Forte v. Sullivan

• Court: Court of Appeals for the First Circuit
• Decided: June 18, 1992
• Docket: 91-2235
• Status: Published

Opinion

USCA1 Opinion

          June 18, 1992         [NOT FOR PUBLICATION]

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No. 91-2235

MICHAEL B. FORTE,

                                Plaintiff, Appellant,

                                          v.

                               JANIS SULLIVAN, ET AL.,

                                Defendants, Appellees.

                                  __________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Edward F. Harrington, U.S. District Judge]
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                                 ___________________

                                        Before

                              Torruella, Circuit Judge,
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                           Campbell, Senior Circuit Judge,
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                              and Selya, Circuit Judge.
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                                 ___________________

               Michael B. Forte on brief pro se.
               ________________
               Scott Harshbarger, Attorney General, Massachusetts, and Mary
               _________________                                       ____
          E. McLaughlin,  Assistant  Attorney General,  Department  of  the
          _____________
          Attorney General, on brief for appellees.

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                                  __________________

Per Curiam.  The appellant, Michael Forte, was convicted
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            of a  crime, not identified in the record, after a trial in a

            state court  in Massachusetts.   He sued Janis  Sullivan, the

            court  reporter who  prepared  the transcript  of the  trial,

            alleging that  Sullivan had deprived  him of due  process and

            equal protection of law, in violation of 42 U.S.C.   1983, by

            producing a  transcript that was "grossly,"  "materially" and

            "substantially" altered in some otherwise-unspecified manner.

                 The district court initially dismissed Forte's complaint

            as frivolous under 28 U.S.C.   1915(d), but after we remanded

            the matter for further  consideration, Forte v. Sullivan, 935
                                                   _____    ________

            F.2d  1 (1st  Cir.  1991) (per  curiam),  the district  court

            granted Sullivan's motion  to dismiss on  the ground that  "a

            court reporter's  judicial acts  are protected  by [absolute]

            quasi-judicial   immunity,"  and   "the  production   of  the

            transcript of a trial  record is basic and intrical  [sic] to

            the  judicial  process  and  thus  constitutes  [a]  judicial

            act[]."  This appeal followed.  

                 We need not decide  whether the district court correctly

            determined  that a  court  reporter is  entitled to  absolute

            immunity from  a lawsuit  alleging that  she altered  a trial

            transcript.  Compare Scruggs v. Moellering, 870 F.2d 376, 377
                         _______ _______    __________

            (7th Cir. 1989) (absolute immunity) with Green v. Maraio, 722
                                                     _____    ______

            F.2d  1013, 1018-19 (2d Cir.  1983) and Slavin  v. Curry, 574
                                                    ______     _____

            F.2d   1256,  1265  (5th  Cir.  1978)  (qualified  immunity).

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"Courts  of appeals can affirm on any ground presented by the

            record."   Acha v. United States,  910 F.2d 28,  30 (1st Cir.
                       ____    _____________

            1990).   See also  Doe v.  Anrig, 728 F.2d  30, 32  (1st Cir.
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            1984).   Here,  the  defendant  twice  moved to  dismiss  the

            complaint  for failure to state a claim upon which relief can

            be granted.   Fed. R.  Civ. P.  12(b)(6).   The motions  gave

            Forte "adequate  warning that [his complaint  was] vulnerable

            to dismissal" under Rule  12(b)(6), "and time to defend . . .

            or  amend" it.   Pavilonis v. King,  626 F.2d  1075, 1078 n.6
                             _________    ____

            (1st Cir. 1980).   Sullivan's  first motion  to dismiss,  for

            example, argued  that the complaint was  defective because it

            did  not allege  "the manner  in which  the trial  record was

            altered or grossly altered, or how any of the alleged acts or

            omissions of the Defendant Sullivan deprived the Plaintiff of

            any substantive or procedural due process or equal protection

            rights."   The inadequacy of  the complaint could hardly have

            been more concisely summarized, yet  Forte took no action  in

            response.   Four weeks  later, it is  true, he did  amend his

            complaint,  but only to name  Sullivan as a  defendant in her

            individual  (as  oppposed to  her  official)  capacity.   The

            amendment  did  nothing  to  remedy  the  factual  deficiency

            identified by Sullivan in her motion to dismiss.  

                 The  district  court  thus  could  have  dismissed  with

            prejudice  for  failure to  state a  claim,  for even  pro se
                                                                   ______

            "[c]omplaints  based on  civil rights  statutes must  do more

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than state simple conclusions; they must at least outline the

            facts constituting  the  alleged violation."    Pavilonis  v.
                                                            _________

            King, 626 F.2d  at 1078  (quoting Fisher v.  Flynn, 598  F.2d
            ____                              ______     _____

            663,  665  (1st  Cir.  1979)).    This  basic  principle  has

            particular application in lawsuits against  judicial adjuncts

            like  court reporters, who by virtue of their position may be

            exposed to an "avalanche of suits, most of them frivolous but

            vexatious,"  Forrester v.  White, 484  U.S. 219,  226 (1988),
                         _________     _____

            brought by disgruntled litigants.

                 Section 1983, moreover, requires plaintiffs to show  the

            deprivation  of  some  federal  statutory  or  constitutional

            right.   "No [such]  right exists  to an  absolutely accurate

            trial  transcript."   Burrell v. Swartz,  558 F.Supp.  91, 92
                                  _______    ______

            (S.D.N.Y. 1983).   Cf. Gregg  v. Barrett, 771  F.2d 539,  546
                               ___ _____     _______

            (D.C.Cir.  1985)  (no  constitutional  right to  "a  verbatim

            transcript  of the proceedings of  Congress").  At minimum, a

            criminal defendant  like Forte  states a viable  civil rights

            claim  against a  court reporter  only where  he specifically

            alleges that the reporter  has altered the trial record  in a

            manner  that prejudiced his direct appeal, see, e.g., Odom v.
                                                       _________  ____

            Wilson,  517  F.Supp.  474, 475  (S.D.Ohio  1981)  (plaintiff
            ______

            stated  claim  where he  alleged  that  reporter had  altered

            transcript to "water down" instruction given to jury by state

            trial  judge, and  instruction  given might  have constituted

            reversible  error),  or caused  him  some other  recognizable

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harm.    Where, on  the other  hand,  the complaint  fails to

            identify  an  injury which  could  have  been  caused by  the

            alleged alteration, it  does not state a  claim under Section

            1983.  See,  e.g., Colyer v.  Ryles, 827 F.2d  315 (8th  Cir.
                   __________  ______     _____

            1987)  (finding  that  complaint against  court  reporter was

            frivolous  where  injuries   alleged  were  adverse  judicial

            decisions made in reliance on purportedly altered transcript,

            and complaint revealed that transcript did not  even exist at

            time of adverse decisions, so that alterations could not have

            caused injury).  See also United States v. Carrillo, 902 F.2d
                             ________ _____________    ________

            1405, 1409  (9th Cir.  1990) (where court  reporter fails  to

            produce  complete  transcript  of  trial  proceedings,  "some

            prejudice to the defendant must occur before reversal will be

            contemplated").

                 Measured  by  these  standards,  Forte's  complaint  was

            fatally inadequate.   It  said only  that the transcript  "is

            substantially and materially altered," and later on, that the

            "trial record  is grossly altered."   But Forte  neither gave

            any details of the alleged alterations nor described how they

            might  have   caused  him   prejudice,  and  his   resort  to

            intensifiers  such  as  "grossly" and  "materially"  did  not

            bridge  the factual gap.  The complaint failed to identify an

            injury of constitutional or  statutory dimension, and did not

            state a claim  upon which  relief could be  granted under  42

            U.S.C.   1983.  

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Affirmed. 
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