USCA1 Opinion

June 18, 1992

[NOT FOR PUBLICATION]

___________________
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]
___________________
___________________
Before
Torruella, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Selya, Circuit Judge.
_____________

___________________

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.

__________________
__________________

Per Curiam.
__________
of a

crime, not identified in the record, after a trial in a

state court
court

The appellant, Michael Forte, was convicted

in Massachusetts.

reporter who

alleging that

prepared

He sued Janis
the transcript

Sullivan had deprived

Sullivan, the
of the

him of due

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

producing a

transcript that was "grossly,"

trial,

process and
1983, by

"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

F.2d

1 (1st

Cir.

consideration, Forte v. Sullivan, 935

_____
________

1991) (per

granted Sullivan's motion

court reporter's
quasi-judicial

judicial

act[]."

to dismiss on

judicial acts
immunity,"

transcript of a trial
the

curiam),

the district

the ground that

are protected

and

"the

and

thus

production

constitutes

"a

by [absolute]
of

record is basic and intrical

process

court

the

[sic] to

[a]

judicial

This appeal followed.

We need not decide

determined

that a

immunity from
transcript.

court

a lawsuit

whether the district court correctly

reporter is
alleging that

entitled to

absolute

she altered

a trial

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.

F.2d

1256,

1265

(5th

1983) and Slavin

______

Cir.

1978)

v. Curry, 574
_____

(qualified

immunity).

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"Courts

of appeals can affirm on any ground presented by the

record."

Acha v. United States,

____
_____________

1990).

See also
________

1984).

Here,

complaint

Doe v.
___

the

Anrig, 728 F.2d

_____

defendant

twice

30 (1st Cir.

30, 32

moved to

(1st Cir.

dismiss

the

for failure to state a claim upon which relief can

be granted.

Fed. R.

Forte "adequate

Civ. P.

12(b)(6).

amend" it.

gave

was] vulnerable

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

Pavilonis v. King,
_________
____

(1st Cir. 1980).

Sullivan's

626 F.2d

first motion

example, argued

that the complaint was

did

"the manner

not allege

The motions

warning that [his complaint

to dismissal" under Rule

or

910 F.2d 28,

1075, 1078 n.6

to dismiss,

for

defective because it

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

response.

Four weeks

complaint,

but only to name

Sullivan as a

individual

(as

her

amendment

did

later, it is

oppposed to
nothing

to

true, he did

official)

remedy

the

in

amend his

defendant in her
capacity.

factual

The

deficiency

identified by Sullivan in her motion to dismiss.

The
prejudice

district
for

"[c]omplaints

court

thus

failure to
based on

could

state a

civil rights

have

claim,

dismissed
for even

statutes must

with
pro se
______

do more

-3-

than state simple conclusions; they must at least outline the

facts constituting
King, 626 F.2d
____
663,

665

(1st

the

alleged violation."

at 1078
Cir.

(quoting Fisher v.
______
1979)).

This

Flynn, 598
_____

basic

particular application in lawsuits against

like

Pavilonis
_________

v.
F.2d

principle

has

judicial adjuncts

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
deprivation
right.
trial

of

some

"No [such]

(D.C.Cir.
transcript

1985)

statutory

right exists

transcript."

(S.D.N.Y. 1983).

federal

Burrell v. Swartz,
_______
______
Cf. Gregg
___ _____

(no

constitutional

like Forte

constitutional

absolutely accurate
558 F.Supp.

v. Barrett, 771
_______

of the proceedings of

criminal defendant

to an

or

the

right to

Congress").

states a viable

91, 92

F.2d 539,
"a

546

verbatim

At minimum, a
civil rights

claim

against a

court reporter

alleges that the reporter

manner

only where

he specifically

has altered the trial record

in a

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

_________ ____

Wilson,
______

517

F.Supp.

stated

claim

474, 475

where he

(S.D.Ohio

alleged

that

1981)

(plaintiff

reporter had

altered

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

trial

judge, and

reversible

instruction

error),

given might

or caused

him

have constituted

some other

recognizable

-4-

harm.

Where, on

identify

an

the other

injury which

alleged alteration, it

See, e.g., Colyer v.

__________ ______

1987)

(finding

frivolous

where

could

the complaint

have

been

does not state a

1983.

that

hand,

injuries

alleged

were

caused by

the

claim under Section

Ryles, 827 F.2d

_____

complaint against

fails to

court

315 (8th

Cir.

reporter was

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).
1405, 1409
produce

See also United States v. Carrillo, 902 F.2d

________ _____________
________

(9th Cir.

complete

1990) (where court

transcript

of

trial

reporter fails
proceedings,

to

"some

prejudice to the defendant must occur before reversal will be

contemplated").
Measured

by

these

fatally inadequate.

standards,

It

said only

Forte's

complaint

was

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

intensifiers
bridge

caused
such

him
as

prejudice,

"grossly" and

the factual gap.

U.S.C.

upon which

"materially"

resort

to

did

not

statutory dimension, and did not

relief could be

1983.

-5-

Affirmed.

his

The complaint failed to identify an

injury of constitutional or
state a claim

and

granted under

42

________

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