
USCA1 Opinion

	




          October 19, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1476                                    TREVOR HARPER,                                Plaintiff, Appellant,                                          v.                                  THOMAS J. BEGLEY,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                    Circuit Judges.                                   ______________                                 ____________________            Trevor Harper on brief pro se.            _____________            Scott  Harshbarger,   Attorney  General,  and  William  J.  Meade,            __________________                             __________________        Assistant Attorney General, on brief for appellee.                                 ____________________                                 ____________________                               Per Curiam.    Plaintiff  Trevor Harper appeals the                      __________            dismissal  of  his complaint  under 42  U.S.C.    1983.   The            complaint  names as  the sole  defendant an  assistant clerk-            magistrate  of the  Cambridge, Massachusetts  District Court.            It  alleges  that  defendant  violated  the  constitution  by            issuing  a search  warrant allowing  the Cambridge  police to            open  six  letters found  on  Harper's  person  when  he  was            arrested for assault with intent  to murder.  Harper  alleges            that  the affidavit submitted by the police in support of the            search warrant "clearly did not show probable cause to search            and seize  . . . the  letters," as any "ordinary  clerk would            have  .  .  .  known."   Therefore,  the  complaint  reasons,            issuance  of  the warrant  constituted  "maliciousness, bias,            prejudice, and the intentional infliction of severe emotional            distress."                      On a preliminary review  under 28 U.S.C.   1915(d),            the district court dismissed the complaint on the ground that            the defendant clerk is entitled to absolute immunity from a              1983  damages  suit  based  on  his actions  in  issuing  the            warrant.  We agree.                        "Under current  legal theory, immunity  attaches or            does  not  attach  depending  on  what  kind  of  action  was            performed rather than on  who performed it."  Acevedo-Cordero                                                          _______________            v.  Cordero-Santiago,  958  F.2d  20,  23  (1st  Cir.  1992).                ________________            Absolute immunity from  damages under    1983 is extended  to            court officials other than  judges when the officials perform            judicial functions  comparable to those that  would have been            accorded absolute protection at common law.  Antoine v. Byers                                                         _______    _____            & Anderson, 113 S. Ct. 2167 (1993).  The doctrine necessarily            __________            protects the authorized performance of "paradigmatic judicial            acts" --  acts which  entail discretionary  decisionmaking in            resolving disputes or adjudicating private rights.  Forrester                                                                _________            v. White, 484 U.S.  219, 227 (1988); see also Antoine, 113 S.               _____                             ________ _______            Ct. at 2171 (protection from private suites for discretionary            acts  is  needed to  assure  "the  independent and  impartial            exercise of judgment vital to the judiciary").                      A decision to issue a search warrant upon a finding            of probable cause is a discretionary judicial act with common            law antecedents firmly rooted in  the Fourth Amendment.  U.S.            Const. amend. IV;  see Gerstein  v. Pugh, 420  U.S. 103,  116                               ___ ________     ____            n.17 (1975)  (remarking  common law  antecedents  and  citing            authorities);  see also Burns  v. Reed,  500 U.S.  478 (1991)                           ________ _____     ____            ("Issuance of  a search warrant is  unquestionably a judicial            act.")  In addition to judges,  court clerks in Massachusetts            are  authorized  by statute  to  determine  the existence  of            probable  cause and to issue search warrants.  See Mass. Gen.                                                           ___            L.  ch. 218,   33  (authority extends to  "a clerk, assistant            clerk, temporary clerk, or temporary assistant clerk"); Mass.            Gen. L. ch. 276,    1; Commonwealth v. Penta, 352  Mass. 271,                                   ____________    _____            273,  225 N.E.2d  58 (1967).   The  State has  vested in  its                                         -3-            authorized  decisionmakers,  regardless   of  identity,   the            discretionary authority to determine the applicability of the            governing  law to  the individual  facts in  each case.   See                                                                      ___            Penta, 225 N.E.2d at  58-59; see also Shadwick v.  Tampa, 407            _____                        ________ ________     _____            U.S.  345, 350, 354 (1972) (holding that the substance of the            Constitution's warrant requirements may be satisfied by court            clerks  so long as they are "neutral and detached and capable            of the probable-cause  determination required of them");  cf.                                                                      ___            Jenkins v. Chief Justice of Dist. Court Dep't, 416 Mass. 221,            _______    __________________________________            243-44  & nn.39,40, 619 N.E.2d 324, 337-38 & nn. 39,40 (1993)            (upholding  legislature's  authority  to designate  officials            other  than  judges  to   make  post-arrest  probable   cause            determinations   so   long   as  the   officials   have   the            qualifications set forth in Shadwick).                                         ________                      The  issuance  of  a   search  warrant  by  a  duly            authorized  Massachusetts court  clerk  thus  falls  squarely            within  the   paradigm  of  protected  judicial   acts.    In            performing  a core judicial function requiring an independent            exercise  of judgment,  the clerk's  protection  from damages            liability must be absolute.  See Antoine, 113 S. Ct. at 2171.                                         ___ _______            Since  defendant  was   not  entirely  without  jurisdiction,            allegations that  he acted wrongfully and  maliciously do not            defeat  his absolute immunity from this suit.  See Mireles v.                                                           ___ _______            Waco, 112 S. Ct. 286, 287-88 (1991); Pierson v. Ray, 386 U.S.            ____                                 _______    ___            547, 553 (1967).                                          -4-                      Accordingly the judgment below is affirmed.                                                        ________                                         -5-
