author: COFFIN, Chief Judge.

text:
    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.

      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, Mc-ENTEE 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, 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 forma 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, 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 ?”

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); 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). 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, 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. 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.

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, from circumvention of the limitations placed upon the writ. The writ of habeas corpus is, after all, the more narrow and specific remedy. 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. The federal ruling would embarrass, and could even intrude into, the state proceedings. 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. Other disruptive consequences can be envisioned as, for example, use of a 1983 suit to circumvent state discovery limitations, or to harass witnesses. See Del-linger 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). 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.

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 proceedings will be one where completion of the state proceedings will appropriately be a prerequisite to trial of the federal claim. A denial of constitutionally protected rights may have occurred in the course of the events leading up to trial, yet may only be marginally relevant, or may even be entirely irrelevant, to the trial and appeal. For example, a false arrest, or an illegal search and seizure, or wiretap, may constitute a compensable wrong while not undergirding the validity of the criminal conviction to which it might be related. In such a situation both the right infringed and the measure of compensable damage may be assayed wholly apart from the question of whether conviction was proper. The violation of Fourth Amendment or privacy rights may exist independently, and may be dealt with without concern with the question of guilt or innocence or of whether a fair trial was provided.

A more difficult question might arise where it is claimed that a violation of federal rights occurred which constituted “harmless error” at trial. Here a finding may be made that rights were violated without questioning the validity of conviction. But, particularly where only nominal damages could be assessed, a federal court might properly be reluctant to proceed, aware that the characterization of an error at trial as harmless might not be made with assurance, and could change as the state cause made its way through appellate courts. On the other hand, where the effect of the error can be confidently said to be clearly harmless in the sense of not affecting the validity of conviction, but was the result of such outrageous or malicious motivation that there would exist a real possibility that punitive damages would be awarded, a federal court might properly permit the civil rights action to go forward immediately. As in any area of the law, marginal eases will arise, calling for the exercise of a delicate judgment. The first question will be whether or not the validity of a state criminal conviction which has not yet completed the full course of both trial and appeal will be a necessary issue in the federal action. If so, the federal action must be either dismissed or held in abeyance until the state proceedings are completed. If the answer to this first question is unclear, then the federal court may properly weigh the potential harm to comity and the orderly administration of criminal justice against the potential harm to the litigant, in reaching its decision.

From the foregoing analysis it is clear that dismissal of the equitable claims in these two instant cases was proper. Dismissal of the damage action in No. 73-1194 was also proper, since that suit would manifestly require the court to rule upon the validity of the state criminal conviction. However, the question of dismissal of the damage claim in No. 73-1005 is much less certain. Guerro’s suit involves matters which may not require the court to consider the question of the legality of his conviction. The record is quite sparse, and the matter not free from doubt. We therefore remand to the district court for consideration in light of what we have said today.

II. OTHER MATTERS

The complaint in No. 73-1005 named as defendants Justice Meagher of the Superior Court of Massachusetts, the District Attorney of Worcester County, two officers of the Worcester Police Department, and one named state police officer and several unnamed state police officers. The district court dismissed, inter alia, on various grounds of immunity. On motion for summary affirmance under Local Rule 12, we affirmed the dismissal of the complaint as to defendant Meagher on grounds of judicial immunity. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). However, we declined to summarily affirm the dismissal of the action as to the remaining defendants. We now conclude that the dismissal as to these remaining defendants on the grounds of immunity at this preliminary point in the proceedings was in error.

Undeniably, the complaint upon which this action is based is confusing and verbose. Nevertheless, it may be read as alleging that the Worcester police officers acted in bad faith in knowingly obtaining the wiretap order and a search warrant on the basis of perjured testimony, and that the Worcester district attorney and the state police officers cooperated with them in these ventures. As the Supreme Court has said in reversing the dismissal of an action brought under section 1983, “[such allegations] however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence.” Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Moreover, Haines requires that we read the allegations of a pro se complaint liberally, and not dismiss the action unless it appears “beyond doubt that the plaintiff can prove no set of facts . . . which would entitle him to relief.” 404 U.S. at 521, 92 S.Ct. at 596, quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). While plaintiff’s allegations may perhaps turn out to be insubstantial, we cannot make such a determination and apply the test for official immunity recently set out in Scheuer v. Rhodes, 416 U.S. 232, 247-249, 94 S.Ct. 1683, 1692, 40 L.Ed.2d 90 (1974) at this stage of the proceedings.

The police defendants argue, however, that in wiretapping the plaintiff’s telephone, they were acting pursuant to a valid court order and are therefore immune from suit under Dunn v. Gazzola, 216 F.2d 709 (1st Cir. 1954), and Francis v. Lyman, 216 F.2d 583 (1st Cir. 1954). This argument ignores the fact that the wiretap order was allegedly obtained by the defendants in bad faith and on the basis of perjured testimony. Such conduct would not come within the official immunity doctrine enunciated in the above cases, which both place emphasis on the good faith of the law enforcement officials there involved. See also Pierson v. Ray, supra, 386 U.S. at 557, 87 S.Ct. at 1219. In a similar vein, the Worcester County district attorney argues that prosecutors enjoy an absolute immunity from suit when acting within their quasi-judicial capacity. Assuming this proposition to be sound, we note that this absolute immunity does not extend to acts essentially unrelated to the judicial process, i. e., acts done in the prosecutor’s investigatory role. See Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965); Lewis v. Brautigam, 227 F.2d 124 (5th Cir. 1955); see also Littleton v. Berbling, 468 F.2d 389, 410 (7th Cir. 1962), vacated as moot, 414 U.S. 514, 94 S.Ct. 685, 38 L.Ed.2d 694 (1974). In the present case, it is alleged that the district attorney cooperated with the police defendants in obtaining a search warrant based on perjured testimony. As stated in Lewis v. Brautigam, supra, 227 F.2d at 129, “[i]t would be wrong to hold the officers liable but the State’s Attorney exempt.”

[9] We also find no merit in the suggestion that the immunity from suit under section 1983 accorded to municipal bodies and their police departments under the doctrine of Henschel v. Worcester Police Dept., 445 F.2d 624 (1st Cir. 1971) can be extended so as to insulate police officers from liability merely because of the provisions of Mass.G.L. ch. 41 § 100, which provides for indemnification of such officers by their public employers for expenses or damages incurred in a law suit arising out of the performance of their duties. This would mean that any state or municipality could in effect make section 1983’s damage remedy inoperative simply by passing a similar indemnification statute, and we do not believe that Congress, by limiting liability under section 1983 to “person[s]”, intended to allow such a veto power to be exercised over its historic enactment.

The dismissal of the action under 42 U.S.C. § 1985(3) is affirmed, since the complaint makes no allegation of any class-based discrimination against the plaintiff. Griffin v. Breckinridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), Brieker v. Crane, 468 F.2d 1228 (1st Cir. 1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1368, 35 L.Ed.2d 592 (1973).

For the reasons set forth above the dismissal by the district court of the complaint in No. 73-1194 is affirmed. The dismissal of the complaint in No. 73-1005 is affirmed as to the action under 42 U.S.C. § 1985(3), and as to the requests for declaratory relief under 42 U.S.C. § 1983, but is reversed as to the claim for damages under section 1983. The case is remanded for further disposition not inconsistent with this opinion.

      . James J. Pina is also a plaintiff-appellant in this case.

      , Gome» is omitted from the Memorandum and Order in No. 73-1005.

      . Several other questions were propounded, but the parties and the amicus have generally refrained from dealing with them, and review of the scanty record in these cases leads us to agree that treatment of the issues raised would be premature.

      . “When federal claims are premised on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) — as they are here — we have not required exhaustion of state judicial or administrative remedies, recognizing the paramount role Congress has assigned to the federal courts to protect constitutional rights.” Steffel v. Thompson, 415 U.S. 452, 472, 94 S.Ct. 1209, 1222, 39 L.Ed.2d 505 (1974).

      . See generally, Developments in the Law: Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1094 (1970) ; Note, Limiting the Section 1983 Action in the Wake of Monroe v. Pape, 82 Harv.L.Rev. 1486 (1969); Chevigny, Section 1983 Jurisdiction: A Reply, 83 Harv.L.Rev. 1352 (1970).

      . The language of section 1983, which speaks in terms of “deprivation of . . . rights, privileges, or immunities secured by the Constitution and laws . . . .’’is broad enough to include an illegal deprivation of physical liberty, which is the essence of habeas corpus. See Preiser v. Rodriguez, supra, 411 U.S. at 482-489, 93 S.Ct. 1689.

      . The issue facing the Court in Preiser was whether prison inmates were illegally deprived of “good time”.

      . Most courts which have considered the question of whether an action for damages under section 1983 which raises issues which are or could be the subject of state proceedings can be brought only after completion of those proceedings have concluded that such exhaustion is required. They have done so on the basis of two theories. One is that the damage action would be an attempt to “circumvent” habeas corpus. See Howard v. Rolufs, 338 F.Supp. 697 (E.D.Mo.1972); Moore v. Frazier, 316 F.Supp. 318 (D.Neb. 1970); Smith v. Logan, 311 F.Supp. 898 (W.D.Va.1970); King v. McGinnis, 289 F.Supp. 466 (S.D.N.Y.1968); Greene v. New York, 281 F.Supp. 579 (S.D.N.Y.1967); Martin v. Roach, 280 F.Supp. 480 (S.D.N.Y. 1966); Lombardi v. Peace, 259 F.Supp. 222 (S.D.N.Y.1968). The other is that release from custody via a habeas corpus petition is a prisoner’s “best remedy” and that he must pursue that remedy, with its exhaustion requirement, before he may bring his damages claim. See Alexander v. Emerson, 489 F.2d 285, 286 (5th Cir. 1973); Howard v. Rolufs, supra; Moore v. Frazier, supra; Smith v. Logan, supra; Greene v. New York, supra; Lombardi v. Peace, supra.

        In our own case of Still v. Nichols, 412 F.2d 778 (1st Cir. 1969) after finding that claims for equitable relief submitted by a a parole violator must be dismisesd for failure to exhaust state remedies, we said the following concerning his claim for monetary relief :
      “It has been held that the same dismissal must be ordered with respect to a claim for money damages .... This is not to say that state action must always precede a suit for civil rights. Monroe v. Pape .... However, a damage action cannot be prosecuted as a guise or method of obtaining release from custody, but must await the complainant’s release through other channels.” 412 F.2d at 779.
      On the other hand, some courts have adopted neither the circumvention nor the best remedy approaches, but have instead reached an entirely opposite conclusion. They have without detailed theorizing found that no exhaustion requirement should be imposed. See Kalec v. Adamowski, 406 F.2d 536 (7th Cir. 1969); Edwards v. Schmidt, 321 F.Supp. 68 (W.D.Wis.1971); see also Gaito v. Strauss, 249 F.Supp. 923, 930 (W.D.Pa.), aff’d on different grounds, 368 F.2d 787 (3rd Cir. 1966), cert. denied, 386 U.S. 977, 87 S.Ct. 1173, 18 L.Ed.2d 139 (1967); cf. Ray v. Fritz, 468 F.2d 586 (2d Cir. 1972); Ney v. California, 439 F.2d 1285 (9th Cir. 1971).

      . Although habeas may be used to secure relief relating to the conditions of confinement, Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), as well as its duration, the Preiser circumvention rule was meant only to protect the integrity of the latter, traditional, function of habeas, see 411 U.S. at 499-500, 93 S.Ct. 1827.

      . See 411 U.S. at 489-490, 93 S.Ct. 1827.

      . See generally, Comment, State Prisoners’ Suits: Proper Forum, Choice of Remedy, and Effect of Judgment, 51 Texas L.Rev. 1364 (1973).

      . Cf. Steffel v. Thompson, 415 U.S. 452, 476, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) (White, J., concurring), Samuels v. Mackell, 401 U.S. 66, 72, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971).

      . See Comment, State Prisoners’ Suits, supra at 1403.

      . See also Odsen v. Moore, 445 F.2d 806 (1st Cir. 1971).

      . Another advantage to deferring the civil rights damage action in this setting is judicial economy. Once the state criminal process is completed, both habeas corpus and civil rights damage relief can be sought simultaneously in the federal district court. It may even be possible to consolidate the suits. The burden upon -both the prisoner and his adversaries, as well as upon the federal courts, is consequently reduced. Moreover, the amount of damages that may be recoverable will in many cases be more easily and surely determined, and attack for failure to mitigate, or for speculativeness will be more difficult.

      . See Mulligan, v. Schlachter, 389 F.2d 231, 232 (6th Cir. 1968).

      . Cf. Basista v. Weir, 340 F.2d 74, 87 (3d Cir. 1965).

      . We would assume that in the usual case the fact that post conviction relief had not been pursued and exhausted would not be relevant so long as direct appeal had run its course, cf. Makarewicz v. Scafati, 438 F.2d 474, 476 (1st Cir. 1971) (for purposes of exhaustion of remedies for federal habeas corpus, utilization of post conviction remedies is not necessary where the relevant issue had been reviewed on direct appeal by the state supreme court).

      . The state police defendants contend that the facts alleged in the complaint do not implicate them in the supposedly illegal wiretap. This argument, however, is based upon an interpretation of the complaint which we find to be premature at this stage.

      . “[I]n varying scope, a qualified immunity is available to officers of the executive branch of Government, the variation dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good faith belief, that affords basis for qualified immunity of executive officers for acts performed in the course of official conduct.”

      . This court in Dunn stated that, “It then would seem to be a preposterous result if the superintendents of the two penal institutions were held liable in damages for false imimsonment, when all they did, in the line of official duty, so far as is charged in the allegations of the complaint, was to execute in good faith a judicial warrant of commitment issued by a court of general jurisdiction and in all respects fair and regular on its face.” 216 F.2d at 588.

      . While the complaint does not so specify, it is dear that this is the subsection relied upon.

      . The court has been advised by amicus that appellant Andrews has very recently had his conviction reversed on appeal. Our decision in the instant case means only that the district court was correct in dismissing Andrews’ case under the then existing circumstances. Whether this appellant is now free to initiate suit again in federal court is a matter upon which we intimate no view.


source: Caselaw Access Project

license: Public Domain

text:
    Gerald MASTRACCHIO, Petitioner, Appellant, v. Lieutenant Angelo RICCI and Providence Police Department, Respondents, Appellees.
    No. 74-1045.
    United States Court of Appeals, First Circuit.
    Submitted May 9, 1974.
    Decided June 24, 1974.

      Gerald Mastracchio on brief pro se.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

This is a civil rights suit under 42 U.S.C. § 1983 in which plaintiff seeks compensatory and punitive damages against the Providence, Rhode Island Police Department and against a then Sergeant Ricci, a member of that department, based upon the allegation that defendant Ricci committed perjury during the state court trial in which plaintiff was convicted of murder. Because plaintiff's appeal of his conviction to the Rhode Island Supreme Court “raised like issues as have been raised in the instant matter”, the federal suit was stayed by the district court by agreement of counsel pending the outcome of that appeal. After the Rhode Island Supreme Court affirmed plaintiff’s conviction the court below granted summary judgment for defendants sua sponte. The district court reasoned that the state judgment acted to bar the complaint by means of the operation of principles of collateral estoppel, relying upon our decision in Cardillo v. Zyla, 486 F.2d 473 (1st Cir. 1973). To the extent that plaintiff presented new evidence the court stated that, “if the plaintiff is now claiming that he has discovered new exculpatory evidence, it appears that his motion should be addressed to the State Courts by way of a motion for a new trial.”

Plaintiff, who brings this appeal pro se, has raised two issues for review. First, he urges that the court below erred in requiring him to present his new evidence to the state courts before he could use it as the basis for a federal civil rights suit. He argues that this amounted to a requirement of exhaustion of remedies, and that such a requirement cannot be applied to civil rights actions. The second issue raised is whether a state criminal conviction may be used to bar a civil rights suit for damages by operation of principles of collateral estoppel. Both of these issues raise points not previously considered by this court in this precise context.

In Guerro v. Mulhearn, 498 F.2d 1249 (1st Cir.) this court held that a civil rights damage action brought during the pendency of state criminal proceedings (including appellate proceedings) must be deferred until the end of those proceedings if the validity of the state conviction would be an issue in the federal action. Although sensitive to the well-established rule, and the strong policies which it protects, that exhaustion is not required in civil rights actions, we found that considerations of federalism, the orderly administration of criminal justice, and the integrity of the writ of habeas corpus dictated the creation of an exception.

This case presents a somewhat different situation. No state criminal proceedings are ongoing, the direct criminal appeal having run its course. Therefore, the impact of federal proceedings upon the state judicial system, upon the administration of justice and upon the province of the Great Writ are all attenuated. But plaintiff states in his brief that he is in the process of presenting his newly discovered evidence to the Rhode Island courts. Thus, while it is possible that cases may arise in a context like this one in which the policies which call for deferral of the federal action will not be sufficiently at stake to make such deferral necessary, that is not true here. Since the prospect of further state court action is very real, and since by its very nature the purpose of this state proceeding will be to call in question the validity of the criminal conviction, the district court properly decided that the matter in issue which had not already been presented to the state courts should not be heard in federal court until the state action was completed.

The second issue raised by plaintiff concerns the collateral estoppel effect to be given to his criminal conviction. The district court rested its finding against plaintiff on this point upon Cardillo v. Zyla, 486 F.2d 473 (1st Cir. 1973). But Cardillo involved a federal diversity action which followed a criminal conviction. The novel question here presented is whether our holding in Cardillo is applicable to the situation where the federal action is brought under the Civil Rights Act.

The Supreme Court has never ruled on the question of the applicability of principles of res judicata and collateral estoppel to actions under section 1983. In Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) the majority noted that, “res judicata has been held to be fully applicable to a civil rights action brought under § 1983. Coogan v. Cincinnati Bar Assn., 431 F.2d 1209, 1211 (CA6 1970); Jenson v. Olson, 353 F.2d 825 (CA8 1965); Rhodes v. Meyer, 334 F.2d 709, 716 (CA8 1964); Goss v. Illinois, 312 F.2d 257 (CA7 1963).” 411 U.S. at 497, 93 S.Ct. at 1840. In dissent, Mr. Justice Brennan agreed that several lower federal courts had assumed res judicata was applicable to § 1983 actions but thought that, “in view of the purposes underlying enactment of the Act — in particular, the congressional misgivings about the ability and inclination of state courts to enforce federally protected rights . . . — that conclusion may well be in error.” 411 U.S. at 509 n. 14, 93 S.Ct. at 1846 (Brennan, J., dissenting). A few courts have also expressed misgivings, most notably the Ninth Circuit in Ney v. California, 439 F.2d 1285 (9th Cir. 1971), which noted that,

“if a successful state prosecution, based upon the use of information obtained by violating the defendant’s constitutional rights, could bar a civil rights action against the police for violating his rights, either by analogy to the law of malicious prosecution or on theories of res judicata or estoppel by judgment, the Civil Rights Act would, in many cases, be a dead letter.” 439 F.2d at 1288.

This concern was echoed in Ames v. Vavreck, 356 F.Supp. 931, 940-941 (D.Minn.1973) and in Moran v. Mitchell, 354 F.Supp. 86 (E.D.Va.1973). One district court has even held that state convictions do not have a collateral estoppel effect upon section 1983 actions, Wecht v. Marsteller, 363 F.Supp. 1183, 1190 (W.D.Pa.1973).

Nevertheless, it now appears well established that when a civil rights action is brought in federal court which presents the same issue as was decided in a prior state civil action, that prior state judgment may have a collateral estoppel (or res judicata) effect upon the federal suit. Bricker v. Crane, 468 F.2d 1228, 1231 (1st Cir. 1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1368, 35 L.Ed.2d 592 (1973); P. I. Enterprises v. Cataldo, 457 F.2d 1012, 1014 (1st Cir. 1972); see also Garner v. Louisiana State Board of Education, 489 F.2d 91 (5th Cir. 1974); Parker v. McKeithen, 488 F.2d 553 (5th Cir. 1974); Lackawanna Police Benevolent Ass’n. v. Balen, 446 F.2d 52 (2d Cir. 1971); Taylor v. New York City Transit Authority, 433 F.2d 665 (2d Cir. 1970); Coogan v. Cincinnati Bar Ass’n., 431 F.2d 1209 (6th Cir. 1970); Scott v. California Supreme Court, 426 F.2d 300 (9th Cir. 1970); Frazier v. East Baton Rouge Parish School Board, 363 F.2d 861 (5th Cir. 1966); Jenson v. Olson, 353 F.2d 825 (8th Cir. 1965); Lavasek v. White, 339 F.2d 861 (10th Cir. 1965); Chance v. County Bd. of School Trustees, 332 F.2d 971 (7th Cir. 1964). The same is true if the prior civil action was in federal court, Rhodes v. Meyer, 334 F.2d 709 (8th Cir.), cert. denied, 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186 (1964). This result may be reached without regard to highly technical notions of mutuality, P. I. Enterprises v. Cataldo, supra, 457 F.2d at 1015.

The same principles have been applied by a number of courts to the situation where the prior judgment is a state criminal conviction, see Thistlethwaite v. City of New York, 497 F.2d 339 (2d Cir. 1974); Williams v. Liberty, 461 F.2d 325 (7th Cir. 1972); Metros v. United States District Court, 441 F.2d 313, 316 (10th Cir. 1971); Kauffman v. Moss, 420 F.2d 1270 (3d Cir.), cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970); Shank v. Spruill, 406 F.2d 756 (5th Cir. 1969); Goss v. Illinois, 312 F.2d 257 (7th Cir. 1963); Burchett v. Bower, 355 F.Supp. 1278 (D.Ariz.1973); Moran v. Mitchell, 354 F.Supp. 86 (E.D.Va.1973); Palma v. Powers, 295 F.Supp. 924, 937 (N.D.Ill.1969); see also Sullivan v. Murphy, 156 U.S.App.D.C. 28, 478 F.2d 938 (1973); Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968); cf. Willard v. United States, 422 F.2d 810 (5th Cir.), cert. denied, 398 U.S. 913, 90 S.Ct. 1714, 26 L.Ed.2d 76 (1970).

In this circuit a holding that a state criminal conviction can have a collateral estoppel effect upon a federal civil rights action can be reached simply by analytically combining our holdings in Bricker v. Crane, supra, and P. I. Enterprises v. Cataldo, supra (civil rights action preceded by state civil judgment), with our holding in Cardillo v. Zyla, supra (federal diversity action preceded by criminal conviction). As shown above, this result accords with the overwhelming weight of authority. As to the scope of this collateral estoppel, we think it proper to repeat what we have said on this topic before. “Collateral estoppel operates, of course, only as to matters actually litigated and decided at the prior trial. See Palma v. Powers, [supra], citing Cromwell v. County of Sac, 94 U.S. 351, 354, 24 L.Ed. 195 (1876).” Cardillo v. Zyla, 486 F.2d 473, 475 (1st Cir. 1973). Accord, P. I. Enterprises v. Cataldo, 457 F.2d 1012, 1015 (1st Cir. 1972). Other courts have adopted a similar position. Williams v. Liberty, 461 F.2d 325, 327 (7th Cir. 1972); Kauffman v. Moss, 420 F.2d 1270 (3d Cir.), cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970); Ames v. Vavreek, 356 F.Supp. 931, 941 (D.Minn.1973); Moran v. Mitchell, 354 F.Supp. 86 (E.D.Va.1973); see also Ney v. California, 439 F.2d 1285, 1288 (9th Cir. 1971); Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968); cf. Metros v. United States District Court, 441 F.2d 313, 317 (10th Cir. 1971). Indeed, Judge Stahl has written that “[reasonable doubt as to what was decided by a prior judgment should be resolved against using it as an estoppel.” Kauffman v. Moss, supra, 420 F.2d at 1274.

In the instant case, since the antecedent action was a criminal trial, and since such trials do not re suit, generally, in explicit findings as to anything but the ultimate issue of guilt or innocence, the proper course in determining whether collateral estoppel principles are to operate in the federal trial is set out in Cardillo v. Zyla, supra. There the court “examined the record of the antecedent criminal case to determine the issues decided by that judgment”. 486 F.2d at 475. Collateral estoppel was found operative because, “Cardillo’s present civil claims are based on issues whose earlier determination was essential to the criminal judgment . . . .’’Id.

The court below reasoned that, “If the alleged perjui'e [sic] testimony was indeed essential to a jury’s finding of guilt, then the issues have been resolved against plaintiff in State Courts. If the alleged perjure [sic] testimony was not essential to his conviction below, then even if the testimony was false, plaintiff has not suffered any damages as a result thereof.” We have examined the amended complaint, and can find nothing in it to indicate that infringement of any federally protected right is involved other than the right to a fair trial. Thus, while it is quite possible that cases may arise in which civil rights claims based upon actions before or at trial would not be “issues whose earlier determination was essential to the criminal judgment”, Cardillo v. Zyla, supra, 486 F.2d at 475, but would nevertheless be compensable, that is not true here. Under these circumstances the district court’s equation was correct.

Affirmed.

      . The term res judicata is sometimes used generically to cover a number of related principles. More narrowly, res judicata refers to preclusion of a cause of action, while collateral estoppel refers to preclusion of an issue. See Palma v. Powers, 295 F.Supp. 924, 932 n. 1 (N.D.Ill.1969), IB Moore’s Federal Practice K 0.401 (1974).

      . In Moran v. Mitchell, Judge Merhige suggested the possibility of an exception to the general applicability of collateral estoppel to section 1983 actions in the situation where, because of limitations placed upon the availability of federal habeas corpus, for example, the custody requirement, a plaintiff might otherwise have no federal forum available to him in which to seek vindication of his federally protected rights.
      It may also be worthwhile to note another aspect of the relationship between habeas and res judicata/collateral estoppel. As pointed out by the Court in Fay v. Noia, 372 U.S. 391, 423, 83 S.Ct. 822, 840, 9 L.Ed.2d 837 (1963), “the familiar principle that res judicata is inapplicable in habeas proceedings ... is really but an instance of the larger principle that void judgments may be collaterally impeached.” Thus, once a state judgment has been found void in a federal habeas action, it should then also be void for res judicata/collateral estoppel purposes in a civil rights action.

      . For example, it might be claimed that before or during trial rights of privacy, or free speech, or freedom from unlawful pretrial incarceration have been infringed, and these could constitute compensable wrongs wholly apart from the question of the constitutional validity of conviction.


author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    Francis LOVELY, Plaintiff, Appellant, v. Oscar LALIBERTE et al., Defendants, Appellees.
    No. 74-1062.
    United States Court of Appeals, First Circuit.
    Argued June 4, 1974.
    Decided June 24, 1974.

      Charles G. Douglas, III, Concord, N. H. , with whom Perkins, Douglas & Brock, Concord, N. H., were on brief, for plaintiff, appellant.
    N. George Papademas, Lebanon, N. H., for Oscar Laliberte, defendant, appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

Francis Lovely brought an action in the federal district court against Oscar Laliberte, alleging that Laliberte was maliciously and unconstitutionally employing state process to evict him from Laliberte’s mobile home park. Allegedly Laliberte’s true motivation for the eviction stemmed from Lovely’s public protests over the condition and scarcity of mobile home parks, his petitions to alter local zoning ordinances, and his “tenant group activities”. The action, brought under 42 U.S.C. § 1983, seeks to bring Lovely’s situation within the logic of Lavoie v. Bigwood, 457 F.2d 7 (1st Cir. 1972), and Edwards v. Habib, 130 U.S.App.D.C. 126, 397 F.2d 687 (1968). After hearing, the district court dismissed the action on the ground that it was barred by res judicata. We affirm.

Laliberte had originally sought a Writ of Possession, N.H.R.S. 540:12, against Lovely in the Lebanon District Court, Lebanon, New Hampshire. The court ordered issuance of the writ, and Lovely exercised his right to a de novo trial in the New Hampshire Superior Court, a court of general jurisdiction in which legal and equitable defenses are broadly available and counterclaims may be filed. At the superior court hearing the controversy centered around whether Lovely and his family by keeping rabbits and dogs and engaging in other purportedly offensive conduct, had violated the landlord’s rules. Lovely did not raise his First Amendment claim either as a defense or as a counterclaim. The court ordered Lovely’s eviction, and Lovely did not appeal, preferring instead to institute the present federal court proceeding.

Res judicata precludes even “perfect defenses ... of which no proof was offered .... [A] judgment estops not only as to every ground of recovery or defense actually presented in the action, but also as to every ground which might have been presented, . . .” Cromwell v. County of Sac, 94 U.S. 351, 352-353, 24 L.Ed. 195 (1877). In Preiser v. Rodriguez, 411 U.S. 475, 497, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), the Supreme Court indicated that res judicata would be fully applicable to § 1983 actions. Two of the cases cited therein with approval reiterated that res judicata, even in the context of § 1983, bars all grounds that might have been, but were not, presented to the state court. Coogan v. Cincinnati Bar Ass’n, 431 F.2d 1209, 1211 (6th Cir. 1970); Rhodes v. Meyer, 334 F.2d 709, 716 (8th Cir. 1964), cert. denied, 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186 (1964). And see, e. g., Garner v. Louisiana State Board of Education, 489 F.2d 91 (5th Cir. 1974); Frazier v. East Baton Rouge Parish School Board, 363 F.2d 861, 862 (5th Cir. 1966).

Res judicata is, of course, different from collateral estoppel, which we have discussed and applied in recent cases. Mastracchio v. Ricci, 498 F.2d 1257 (1st Cir. 1974); Cardillo v. Zyla, 486 F.2d 473 (1st Cir. 1973); Bricker v. Crane, 468 F.2d 1228 (1st Cir. 1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1368, 35 L.Ed.2d 592 (1973); P I Enterprises v. Cataldo, 457 F.2d 1012 (1st Cir. 1972). In those there were different parties in the suit preceding the federal suit. We applied the doctrine of collateral estoppel as to issues actually litigated and decided by the first judgment. Res judicata, when the suit is between the same parties and concerns the same operative nucleus of fact, is of broader scope and bars issues even if unlitigated. This familiar role is not diminished because Lovely’s federal case alleges a violation of constitutional rights; state courts, too, are guardians of the federal constitution. Robb v. Connolly, 111 U.S. 624, 637, 4 S.Ct. 544, 28 L.Ed. 542 (1884).

Citing England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964), Lovely argues that decision of the federal constitutional issue is not precluded as it was not presented to and decided by the state tribunal. The ease does not support this position. It instead indicates that if a constitutional issue is so presented and decided, it cannot be reargued in federal court. It does not discuss the consequences of failing to raise the issue in the state proceedings, although it suggests, in abstention cases in which the plaintiff has initially chosen a federal forum only to be told to take state law issues back to the state, that the plaintiff may preserve his federal issue for the federal court by telling the state court of the existence of the issue and expressly reserving it. It is possible that a parallel reservation might preserve a federal constitutional defense and counterclaim in a state possession action. But the proper procedure would be for the defendant to notify the state court that he was preserving the issue. Lovely did not do so, and therefore cannot escape the ordinary effect of res judicata.

Finally, Lovely seems to argue that he should be spared the harsh application of res judicata because his attorney in the state proceeding was derelict in failing to present the constitutional defense. But the principle behind res judicata, the prevention of duplicative litigation, has the same force regardless of the ultimate “reason” for the second suit. An attorney’s actions in litigation bind the client and the client’s later doubts concerning the course pursued by his attorney are not a good justification for subjecting the opposing party to continuous litigation.

Affirmed.

      . There is mention in the transcript of the superior court hearing of the possibility that Laliberte was “retaliating” against Lovely for his speech activities. It arises, however, in the context of a denial by Laliberte, elicited by bis attorney, that such motivation existed. Lovely’s attorney at the Possession action testified in federal court at the hearing on November 14, 1973, that he had declined to press the First Amendment defense in the state action; although he was aware that he could do so he thought it would be unwise. The attorney did, however, with the knowledge and acquiescence of opposing counsel, visit the chambers of the superior court judge and leave with him copies of the Lavoie and Habib opinions.

      . There is no general right of removal based upon a federal defense, whether statutory or constitutional. The ALI proposals that would make it so have met with some criticism. H. Friendly, Federal Jurisdiction: A General View 124-27 (1973) ; Currie, The Federal Courts and the American Law Institute II, 36 U.Chi.L.Rev. 271-75 (1969). The only statute providing for federal constitutional defense removal, 28 U.S.C. § 1443, has been severely limited by the Supreme Court. City of Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966); Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966). The plaintiff’s proposed use of § 1983 would effectively allow removal based upon federal defenses by allowing collateral attack of state judgments that include, or could include, federal elements. Whatever may be the pros and cons of such a development, it is not presently a part of our law.

      . We need not decide whether circumstances of this nature would ever justify a state defendant’s bringing a federal § 1983 action before the state trial seeking an injunction or declaratory judgment. See Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972); Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974).