Forte v. Rosenfeld

USCA1 Opinion

[NOT FOR PUBLICATION]

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No. 92-1134

MICHAEL B. FORTE,

Plaintiff, Appellant,

v.

ARNOLD R. ROSENFELD, ET AL.,

Defendants, Appellees.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

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Before

Breyer, Chief Judge,

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Campbell, Senior Circuit Judge,

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and Selya, Circuit Judge.

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Michael B. Forte on brief pro se.

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Scott Harshbarger, Attorney General, and Michelle A.

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Kaczynski, Assistant Attorney General, on brief for appellees.

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Per Curiam. Plaintiff Michael Forte, a Massachusetts

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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withdrawn from his case.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

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motion to enlarge the time for him to file his notice of

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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

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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

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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.

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Obviously an order issued in 1990 cannot reconsider an order

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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

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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

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Forte's criminal appeal (Commonwealth v. Forte, Mass. Appeals

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Court no. 89-P-1269).

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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

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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

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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

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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

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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

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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

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CPCS is authorized to establish a rotating appointment

mechanism for attorneys in its private counsel division. Id.

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4.

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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

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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

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v. City of Cambridge, 932 F.2d 51, 53 (1st Cir.), cert.

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denied, 112 S. Ct. 192 (1991) On appeal, Forte argues that

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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

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the Appeals Court to deprive him of his right to counsel,

therefore the order requiring him to proceed pro se cannot

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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,

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941 F.2d 22, 30 (1st Cir. 1991)(quoting Harlow v. Fitzgerald,

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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

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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

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violates that right." Id. (emphasis supplied). While the

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precise action need not have been held unlawful, the

preexisting law must make its unlawfulness apparent. Id.

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"Only where the action in question was clearly unlawful does

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a defendant lose his qualified immunity." Juarbe-Angueira v.

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Arias, 831 F.2d 11, 12 (1st Cir. 1987), cert. denied, 485

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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.,

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Evitts v. Lucey, 469 U.S. 387, 391-405 (1985); Douglas v.

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California, 372 U.S. 353, 355-58 (1962). Equally well

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established was the proposition that nominal representation

on an appeal of right is not constitutionally adequate.

Rather, effective assistance of counsel is required. Evitts,

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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 .

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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

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F.2d 91, 92 (1st Cir.), cert. denied, 479 U.S. 846 (1986).

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As we stated in Allen, id. at n. 4,

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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

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protected. Faretta v. California, 422 U.S. 806 (1975).

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"While 'the right to counsel is in force until waived, the

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right to self-representation does not attach until

asserted.'" United States v. Allen, 789 F.2d at 94. The law

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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.

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Betancourt-Arretuche, 933 F.2d 89, 92 (1st Cir.), cert.

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denied, 112 S. Ct. 421 (1991).4 While we have not required

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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

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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

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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

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of the Supreme Judicial Court, Rule 3:10 & Form 9. However,

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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.

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may not be inferred from a silent record. See Carnley v.

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Cochran, 369 U.S. 506, 516 (1962); United States v.

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Campbell, 874 F.2d 838, 845 (1st Cir. 1989). "While a

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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.

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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

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(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

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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

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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

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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).

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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

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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

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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

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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

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ground in ordering Forte to proceed pro se absent a clear and

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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

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not seek reconsideration or otherwise challenge the Appeals

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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).

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Such discretion renders the ministerial function exception to

qualified immunity inapplicable.

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Court's order during the four months that elapsed between its

entry and the dismissal of his appeal. See Maynard v.

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Meachum, 545 F.2d at 277 (where record shows habeas

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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

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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

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record, on this record the defendants reasonably could have

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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

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Cir. 1989). See also Slotnick v. Staviskey, 560 F.2d 31 , 33

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(1st Cir. 1977), cert. denied, 434 U.S. 1077 (1978)(holding

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conclusory allegations of conspiracy insufficient).

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perceived Forte's silence as an election to proceed pro se.

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Judgment affirmed.

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