Merrifield v. DeMello ( 1997 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-2209
MARK R. MERRIFIELD,
Plaintiff, Appellant,
v.
JOHN DEMELLO, BARNSTABLE COUNTY SHERIFF, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and Boudin, Circuit Judge.
Mark R. Merrifield on brief pro se.
Joan M. LeGraw, Robert S. Troy and Robert S. Troy and Associates,
on brief for appellees, John DeMello, Barnstable County Sheriff's
Dept., Robert A. O'Leary, John W. Doane, Victoria H. Lowell, and
Barnstable County.
John J. O'Brien, Jr. and Kirby, O'Brien & von Rosenvinge on brief
for appellees, Nancy Blanchard, Neil Nightingale and The Barnstable
Police Department.
Scott Harshbarger, Attorney General, and William J. Meade,
Assistant Attorney General, on Motion to Dismiss Appeal or for Summary
Affirmance and Memorandum of Law in Support for appellees, Philip
Rollins and J. Thomas Kirkman.
June 18, 1997
Per Curiam. Pro se appellant Mark Merrifield
appeals from the district court's grant of summary judgment
against him in his 42 U.S.C. 1983 suit against various
local government defendants. After careful review of the
record, we conclude that most of Merrifield's contentions on
appeal lack merit. Accordingly, we affirm judgment in
defendants' favor essentially for the reasons given in the
district court's orders issued on December 19, 1995, and on
July 2, 1996. However, we affirm dismissal of Merrifield's
claims against Barnstable town police officer Nancy Blanchard
for the reasons given below.
We note that the record gives rise to an isolated
issue of fact as to whether sworn statements or affidavits
were submitted. The Fourth Amendment warrant clause is
directed to sworn statements and it is not certain that sworn
statements, either written or oral, were submitted in support
of the arrest warrant which Officer Blanchard obtained and
relied on in arresting Merrifield on September 17, 1992.
But, for reasons that follow, we do not think any purpose
would be served by a remand to explore this factual issue in
further detail or to determine whether on the facts so found,
a constitutional violation might exist (and, if so, whether
any damages could be established).
The reason why this is unnecessary is that the thrust of
Merrifield's 1983 action is for malicious prosecution, not
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merely for wrongful arrest. Merrifield asserts not just an
absence of sworn affidavits to support the arrest warrant,
but that the charges against him were "bogus", that the
warrant was maliciously obtained, and that, in effect, it
lacked any factual basis. A judgment in Merrifield's favor
would consequently imply the invalidity of his subsequent
conviction of the charges for which he was arrested.
Accordingly, since Merrifield has not shown that his
conviction has already been invalidated, his suit must be
dismissed. See Heck v. Humphrey, 512 U.S. 477, 486 (1994)
(if judgment in a 1983 plaintiff's favor would necessarily
imply the invalidity of his conviction, the complaint must be
dismissed unless the plaintiff can demonstrate that the
conviction has already been invalidated). We note that a
dismissal under Heck is without prejudice. See Guzman-Rivera
v. Rivera-Cruz, 29 F.3d 3, 6 (1st Cir. 1994).
During the course of this action, the district
court dismissed two defendants -- Clerk Magistrate Omer
Chartrand and defense counsel John Biega -- without prejudice
since they had never been served with process. We modify the
judgment in their favor to be with prejudice since Merrifield
could not bring suit against them at all under 1983.
Chartrand was absolutely immune for his decision to issue the
arrest warrant. See Scott v. Dixon, 720 F.2d 1542, 1546
(11th Cir. 1983), cert. denied, 469 U.S. 832 (1984); see also
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Boyer v. City of Washington, 971 F.2d 100, 102 (8th Cir.
1992) (per curiam) (dictum); Torres Ramirez v. Bermudez
Garcia, 898 F.2d 224, 228 (1st Cir. 1990) (by implication).
Since defendant John Biega was appointed by the state court
to defend Merrifield against the criminal charges against
him, his actions did not constitute state action under 1983
and he could not be sued. See Polk County v. Dodson, 454
U.S. 312, 325 (1981).
Affirmed. We modify the judgment of dismissal
against defendant Nancy Blanchard to be without prejudice and
the judgment of dismissal against defendants Omer Chartrand
and John Biega to be with prejudice.
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