USCA1 Opinion

November 15, 1994

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1204
HERIBERTO PARRA,
Plaintiff, Appellant,
v.
STATE OF NEW HAMPSHIRE, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
___________________
____________________
Before
Cyr, Boudin and Stahl,
Circuit Judges.
______________
____________________
Heriberto Parra on brief pro se.
_______________

____________________
____________________

Per Curiam.
___________
appeals from

Pro se
___ __

the dismissal

under 28 U.S.C.

of

his civil

rights

1915(d) for failure to state

which relief can be granted.

record and

plaintiff, Heriberto

Parra,

complaint

a claim upon

Having thoroughly reviewed the

appellant's submissions on appeal,

we affirm the

dismissal.
During

the

States Supreme Court

114 S. Ct. 2364

action

for

of this

appeal,

Heck applies retroactively

____

v. Biggers, 31 F.3d 279, 282

_______

In Heck, the Court held that "a

____
damages

the United

decided Heck v. Humphrey, ___ U.S. ___,

____
________

(1994).

case. See, e.g., Boyd

___ ____ ____
Cir. 1994).

pendency

attributable

to

an

to this
n.2 (5th

1983 cause of
unconstitutional

conviction or
or

sentence does not accrue

sentence has

Therefore, if
necessarily

been

invalidated."

"a judgment
imply

sentence . . . ,

the

in favor

invalidity

until the conviction

114

S. Ct.

of the
of

his

at

2374.

plaintiff would
conviction

the complaint must be dismissed

or

unless the

plaintiff can demonstrate that the conviction or sentence has

already been invalidated." Id. at 2372.
___
Notwithstanding
Heck, we
____

the

Supreme

affirm the dismissal of

court's decision

appellant's claims against

the prosecutors on the ground of absolute immunity.

with the

Fifth Circuit that "[b]ecause

properly viewed
defense

as 'immunity

to liability,'

appropriate for
of absolute

from suit

Mitchell,
________

immunity before reaching the

We agree

absolute immunity is
rather than

472 U.S.

the district courts to

feasible." Boyd, 31 F. 3d at 284.

____

in

at

a mere

526, it

is

resolve the question

Heck analysis when
____

Appellant alleges that the prosecutors violated his

constitutional
victims

rights

and

their

participating in

by

attending

parents

held

conspiracy

to

interviews
after

his

influence

with

the

arrest

and

the

victims'

statements and "brainwash" them to make false accusations and

commit perjury.
had

Appellant argues that

an "investigative role" in

the prosecutors thus

the case and, therefore, are

entitled only to qualified immunity.

We
prosecutors

agree

with

the

are absolutely

district

immune from

The Supreme Court recently

court

that

suit in

the

this case.

affirmed the "principle that acts

undertaken by a prosecutor in preparing for the initiation of

judicial

proceedings or

for trial, and

which occur

in the

course of his role as an advocate for the State, are entitled

to the

protections of absolute

immunity.

Those acts

must

include the professional evaluation of the evidence assembled

by

the

police

and

appropriate

preparation

for

its

presentation at trial or before a grand jury after a decision

to

seek

an

indictment

Fitzsimmons, ___ U.S.

___________
The conduct
The

Court

`effort

specifically

control

been

made."

___, 113 S. Ct. 2606,

alleged clearly
has

to

has

the

falls within
noted

that

presentation

Buckley
_______

v.

2615-15 (1993).
those parameters.
"an

of

out-of-court
[a]

testimony' is entitled to absolute immunity." Id.

___

witness'
(citations

omitted).

-3-

Parra's remaining
Heck
____

and

complaint

are therefore

were

"responsible for

Perjurious

challenge

-- the

false arrest,
Criminal

and
of
was

. ."
its
the

The

Sheriff's

legality

sentence, neither of which

Misconduct;

Sentences;

False

alleges that

the State

of New

are

responsible
laws

The claims,
non-immune
of

Malicious

Falsifying Evidence;

unconstitutional

the

. .

Excessive

Governor

prosecuted.

against
the

It

Police

and Testimony;

Conviction;
. .

enforcement

appellant,

the

Statements,

Imprisonment

appellant

1915(d).

state actors

Misconduct;

Wrongful

Hampshire

the

under

by

Police Department and its individual officers --

Prosecutorial

The

frivolous

alleges that

Department,

1983 claims are foreclosed

state

appellant's

as

under

1983.

the
which

described
actors

by

clearly

conviction

has been invalidated.

the claims are not cognizable under

for

and

Therefore,

Although
favor

of

Parra

"necessarily

it might

be

his

false

on

imply

the

sentence," Heck, 114

____

argued that
arrest

invalidity

S. Ct.

a judgment

claim

of

would

not

conviction

or

United States
_____________

v.

his

at 2372, see
___

in

Crews, 445 U.S. 463, 474 (1980); Guerro v. Mulhearn, 498 F.2d
_____
______
________
1249,

1254 (1st

constitute

Cir.

1974)

("a false

compensable wrong

arrest

[under

. .

may

1983] while

not

undergirding the validity of the criminal conviction to which

it

might be

related."), the

false arrest

claim is

in any

civil rights claim pursuant to

1983

-4-

event time-barred.

must be brought within

period of the

state within which the

Wilson v. Garcia,
______
______
the

471 U.S. 261,

arrest occurred

limitations for

the applicable statute of limitations

in

275 (1985).

New Hampshire

claims of false

incident occurred. See

___

and

In

this case,

the statute

arrest is three

of

years. See

___
N.H.

Rev. Stat. Ann.

which controls

the

507-B:7 (1993).
accrual of

1983

Under federal law,

claims, see
___

Rivera v. Rivera-Cruz, 29 F.3d 3, 5 (1st

______
___________
for

false arrest

e.g.,
____

Rose
____

McCune
______

v. Bartle,
______

the date

871 F.2d

v. Grand Rapids, 842

____________

Venegas
_______
Singleton
_________

v.

Wagner, 704
______

January, 1990.

U.S. 920

He

331,

Cir. 1994), a claim

of the

arrest. See,
___

351 (3d

Cir. 1989);

F.2d 903, 907

F.2d

v. New York, 632

_________

cert. denied, 450

____________

than

accrues on

(6th Cir. 1988);

1144, 1146
F.2d 185,

(1981).

(9th

Cir. 1983);

191 (2d

Cir. 1980),

Parra

was arrested

filed this claim in November,

three years later.

Guzman_______

Therefore, the

in

1993, more

district court did

not err in dismissing Parra's false arrest claim.

Given that there is no cause of action under
against

the

state

conspiracy would not

actors,

ambit of

appellant's complaint had

allegations of

proper

suffice to bring the

immune parties within the

if

even

included more

defendants, the prosecutors and

-5-

of

private actors or

1983.

collusion and conspiracy

allegations

1983

Therefore, even
than conclusory

between the private

the local officials -- which

it did not --

the

1983 claims against

those parties would

still be foreclosed by Heck.

____
We affirm the dismissal of appellant's claims under
42

U.S.C.

contained

1985(3) and
in the

1993, which was

1986 for

magistrate
adopted by

essentially the reasons

judge's order

of November

the district court

3,

in an

order

order dated February 11,

1994,

dated December 8, 1993.

The district court

dismissing the complaint is affirmed.

________

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