
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                                 ___________________          No. 92-1134                                              MICHAEL B. FORTE,                                Plaintiff, Appellant,                                          v.                             ARNOLD R. ROSENFELD, ET AL.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Selya, Circuit Judge.                                         _____________                                 ___________________               Michael B. Forte on brief pro se.               ________________               Scott  Harshbarger,  Attorney   General,  and  Michelle   A.               __________________                             _____________          Kaczynski, Assistant Attorney General, on brief for appellees.          _________                                  __________________                                  __________________                 Per Curiam.   Plaintiff  Michael Forte,  a Massachusetts                 __________            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                                                                   ___ __            motion  to enlarge the  time for  him to  file his  notice of                                         -2-            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                                                              ______            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                                             ____________________            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.                                                       ___ __            Obviously an order issued in 1990 cannot  reconsider an order                                         -3-                 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                                            ____________________            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                 _____    _____________________________            Forte's criminal appeal (Commonwealth v. Forte, Mass. Appeals                                     ____________    _____            Court no. 89-P-1269).                                           -4-            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                              ___  __            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                                         -5-            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                                            ____________________            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                           ___            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                                                                      ___            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                                            ___            CPCS  is  authorized  to  establish  a  rotating  appointment            mechanism  for attorneys in its private counsel division. Id.                                                                      ___             4.                                                      -6-            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                               ___  __            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                                                                  _______            v.  City of  Cambridge, 932  F.2d  51, 53  (1st Cir.),  cert.                __________________                                  _____            denied,  112 S. Ct. 192 (1991)   On appeal, Forte argues that            ______            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                                         -7-            the Appeals  Court to  deprive him of  his right  to counsel,            therefore the  order requiring him  to proceed pro  se cannot                                                           ___  __            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,                                                     ____     __________            941 F.2d 22, 30 (1st Cir. 1991)(quoting Harlow v. Fitzgerald,                                                    ______    __________            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                                               ________    _________            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                                                        _________________            violates  that right."   Id. (emphasis supplied).   While the                                     ___                                         -8-            precise   action  need  not  have  been  held  unlawful,  the            preexisting law  must make  its unlawfulness  apparent.   Id.                                                                      ___            "Only where the action in question was clearly unlawful  does                                                   _______            a defendant lose his qualified immunity."  Juarbe-Angueira v.                                                       _______________            Arias, 831  F.2d 11,  12 (1st Cir.  1987), cert.  denied, 485            _____                                      _____  ______            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.,                                                               ___  ____            Evitts v.  Lucey, 469  U.S. 387, 391-405  (1985); Douglas  v.            ______     _____                                  _______            California,  372 U.S.  353,  355-58  (1962).    Equally  well            __________            established was the  proposition that nominal  representation            on  an  appeal  of right  is  not  constitutionally adequate.            Rather, effective assistance of counsel is required.  Evitts,                                                                  ______            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.                                                             ___            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                                            _____________     _____            F.2d 91,  92 (1st Cir.),  cert. denied, 479 U.S.  846 (1986).                                      _____ ______            As we stated in Allen, id. at n. 4,                            _____  ___                                         -9-                      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                                        ___ __            protected.  Faretta  v.  California,  422  U.S.  806  (1975).                        _______      __________            "While 'the  right to counsel  is in force until  waived, the                                                              ______            right   to   self-representation   does  not   attach   until            asserted.'"  United States v. Allen, 789 F.2d at 94.  The law            ________     _____________    _____            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.                                 ___ __     ___  ____   _____________            Betancourt-Arretuche,  933  F.2d  89,  92  (1st Cir.),  cert.            ____________________                                    _____            denied, 112  S. Ct. 421 (1991).4   While we have not required            ______            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                                 ___ __                                            ____________________            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                                                      ___ __            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                                                                ___ _____            of the Supreme Judicial  Court, Rule 3:10 & Form 9.  However,            ______________________________            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.            ___                                                          -10-            may not be  inferred from a silent  record.  See   Carnley v.                                                         ___   _______            Cochran,    369 U.S.  506,  516  (1962);   United  States  v.            _______                                    ______________            Campbell,  874 F.2d  838,  845  (1st Cir.  1989).   "While  a            ________            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.                       _______     _______            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                                       _______    ____            (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                    ___ __            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                                         -11-            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                                            ____________________            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).                                           -12-            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                                                              ___ __                                            ____________________            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                                         -13-                 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                                                    ___ __            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            ___  __            ground in ordering Forte to proceed pro se absent a clear and                                                ___ __            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                ___ __            not seek reconsideration or  otherwise challenge the  Appeals                                            ____________________            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).                     _____     _______            Such discretion renders the ministerial function exception to            qualified immunity inapplicable.                                           -14-            Court's order during the four months that elapsed between its            entry  and the  dismissal  of  his appeal.    See Maynard  v.                                                          ___ _______            Meachum,  545  F.2d   at  277  (where  record   shows  habeas            _______            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                                           ___  __            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            ______            record, on this  record the defendants reasonably  could have                                            ____________________            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            ________________     _________________            Cir.  1989).  See also Slotnick v. Staviskey, 560 F.2d 31, 33                          ___ ____ ________    _________            (1st Cir. 1977),  cert. denied, 434 U.S.  1077 (1978)(holding                              _____ ______            conclusory allegations of conspiracy insufficient).                                           -15-            perceived Forte's silence as an election to proceed pro se.                                                                  ___ __                      Judgment affirmed.                      __________________                                                      -16-                                                        -17-
