Forte v. Sullivan
U.S. Court of Appeals for the First Circuit
Forte v. Sullivan
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June 18, 1992 [NOT FOR PUBLICATION]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.
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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.
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Scott Harshbarger, Attorney General, Massachusetts, and Mary
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E. McLaughlin, Assistant Attorney General, Department of the
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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
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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
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(7th Cir. 1989) (absolute immunity) with Green v. Maraio, 722
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F.2d 1013, 1018-19 (2d Cir. 1983) and Slavin v. Curry, 574
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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.
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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
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(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
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"[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.
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King, 626 F.2d at 1078 (quoting Fisher v. Flynn, 598 F.2d
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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),
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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
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(S.D.N.Y. 1983). Cf. Gregg v. Barrett, 771 F.2d 539, 546
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(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.
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Wilson, 517 F.Supp. 474, 475 (S.D.Ohio 1981) (plaintiff
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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.
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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
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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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Reference
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