Michael B. McGann v. Thomas R. Eaton, Senate President, New Hampshire Senate

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-2864
MICHAEL B. MCGANN,
Plaintiff, Appellant,
v.
THOMAS R. EATON, SENATE PRESIDENT,
NEW HAMPSHIRE SENATE, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Torruella, Selya and Lynch,
Circuit Judges.
Michael B. McGann on brief pro se.
Daniel J. Mullen, Associate Attorney General, and Kelly A.
Ayotte, Attorney General, on brief for appellees.
August 21, 2006

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Per Curiam. Pro se appellant Michael B. McGann appeals
from the district court's order dismissing his 42 U.S.C. § 1983
complaint for failure to meet the jurisdictional requirements of
Heck v. Humphrey, 512 U.S. 477 (1994). We must affirm if, viewing
all well-pleaded facts in the complaint as true and drawing all
reasonable inferences in appellant's favor, "it is transparently
clear that the complaint, in light of the facts alleged, engenders
no viable theory of liability." Centro Medico del Turabo, Inc. v.
Feliciano de Melecio, 406 F.3d 1, 5-6 (1st Cir. 2005) (citing
Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 66
(1st Cir. 2004), and Blackstone Realty LLC v. F.D.I.C., 244 F.3d
193, 197 (1st Cir. 2001)).
Appellant alleges a wide-ranging conspiracy, involving
named appellees and others, to cover up decades of allegedly
illegal lawmaking in the State of New Hampshire, which rendered
appellant's indictment, trial, sentencing, and incarceration
unconstitutional and entitles him to damages under 42 U.S.C. §
1983. In Heck v. Humphrey, the United States Supreme Court held
that "in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harms caused by actions
whose lawfulness would render a conviction or sentence invalid,"
the plaintiff must first prove that his conviction or sentence has
been "reversed, expunged, invalidated, or impugned by grant of a
writ of habeas corpus." 512 U.S. at 486-87, 489; see also Figueroa

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v. Rivera, 147 F.3d 77, 80-81 (1st Cir. 1998) ("the impugning of an
allegedly unconstitutional conviction in a separate, antecedent
proceeding is a prerequisite to a resultant section 1983 action for
damages") (emphasis removed).
The record shows that appellant's direct appeal failed,
State of New Hampshire v. McGann, 514 A.2d 1247 (N.H. 1986), as did
his habeas petition, McGann v. Cunningham, No. 97-E-295 (Merrimack,
N.H. Superior Ct., Feb. 2, 1998), aff'd, Petition of Michael B.
McGann, No. 98-332 (N.H. Supreme Ct., Feb. 23, 1999). Having
failed to show that his conviction or sentence was set aside in a
separate, antecedent proceeding, appellant's current action
"necessarily impl[ies] the invalidity of his conviction or
sentence." Heck, 512 U.S. at 487. The Heck decision therefore
required that the district court "deny the existence of [this]
cause of action" and dismiss the complaint. Id. at 489.
The district court's order is affirmed.

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