Guerro v. Mulhearn

• Decision Date: 24 June 1974
• Docket Number: No. 73-1005,73-1194.,73-1005
• Citation: 498 F.2d 1249
• Parties: Thomas A. GUERRO, Plaintiff, Appellant, v. Roger F. MULHEARN et al., Defendants, Appellees. Ralph F. ANDREWS, Plaintiff, Appellant, v. Kathy DeCote YOUNG et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

498 F.2d 1249 (1974)

Thomas A. GUERRO, Plaintiff, Appellant, v. Roger F. MULHEARN et al., Defendants, Appellees.

Ralph F. ANDREWS, Plaintiff, Appellant, v. Kathy DeCote YOUNG et al., Defendants, Appellees.

Nos. 73-1005, 73-1194.

United States Court of Appeals, First Circuit.

Submitted March 7, 1974.

Decided June 24, 1974.

COPYRIGHT MATERIAL OMITTED

Ralph F. Andrews on brief pro se.

Thomas A. Guerro on brief pro se.

Richard Shapiro, Boston, Mass., on brief for Prisoners' Rights Project, amicus curiae.

James A. Brett, Asst. City Sol., Worcester, Mass., on brief for Roger F. Mulhearn and Clifford M. Auger, appellees.

Robert H. Quinn, Atty. Gen., John J. Irwin, Jr., Asst. Atty. Gen., Chief, Crim. Div., Michael C. Donahue, and Dennis J. LaCroix, Deputy Asst. Attys. Gen., Boston, Mass., on brief for appellees.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

Appellant in No. 73-1005, Thomas Guerro, brought a civil rights action pro se under 42 U.S.C. §§ 1983 and 1985, alleging that certain officials of the Commonwealth of Massachusetts violated his constitutional rights by illegally wiretapping his telephone and using evidence obtained thereby at his criminal trial. Appellant was convicted and given a 27 to 30 year sentence. Guerro also alleges that perjury was committed in order to obtain a warrant to search his apartment, and that the existence of the wiretap was intentionally concealed during trial. Declaratory judgment and compensatory and punitive damages are sought. The case was referred by the district court to a magistrate and was dismissed, following the magistrate's recommendation, on the ground that the defendants were immunized from liability by virtue of their offices, and that plaintiff had failed to exhaust state remedies.

Appellant in No. 73-1194, Ralph Andrews,¹ filed a pro se complaint alleging that various persons conspired to indict, try and convict appellants by the use of perjured testimony before the grand jury and at trial, resulting in a denial of constitutional rights. Equitable relief and thirty-two million dollars in damages are sought. Appeal was taken in this case from denial by the district court of leave to proceed in form a pauperis.

On June 4, 1973 this court issued Memoranda and Orders appointing the Prisoners' Rights Project amicus curiae in both cases and propounding, inter alia, the following question:

"Whether, in light of Preiser v. Rodriguez, 411 U.S. 475 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) and Gibson v. Berryhill, 411 U.S. 564 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973) and Gomez v. Miller,² 341 F.Supp. 323 (S. D.N.Y.1972), affirmed, 412 U.S. 914 93 S.Ct. 2728, 37 L.Ed.2d 141 (1973), a state prisoner, in a § 1983 suit for damages brought during the pendency of a state appeal or other state proceeding for review of conviction, based on constitutional claims which are or could also be raised in the state court proceeding, must exhaust his state court remedies or whether such a damage suit is completely barred?"³

I. EXHAUSTION

The first issue to be considered on this appeal is the question set out above. In light of Preiser v. Rodriguez, supra, it is clear that the requests for equitable relief are barred as an attempt to circumvent the habeas corpus exhaustion rule. Requests for relief in the form of money damages under section 1983 are not controlled by Preiser, but we conclude that the reasoning and policy of that case, as well as the policy considerations underlying Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), require a federal court to stay its hand where disposition of the damage action would involve a ruling implying that a state conviction is or would be illegal.

The general rule in civil rights actions is now clearly established to be that exhaustion of state remedies is not a prerequisite. As the Court said in Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961), "The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked." Later cases have confirmed and strengthened the position taken in Monroe v. Pape; see, e. g., Steffel v. Thompson, 415 U.S. 452, 469-475, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974);⁴ Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1971); Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968); Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L. Ed.2d 622 (1963).⁵ But the Court carved out an exception to this general rule in Preiser. The Court there held that where suits for equitable relief under section 1983 would, because of the overlap in the scope of section 1983 and habeas corpus,⁶ come within the "core of habeas corpus" (defined as a "challenge to the fact or duration of . . . confinement", 411 U.S. at 489, 93 S.Ct. at 1836), the exhaustion requirement of habeas must not be "circumvented".

Although the Court expressly distinguished the situation where the relief sought is money damages, rather than release from incarceration, it did so in the context of a case in which determination of a damage claim would not require ruling upon the validity of a state criminal conviction during the pendency of the criminal process.⁷ Since the instant case does not come within the "core of habeas corpus" as defined in Preiser, but also is unlike the kind of damage action which the Court there held, would not be subject to an exhaustion requirement, we think that Preiser is not here controlling.⁸

Preiser, nevertheless, is highly relevant to the issue under discussion. The Court's holding demonstrates the importance of preserving the integrity of the writ of habeas corpus, in its traditional context,⁹ from circumvention of the limitations placed upon the writ. The writ of habeas corpus is, after all, the more narrow and specific remedy.¹⁰ The Court also was concerned with maintaining due respect toward principles of comity and federalism by avoiding interference with matters of intense and intimate state concern. This view is also expressed in Younger v. Harris, supra, and Samuels v. Mackell, supra. In Younger and Samuels the Supreme Court held that to preserve proper respect for our federal system, and additionally, to prevent undue interference with the orderly administration of criminal justice, federal suits for equitable relief must be dismissed if they concern the same matter as is the subject of an ongoing state prosecution, and would interfere with that prosecution.

Despite the difference in the form of relief being sought, a suit for money damages under section 1983 may also have a substantially disruptive effect upon contemporary state criminal proceedings, and may also undermine the integrity of the writ of habeas corpus. Where the federal court, in dealing with the question of damages caused by violation of civil rights, would have to make rulings by virtue of which the validity of a conviction in contemporary state proceedings would be called in question, the potential for federal-state friction is obvious.¹¹ The federal ruling would embarrass, and could even intrude into, the state proceedings.¹² Questions concerning the effect to be given the federal ruling in the state courts might be difficult ones, and could lead to delay, or even derailment of the course of the state action. It is not impossible that circumstances might arise where a federal judgment for damages could be used by a state defendant to obtain his release from, or prevent, his incarceration, thus presuming upon, if not preempting, the province of the Great Writ.¹³ Other disruptive consequences can be envisioned as, for example, use of a 1983 suit to circumvent state discovery limitations, or to harass witnesses. See Dellinger v. Mitchell, 143 U.S.App.D.C. 60, 442 F.2d 782, 785 (1971).

It is nonetheless unfortunate that a civil rights litigant might be forced to await the conclusion of state criminal proceedings against him before he may attempt to vindicate his federal rights in a federal forum. But while any delay of this type is costly, the fact of the matter is that federal relief in the form of immediate or more speedy release from incarceration, normally a matter of even more pressing concern, is subject to just this sort of delay. Moreover, just as the exhaustion requirement of habeas corpus is subject to the condition that exhaustion is not necessary where "there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner." 28 U.S.C. § 2254(b), the requirement that state criminal proceedings be completed before suit for damages may be instituted may be inapplicable where the result might be that the right to sue would be lost entirely, as for example, where the applicable statute of limitations would run, cf. Still v. Nichols, 412 F.2d 778 (1st Cir. 1969).¹⁴ In any event, whatever cost to the litigant may be involved, there is an overriding cost that is avoided. Damage to the smooth operation of the administration of criminal justice, injury to the proper workings of a federal system, and undermining of congressional concern with the functioning of the writ of habeas corpus—all are harms which are prevented by the requirement that a civil rights damage action be deferred.¹⁵

The touchstone for any decision to defer a civil rights damage action which is parallel to state criminal proceedings is whether the federal court will be making rulings whose necessary implication would be to call in question the validity of the state conviction. Thus, not every situation where a section 1983 action is related to contemporaneous state...