USCA1 Opinion

January 3, 1994

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________

No. 93-1929

RONALD FORSTER,
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. Martin F. Loughlin, U.S. District Judge]
___________________
___________________
Before
Breyer, Chief Judge.
___________
Torruella and Selya, Circuit Judges.
______________

___________________

Ronald Forster on brief pro se.

______________
Jeffrey R. Howard, Attorney General, and Christopher P.
__________________
_______________
Reid, Attorney, Civil Bureau, on brief for appellees.
____

__________________
__________________

Per Curiam.
__________

Plaintiff appellant, pro

se, appeals

the dismissal of his civil rights complaint under 28 U.S.C.

1915(d).

Plaintiff

is currently serving a 7-1/2

year to 15

year sentence in the New Hampshire State Prison following his

guilty plea to crimes he describes only as sex offenses.
gist

of plaintiff's

1983,

is

that

unconstitutional
convicted
victim.

solely

New

complaint, brought
Hampshire's

because
on

Plaintiff

the

they

under

sex

permit

42 U.S.C.

offense
a

that

the

laws

defendant

uncorroborated testimony

claims

The

state's

to
of

are
be
the

statutes

facilitate wrongful convictions on insufficient evidence.

He

states

that

implies

evidence in

that the

defendants
Police

the

his

state's laws
State

Department,

of New
various

officials, a law firm and

in his

criminal case.

wrongful activities
laws

generally,

particular.

own case
were at

fault. He

Hampshire,
state,

falsified, and

the

names as

Hillsborough

county

and

police

two attorneys who represented

Defendants are variously

connected to enforcement
or

The

was

to

plaintiff's

complaint requests

accused of

of the state's

criminal
both

him

case

in

equitable relief

(release from confinement) and damages.

Because plaintiff is
the

magistrate

complaint

prior

undertook

proceeding in forma pauperis,

preliminary

to completing

service.

review
See
___

28

of

the

U.S.C.

1915(d); Neitzke v. Williams, 490 U.S. 319, 327-28 (1989) (to

_______
________

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avoid
dismiss
legal

wasteful litigation,
claims
theories

which are
or

under
based

delusional

1915(d)
on

the court

may

indisputably meritless

factual

scenarios).

The

magistrate found that the complaint failed to state a legally

cognizable claim under 42 U.S.C.

1983 for

and

an

amendment

the

complaint.

ordered

defects,

plaintiff

or

objected to

face

to

dismissal of

the report,

stating in part

proceed under 42 U.S.C.

judge reviewed
order.

the

Plaintiff

1985(3), not

matter, and

1985(3).

to

amend.

When

cure any of

See Forte v.
___ _____

1915(d) following notice

plaintiff's

the defects, the

Sullivan, 935 F.2d 1,

________

3 (1st

may dismiss a complaint under

and an

opportunity to

amend in

of Fed.

We affirm.

The gravamen

of the complaint is an

of plaintiff's conviction.
that the

release from

second

complaint

satisfy the procedural safeguards

R. Civ. P. 12(b)(6)).

obtaining

The amendment, too, was

but the magistrate afforded plaintiff yet

Cir. 1991) (a district court

correctly held

The district

by filing an

amendment failed to

validity

affirmed

wished to

then complied with the order

opportunity

manner that would

Plaintiff

that he
1983.

the

magistrate's

legally deficient,

was dismissed.

curing

the

amendment under 42 U.S.C.

another

file

several reasons,

The district court thus

sole available
state custody

attack on the

federal remedy
is a

writ

for

of habeas

corpus, which a plaintiff may seek after exhausting his state

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remedies.

Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973).

_______
_________

As plaintiff's amendments
his state

remedies,

showed that he had

and was

yet to exhaust

simultaneously pursuing

state

habeas relief, dismissal of plaintiff's equitable claims

required.

Preiser, 411 U.S. at 490-94, 500.

_______
As

dismissed
failed

to the

forum. Though

the pleading

are clear.

to

stay

asserted in

were

correctly

of federal

law, they

cognizable

is vague,

in the

federal

its overriding

legal

Cf. Bettencourt v. Board of Registration

___ ___________
_____________________

U.S. 193
federal

a parallel

affirmed where

they

a matter

F.2d 772 (1st Cir.

Monaghan, 484
________

court

claims,

claims legally

in Medicine, 904
___________
v.

damages

because, soley as

to state

defects

was

(1988)

monetary

1990) (although Deakins

_______
ordinarily requires
claims

state proceeding,

which

the

cannot

be

dismissal may

be

there are adequate independent

legal grounds

for the dismissal).

As the
asserted
plaintiff

under
does not

defendants' actions

district
1985(3)

court held,
cannot

allege, but

be

actually

first,

the

sustained

claims
because

denies, that

the

were directed against a protected class.

See Bray v. Alexandria Women's Health Clinic, 113 S. Ct. 753

____
_________________________________
(1993).
of

Second, to the

constitutional

extent that plaintiff is complaining

deprivations

caused

by

the

state

defendants' misuse of

state laws and procedures, there is no

cause of action under

1983 until and unless the state fails

-4-

to

provide a

Palmer,
______

suitable postdeprivation

468

U.S.

separate claims
malpractice
no facts
state

517,

against

533

(1984).

his private

are not cognizable under

suggesting that their

law."

Polk County
___________

v.

(public defender is not state

Malachowski v.
___________

Keene, 787 F.2d

_____

remedy.

Hudson
______

Third,

v.

plaintiff's

attorneys for

alleged

1983 because there are

conduct was under

Dodson, 454
______

"color of

U.S. 312

actor for purposes of

704, 710 (1st

(1981)
1983);

Cir.) (court-

appointed private attorney does not act under "color of state

law"), cert. denied, 479 U.S.
_____________

828 (1986).

Finally,

to the

extent that
the

alleged

plaintiff seeks to

ground a cause of

constitutional insufficiency

allowing convictions based

of

action on

a state

rule

solely on victims' uncorroborated

testimony, he has no standing to challenge the practice under

1983.

Plaintiff states that his own

conviction was based

on his guilty plea, not some insufficient quantum of evidence

introduced at
1993

a trial.

WL 497387

"irreducible
standing

at

*2

See Adams
___ _____
(1st

constitutional

requires that the

Cir.

v. Watson,
______
Dec.

8,

minimum,"

No. 93-1068,
1993)

the

plaintiff show an

(as

an

doctrine

of

actual injury

caused by the challenged illegality and plaintiff must have a

direct stake in the outcome of the dispute) (citing cases).
For
affirmed.
________

the
As

reasons
plaintiff

stated,
suffered

the judgment
no

below

prejudice

is
from

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defendant's late filing,

plaintiff's motions challenging the

timeliness of defendant's brief are denied.

______

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