Batista-Dominicci v. Gil-De-La-Madrid , 39 F. App'x 623 ( 2002 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-2547
FRANCISCO BATISTA-DOMINICCI,
Plaintiff, Appellant,
v.
JULIO GIL-DE-LA-MADRID, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Francisco Batista Dominicci on brief pro se.
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco,
Assistant United States Attorney, and Nelson Perez-Sosa, Assistant
United States Attorney, on brief for appellee.
July 12, 2002
Per Curiam. Francisco Batista-Dominicci appeals
from the district court's sua sponte dismissal, pursuant to 28
U.S.C. § 1915A, of his civil rights action, brought under the
authority of Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388, 395-97 (1971), against his
former defense counsel, Julio Gil-de-la-Madrid, and the
Assistant U.S. Attorney ("AUSA") who prosecuted him, Jacabed
Rodriguez-Coss. He claimed that his attorney and the AUSA
conspired against him and coerced him into signing a plea
bargain agreement that the district court later allowed to be
withdrawn. Additionally, Batista asserted many claims of legal
malpractice against his attorney, alleging counsel failed to
keep confidential information secret and engaged in conflicting
representation of a codefendant.
The district court concluded that AUSA Rodriguez was
absolutely immune for actions taken in her role as a prosecutor
and that Gil-de-la-Madrid was a private actor. Consequently,
the court dismissed the complaint. We affirm the dismissal,
for essentially the reasons stated in the district court's
opinion. We add that Batista's allegations that a conspiracy
existed between AUSA Rodriguez and Gil-de-la-Madrid were
conclusory, and thus insufficient to convert the private
actions of Gil-de-la-Madrid into federal action for the
purposes of this suit, or to overcome AUSA Rodriguez's claim to
absolute immunity. (We have observed, in dicta, that proper
allegations of conspiracy could overcome an absolute immunity
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claim of a prosecutor. See Malachowski v. City of Keene, 787
F.2d 704, 711 (1st Cir. 1986)).
Batista argues, for the first time in his reply brief
and without legal support, that a prosecutor is not entitled to
absolute immunity when a criminal defendant's Fifth and Sixth
Amendment rights are violated. We generally do not consider
arguments raised for the first time in a reply brief, see
United States v. Lemmerer, 277 F.3d 579, 592 (1st Cir. 2002),
and in any event, find no support in our case law for such a
proposition.
The district court’s dismissal of the complaint is
affirmed.
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