USCA1 Opinion

June 25, 1996

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-2143

JAMES PETER KYRICOPOULOS,

Plaintiff, Appellant,

v.

PHILLIP A. ROLLINS, ETC., ET AL.,

Defendants, Appellees.
____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

___________________
____________________

Before

Selya, Cyr and Lynch,

Circuit Judges.
______________

____________________

James Peter Kyricopoulos on brief pro se.

________________________
Scott Harshbarger,
__________________

Attorney

General, and

William J. Duensi
__________________

Assistant Attorney General, on brief for appellees

Philip A. Rolli

District Attorney for the Cape and Islands, et al.

Pamela J. Fitzgerald and
_____________________
brief for appellees, Town of

Brody, Hardoon, Perkins & Kesten,

__________________________________

Orleans Police Department and Lieuten

Lucien Ozon.
Donald K. Stern,
________________
Assistant
Curtis

C.

United

Attorney General,
Pett,

Attorneys,

States Attorney,

Loretta C. Argre
__________________

and Gary R. Allen, Richard Farber

_______________ _______________
Tax Division,

Department

of

Justi

________________
Washington, D.C., on brief for federal appellee.
Carmen L. Durso and
________________

Lynne A. Tatirosian on
____________________

brief for appell

John Perrone and Donald Jennings.

____________________

____________________

Per Curiam.
___________

Appellant

James Peter

Kyricopoulos

appeals from the dismissal

U.S.C.

1983.

parties'

briefs, we

except as

After

of his complaint, filed

carefully reading the

affirm

to Counts 1, 3,

the district

4, 7, 9, and

under 42

record and the

court's judgment,

10, for essentially

the reasons stated in the court's Memorandum and Order, dated

October 5, 1995.

We affirm the

dismissal of these counts on

different grounds.

The

3,

4, 7,

9,

district court reasonably

and 10

as

plaintiff's convictions

challenging, as

in three

conclusion

that these

mistaken.

In Heck v. Humphrey,
____
________

to an

unconstitutional,

state cases.

claims were time-barred,

Supreme Court held that "a

attributable

construed Counts 1,

The court's

however, is

114 S. Ct. 2364 (1994), the

1983 cause of action for damages

unconstitutional conviction

or sentence

does not

accrue until the

invalidated."

Id.
___

at 2374.

conviction or

sentence has

Therefore, if

been

"a judgment

in

favor of the plaintiff would necessarily imply the invalidity

of his conviction

dismissed

or sentence . . . ,

unless the

plaintiff

can

the complaint must be

demonstrate

that

conviction or sentence has already been invalidated."

2372.

Boyd
____

Heck applies
____

v. Biggers,
_______

Because

none

retroactively to this case.

31

of

F.3d 279,

plaintiff's

282

n.2 (5th

convictions

the

Id. at
___

See, e.g.,
___ ____

Cir.

have

1994).

been

-3-

invalidated,

these

counts are

not cognizable

in a

1983

action.

Notwithstanding

counts

1, 9

and

10 on

Heck, we
____

the

affirm the

ground of

dismissal of

absolute

immunity,

insofar as they name as defendants various District Attorneys

and assistant district attorneys.

Here, Counts 1, 9

and 10

essentially

allege that

the prosecutors

plaintiff falsely prosecuted.

the initiation

defendants

damages.

Because

and presentation

are

absolutely

conspired to

such conduct involves

of the state's

immune

have

from

this

case, these

action

for

See Buckley v. Fitzsimmons, 509 U.S. 259, 269, 272

___ _______
___________

(1993).

Counts 4 and 7 make charges against two state trial

judges.

in

These judges are

the absence

of

absolutely immune from this action

any indication

their "judicial jurisdiction."

547, 553-54 (1967).

Finally,

arguments.

that they

acted outside

See Pierson v. Ray, 386 U.S.

___ _______
___

There is no such indication here.

we reject

First, the

the

district

remainder of

court did

not

appellant's

abuse its

discretion

in

dismissing

conducted discovery.

is

designed

"needless

dismiss

to

claim where

complaint

Fed. R. Civ.

streamline

discovery"

the

by

plaintiff

P. 12(b)(6) specifically

litigation

permitting

relief on

before

that

and

do

district

away

with

court

claim could

to

not be

granted under any facts plaintiff could prove consistent with

-4-

his allegations.

(1989).

Neitzke
_______

v. Williams, 490 U.S.

________

Further, plaintiff

conduct discovery,

had over

but did nothing.

319, 326-27

year in

which to

Second, appellant must

raise issues regarding the district court judge's bias in the

first

instance in

the

district court.

See Thibeault
___ _________

v.

Square D. Co., 960 F.2d 239, 243 (1st Cir. 1992) (relief must
_____________

be

sought

in the

district court

before

asking for

it on

appeal).

The judgment

of

the district

court is

affirmed.
________

Appellant's motion for summary disposition is denied.

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