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USCA1 Opinion
[NOT FOR PUBLICATION]
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No. 92-1134
MICHAEL B. FORTE,
Plaintiff, Appellant,
v.
ARNOLD R. ROSENFELD, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
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Before
Breyer, Chief 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, and Michelle A.
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Kaczynski, Assistant Attorney General, on brief for appellees.
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Per Curiam. Plaintiff Michael Forte, a Massachusetts
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inmate, appeals from a district court judgment that dismissed
his 42 U.S.C. 1983 complaint against Arnold Rosenfeld, Chief
Counsel for the Massachusetts Committee for Public Counsel
Services (CPCS), and Diane Hanson, Legal Assistant to the
CPCS. The complaint alleged that these defendants, both
employees of a state agency charged with coordinating the
delivery of legal services to indigent criminal defendants,
deprived plaintiff of his constitutional right to counsel on
appeal and, ultimately, his right to appeal from his criminal
conviction, by refusing to appoint a new attorney to
represent him after three attorneys had been appointed and
withdrawn from his case. The district court dismissed the
complaint on the ground that the defendants are entitled to
qualified immunity. We affirm.
I.
The complaint, as fleshed out by the plaintiff's
opposition to the defendants' motion to dismiss, alleged the
following facts. Forte was arrested in April 1987 and
charged with breaking and entering, among other crimes.
Sometime in December 1987, Forte was tried, convicted and
sentenced to a 15-20 year term on the breaking and entering
charge. At trial, Forte was represented by an attorney
employed by the CPCS. In early 1988, Forte filed a pro se
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motion to enlarge the time for him to file his notice of
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appeal. In May 1989, attorney Thomas Merrigan was assigned
to represent Forte on this motion. Attorney Merrigan
subsequently withdrew for reasons not stated in the
complaint. In July 1989, attorney Jack Curtiss was assigned
to Forte's case. He withdrew on November 21, 1989, citing
completion of the task of filing Forte's notice of appeal.
On December 20, 1989, the CPCS assigned attorney Robert
Sheketoff to Forte's appeal. Forte alleged that attorney
Sheketoff refused to file an appellate or an Anders-type
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brief and that he withdrew at Forte's request. Forte's
opposition to the defendants' motion to dismiss elaborated
that attorney Sheketoff was allowed to withdraw by an April
11, 1990 order of a single justice of the Massachusetts
Appeals Court. Although Forte moved for reconsideration, the
Appeals Court denied his motion on April 13, 1990. Forte
alleged that the order allowing attorney Sheketoff to
withdraw affirmatively required the CPCS to appoint new
counsel for him and that the order denying his motion for
reconsideration maintained this requirement. While the
defendants dispute this, as we are reviewing a dismissal
pursuant to Fed. R. Civ. P. 12(b)(6), we must assume that the
plaintiff's allegations are true.1
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1. We note that the government's brief (p. 14)
mischaracterizes the Appeals Court's April 13, 1990 order as
being one which reconsidered and affirmed its February 6,
1991 order requiring that Forte proceed pro se on appeal.
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Obviously an order issued in 1990 cannot reconsider an order
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Shortly after attorney Sheketoff withdrew, Forte asked
Rosenfeld to appoint successor defense counsel. On April 21,
1990, Forte received a letter from the CPCS requesting him to
submit the names of three lawyers he would like to represent
him on appeal. Forte complied. On June 19, 1990, Forte
received a letter from Rosenfeld which stated, "I have
contacted the three attorneys and none is willing to accept
this assignment. Please arrange for your own counsel and
notify who it is, and we will compensate that attorney."
On October 17, 1990, a single justice of the
Massachusetts Supreme Judicial Court (SJC) issued a Notice of
Assignment of Counsel form which allegedly required the CPCS
to appoint counsel to represent Forte in his criminal appeal.
Forte alleged that he spoke with Hanson on three occasions
after this order issued, each time requesting that the CPCS
assign counsel to represent him. Hanson told Forte that he
must locate his own counsel.2
At some point Forte received a letter from Hanson that
was dated January 28, 1991. The letter, which was also
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issued in 1991.
2. Forte appended a copy of this notice and the cover letter
that accompanied it to his opposition to the defendants'
motion to dismiss. We note that, contrary to the allegations
in Forte's complaint, the notice assigned SJC case no. 90-
469, Forte v. Hampden County Superior Court, to the CPCS, not
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Forte's criminal appeal (Commonwealth v. Forte, Mass. Appeals
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Court no. 89-P-1269).
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appended to Forte's opposition to the defendants' motion to
dismiss, stated:
After speaking to Attorneys Curtiss and Sheketoff I
realize that you discharged them. Attorney
Merrigan has become a judge and is unavailable for
any comments concerning your case. I have called
Attorneys Wendy Sibbison, Allen Dershowitz, and Max
Stern as well as submitting a written request for
representation to Laurence Tribe per your request.
The above mentioned have declined to accept your
case. As you know, Attorney Silverglate, with whom
you corresponded, has also rejected your case. It
appears that you have exhausted our resources as
well as your own to obtain compatible counsel for
you. It may be that you wish to proceed pro se.
In that event, you should contact the Appeals Court
for briefing dates and all other pertinent
information.
Hanson sent a copy of this letter to the clerk of the
Massachusetts Appeals Court, where Forte's appeal was
pending. On February 6, 1991, a single justice of that court
endorsed Hanson's letter with an order requiring Forte to
proceed on appeal pro se. On June 4, 1991, Forte's appeal
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was dismissed because Forte had failed to file his appellate
brief. Forte filed this action on June 26, 1991.
The complaint alleged that the defendants' acts and
omissions violated Forte's First, Sixth, and Fourteenth
Amendment rights. Specifically, Forte claimed that the
defendants maliciously refused to appoint counsel to
represent him on appeal because he had expressed the view
that his trial counsel, who was also employed by the CPCS,
had rendered him ineffective assistance. Forte claimed that
the defendants exhibited reckless, callous and deliberate
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indifference to his constitutional rights and proximately
caused his loss of his constitutional right to counsel on
appeal and, ultimately, his right to appeal his conviction.
Forte also alleged that both defendants violated M.G.L. c.
211D.3
The defendants filed a motion to dismiss the complaint
under Fed. R. Civ. P. 12(b)(6). They argued that all their
acts were protected by absolute judicial or "quasi-judicial"
immunity since the basis of Forte's suit was the denial of
"court-appointed counsel" on appeal and this denial resulted
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3. Massachusetts G. L. c. 211D, 1 established the CPCS "to
plan, oversee, and coordinate the delivery of criminal ...
legal services by all salaried public counsel, bar advocate
and other assigned counsel programs, and private attorneys
serving on a per case basis." Members of the CPCS are
appointed and removed by the justices of the Massachusetts
Supreme Judicial Court. State court justices assign cases to
the CPCS upon determining that a defendant is indigent and
eligible for appointed counsel. M.G.L. c. 211D, 5. The
statute requires the CPCS to "establish, supervise and
maintain a system for the appointment or assignment of
counsel at any stage of a proceeding" where Massachusetts law
or the rules of the SJC require that person to be represented
by counsel. Id. The CPCS maintains a public counsel
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division and a private counsel division. The public counsel
division consists of a staff of attorneys employed by the
CPCS who generally represent indigent defendants in all
criminal cases but for five enumerated exceptions. See
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M.G.L. c. 211D, 6(a). The private counsel division consists
of private attorneys or groups of attorneys who contract with
the CPCS to provide counsel to indigents. Generally, the
private counsel division is assigned to cases that the public
counsel division cannot handle. See M.G.L. c.211D, 6(b). The
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CPCS is authorized to establish a rotating appointment
mechanism for attorneys in its private counsel division. Id.
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4.
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from the February 6, 1991 order of the Massachusetts Appeals
Court. Plaintiff filed an opposition to the motion to
dismiss which argued that the defendants did not have either
absolute or qualified immunity from liability. The district
court allowed the defendants' motion to dismiss. In a brief
margin order, the court noted, "[t]o the degree that state
action is alleged, the direction of the Appeals Court that
plaintiff proceed pro se affords defendants at a minimum
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qualified immunity sufficient to justify dismissal on these
papers." This appeal followed.
II.
"In reviewing a dismissal of a complaint under Fed. R.
Civ. P. 12 (b)(6), we treat all well-pleaded factual
averments as true and draw all reasonable inferences
therefrom in the ... [plaintiff-appellant's] favor." Gilbert
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v. City of Cambridge, 932 F.2d 51, 53 (1st Cir.), cert.
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denied, 112 S. Ct. 192 (1991) On appeal, Forte argues that
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the defendants are not entitled to qualified immunity because
most of their conduct preceded the Appeals Court's February
6, 1991 order and the defendants cannot claim immunity for
failing to appoint him counsel after the order issued because
the order was obviously unconstitutional. Forte further
argues that the defendants were performing ministerial
functions to which qualified immunity could not attach.
Finally, Forte contends that the defendants conspired with
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the Appeals Court to deprive him of his right to counsel,
therefore the order requiring him to proceed pro se cannot
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provide the defendants with "derivative immunity." The
defendants maintain that they are protected by both absolute
and qualified immunity and that the complaint fails to
specify sufficient facts to state a claim upon which relief
can be granted. We begin with qualified immunity.
III.
"'[G]overnment officials performing discretionary
functions, generally are shielded from liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.'" Rodi v. Ventetuolo,
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941 F.2d 22, 30 (1st Cir. 1991)(quoting Harlow v. Fitzgerald,
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457 U.S. 800, 818 (1982)). The test for determining whether
a "clearly established right" has been violated requires more
than an assessment of whether the general right the plaintiff
claims was violated was clearly established at the time of
the defendant's conduct. Rather, Anderson v. Creighton, 483
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U.S. 635, 639-40 (1987), makes clear that "the right the
official is alleged to have violated must have been 'clearly
established' in a more particularized ... sense ... [i.e.] -
The contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
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violates that right." Id. (emphasis supplied). While the
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precise action need not have been held unlawful, the
preexisting law must make its unlawfulness apparent. Id.
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"Only where the action in question was clearly unlawful does
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a defendant lose his qualified immunity." Juarbe-Angueira v.
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Arias, 831 F.2d 11, 12 (1st Cir. 1987), cert. denied, 485
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U.S. 960 (1988).
Here, Forte's constitutional right to effective counsel
on his first criminal appeal of right was well-established at
the time of the defendants' alleged misconduct. See, e.g.,
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Evitts v. Lucey, 469 U.S. 387, 391-405 (1985); Douglas v.
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California, 372 U.S. 353, 355-58 (1962). Equally well
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established was the proposition that nominal representation
on an appeal of right is not constitutionally adequate.
Rather, effective assistance of counsel is required. Evitts,
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469 U.S. at 396. And while there is no constitutional right
to appeal from a state criminal conviction, where state law
creates such a right, "the procedures used in deciding
appeals must comport with the demands of the Due Process and
Equal Protection Clauses of the Constitution." Id. at 393.
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These rights notwithstanding, an indigent defendant does not
have the right to be represented by a particular lawyer, nor
to have repeated demands for a different appointed lawyer
satisfied absent good cause. United States v. Allen, 789
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F.2d 91, 92 (1st Cir.), cert. denied, 479 U.S. 846 (1986).
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As we stated in Allen, id. at n. 4,
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Appellant's right was to effective
counsel, not to counsel of his own choice
at any cost in terms of delay ... This
restraint is to ensure that the right is
not manipulated so as to obstruct the
orderly procedure in the courts or to
interfere with the fair administration of
justice. (citation omitted).
The right to proceed pro se is also constitutionally
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protected. Faretta v. California, 422 U.S. 806 (1975).
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"While 'the right to counsel is in force until waived, the
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right to self-representation does not attach until
asserted.'" United States v. Allen, 789 F.2d at 94. The law
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in this circuit requires that a defendant make a clear and
unequivocal waiver of his right to counsel before being
allowed to proceed pro se. See, e.g., United States v.
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Betancourt-Arretuche, 933 F.2d 89, 92 (1st Cir.), cert.
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denied, 112 S. Ct. 421 (1991).4 While we have not required
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district courts to give indigent defendants a particular
warning or to engage in a specific colloquy before allowing a
defendant to proceed pro se, a waiver of the right to counsel
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4. The Supreme Judicial Court requires state court judges to
secure an indigent defendant's signature on a waiver form
before allowing the defendant to proceed pro se. The judge
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must also sign the waiver form to certify that the party has
knowingly elected to proceed without counsel. If a defendant
elects to proceed without counsel but refuses to sign the
waiver form, the judge must note that on the form. See Rules
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of the Supreme Judicial Court, Rule 3:10 & Form 9. However,
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if a party has been found able to procure counsel and has
not, after a reasonable time, either waived counsel or
procured counsel, "then the case may be ordered to proceed."
Id., Rule 3:10, 4.
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may not be inferred from a silent record. See Carnley v.
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Cochran, 369 U.S. 506, 516 (1962); United States v.
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Campbell, 874 F.2d 838, 845 (1st Cir. 1989). "While a
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defendant may not be forced to proceed to trial with
incompetent or unprepared counsel..., a refusal without good
cause to proceed with able appointed counsel is a 'voluntary'
waiver." Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir.
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1976)(citation omitted).
The defendants, as employees of the state agency charged
with overseeing the delivery of legal services to indigent
defendants, are presumed to have knowledge of these basic
constitutional standards. Borucki v. Ryan, 827 F.2d 836, 838
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(1st Cir. 1987). That these principles were well-established
at the time of the defendants' conduct does not end the
qualified immunity inquiry. We must next inquire whether the
defendants reasonably could have believed their actions were
lawful in light of these principles and the information they
possessed when they acted.
Forte says that before the Appeals Court ordered him to
proceed pro se, both defendants violated his right to counsel
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on appeal by steadfastly refusing to appoint a fourth
attorney to represent him even though both the Massachusetts
Appeals Court and Supreme Judicial Court issued orders
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requiring the CPCS to appoint an attorney to represent him.5
But the specific facts alleged in Forte's complaint and
supporting documents do not support Forte's characterization
of the defendants' conduct. Before April 1990, the
defendants did not refuse to appoint counsel, rather they
appointed a succession of three attorneys, two of whom
withdrew from Forte's case at Forte's apparent behest.6
After attorney Sheketoff withdrew, the defendants contacted
three or four additional attorneys on Forte's behalf, each of
whom declined to take his case. At that point Rosenfeld put
the burden on Forte to locate his own counsel and agreed that
the CPCS would compensate any attorney Forte might find.7
Hanson maintained this position.
It is by no means clearly established that a state
public defender violates an indigent criminal appellant's
rights by requiring that appellant find a compatible
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5. As the Supreme Judicial Court's order related to another
case we discount it and simply assume that the Appeals Court
required the CPCS to appoint another attorney for Forte in
allowing attorney Sheketoff to withdraw.
6. Forte has not challenged the assertion in the January 28,
1991 letter that he discharged attorneys Sheketoff and
Curtiss. We therefore assume that it is true. We note,
however, that Forte apparently had second thoughts, and filed
a motion in opposition to Sheketoff's motion to withdraw.
This was treated as a motion for reconsideration and denied,
allegedly on the condition that the CPCS provide Forte with
another attorney.
7. The CPCS is authorized to appoint and compensate private
attorneys on a case-by-case basis pursuant to M.G.L. c. 211D,
6(b).
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attorney, at the expense of the public defender's office,
after three attorneys had been appointed by that office and
had withdrawn. Contrary to plaintiff's argument on appeal,
we do not think that the defendants' acts in requiring
plaintiff to find his own lawyer were tantamount to an
outright refusal to appoint counsel. To the contrary,
defendant Rosenfeld offered to compensate any attorney
selected by plaintiff and willing to serve. And where
Rosenfeld made clear that any counsel Forte found would be
paid for by the CPCS, we cannot say that this act deprived
Forte of his right to counsel on appeal. Forte has not
alleged any facts which would show he was not able to contact
attorneys. To be sure, the attorneys Forte requested were
all renowned and, perhaps, unlikely to take his appeal from a
breaking and entering conviction. Nevertheless, Forte has
not alleged any reason why he could not find an attorney on
his own. On this record, then, the defendants are entitled
to qualified immunity for their conduct that preceded the
Appeals Court's order requiring Forte to proceed pro se.8
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8. In this regard, we reject Forte's contention that
qualified immunity is not available to these defendants
because their duty to appoint counsel for him was not
discretionary. Under M. G. L. c. 211D, 1 and 6(b), the
CPCS had discretion to appoint and compensate private
attorneys on a case by case basis. While M.G.L. c. 211D, 14
required appeals to be assigned to the public counsel
division unless a case presented a conflict of interest,
section 6(b)(iii) gave Rosenfeld discretion to assign such
cases to the private counsel division (and private attorneys
hired through that division) as he determined to be
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Forte contends that defendants cannot derive any
immunity from the Appeals Court's order because it was
obviously unconstitutional. He argues that Hanson solicited
this order with deliberate indifference to his rights by
sending a copy of her January 28, 1991 letter to the clerk of
that court. The facts alleged warrant the inference that the
Appeals Court ordered Forte to proceed pro se in response to
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Hanson's letter. At the time Hanson sent this letter to
the Appeals Court, she had reason to know that Forte
maintained that he was asserting his right to counsel, for he
allegedly had three telephone conversations with her between
October 1990 and January 1991 in which he requested the CPCS
to appoint another attorney for him. Where the January 28,
1991 letter only queried whether plaintiff wished to proceed
pro se, the Appeals Court may have been on questionable
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ground in ordering Forte to proceed pro se absent a clear and
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unequivocal waiver of Forte's right to counsel. On the other
hand, it might be argued that Forte voluntarily acquiesced in
his pro se status on appeal by virtue of the fact that he did
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not seek reconsideration or otherwise challenge the Appeals
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necessary. We read the statute as a whole to confer on the
chief counsel discretion to determine when specific cases
require the assignment of outside counsel. "A law that fails
to specify the precise action that ... [an] official must
take in each instance creates only discretionary authority
... ." Davis v. Scherer, 468 U.S. 183, 197 n. 14 (1984).
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Such discretion renders the ministerial function exception to
qualified immunity inapplicable.
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Court's order during the four months that elapsed between its
entry and the dismissal of his appeal. See Maynard v.
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Meachum, 545 F.2d at 277 (where record shows habeas
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petitioner's "affirmative acquiescence" in proceeding without
counsel at trial, burden fell on him to show that his
acquiescence was not sufficiently understanding to amount to
effective waiver). We need not decide the point for the
complaint has not alleged any facts to suggest that Hanson
had reason to believe that the simple act of sending the
Appeals Court a copy of her letter would result in an order
requiring Forte to proceed pro se. We think it was
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objectively reasonable for Hanson to believe that sending a
copy of her letter to the Appeals Court did not violate
Forte's constitutional rights.9 Nor can we say that the
Appeals Court's order was obviously unconstitutional in view
of Forte's silence in the face of being required to proceed
pro se. While a waiver may not be inferred from a silent
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record, on this record the defendants reasonably could have
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9. Forte has not alleged sufficient facts to warrant an
inference that the Appeals Court's order was the product of a
conspiracy. We decline to draw such an inference based on the
facts that the order issued in apparent response to Hanson's
letter. It is only when a "suggested inference rises to what
experience indicates is an acceptable level of probability,
that 'conclusions' become 'facts' for pleading purposes."
Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st
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Cir. 1989). See also Slotnick v. Staviskey, 560 F.2d 31, 33
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(1st Cir. 1977), cert. denied, 434 U.S. 1077 (1978)(holding
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conclusory allegations of conspiracy insufficient).
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perceived Forte's silence as an election to proceed pro se.
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Judgment affirmed.
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Document Info
Docket Number： 92-1134
Filed Date： 10/19/1992
Precedential Status： Precedential
Modified Date： 9/21/2015