
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          June 18, 1992         [NOT FOR PUBLICATION]                                 ___________________          No. 91-2235                                              MICHAEL B. FORTE,                       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.  The appellant, Michael Forte, was convicted                 __________            of a  crime, not identified in the record, after a trial in a            state court  in Massachusetts.   He sued Janis  Sullivan, the            court  reporter who  prepared  the transcript  of the  trial,            alleging that  Sullivan had deprived  him of due  process and            equal protection of law, in violation of 42 U.S.C.   1983, by            producing a  transcript that was "grossly,"  "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  consideration, Forte v. Sullivan, 935                                                   _____    ________            F.2d  1 (1st  Cir.  1991) (per  curiam),  the district  court            granted Sullivan's motion  to dismiss on  the ground that  "a            court reporter's  judicial acts  are protected  by [absolute]            quasi-judicial   immunity,"  and   "the  production   of  the            transcript of a trial  record is basic and intrical  [sic] to            the  judicial  process  and  thus  constitutes  [a]  judicial            act[]."  This appeal followed.                   We need not decide  whether the district court correctly            determined  that a  court  reporter is  entitled to  absolute            immunity from  a lawsuit  alleging that  she altered  a trial            transcript.  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.  1983) and Slavin  v. Curry, 574                                                    ______     _____            F.2d   1256,  1265  (5th  Cir.  1978)  (qualified  immunity).                                         -2-            "Courts  of appeals can affirm on any ground presented by the            record."   Acha v. United States,  910 F.2d 28,  30 (1st Cir.                       ____    _____________            1990).   See also  Doe v.  Anrig, 728 F.2d  30, 32  (1st Cir.                     ________  ___     _____            1984).   Here,  the  defendant  twice  moved to  dismiss  the            complaint  for failure to state a claim upon which relief can            be granted.   Fed. R.  Civ. P.  12(b)(6).   The motions  gave            Forte "adequate  warning that [his complaint  was] vulnerable            to dismissal" under Rule  12(b)(6), "and time to defend . . .            or  amend" it.   Pavilonis v. King,  626 F.2d  1075, 1078 n.6                             _________    ____            (1st Cir. 1980).   Sullivan's  first motion  to dismiss,  for            example, argued  that the complaint was  defective because it            did  not allege  "the manner  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  in            response.   Four weeks  later, it is  true, he did  amend his            complaint,  but only to name  Sullivan as a  defendant in her            individual  (as  oppposed to  her  official)  capacity.   The            amendment  did  nothing  to  remedy  the  factual  deficiency            identified by Sullivan in her motion to dismiss.                   The  district  court  thus  could  have  dismissed  with            prejudice  for  failure to  state a  claim,  for even  pro se                                                                   ______            "[c]omplaints  based on  civil rights  statutes must  do more                                         -3-            than state simple conclusions; they must at least outline the            facts constituting  the  alleged violation."    Pavilonis  v.                                                            _________            King, 626 F.2d  at 1078  (quoting Fisher v.  Flynn, 598  F.2d            ____                              ______     _____            663,  665  (1st  Cir.  1979)).    This  basic  principle  has            particular application in lawsuits against  judicial adjuncts            like  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  the            deprivation  of  some  federal  statutory  or  constitutional            right.   "No [such]  right exists  to an  absolutely accurate            trial  transcript."   Burrell v. Swartz,  558 F.Supp.  91, 92                                  _______    ______            (S.D.N.Y. 1983).   Cf. Gregg  v. Barrett, 771  F.2d 539,  546                               ___ _____     _______            (D.C.Cir.  1985)  (no  constitutional  right to  "a  verbatim            transcript  of the proceedings of  Congress").  At minimum, a            criminal defendant  like Forte  states a viable  civil rights            claim  against a  court reporter  only where  he specifically            alleges that the reporter  has altered the trial record  in a            manner  that prejudiced his direct appeal, see, e.g., Odom v.                                                       _________  ____            Wilson,  517  F.Supp.  474, 475  (S.D.Ohio  1981)  (plaintiff            ______            stated  claim  where he  alleged  that  reporter had  altered            transcript to "water down" instruction given to jury by state            trial  judge, and  instruction  given might  have constituted            reversible  error),  or caused  him  some other  recognizable                                         -4-            harm.    Where, on  the other  hand,  the complaint  fails to            identify  an  injury which  could  have  been  caused by  the            alleged alteration, it  does not state a  claim under Section            1983.  See,  e.g., Colyer v.  Ryles, 827 F.2d  315 (8th  Cir.                   __________  ______     _____            1987)  (finding  that  complaint against  court  reporter was            frivolous  where  injuries   alleged  were  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).  See also United States v. Carrillo, 902 F.2d                             ________ _____________    ________            1405, 1409  (9th Cir.  1990) (where court  reporter fails  to            produce  complete  transcript  of  trial  proceedings,  "some            prejudice to the defendant must occur before reversal will be            contemplated").                 Measured  by  these  standards,  Forte's  complaint  was            fatally inadequate.   It  said only  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   caused  him   prejudice,  and  his   resort  to            intensifiers  such  as  "grossly" and  "materially"  did  not            bridge  the factual gap.  The complaint failed to identify an            injury of constitutional or  statutory dimension, and did not            state a claim  upon which  relief could be  granted under  42            U.S.C.   1983.                                           -5-                 Affirmed.                  ________                                         -6-
