835 F.2d 995 (2nd Cir. 1987), 195, Mack v. Varelas

Docket Nº:195, Docket 87-2196.
Citation:835 F.2d 995
Party Name:Dennis MACK, Plaintiff-Appellant, v. Thomas J. VARELAS, Sheriff of Nassau County, and John Doe, Deputy Sheriff of Nassau County, Defendants-Appellees.
Case Date:December 22, 1987
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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835 F.2d 995 (2nd Cir. 1987)

Dennis MACK, Plaintiff-Appellant,


Thomas J. VARELAS, Sheriff of Nassau County, and John Doe,

Deputy Sheriff of Nassau County, Defendants-Appellees.

No. 195, Docket 87-2196.

United States Court of Appeals, Second Circuit

December 22, 1987

Submitted Sept. 25, 1987.

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[Copyrighted Material Omitted]

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Dennis Mack, plaintiff-appellant pro se.

Edward T. O'Brien, Co. Atty. of Nassau County, Mineola, N.Y. (Joshua A. Elkin, Deputy Co. Atty., Mineola, N.Y., of counsel), for defendants-appellees.

Before LUMBARD, OAKES, and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff pro se Dennis Mack, who presently stands convicted in a New York State ("State") court on two counts of robbery, appeals from a final judgment of the United States District Court for the Eastern District of New York, Eugene H. Nickerson, Judge, dismissing his complaint filed under 42 U.S.C. Sec. 1983 (1982), seeking damages totaling $761,060 from defendants sheriff and deputy sheriff (the "sheriffs") on the ground that their failure to comply with an order of the state trial court to produce a certain witness at Mack's trial deprived Mack of his Sixth Amendment right to present a defense. The district court, noting that Mack had appealed his robbery conviction and that that appeal remained pending, treated Mack's complaint as a petition for habeas corpus and dismissed it on the ground that Mack had failed to exhaust his state court remedies. On appeal, Mack contends that the district court should not have dismissed his complaint but should merely have stayed it pending the outcome of the state court appeals from the conviction. We agree and, accordingly, we vacate the judgment and remand for further proceedings.


The record in the district court reveals the following events with regard to the state court proceedings against Mack. In 1983, Mack and one Rufus Jefferson were charged with first and second degree robbery. Jefferson pleaded guilty; Mack went to trial. On February 4, 1985, the third day of trial, Mack's attorney asked the court to order the State to produce Jefferson, who was then incarcerated, as a witness for the defense. On February 5, the trial judge ordered the State Department of Corrections to deliver Jefferson into the custody of the county sheriff and ordered the sheriff to produce Jefferson at the trial on or before February 7.

The sheriff's department failed to produce Jefferson by February 11, and on that date Mack moved for a continuance. The trial court denied the motion, stating that Mack's motion for the production of Jefferson had been unduly tardy and that it thought Jefferson's testimony was unlikely to be helpful to Mack because the court had been advised that Jefferson, in his own plea allocution, had inculpated Mack as well as himself. The trial was concluded without the testimony of Jefferson, and the jury found Mack guilty. Mack was sentenced to concurrent prison terms of six to twelve years and began serving his sentence on February 13, 1985. He appealed his conviction to the Appellate Division, and, so far as we are aware, that appeal is still pending. Mack remains confined.

Mack's pro se complaint in the district court alleged that the defendants' failure to produce Jefferson violated Mack's Sixth Amendment right to present witnesses in his own behalf. The complaint did not seek his release from prison but demanded punitive damages of $10,000 against each defendant plus compensatory damages in the amount of $180 per day of past and expected confinement from February 13, 1985, through May 26, 1996.

The district court, while noting that Mack disclaimed any challenge to the validity of his conviction or to the propriety of his custody, concluded that "any damage he suffered by the alleged inaction of defendants is dependent on a determination of the invalidity of his conviction." The court thus treated the present complaint as a petition for habeas corpus and dismissed it because Mack had failed to exhaust his state court remedies.

Mack moved for a modification of the order of dismissal, urging that the action simply be stayed until his state appeals

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were exhausted. That motion was denied, and this appeal followed.


On this appeal, Mack renews his contention that his present action should not have been dismissed but should merely be stayed until the completion of his state court appeals. For the reasons below, we agree.

  1. The Nature of the Complaint

    A state prisoner may not bring a civil rights action in federal court under Sec. 1983 to challenge either the validity of his conviction or the fact or duration of his confinement. Those challenges may be made only by petition for habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 489-90, 93 S.Ct. 1827, 1836, 36 L.Ed.2d 439 (1973) (barring prisoners' Sec. 1983 suits seeking injunction against allegedly...

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