April 5, 1995 [NOT FOR PUBLICATION]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.
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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.
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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
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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).
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