23 F.

3d 394

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished

opinions may be cited only in related cases.
Jerome E. CASSELL, Plaintiff, Appellant,
v.
Barry OSBORN, et al., Defendants, Appellees.
Jerome E. CASSELL, Plaintiff, Appellant,
v.
STATE of New Hampshire, et al., Defendants, Appellees,
Jerome E. CASSELL, Plaintiff, Appellant,
v.
Lincoln SOLDATI, Defendant, Appellee.
Nos. 93-1557, 93-1607, 93-2079

United States Court of Appeals,

First Circuit.
April 26, 1994.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE [Hon. Paul J. Barbadoro, U.S.
District Judge ]
Jerome E. Cassell on brief pro se.
Jeffrey R. Howard, Attorney General, and Christopher P. Reid on brief for
appellees, Barry Osborn, State of New Hampshire and Governor Steven
Merrill.
Charles G. Douglas, III, and Douglas & Douglas on brief for appellee
Lincoln Soldati.
D.N.H.
AFFIRMED IN NOS. 93-1557, 93-1607 AND AFFIRMED IN PART
AND VACATED IN PART IN NO. 93-2079.
Before Breyer, Chief Judge, Selya and Cyr, Circuit Judges.

Per Curiam.

Plaintiff James E. Cassell, appeals pro se from the district court's dismissal of
three civil rights com- plaints under 28 U.S.C. Sec. 1915(d). The appeal raises a
preliminary question as to the proper disposition of infirm civil rights monetary
claims filed during the pendency of parallel state criminal proceedings.

Plaintiff was convicted in a New Hampshire state court of aggravated sexual

assault on August 28, 1992. He filed three civil rights complaints during the
pendency of this state post- trial criminal proceedings and appeal.1 Each
complaint alleges the wrongfulness of the state conviction and asserts
violations of 42 U.S.C. Sec. 1983, or 42 U.S.C. Sec. 1985(3), or both. Two of
the suits seek equitable relief and damages, the other only damages. The
complaints are rambling, verbose, and difficult to follow, but to orient the
ensuing discussion, we provide the following recap of some of the allegations
found in the complaints and related filings.2

No. 93-1607. Filed on November 6, 1992, the complaint names as defendants a

parole officer, two police officers, the complaining witness in plaintiff's state
criminal case, and plaintiff's state trial counsel. The gist is that the state officers
intimidated the complaining witness, and ultimately conspired with her, to
falsely accuse and wrongfully convict plaintiff of aggravated sexual assault.
Plaintiff's trial counsel is accused of ineffective assistance, incompetence and
malpractice.

No. 93-1557. Filed on April 13, 1993, this complaint names as defendants the
State's governor and a county commissioner, in their official capacities, a local
police department and unidentified officers thereof, in both their official and
individual capacities, and, again, plaintiff's trial counsel. It alleges that New
Hampshire's sexual assault laws are unconstitutional because they are written in
a way which encourages constitutional violations, conspiracies to suborn
perjury and wrongful convictions; and that the state defendants administered
and enforced the laws with extreme indifference thereby depriving plaintiff of
due process and equal protection of the laws.

No. 93-2079. This complaint was filed on August 3, 1993, after the district
court dismissed plaintiff's first two com- plaints. It names, as the sole
defendant, the prosecutor who represented the State at plaintiff's criminal trial.
It contains 44 paragraphs and 234 pages of exhibits. Their crux is that the
prosecutor negligently relied upon witness statements obtained by the police,

presented perjured testimony to the jury, and made prejudicial remarks during
trial. On appeal plaintiff characterizes this complaint as an attack on the
prosecutor's role as an investigator and implies that the prosecutor was
negligent in giving legal advice to the police officers.
Proceedings Below
6

Since plaintiff sought leave to proceed in forma pauperis, the magistrate

conducted a preliminary review of each complaint under 28 U.S.C. Sec.
1915(d). As to the first two, the magistrate construed the equitable claims as
requesting habeas relief, and recommended dismissal unless plaintiff showed
that he had exhausted his state remedies. The magistrate also observed a variety
of deficiencies in the statements of the monetary claims. Following the usual
procedure in such cases, plaintiff was given an opportunity to amend the
complaints to cure the defects outlined, or face a recommended dismissal for
failure to state a claim. See Forte v. Sullivan, 935 F.2d 1, 3 (1st Cir. 1991);
Purvis v. Ponte, 929 F.2d 822, 826-27 (1st Cir. 1991). As to the third complaint,
the magistrate recommended dismissal, on the grounds of absolute
prosecutorial immunity, without affording an opportunity to amend because the
complaint showed on its face that it was based on an indisputably meritless
legal theory. See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989) (under Sec.
1915(d) the court may dismiss claims based on indisputably meritless legal
theories or delusional factual scenarios).

Plaintiff's responses to the magistrate's first two reports included exhibits which
suggested, for the first time, that the state criminal prosecution remained
pending. 3 While the district court was thus aware of the possible pendency of
the state case when it undertook its review, it did not focus on the effect a
decision on the monetary claims might have in the state case.4 After de novo
review, the district court adopted the magistrate's reports and recommendations
for dismissal on the various other legal grounds.

Discussion
8

The court's dismissal of plaintiff's Sec. 1983 claims for equitable relief must be
affirmed. These claims have at their root an attack on the validity of the state
conviction and seek plaintiff's release from confinement. Consequently, they
may be pursued only by petition for habeas corpus, after the plaintiff has
exhausted his state remedies. Preiser v. Rodriguez, 411 U.S. 475, 490 (1973).5
A section 1983 action may not be used to circumvent the exhaustion
requirement's important function of avoiding federal-state friction by permitting
state courts the first opportunity to correct their constitutional errors. See

Guerro v. Mulhearn, 498 F.2d 1249, 1251-52 (1st Cir. 1974).

9

Disposition of the damages claims, too, requires consideration of the effect the
court's decision may have in the pending state proceedings. "[A] suit for money
damages under section 1983 may also have a substantially disruptive effect
upon contemporary state criminal proceedings, and may ... undermine the
integrity of the writ of habeas corpus." Id. at 1252. When there is "no question
that the [complaint] allege[s] injuries under federal law sufficient to justify the
District Court's retention of jurisdiction," civil rights monetary claims which
cannot be asserted in a parallel state proceeding ordinarily are stayed pending
completion of the state case. Deakins v. Monaghan, 484 U.S. 193, 204 (1988).
A stay allows the state case to go forward "without interference from its federal
sibling, while enforcing the duty of federal courts 'to assume jurisdiction were
jurisdiction properly exists.' " Id. at 202-03 (citation omitted). Preferring a stay
to a dismissal without prejudice also avoids the possibility of a later time bar
under the borrowed statute of limitations. Id. at 203 n. 7.

10

In this case, however, we are met with three complaints containing various
types and degrees of defects in their assertions of federal civil rights monetary
claims. Under 28 U.S.C. Sec. 1915(d), a district court has authority to dismiss
an in forma pauperis complaint "if satisfied that the action is frivolous or
malicious." "[A] litigant whose filing fees and court costs are assumed by the
public, unlike a paying litigant, lacks an economic incentive to refrain from
filing frivolous, malicious, or repetitive lawsuits." Neitzke, 490 U.S. at 324. To
prevent abuse, and to spare prospective defendants the expense of answering
such complaints, the district court, acting sua sponte, may dismiss claims based
on an "indisputably meritless legal theory" or "clearly baseless" factual
allegations. Id. at 327; Denton v. Hernandez, 112 S. Ct. 1728, 1732-33 (1992).

11

During the pendency of parallel state criminal proceedings, there is as much

potential for abuse from the filing of frivolous federal complaints as at any
other time. There may even be an added danger, as the state court defendant
may seek a federal forum solely to gain a tactical advantage or to harass the
prosecuting authorities and witnesses. Section 1915(d) permits the district court
to intercept and dismiss frivolous and malicious claims filed at such time, or
any time. The preference expressed in Deakins, 484 U.S. at 204, for staying,
rather than dismissing, cognizable federal claims that allege facts "sufficient to
justify the District Court's retention of jurisdiction," does not come into play
where the claims asserted are patently frivolous.6

12

Where a complaint filed under Sec. 1915(d) appears legally deficient, though
perhaps not frivolous "in the hard core sense described in Neitzke," we have

held that a court may proceed to decide whether it should be dismissed for
failure to state a claim, after affording the plaintiff the "practical protections
typically given paying plaintiffs under Fed. R. Civ. P. 12(b)(6). Purvis, 929
F.2d at 826-27; Forte, 935 F.2d at 3 (same). Comity concerns may be
implicated in such decisions, however, particularly when the complaint
challenges a state criminal conviction which has not yet become final. See
Guerro, 498 F.2d at 1255.
13

Should the district court's decision require a determination of matters at issue in

a pending state criminal proceeding, a stay is the only option, since "the
potential for federal-state friction is obvious." Deakins, 484 U.S. at 208 (White,
J. concurring, quoting Guerro, 498 F.2d at 1253). Conversely, where the
decision will not affect issues which should first be decided by the state court,
the district court need not delay its decision. Accord Duncan v. Gunter, 15 F.3d
989 (10th Cir. 1994) (affirming dismissal on grounds which need not be first
decided in state proceedings); cf. Bettencourt v. Board of Registration in
Medicine, 904 F.2d 772, 781 (1st Cir. 1990) (civil rights claims which cannot
be asserted in parallel pending state licensing case normally should be stayed,
but where quasi-judicial immunity and sovereign immunity barred
consideration of the claims by the federal court, they were properly dismissed);
Williams v. Hepting, 844 F.2d 138, 143-45 (3d Cir.) (staying certain claims and
simultaneously, without discussion, affirming dismissal of other claims on
grounds of witness immunity), cert. denied, 488 U.S. 851 (1988); Bressman v.
Farrier, 900 F.2d 1305, 1309 (8th Cir. 1990) (staying certain claims but
dismissing time-barred claims), cert. denied, 498 U.S. 1126 (1991).

14

In pro se cases, accurate identification and comparison of the issues in the

federal and state proceedings may be diffi- cult. To avoid conflict, caution is
indicated whenever the ground for decision is one that ordinarily might be
asserted as res judicata in a state criminal proceeding. See Deakins, 484 U.S. at
208; Guerro, 498 F.2d at 1253. In such cases, the district court may exercise its
discretion under Sec. 1915(c) to order service on the defendants or otherwise
obtain assistance in pinpointing the issues and the status of the state
proceedings, or it may choose, sua sponte, to order a stay until the state
proceedings are terminated. Cf. Granberry, 481 U.S. at 133-35 (affirming
similar discretion, sua sponte, to require exhaustion of habeas remedies even
where defendant waives the defense). In the event the court decides to stay the
monetary claims, the habeas and Sec. 1983 claims may be considered
simultaneously at the conclusion of the state court proceedings, thus reducing
the burden on the parties and the court. Guerro, 498 F.2d at 1254 n. 15.

15

Applying these principles here, there seems little question that most of

plaintiff's monetary claims were properly dismissed, rather than stayed, since
only one species of monetary claim is not based on an "indisputably meritless"
legal theory as a matter of federal law. Dismissals on this basis would not
implicate any issue in the state criminal proceedings.
16

The claims plaintiff asserts under Sec. 1985(3) cannot be sustained because
there is no showing that defendants' actions were directed against a protected
class as required to found an action under that statute. See Bray v. Alexandria
Women's Health Clinic, 113 S. Ct. 753 (1993). The claims against plaintiff's
state trial attorney are barred because there are no facts suggesting that his
conduct was under "color of state law." Polk County v. Dodson, 454 U.S. 312
(1981) (public defender is not a state actor for purposes of Sec. 1983);
Malachowski v. Keene, 787 F.2d 704, 710 (1st Cir.) (court-appointed private
attorney does not act under "color of state law"), cert. denied, 479 U.S. 828
(1986). The claims against the prosecuting witness also fail for lack of any
showing that she acted under "color of state law," and because her trial
testimony is entitled to absolute immunity. See Briscoe v. LaHue, 460 U.S.
325, 329-36 (1983). The monetary claims against state officials, in their official
capacities only, are barred by Eleventh Amendment immunity. See Will v.
Michigan Dep't of State Police, 491 U.S. 58, 70-71 & n. 10 (1989). The claims
against the State's prosecuting attorney are barred by the federal doctrine of
absolute prosecutorial immunity. See Burns v. Reed, 500 U.S. 478, (1991)
(prosecutors are absolutely immune from Sec. 1983 liability for conduct in
initiating and presenting state's case insofar as the conduct is intimately
associated with the judicial phase of the criminal process); see also Buckley v.
Fitzsimmons, 113 S. Ct. 2606, 2616 (1993) (qualified immunity extends to
investigatory functions and administrative functions). Although some of the
claims against the state prosecutor arguably challenge conduct covered only by
qualified immunity, they are infirm for the additional reason that they are
grounded in alleged negligence. Mere negligence is insufficient to implicate due
process protections. Davidson v. Cannon, 474 U.S. 344, 348 (1986); Daniels v.
Williams, 474 U.S. 327 (1986).7

17

The dismissal of plaintiff's monetary claims against the state officers in their
individual capacities (No. 93-1607) is more problematic. Plaintiff's
"amendment" attempts to tie these claims to a challenge to the state's criminal
law, and to the same facts and legal arguments he is advancing in the state case.
The court's dismissal was broadly based on a failure to state sufficient facts to
sustain a claim, a decision arguably susceptible of being raised as an estoppel in
the state court. Plaintiff's disorganized presentation makes it difficult accurately
to compare the issues in the two proceedings or to be certain whether there are
alternate grounds for dismissal. We therefore think the more efficient course is

to remand these claims to the district court for reconsideration, consistent with
this opinion, as to whether their legal sufficiency can be determined without in
any way affecting issues in the state criminal case, or whether these claims
should be stayed pending completion of the state court proceedings.
18

Accordingly, the judgment dismissing the complaints in 93-1557 and 93-2079

is affirmed. The judgment dismissing the complaint in 93-1607 is affirmed in
part and vacated in part, and the case is remanded to the district court for
proceedings consistent with this opinion.

We are informed that the plaintiff's appeal is currently pending before the New
Hampshire Supreme Court. Although neither party has requested a stay on this
basis, we consider the issue sua sponte because of the possible impact of a
decision on the proper workings of our federal system. Cf. Granberry v. Greer,
481 U.S. 129, 134-35 (1986) (if the State fails to assert non-exhaustion of
remedies in a habeas action, the court should decide whether comity and
federalism interests are better served by reaching the merits or by requiring
exhaustion)

Plaintiff's filings indicate that, at least initially, he did not grasp the functional
difference between a complaint, denominated as such, and the numerous other
papers he filed including "addenda," "memoranda" and "exhibits." To clarify
his claims, we perused his other filings. The amount of paper, number of
filings, and repetitive irrelevancies, are daunting, even by pro se standards. Our
review in no way prevents the district court from exercising its discretion in this
case to fairly restrict the number and length of the papers it will review

Plaintiff responded to the magistrate's first report by filing an amendment, with

exhibits, to the first complaint, followed by a series of lengthy addenda. He
chose not to amend his second complaint, but filed a lengthy objection with
exhibits. He also objected to the recommended dismissal of his third complaint,
filing additional exhibits which contained papers from the pending criminal
proceedings

The court also had before it a motion by plaintiff for "federal interdiction" in
the state proceedings, which was denied under Younger v. Harris, 401 U.S. 37
(1971). This ruling is not challenged on appeal

We glean in plaintiff's complaints and amendments no suggestion of the rare

circumstances that might lead to an exception to the habeas exhaustion
requirement. See Granberry, 481 U.S. at 131 (discussing exceptional

circumstances). In any event, plaintiff's exhibits below indicate that in addition

to these cases, he also filed a separate suit for habeas relief in the district court.
That petition is not before us in this appeal, and we express no opinion on its
merits
In general, however, we note that when a plaintiff is given an opportunity to
amend habeas claims mistakenly brought under Sec. 1983, it is advisable to
require him to replead his habeas claims on a form petition. See Rules
Governing Sec. 2254 Cases, Rule 2. Although no universal palliative for pro se
confusion, the form petition assists both the petitioner and the court by guiding
the petitioner toward an orderly statement of claims, and the status of the state
proceedings. The habeas claims may then be readily identified for processing
under the rules relating to habeas petitions, including those relating to habeas
appeals. Where there are also separate monetary claims, the court may
simultaneously consider the common issues. See Guerro v. Mulhearn, 498 F.2d
1249, 1254 n. 15 (1st Cir. 1974).
6

Ordinarily, a dismissal for "frivolousness" would not preclude issues that might
be raised in the state court proceeding. In the unlikely event that such a case
arose, however, caution would be indicated for the reasons suggested below,
especially where it was intended that the dismissal be "on the merits." See
Denton, 112 S. Ct. at 1734 (discussing res judicata effect of Sec. 1915(d)
dismissal)

Although the complaint contains boilerplate "conspiracy" allegations, the only

specific conduct alleged in it, and in the numerous exhibits attached, reveals
that the claims are based, at most, on simple negligence