USCA1 Opinion

April 5, 1995

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

___________________
No. 94-2137
WILLIAM J. RIORDAN,
Plaintiff, Appellant,
v.
WILLIAM J. MARTIN, JR., CLERK, SPRINGFIELD SUPERIOR COURT,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael Ponsor,

U.S. Magistrate Judge]

______________________

____________________
Before
Torruella, Chief Judge,
___________
Cyr and Stahl, Circuit Judges.
______________
____________________
William J. Riordan on brief pro se.
__________________
Scott Harshbarger,
Attorney General,

William

J.

Duensi

__________________
____________________
Assistant Attorney General, on brief for appellee.
____________________
____________________

Per Curiam.
___________
appeals

from a

complaint on
Superior
from

judgment

which dismissed

the ground that the

Court

suit.

Plaintiff-appellant William

his civil

rights

defendant, a Massachusetts

clerk/magistrate, was

We affirm

J. Riordan

the dismissal

entitled

to immunity

without reaching

the

immunity issue.
Plaintiff pleaded
robbery
sentence,

and related

guilty in

crimes.

he filed a pro
___

state court

Following his

se motion seeking
__

to armed

conviction and
to withdraw his

guilty plea and a motion for the appointment of counsel.

The

state court allowed the motion for the appointment of counsel

and referred it to the
["CPSC"] on June
following

three

8, 1994.

language:

appointed."

"No

On July 28,

more

pro se
___ __

evidentiary hearing
permission to
anticipated

Committee for Public Services Counsel

The court's
further action

delay by

seeking, inter
_____

his motion

waive the

until

counsel

1994, plaintiff attempted

motions
on

order included

to change

appointment of

CPSC.

alia,
____

On August

is

to file
an early

his plea

counsel

the

due to

9, 1994,

and
an

the clerk

notified

plaintiff

that

the

new

motions

processed

because

they

were

not

filed

attorney.

The rejection letter acknowledged that no attorney

had yet

been assigned

would
by

to represent plaintiff,

not

be

plaintiff's

and referred

him to CPSC for further information.

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A few days later, plaintiff filed this complaint in

federal

district

refusal

to accept

court

alleging

his pro
___

that

se motions
__

the

state

clerk's

deprived him

of his

constitutional right of access to the courts in violation

of

the First, Fifth and Fourteenth Amendments, the Massachusetts

Declaration of

Rights, and state

declaratory and injunctive

claims

law.

relief.

He sought

damages,

We are informed that the

for equitable relief are moot. The clerk named in the

complaint

has resigned,

and a

new court clerk

plaintiff that his pro se pleadings

___ __

has advised

will be accepted pending

an appointment of counsel.
As

to the damages claims,

it may well

be, as the

district court held, that the complaint is infirm because

challenges

conduct

immunity.

protected

by

defendant's

qualified

See Lowinger v. Broderick, Dkt. 94-1077,

___ ________
_________

at 7-8 (1st

Cir. Mar. 22, 1995).

it

slip op.

And, as defendant asserts,

any damages claims against the clerk in his official capacity

would be

barred by the Eleventh

suits against state officials

funds.

Hafer v.
_____

Amendment, which proscribes

which must be paid

Melo, 502 U.S.

____

21, 26-28

from state

(1991); Will v.
____

Michigan Dep't of State Police, 491 U.S. 58, 65 (1989).

_______________________________
we

think it

unnecessary to reach

complaint obviously is infirm for

no

facts indicating

State were inadequate.

that

these issues
another reason:

the remedies

But

because the
there are

available from

the

-3-

It

is

well

established

that

an

unauthorized conduct which cannot be foreseen

official's

and controlled

in advance does not constitute a violation of the Due Process

Clause

"until and

unless [the State]

suitable postdeprivation remedy."

517, 533 (1984);
(1981);

see also
________

provide a

Hudson v. Palmer, 468 U.S.

______
______

Parratt v. Taylor,
_______
______

451 U.S.

527

Zinermon v. Burch, 494 U.S. 113, 125 (1990); Lowe v.

________
_____
____

Scott, 959 F.2d 323,

_____
of

refuses to

the state's remedy

claim, plaintiff

340 (1st Cir. 1992).

is a material

had the burden of

Since inadequacy

element of

the

1983

setting forth supporting

factual allegations, either direct or inferential, to sustain

an actionable legal theory.
F.2d 513,

Gooley v. Mobil Oil Corp., 851

______
________________

515 (1st Cir. 1988).

Plaintiff's complaint

showing an

absence of state

does

not allege

process to

any

remedy the

facts
alleged

deprivation.
remedy.
N.E.2d

The Massachusetts courts in fact provide such a

See
___
83

Bolton v.
______

(1990)

Commonwealth, 407
____________

(explaining

wrongful refusal to accept

that remedy

Mass. 1003,
for

papers is by motion to

and failing that, by petition

552

clerk's
the court

for a writ of mandamus to

the

Supreme Judicial Court); Burnham v.

_______

Clerk of the First Dist.

________________________

Court,
_____

190

352

instead
invites

Mass. 466,

seeking redress
collateral

proceedings.

226 N.E.2d
through

federal

(1967) (same).
1983 suit,

supervision

Lower federal courts lack

of

By

plaintiff
the

state

jurisdiction to sit

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in review of state

court proceedings.

District of Columbia
_____________________

Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker

________________
_______
______
v. Fidelity Trust Co., 263
___________________
Fay,
___

U.S. 413 (1923);

909 F.2d 15, 17 (1st Cir. 1990).

Lancellotti v.
___________

Plaintiff's remaining

arguments are frivolous.

Accordingly, the judgment dismissing
for failure to state a claim is affirmed.
________
States,
______

the complaint

See Acha v. United

___ ____
______

910 F.2d 28, 30 (1st Cir. 1990) (affirmance may rest

on any ground presented by the record).

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