

            in the state case.   The district court initially determined,

            on  a preliminary review of  the complaint under  28 U.S.C.  

            1915, and  circuit precedent, that the  federal damages claim

            should be stayed pending exhaustion by plaintiff of his state

            remedies.   Shortly  thereafter, however,  the Supreme  Court

            resolved  a conflict among the  circuits by ruling  that "a  

            1983  cause   of  action  for  damages   attributable  to  an

            unconstitutional  conviction  does   not  accrue  until   the
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            conviction  . . . has  been invalidated."   Heck v. Humphrey,
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            114  S. Ct.  2364,  2373 (1994)  (emphasis  added); see  also
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            Guzman-Rivera v.  Rivera-Cruz, 29 F.3d 3, 5  (1st Cir. 1994).
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            The district court then correctly determined that application

            of  the Supreme  Court's decision  required the  dismissal of

            plaintiff's claim as premature.



















                      Plaintiff's  motion indicates  that he  is somewhat

            confused  about the  effect of  the  dismissal.   We explain,

            first,  that plaintiff  is  not prejudiced  by the  dismissal

            because  it does not prevent  him from later  filing a proper

            and timely complaint  for damages should he  first succeed in

            having his conviction reversed on direct appeal, expunged, or

            otherwise declared  invalid by a tribunal  authorized to make

            such a determination.  Id.  Second, plaintiff is incorrect in
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            assuming that the dismissal  violates this court's mandate in

            an earlier appeal filed by plaintiff in another case.  Appeal

            no. 93-16O7 (one of  three consolidated appeals) involved the

            dismissal,  by  a different  district  judge,  of a  separate

            lawsuit in  which plaintiff  had named  different defendants.

            Our  remand of  that  case for  further  consideration as  to

            whether some  of the claims  should be stayed,  also predated

            the  Supreme  Court's decision  in Heck.    The effect  of an
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            intervening Supreme  Court decision on claims  pending in the

            district  court at  the time  of the  decision is  a question

            committed  in  the first  instance  to  the particular  judge

            presiding over each case.

                      Finding no substantial  question presented, and for

            the reasons  articulated in  the district court's  order, the

            judgment below is affirmed.  See Loc. R. 27.1.  
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