
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        April 5, 1995           [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.   Duensing,            __________________                         ______________________        Assistant Attorney General, on brief for appellee.                                 ____________________                                 ____________________                                Per  Curiam.     Plaintiff-appellant William  J. Riordan                 ___________            appeals  from a  judgment  which dismissed  his civil  rights            complaint on  the ground that the  defendant, a Massachusetts            Superior  Court  clerk/magistrate, was  entitled  to immunity            from  suit.   We affirm  the dismissal  without reaching  the            immunity issue.                      Plaintiff pleaded  guilty in  state court  to armed            robbery  and related  crimes.   Following his  conviction and            sentence,  he filed a pro  se motion seeking  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  Committee for Public Services Counsel            ["CPSC"] on June  8, 1994.   The court's  order included  the            following  language:  "No  further action  until  counsel  is            appointed."   On July 28,  1994, plaintiff attempted  to file            three  more  pro se  motions  seeking, inter  alia,  an early                         ___ __                    _____  ____            evidentiary hearing  on  his motion  to change  his plea  and            permission to  waive the  appointment of  counsel  due to  an            anticipated  delay by  CPSC.   On August  9, 1994,  the clerk            notified  plaintiff  that  the   new  motions  would  not  be            processed  because   they  were  not  filed   by  plaintiff's            attorney.  The rejection letter acknowledged that no attorney            had yet  been assigned  to represent plaintiff,  and referred            him to CPSC for further information.                                         -2-                      A few days later, plaintiff filed this complaint in            federal  district  court  alleging  that  the  state  clerk's            refusal  to accept  his pro  se motions  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  law.   He sought  damages,            declaratory and injunctive  relief.  We are informed that the            claims  for equitable relief are moot. The clerk named in the            complaint  has resigned,  and a  new court clerk  has advised            plaintiff that his pro se pleadings  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  it            challenges   conduct   protected  by   defendant's  qualified            immunity.  See Lowinger v. Broderick, Dkt. 94-1077,  slip op.                       ___ ________    _________            at 7-8 (1st  Cir. Mar. 22, 1995).  And, as defendant asserts,            any damages claims against the clerk in his official capacity            would be  barred by the Eleventh  Amendment, which proscribes            suits against state officials  which must be paid  from state            funds.   Hafer v.  Melo, 502 U.S.  21, 26-28  (1991); Will v.                     _____     ____                               ____            Michigan  Dep't of State Police, 491 U.S. 58, 65 (1989).  But            _______________________________            we  think it  unnecessary to reach  these issues  because the            complaint obviously is infirm for  another reason:  there are            no  facts indicating  that  the remedies  available from  the            State were inadequate.                                          -3-                      It   is   well  established   that   an  official's            unauthorized conduct which cannot be foreseen  and controlled            in advance does not constitute a violation of the Due Process            Clause  "until and  unless [the State]  refuses to  provide a            suitable postdeprivation remedy."  Hudson v. Palmer, 468 U.S.                                               ______    ______            517, 533 (1984);  see also  Parratt v. Taylor,  451 U.S.  527                              ________  _______    ______            (1981);  Zinermon v. Burch, 494 U.S. 113, 125 (1990); Lowe v.                     ________    _____                            ____            Scott, 959 F.2d 323,  340 (1st Cir. 1992).   Since inadequacy            _____            of  the state's remedy  is a material  element of  the   1983            claim, plaintiff  had the burden of  setting forth supporting            factual allegations, either direct or inferential, to sustain            an actionable legal theory.   Gooley v. Mobil Oil  Corp., 851                                          ______    ________________            F.2d 513,  515 (1st Cir. 1988).                        Plaintiff's complaint  does  not allege  any  facts            showing an  absence of state  process to  remedy the  alleged            deprivation.  The Massachusetts courts in fact provide such a            remedy.   See  Bolton v.  Commonwealth, 407  Mass. 1003,  552                      ___  ______     ____________            N.E.2d  83  (1990)  (explaining  that remedy  for  a  clerk's            wrongful refusal to accept  papers is by motion to  the court            and failing that, by petition  for a writ of mandamus to  the            Supreme Judicial Court); Burnham v.  Clerk of the First Dist.                                     _______     ________________________            Court,  352  Mass. 466,  226 N.E.2d  190  (1967) (same).   By            _____            instead  seeking redress  through  a    1983 suit,  plaintiff            invites   collateral  federal   supervision   of  the   state            proceedings.   Lower federal courts lack  jurisdiction to sit                                         -4-            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  U.S. 413 (1923);  Lancellotti v.               ___________________                         ___________            Fay,  909 F.2d 15, 17 (1st Cir. 1990).  Plaintiff's remaining            ___            arguments are frivolous.                      Accordingly, the judgment dismissing  the complaint            for failure to state a claim is affirmed.  See Acha v. United                                            ________   ___ ____    ______            States,  910 F.2d 28, 30 (1st Cir. 1990) (affirmance may rest            ______            on any ground presented by the record).                                         -5-
