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USCA1 Opinion

October 5, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
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]
___________________
____________________
Before
Selya, Cyr and Stahl,
Circuit Judges.
______________
____________________
Jerome E. Cassell
___________________

on

Motion For

Stay

Or

Injunction

Pend

Appeal, pro se.


David W. Immen on Motion To Dismiss for appellee.
______________
____________________
____________________

appellant

Per Curiam.
___________

We

denominated

"motion

pending appeal," and a


the appeal."

have
for

before
a

us

stay

a motion
or

by

injunction

cross-motion by defendant "to dismiss

We construe these filings as cross-motions

for

summary disposition.
Appellant Cassell was convicted
state court of
conviction
action

felonious sexual assault.

was pending

on

in the state case.

he brought

this

1983, alleging that the

conspired with the police

and otherwise cause the

While his criminal

direct appeal,

for damages under 42 U.S.C.

defendant had

in a New Hampshire

to falsify evidence

plaintiff to be wrongfully convicted

The district court initially determined,

on

a preliminary review of

1915, and

the complaint under

circuit precedent, that the

28 U.S.C.

federal damages claim

should be stayed pending exhaustion by plaintiff of his state


remedies.
resolved
1983

Shortly

a conflict among the

cause

of

action

unconstitutional
conviction
114

thereafter, however,

. . . has

S. Ct.

2364,

Guzman-Rivera v.
_____________

circuits by ruling

for

conviction

the Supreme

damages
does

accrue
______

been invalidated."

2373 (1994)

that "a

attributable

not

Court

until

to

an
the

Heck v. Humphrey,
____
________

(emphasis

Rivera-Cruz, 29 F.3d 3, 5
___________

added); see also


_________
(1st Cir. 1994).

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
confused
first,

about the

motion indicates
effect of

that plaintiff

is

the

that he

dismissal.

not prejudiced

by the

is somewhat
We explain,
dismissal

because

it does not prevent

and timely complaint

him from later

filing a proper

for damages should he

first succeed in

having his conviction reversed on direct appeal, expunged, or


otherwise declared

invalid by a tribunal

such a determination.

Id.
___

authorized to make

Second, plaintiff is incorrect in

assuming that the dismissal

violates this court's mandate in

an earlier appeal filed by plaintiff in another case.


no. 93-16O7 (one of

three consolidated appeals) involved the

dismissal,

by

lawsuit in

which plaintiff

Our

remand of

a different

that

district

case for

of the claims

the

Court's decision

intervening Supreme
district

court at

committed

in

judge,

had named

whether some
Supreme

Appeal

further

consideration as

should be stayed,
in Heck.
____

the first

of the

instance

to

also predated

The effect

of an

pending in the

decision is
to

separate

different defendants.

Court decision on claims


the time

of a

a question

the particular

judge

presiding over each case.


Finding no substantial
the reasons

articulated in

judgment below is affirmed.


________

question presented, and for

the district court's


See Loc. R. 27.1.
___

-3-

order, the