Aldrich v. Considine et al

Filing 15

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered Plaintiffs Motion for Leave to Proceed in forma pampers (Docket No. 2) is ALLOWED and the filing fee is assessed pursuant to 28 U.S.C. § 1915(b); Plaintiff's "Motion Requesting Pr ocedural Order to Proceed In Forma Pauperis and Service of Process" (Docket No. 10) is ALLOWED only to the extent that plaintiff is permitted to proceed in forma pauperis; otherwise, the motion is DENIED; Plaintiff's Motion for Leave to Eff ectuate Service of Process by United States Marshal and to Waive Fees/Costs (Docket No. 3) is DENIED;Plaintiff's "Motion Requesting Three Summonses and Approval to Effectuate Service of Process Through US Marshal" (Docket No. 11) is DE NIED; Plaintiff's Motion for Appointment of Counsel (Docket No. 4) is DENIED; Plaintiff's "Request for hearing and Petition for Issuance of a Writ of Habeas Corpus Ad Testificandum to Bring Plaintiff Before the Court for Show Cause Hea ring For a Preliminary Injunction and Temporary Restraining Order" (Docket No. 5) is DENIED. This action is DISMISSED in its entirety; and This Court CERTIFIES that any appeal of the rulings in this Memorandum and Order would not be taken in good faith. (PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ROBERT ALDRICH,
Plaintiff,
v.

Civil Action No. 13-11405-DPW

KAREN CONSIDINE, ET AL.,
Defendants.
MEMORANDUM AND ORDER
August 29, 2013
WOODLOCK, D.J.
I.

Introduction
On June 6, 2013, plaintiff Robert Aldrich (“Aldrich”), a

prisoner in custody at MCI Shirley, in Shirley, Massachusetts,
filed a self-prepared civil rights action alleging violations of
his constitutional rights pursuant to 42 U.S.C. § 1983 against
Middlesex Superior Court Judge Christopher Muse (“Judge Muse”);
Karen Considine (“Considine”); the Official Court Reporter; and
Assistant District Attorney Kevin Curtin (“Curtin”).1

The matter

stems from matters occurring in Aldrich’s 2008 criminal case in
the Middlesex Superior Court.
Specifically, Aldrich complains of actions taken by Judge

1

Aldrich is a frequent filer of civil actions in this Court.
See Aldrich v. Sanfilippo, et al., Civil Action No. 06-10717-NMG;
Aldrich v. Town of Brookline, et al., Civil Action No. 06-10950GAO; Aldrich v. Breen, et al., Civil Action No. 09-10352-WGY;
Aldrich v. Herb Chambers, Inc., et al., Civil Action No. 0911135-NMG; Aldrich v. Town of Milton, et al., Civil Action No.
09-11282-WGY; Aldrich v. DiPaola, et al., Civil Action No. 0911513-EFH; Aldrich v. City of Cambridge et al., Civil Action No.
12-12273-RGS; Aldrich v. MacEachern, Civil Action No. 11-10687WGY; Aldrich v. City of Cambridge, et al., Civil Action No. 1212273-RGS; Aldrich v. Ruano, Civil Action No. 13-10754-WGY; and
Aldrich v. Young, Civil Action No. 13-10466-DPW.

Muse in connection with bail issues (i.e., denial of bail,
subsequent modification of bail, and imposition of restrictive
conditions of release).

He also complains of actions taken by

Judge Muse in connection with pretrial proceedings, his jury
trial, and post-verdict matters.

In addition to these claims,

Aldrich complains of improper actions taken by both the court
reporter and the prosecutor in connection with the official
transcript concerning the jury’s verdict as stated in open court.
More specifically, Aldrich contends that on January 6, 2008,
he was indicted and subsequently arraigned in Middlesex Superior
Court for burglary and related property crimes.
v. Aldrich, Case No. 2008-00164.

See Commonwealth

Thereafter, he was permitted to

proceed pro se in that criminal matter, and appeared before Judge
Muse in connection with various pretrial motions.

He claims that

Judge Muse did not like the fact that he was proceeding pro se,
and that he routinely made disparaging remarks against his
character in open court.

During several court proceedings, the

friction between them became so heated that Aldrich claims he
accused Judge Muse of abusing his authority and acting
impermissibly by assuming the role of both prosecutor and judge.
Additionally, Aldrich contends that Judge Muse denied his request
for a reduction in bail on the grounds that Aldrich had open
criminal cases pending in the Suffolk Superior Court.
In July, 2008, Aldrich, representing himself pro se in two
separate trials in the Suffolk Superior Court, was found not

2

guilty on both matters.

In light of this verdict, in October,

2008, Judge Muse allowed Aldrich a reduction of bail in
connection with the criminal case in Middlesex Superior Court.
Aldrich claims Judge Muse again made disparaging remarks about
his self-representation at that time.
Thereafter, in February, 2009, Aldrich represented himself
at a third criminal trial in the Suffolk Superior Court, and he
also was found not guilty.

A month later, Judge Muse denied

Aldrich’s further request for a reduction of bail (based on the
third not guilty verdict), stating that Aldrich would “not be so
fortunate in this Middlesex case because [he] was ‘caught inside
the house.’”

Compl. at ¶ 11.

Aldrich accused Judge Muse of

unfair treatment simply because he had won three criminal trials
as a pro se defendant.

He alleged that Judge Muse was not

impartial, and that the conversation escalated to the point that
Judge Muse threatened to hold Aldrich in contempt of court.
Aldrich claims that Judge Muse “reluctantly” reduced Aldrich’s
bail and imposed a number of conditions of release, including
that he wear a GPS electronic bracelet.

Id. at 14.

In

September, 2009, Aldrich posted bail and was released.
A month later, in October, 2009, Aldrich complained that he
was not a sex offender and therefore Judge Muse’s order requiring
him to wear a GPS electronic bracelet was illegal and offended
his constitutional rights as a pro se defendant because he was
impeded from gathering evidence and preparing his criminal case

3

for trial, without government monitoring.

Judge Muse denied his

motion to remove the GPS bracelet, and threatened to revoke his
bail.

Thereafter, in December, 2009, Aldrich appeared for a

status conference in preparation for trial.

He asked for

permission to interview the Commonwealth’s witness, but Judge
Muse issued an order that Aldrich had to write letters to the
witness, then give them to the prosecutor for review, and then
give them to the witness if they chose to speak with Aldrich.
Aldrich vehemently objected to that procedure as violative of his
constitutional rights.

Again, Judge Muse threatened to revoke

bail.
On December 7, 2009, Judge Muse ordered Aldrich to appear in
court a half hour before the hearing, failing which, his bail
would be revoked.

Aldrich states this order was made despite the

forecast of a snow storm and despite the fact that he had a
medical appointment to treat his diabetes.

Aldrich had to rent a

vehicle in order to arrive on time to the Court in Woburn, and
had to forego his medical appointment.
Next, Aldrich alleges that, during the jury trial, Judge
Muse admonished and belittled him by constantly arguing the
government’s case upon Aldrich’s objections.

At the close of the

government’s case, Aldrich intended to call witnesses on his
behalf, and asked Judge Muse for a short recess in order to
locate his summoned witnesses.

This request was refused, and a

heated argument occurred at sidebar.

4

Judge Muse refused to allow

his witnesses to present evidence, and told the jury that the
defense had rested, over Aldrich’s objections.
Further, Aldrich alleges that Judge Muse erroneously told
the jury that the charges against Aldrich were armed robbery,
robbery, and armed burglary (not unarmed burglary).

On December

15, 2009, the jury returned a guilty verdict against Aldrich for
armed burglary.

Aldrich contends this was a charge that was

never indicted or tried.

At a subsequent “habitual offender”

hearing, Aldrich was sentence to 20 years imprisonment.
With respect to Considine, Aldrich alleges she is an
official court reporter who reports through a “voice writer” and
converts her recorded tapes into written, certified transcripts.
She was the reporter who recorded Aldrich’s pretrial proceedings.
Aldrich obtained her transcripts of the trial, which confirmed
that the jury returned a guilty verdict for “armed burglary” upon
the clerk’s inquiry.

Id. at 35.

Based on the argument that he was convicted of crime that
was never indicted or charged, Aldrich filed a Motion to Vacate
Unlawful Conviction for the armed burglary.

Curtin was assigned

as the appellate attorney for the Commonwealth.

Aldrich contends

that Curtin and Considine “secretly met” and listened to the
unofficial voice recording made by Considine at trial.

Aldrich

claims that Curtin used his cell phone to record a portion of
that voice recording, including the jury’s verdict, and later
made an audio CD of the cell phone recording.

5

Curtin claimed

that he and Considine heard the clerk state the charge as unarmed
burglary not “armed burglary” as certified in the official
transcript.
Curtin then filed a Motion to Correct the Record, attaching
the CD he made from the cell phone recording.

Aldrich contends

that Considine acted in violation of her duties as an official
court reporter because she allowed Curtin to listen to the
unofficial voice recording without a court order.

He also

contends that Curtin acted outside the scope of his duties as an
Assistant District Attorney when he wrongfully accessed the court
reporter’s voice recording without prior court authorization.
Judge Muse held an ex parte hearing on Curtin’s Motion to
Correct the Record.

Considine did not appear at that hearing nor

did she provide an affidavit stating her view as to whether the
official transcript was in error.

Thereafter, Judge Muse denied

Aldrich’s Motion to Vacate Unlawful Armed Burglary Conviction, as
having no factual basis, and allowed the Motion to Correct the
Record.
Aldrich alleges that Judge Muse violated his constitutional
rights by “changing the jury’s guilty verdict for the uncharged
crime of ‘armed burglary’ to unarmed burglary.”

Id. at 48.

He further alleges that Judge Muse acted outside the scope of his
authority as a judge, acted unconstitutionally and unlawfully,
and acted in concert with Curtin to “cover up” and keep Aldrich
falsely imprisoned on an uncharged crime, causing him to suffer

6

emotional distress.
As relief, Aldrich seeks, inter alia: (1) a declaratory
judgment that the defendants’ acts violated his state and federal
constitutional rights; (2) a preliminary and permanent injunction
ordering Considine to comply with her duties and cease the
release of unofficial court recordings without a court order; (3)
a preliminary and permanent injunction ordering Curtin to comply
with his duties as an Assistant District Attorney and cease
accessing and recording the room recordings of the court reporter
without authorization; (4) a preliminary and permanent injunction
ordering Judge Muse to comply with his judicial duties and cease
changing the official trial transcripts; (5) a preliminary and
permanent injunction ordering Considine to delete and destroy any
and all room recordings made in his criminal case; and (6) an
award of compensatory and punitive damages.
Along with the Complaint, Aldrich filed a Motion for Leave
to Proceed in forma pauperis (Docket No. 2) accompanied by his
prison account statement, a Motion for Leave to Effectuate
Service of Process by United States Marshal and to Waive
Fees/Costs (Docket No. 3), a Motion for Appointment of Counsel
(Docket No. 4), a “Request for hearing and Petition for Issuance
of a Writ of Habeas Corpus Ad Testificandum to Bring Plaintiff
Before the Court for Show Cause Hearing For a Preliminary
Injunction and Temporary Restraining Order” (Docket No. 5), along
with a Proposed Order to Show Cause for a Preliminary Injunction

7

and a Temporary Restraining Order.
On August 8, 2013, Aldrich filed a “Motion Requesting
Procedural Order to Proceed In Forma Pauperis and Service of
Process” (Docket No. 10), and a “Motion Requesting Three
Summonses and Approval to Effectuate Service of Process Through
US Marshal” (Docket No. 11).
II.

Discussion
A.

The Motion for Leave to Proceed In Forma Pauperis

Upon review of Aldrich’s financial disclosures in his in
forma pauperis motion and his prison account statement, I will
ALLOW his Motion for Leave to Proceed in forma pauperis (Docket
No. 2).

To the extent that Aldrich’s Motion Requesting

Procedural Order to Proceed In Forma Pauperis and Service of
Process” (Docket No. 10) seeks in forma pauperis status, I will
ALLOW that motion as well in light of the allowance of the Motion
for Leave to Proceed in forma pauperis; otherwise the motion will
be DENIED.
Because Aldrich is a prisoner, however, he is obligated to
make payments toward the filing fee pursuant to 28 U.S.C.
§ 1915(b).
In light of this, it is hereby Ordered that:
1.

Plaintiff Robert Aldrich is assessed

an initial

partial filing fee of $30.01, pursuant to 28

8

U.S.C. § 1915(b)(1)(A);2 and
2.

The remainder of the fee $319.99 is to be assessed
and collected in accordance with 28 U.S.C.
§ 1915(b)(2).

This assessment is made apart from any other assessments
made in other civil actions filed by Aldrich; however, because
Aldrich is a frequent filer, for purposes of clarification for
crediting any funds received, and to facilitate proper recordkeeping by the Treasurer’s Office at MCI Shirley and by the
Clerk’s Office Accounting Department, I intend that any funds
received from Aldrich’s prison account first be applied to any
prior Order of a Court assessing a filing fee pursuant to 28
U.S.C. § 1915.3

2

This assessment was based on a manual calculation of the
average monthly deposits over a six-month period based on the
prison account information submitted by Aldrich. This assessment
is without prejudice to his seeking reconsideration provided he
submits an alternative calculation based on credible evidence in
accordance with 28 U.S.C. § 1915(b). This assessment is also
made notwithstanding that Aldrich presently may not have
sufficient funds to pay the initial partial assessment; the in
forma pauperis statute provides for assessment at the time of
filing of the action, but collection “when funds exist.” 28
U.S.C. § 1915(b)(1).
3

In other words, Aldrich’s filing fee obligation in this
action shall be collected consecutively and not simultaneously
with any prior filing fee obligation imposed by any court. See
Ruston v. NBC Television, USCA No. 06-4672-cv (2d Cir. 2009)
citing Whitfield v. Scully, 241 F.3d 264, 277 (2d Cir. 2001).
See also Lafauci v. Cunningham, 139 F. Supp. 2d 144, 147 (D.
Mass. 2001)(reviewing decisions of the courts of appeals for the
Second, Seventh, and District of Columbia circuits, and
indicating that “the simultaneous collection of filing fees from
9

B.

Screening of the Complaint

Because Aldrich is a prisoner, he is subject to the
provisions of the Prison Litigation Reform Act (“PLRA”), Title
VIII of Pub.L. 104-134, 110 Stat. 1321-1375 (1996).

The PLRA

enacted several provisions which grant this Court the authority
to screen and dismiss prisoner complaints.

See 28 U.S.C. § 1915

(proceedings in forma pauperis); 28 U.S.C. § 1915A (screening of
suits against governmental officers and entities).
Section 1915 authorizes federal courts to dismiss actions in
which a plaintiff seeks to proceed without prepayment of fees if
the action lacks an arguable basis either in law or in fact,
Neitzke v. Williams, 490 U.S. 319, 325 (1989), or if the action
fails to state a claim upon which relief may be granted or seeks
monetary relief against a defendant who is immune from such
relief.

See 28 U.S.C. § 1915(e)(2)(ii) and (iii).

In forma

pauperis complaints may be dismissed sua sponte and without
notice under § 1915 if the claim is based on an indisputably
meritless legal theory or factual allegations that are clearly
baseless.

Neitzke, 490 U.S. at 327-328; Denton v. Hernandez, 504

U.S. 25, 32-33 (1992).
Section 1915A also authorizes the Court to review prisoner
complaints in civil actions in which a prisoner seeks redress
from a governmental entity, or officers or employees of a
governmental entity, and to dismiss the action regardless of

indigent prisoners may raise serious constitutional concerns”).
10

whether or not the plaintiff has paid the filing fee, if the
complaint lacks an arguable basis in law or fact, fails to state
a claim, or seeks relief from a defendant immune from such
relief.

28 U.S.C. § 1915A.

In connection with the preliminary screening, Aldrich’s pro
se Complaint is construed generously.

Hughes v. Rowe, 449 U.S.

5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972);
Instituto de Educacion Universal Corp. v. U.S. Dept. of
Education, 209 F.3d 18, 23 (1st Cir. 2000).

However, even under

a broad reading, I will DISMISS this case for the various reasons
set forth below.
C.

Absolute Judicial Immunity Bars Claims Against Judge
Muse

Aldrich’s § 1983 claims against Judge Muse must be dismissed
because he is entitled to absolute judicial immunity.
v. Waco, 502 U.S. 9, 11 (1991) (per curiam).

Mireless

In Mireless, the

U.S. Supreme Court has stated that “judicial immunity is an
immunity from suit, not just from the ultimate assessment of
damages.”

Id. (other citations omitted).

Most recently, the United States Court of Appeals for the
First Circuit addressed the scope of absolute judicial immunity.
See Goldstein v. Galvin, 2013 WL 2466861 (1st Cir. June 10,
2013).

In Goldstein, the Court stated:

Absolute immunity applies to a narrow swath of public
officials, including “judges performing judicial acts
within their jurisdiction,” “prosecutors performing
acts intimately associated with the judicial phase of
the criminal process,” and agency officials with
11

functions similar to judges and/or prosecutors.
Bettencourt v. Bd. of Regist. in Med. of Mass., 904
F.2d 772, 782 (1st Cir.1990) (internal quotation marks
omitted); see Butz v. Economou, 438 U.S. 478, 508–17,
98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). The protection
afforded by an absolute immunity endures even if the
official “acted maliciously and corruptly” in
exercising his judicial or prosecutorial functions.
Wang, 55 F.3d at 702 (internal quotation marks
omitted). It likewise endures “in the presence of
‘grave procedural errors.’ “ Nystedt v. Nigro, 700 F.3d
25, 32 (1st Cir.2012) (quoting Stump v. Sparkman, 435
U.S. 349, 359, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978)).
The imperviousness of this protection is no accident:
“[a]lthough this concept of absolute immunity allows
some abuses of official power to go unredressed, it is
necessary for the effective administration of
government that government workers be able to perform
their jobs without fear of liability.” Ricci v. Key
Bancshares of Me., Inc., 768 F.2d 456, 462 (1st Cir.
1985).
Id. at *4.

Further, Goldstein stated:

An inquiry into the existence vel non of judicial
immunity encompasses three questions. First, we ask
whether the defendant carries out traditional
adjudicatory functions. See Bettencourt, 904 F.2d at
783. If so, we ask whether the defendant is called upon
to decide cases that are “sufficiently controversial
that, in the absence of absolute immunity, he would be
subject to numerous damages actions.” Id. If the
answers to these two queries are affirmative, we then
ask whether the defendant performs his adjudicatory
functions “against a backdrop of multiple safeguards
designed to protect [the plaintiff's] constitutional
rights.” Id....Judicial acts are those that are
‘intimately associated’ with the judicial function.”
Nystedt, 700 F.3d at 31 (quoting Burns, 500 U.S. at
486). The bedrock judicial function is, of course, the
adjudication of disputes. Id. Other traditional
judicial functions include such things as “weighing
evidence, making factual findings, reaching legal
determinations, choosing sanctions, and expounding
reasons for [ ] decisions.” Coggeshall, 604 F.3d at
663.
Id. at *5.
12

Here, all of the wrongful acts complained of were taken by
Judge Muse in his judicial capacity and were acts normally
performed by a judge within the scope of his jurisdiction.

Thus,

notwithstanding any allegations of malice, prejudice, bias
against pro se litigants, negligence or other bad faith acts in
connection with Judge Muse’s rulings, I find that he is immune
from suit.

See Pierson v. Ray, 386 U.S. 547, 553-554(1967)

(absolute judicial immunity protects integrity of judicial
process); Allard v. Estes, 197 N.E. 884, 886 (1935)(stating that
it is “too well settled to require discussion, that every judge,
whether of a higher or lower court, is exempt from liability to
an action for any judgment or decision rendered in the exercise
of jurisdiction vested in him by law.”).4
The reason for recognizing this form of immunity is that:
[T]he nature of the adjudicative function requires a
judge frequently to disappoint some of the most intense
and ungovernable desires that people can have....
[T]his is the principal characteristic that
adjudication has in common with legislation and with
criminal prosecution, which are the two other areas in
which absolute immunity has most generously been

4

I note that Aldrich has alleged that Judge Muse conspired
with Curtin to deny him due process. This is a bald allegation
or legal conclusion without any underlying facts whatsoever set
forth to support such a claim, and I need not credit it.
Allegations that the state court judge agreed with the adverse
side does not permit an inference of an agreement to deprive him
a litigant of his rights. See Frierson-Harris v. Kall, 2006 WL
2373231, at *1 (7th Cir. 2006)(“... judges generally ‘agree’ with
one side in litigation when ruling against the other; such
agreements are not corruptions of the judicial process”)(not
selected for publication).
13

provided. If judges were personally liable for
erroneous decisions, the resulting avalanche of suits,
most of them frivolous but vexatious, would provide
powerful incentives for judges to avoid rendering
decisions likely to provoke such suits. The resulting
timidity would be hard to detect or control, and it
would manifestly detract from independent and impartial
adjudication.
Gallas v. Supreme Court of Pennsylvania, 211 F.3d 760, 768 (3d
Cir. 2000)(quoting Forrester v. White, 484 U.S. 219, 226-27
(1988)).
Although Aldrich alleges that Judge Muse acted outside the
scope of his authority, that allegation is insufficient to
overcome absolute judicial immunity.

It is clear that all of

Aldrich’s complaints (i.e., denial of bail, imposition of
electronic bracelet as a condition of release, refusal to permit
him to present witnesses, denial of his motion to vacate, and
other actions taken during court proceedings) were within the
scope of Judge Muse’s judicial authority.

The allegations that

he acted as both a judge and a prosecutor during the criminal
proceedings are not the type of extrajudicial activity that would
undermine the immunity doctrine.

Moreover, the First Circuit has

stated: [“...we have decided, time and again, that officials who
exercise both judicial and prosecutorial functions may
nonetheless be entitled to absolute immunity.”

Goldstein, 2013

WL 2466861 at *7.
Of particular note here is that Aldrich was well aware of
the absolute judicial immunity doctrine.

In Aldrich v. Judge

Young, Civil Action No. 13-10466-DPW, the United States, on
14

behalf of District Judge William G. Young, filed a Memorandum in
Support of a Motion to Dismiss, discussing the doctrine.
Memorandum in Support (Docket No. 5 at 6-7).

See

In response, only

three weeks prior to the filing of this lawsuit, Aldrich filed an
Opposition and Partial Assent (Docket No. 12) conceding that
absolute judicial immunity barred his claim for monetary damages.
In light of this, Aldrich’s good faith in asserting the claim
against Judge Muse is questionable.
I recognize that in the case before Judge Young, Aldrich
interposed the argument that he would be entitled to declaratory
relief notwithstanding that absolute judicial immunity barred the
monetary damages claims.

However, except in limited

circumstances not applicable here, the doctrine bars suits
against judges, regardless of the relief sought.

Moreover, a

Declaratory Judgment is not a separate not a substantive source
of rights; rather, the “operation of Declaratory Judgment Act is
procedural only.”

Skelly Oil Co. v. Phillips Petroleum Co., 339

U.S. 667, 671 (1950)(citation omitted); see Akins v. Penobscot
Nation, 130 F.3d 482, 490 n. 9 (1st Cir. 1997)(Declaratory
Judgment Act does not, by itself, create a substantive cause of
action).

For the reasons set forth herein, Aldrich fails to set

forth cognizable § 1983 due process claims, and therefore cannot
obtain declaratory relief.
Further, there is no equitable basis for the grant of
declaratory relief against a judge (or any of the defendants for

15

that matter), where Aldrich does not seek prospective relief.
The acts of which he complains have already occurred, and he
seeks a declaration that the defendants violated his
constitutional rights (in the past).
4116882 (M.D.N.C. 2010).5

See Clay v. Osteen, 2010 WL

Declaratory relief applies only to

prospective relief, to define legal rights in connection with
future conduct.

Id.

See Willner v. Frey, 421 F. Supp. 2d 913

(E.D. Va. 2006), aff’d 243 Fed. Appx. 744 (4th Cir. 2007), cert.
denied 128 S.Ct. 1125 (2008); Abebe v. Seymour, 2012 WL 1130667
(D.S.C. 2012), aff’d 479 Fed. Appx. 464, *2 (4th Cir. 2012)
(denying injunctive relief based on alleged wrongs occurring in
prior cases before a judge, stating: “[a] declaratory judgment is
meant to define the legal rights and obligations of the parties
in anticipation of some future conduct, not simply to proclaim
liability for a past act.” quoting Lawrence v. Kuenhold, 271 F.

5

In rejecting a request for declaratory relief against a
judge, Clay stated:
“Declaratory judgments... are meant to define the legal
rights and obligations of the parties in anticipation
of some future conduct.” Johnson v. McCuskey, 72 Fed.
Appx. 475, 477 (7th Cir. 2003) (holding that
declaratory relief was improper where Plaintiff merely
sought a declaration that Defendants had acted
improperly when deciding a change of venue motion).
They are not “meant simply to proclaim that one party
is liable to another.” Id. at 478. Plaintiffs’
request for declaratory relief merely seeks to strip
Defendants of judicial immunity and thereby impose
liability. As such, Plaintiffs are not entitled to
declaratory relief.
Clay, 2010 WL 4116882 at *4.

Such is the case here.
16

App’x 763, 766 (10th Cir. 2008))(“[d]eclaratory judgments are
designed to declare rights so that parties can conform their
conduct to avoid future litigation, and are untimely if the
questionable conduct has already occurred or damages have already
accrued.”).
As an additional matter, Aldrich’s general request for
injunctive relief in the form of an Order directing the
Defendants to do their jobs properly in the future, and his
request for an Order directing defendants to correct records
pertaining to his criminal case, are insufficient to entitle him
to declaratory relief.

Further, even if Aldrich could pursue a

claim for declaratory relief, such claim fails on the merits, and
under my broad discretion, would be denied.

See DeNovellis v.

Shalala, 124 F.3d 298, 313 (1st Cir. 1997).

In DeNovellis, the

United States Court of Appeals for the First Circuit stated, in
relevant part:
The Declaratory Judgment Act is “an enabling Act, which
confers a discretion on the courts rather than an
absolute right upon the litigant”; courts have broad
discretion to decline to enter a declaratory judgment.
Wilton v. Seven Falls Co., 515 U.S. 277, 287, 115 S.Ct.
2137, 2142-43, 132 L.Ed.2d 214 (1995) (quoting Public
Serv. Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 241,
73 S.Ct. 236, 239, 97 L.Ed. 291 (1952)). “By the
Declaratory Judgment Act, Congress sought to place a
remedial arrow in the district court’s quiver; it
created an opportunity, rather than a duty, to grant a
new form of relief to qualifying litigants. Consistent
with the nonobligatory nature of the remedy, a district
court is authorized, in the sound exercise of its
discretion, ... to dismiss an action seeking a
declaratory judgment before trial.” Wilton, 515 U.S.
at 288, 115 S.Ct. at 2143....In the declaratory
17

judgment context, the normal principle that federal
courts should adjudicate claims within their
jurisdiction yields to considerations of practicality
and wise judicial administration.” Wilton, 515 U.S. at
288, 115 S.Ct. at 2143.
DeNovellis, 124 F.3d at 313.

Finally, it appears that Aldrich’s

attempt to obtain declaratory relief may, at least in part, be
designed to serve as a basis for him to seek vacation of the
rulings of Judge Muse and overturn his criminal conviction.6
This is improper; the method to challenge allegedly wrongful
criminal conviction is through a direct appeal, a habeas
petition, and/or other post-conviction motions, not through a
civil action against the judge, the prosecutor, and court staff.
Accordingly, Aldrich’s claims against Judge Muse will be
DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii).
D.

Absolute Prosecutorial Immunity Bars Claims Against
Assistant District Attorney Curtin

Similarly, Aldrich’s § 1983 claims against Curtin also must
be dismissed because prosecutors are entitled to absolute
prosecutorial immunity when they engage in activities that are
“intimately associated with the judicial phase of the criminal
process.”

Imbler v. Pachtman, 424 U.S. 409, 430 (1976); Reid v.

State of New Hampshire, 56 F.3d 332, 337 (1st Cir. 1995).
Conduct falling within this category is not limited to conduct
occurring in the courtroom.

It includes actions where

6

Indeed, I cannot discern any other basis for the request
for declaratory relief against these defendants.
18

prosecutors are acting “in the course of [their] role as an
advocate for the State,” including “acts undertaken by a
prosecutor in preparing for the initiation of judicial
proceedings or for trial ....”

Buckley v. Fitzsimmons, 509 U.S.

259, 273 (1993).
In Goldstein, supra, the First Circuit also addressed
absolute prosecutorial immunity, stating: “[t]he baseline rule is
that a state official who performs prosecutorial functions ... is
absolutely immune from damages actions.”
2466861 at *6 (citations omitted).

Goldstein, 2013 WL

Such immunity applies not

only to “[t]he duties of the prosecutor in his role as advocate
for the State involve actions preliminary to the initiation of a
prosecution [but to] actions apart from the courtroom .”

Id. at

*7 (quoting Imbler v. Pachtman, 424 U.S. 409, 431 n. 33, 96 S.Ct.
984, 47 L.Ed.2d 128 (1976)).
Although Aldrich alleges that Curtin exceeded the scope of
his authority as a prosecutor by listening to the unofficial
voice recordings and filing a Motion to Correct the Record, there
can be no serious contention that this conduct was not intimately
connected to his duties as a prosecutor in acting to maintain the
integrity and finality of the criminal conviction by a jury.
Thus, even if Curtin misled the court or acted wrongfully in
listening to the voice recordings without court permission, or in
filing a Motion to Correct the Record without a supporting

19

Affidavit of Considine, it simply is beyond question that one
duty of a prosecutor is to advocate for the government to protect
the finality of a criminal conviction.

It is also beyond

question that Curtin’s conduct occurred directly in connection
with, or stemming from, Aldrich’s post-conviction Motion to
Vacate the conviction.

In short, Curtin’s actions were

intimately associated with the criminal process, and he is
entitled to prosecutorial immunity no matter how he allegedly
acted improperly.
Again, Aldrich was aware of this doctrine prior to filing
this lawsuit.

See Aldrich v. City of Cambridge, et al.,

Memorandum and Order (Docket No. 18).

While Judge Stearns

ultimately permitted the case to proceed, he noted in an
Electronic Order (Docket No. 24) that the issue of prosecutorial
immunity was a matter to be briefed by the parties at a later
time.

In that action, Aldrich alleges that the prosecutor

engaged in a cover up for wrongful conduct of a police officer,
by presenting oppositions in court that challenged Aldrich’s
version of events.
Curtin’s actions are clearer than in Aldrich’s other
lawsuit, and thus no opportunity to show cause why this case
should not be dismissed need be given.

Accordingly, I will

DISMISS the claims against pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) and (iii).

20

E.

Quasi-Judicial Immunity As a Bar to Claims Against
Court Reporter Considine

Employees of a court, including court reporters, have
quasi-absolute judicial immunity when they perform tasks that are
an integral part of the judicial process.

See Book v. Dunlavey,

2009 WL 891880, *4 (W.D. Pa. 2009) citing Gallas v. Supreme Court
of Pennsylvania, 211 F.3d 760, 772-73 (3d Cir. 2000) (deputy
court administrator); Mullis v. United States Bankr. Court for
the Dist. of Nevada, 828 F.2d 1385, 1390 (9th Cir. 1987) (clerks
and deputy clerks).

Kincaid v. Vail, 969 F.2d 594, 601 (7th Cir.

1992)(quasi-judicial immunity applied to court support personnel
because of “the danger that disappointed litigants, blocked by
the doctrine of absolute immunity from suing the judge directly,
will vent their wrath on clerks, court reporters, and other
judicial adjuncts”).

Where the question of accuracy of a

transcript is raised, as in Aldrich’s criminal case, a court
reporter’s action in taking steps to permit a party to challenge
the accuracy is arguably a proper effort to maintain the
integrity of the judicial process.

Thus, even though there may

not have been a court order permitting the release to Curtin of
such recording for listening (and comparing the audio to the
written transcript), such action, however allegedly wrongful that
may be, would not overcome the quasi-immunity of the court

21

reporter.7
In any event, even if Considine were not entitled to quasijudicial immunity, Aldrich’s actions still are barred under the
Favorable Termination Rule, discussed below.
F.

Plaintiff’s Claims are Barred By The Favorable
Termination Rule

Here, Aldrich has indicated that his Motion to Vacate his
conviction was denied by Judge Muse.

While he does not indicate

the status of his conviction, upon information from the
Massachusetts Appeals Court, Aldrich currently has a pending
appeal.

See Com. v. Aldrich, No. 2012-P-787.

The appeal has

been stayed until July 8, 2013 pending a status report regarding
an appeal of the denial of Aldrich’s Motion for a New Trial (in

7

Notably, the Federal Court Reporter Act, 28 U.S.C.
§ 753(b), ¶ 6 provides that “[t]he original notes or other
original records and the copy of the transcript in the office of
the clerk shall be open during office hours to inspection by any
person without charge. Id. Further, the Court Reporter’s
Manual, Volume 6, Chapter 16, § 16.5.4 provides that: “Back up
tapes made by court reporters for their own convenience and not
otherwise required by 28 U.S. C. § 753 are the personal property
of the court reporters. There is no public entitlement to these
recordings, with the exception of recordings of arraignments,
changes of plea, and sentencings which are covered in section
16.5.1.” Id. Massachusetts apparently does not have a similar
requirement. See Com. v. Winfield, 464 Mass. 672, 680, 985
N.E.2d 86, 93 (Mass. Mar. 18, 2013)(noting that under Superior
Court regulations, “all stenotype tapes, tape recordings and
original shorthand notebooks containing any notes of the trial or
hearing of a case shall be the property of the court” and stating
that a judge has authority “to order the court reporter to
provide designated persons with access to the room recording, for
instance where the court reporter has failed timely to prepare a
transcript or where the recording may be needed to resolve a
dispute regarding the accuracy of the transcript.”).
22

which case the appeals may be consolidated).
In view of the fact that Aldrich’s conviction has not been
vacated or reversed, this § 1983 action must be dismissed, as
barred at this time by the Favorable Termination Rule.

It is

well-settled that civil rights claims do not accrue unless the
prisoner has obtained a “favorable termination” of the underlying
conviction, parole, disciplinary action or condition of
confinement.
progeny.

See Heck v. Humphrey, 512 U.S. 477 (1994) and its

Under this rule, “in order to recover damages for

allegedly unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff must prove
that the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a state
tribunal ... or called into question by a federal court’s
issuance of a writ of habeas corpus, 28 U.S.C. § 2254.”
512 U.S. at 486-87 (footnote omitted).

Heck,

Without such a showing of

a favorable termination, a prisoner’s cause of action has not yet
accrued.

Id. at 489.

The Favorable Termination Rule has been extended to a wide
variety of prisoner challenges where success “would, if
established, necessarily imply the invalidity of the
deprivation....”
(1997).

Edwards v. Ballistics, 520 U.S. 641, 646

A purpose of this rule is to focus on the need to
23

ensure that state prisoners use only habeas corpus (or similar
state) remedies when they seek to invalidate the duration of
their confinement -- either directly through an injunction
compelling speedier release or indirectly through a judicial
determination that necessarily implies the unlawfulness of the
State’s custody.

Wilkinson v. Dobson, 544 U.S. 74, 81 (2005).

Therefore, a civil rights suit is barred “if success in that
action would necessarily demonstrate the invalidity of
confinement or its duration.”

Id. at 81-82.

Here, it is clear that Aldrich’s attack on the alleged
misconduct of Judge Muse, Assistant District Attorney Curtin, and
Court Reporter Considine would necessarily imply the invalidity
of his conviction if he were successful.

This is manifest given

Aldrich’s primary assertion -- that he was unlawfully convicted
for a charge for which he was never indicted (i.e. armed
burglary), and that the record should not have been corrected to
indicate the conviction was for unarmed burglary.

Further,

Aldrich’s claims of bias against him for acting pro se during the
criminal proceedings, and for denying him the right to call
witnesses in his defense, also falls within the purview of Heck.
Once again, Aldrich was aware of the Favorable Termination
Rule, as discussed in Aldrich v. City of Cambridge, et al., Civil
Action No. 12-12273-RGS, Memorandum and Order (Docket No. 11 at
14-15), and thus the good faith in filing the instant action also

24

is questionable.

Although in that case the claims were permitted

to proceed, the Court noted that the issue of the Favorable
Termination Rule was a matter to be briefed by the parties at a
later time.
9, 2013).

See Electronic Order (Docket No. 24)(entered April

That action involved Aldrich’s claims against, inter

alia, a host of city officials, and police department officials
based on alleged threats and intimation of a police officer,
which threats Aldrich claimed had influenced the outcome of his
criminal trial because he changed his trial strategy in light of
the officer’s statements to him.

Those defendants were sued for,

among other things, the failure to train, supervise, discipline,
and investigate a complaint concerning the police officer’s
conduct.

Unlike the instant action, those matters did not

directly relate to the criminal proceedings.

Here, however,

where the defendants are being sued directly for actions taken in
connection with the criminal proceedings, application of Heck is
manifest, and no further opportunity need be given to Aldrich to
show cause why his claims should not be dismissed.
Accordingly, Aldrich’s suit will be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) (failure to state a claim upon which
relief may be granted).
For all the reasons set forth above, I will DISMISS this

25

action sua sponte.8
For purposes of application of the three-strikes rule of 28
U.S.C. § 1915(g), I intend this dismissal to be a decision on the
merits.
G.

Pending Motions

In light of the sua sponte dismissal of this action,
Aldrich’s Motion for Leave to Effectuate Service of Process by
United States Marshal and to Waive Fees/Costs (Docket No. 3), his
Motion for Appointment of Counsel (Docket No. 4), and his
“Request for hearing and Petition for Issuance of a Writ of
Habeas Corpus Ad Testificandum to Bring Plaintiff Before the
Court for Show Cause Hearing For a Preliminary Injunction and
Temporary Restraining Order” (Docket No. 5) will be DENIED as
unfounded.
Additionally, Aldrich’s Motion Requesting Three Summonses
and Approval to Effectuate Service of Process Through US Marshal

8

In light of the dismissal of this case for the reasons
stated herein, this Court need not address an additional bar to
Aldrich’s claims, presented by the Prison Litigation Reform Act,
42 U.S.C. § 1997e(e) providing that “no federal action may be
brought by a prisoner .... for mental or emotional injury
suffered while in custody, without a prior showing of physical
injury.” Id. There is a split in other circuits as to the
application of § 1997e(e) with respect to the availability of
monetary damages for a constitutional violation, and/or the
availability of nominal or punitive damages (not compensatory
damages). The United States Court of Appeals for the First
Circuit has not reached the issue, but has intimated that, at the
least, nominal and punitive damages would be recoverable in a §
1983 claim. See Kuperman v. Wrenn, 645 F.3d 69, 73 n.5 (1st Cir.
2011) .
26

(Docket No. 11) also will be DENIED as unfounded.
Finally, as noted above, Aldrich’s Motion Requesting
Procedural Order to Proceed In Forma Pauperis and Service of
Process (Docket No. 10) will be ALLOWED to the extent that he may
proceed in forma pauperis.

The motion will be DENIED to the

extent that Aldrich seeks summonses and service of process by the
United States Marshal Service.
H.

Certification That Any Appeal Would Not Be Taken in
Good Faith

Under 28 U.S.C. § 1915(a)(3) “[an appeal may not be taken in
forma pampers if the trial court certifies in writing that it is
not taken in good faith.”

Id.

Similarly, under Fed. R. App. P.

24(a)(3)(A), a party who has been permitted to proceed in forma
pampers in the district court may proceed on appeal in forma
pampers without further authorization, unless the district court
certifies that the appeal is not taken in good faith.

Id.

Because I have found Aldrich’s claims to be barred by the
legal impediments discussed in this Memorandum and Order, any
appeal by Aldrich would not be taken in good faith.

“The

applicant’s good faith is established by the presentation of any
issue that is not plainly frivolous.”

Ellis v. United States,

356 U.S. 674, 674 (1958) (per curia); see Lee v. Clinton, 209
F.3d 1025, 1026 (7th Cir. 2000); Wooden v. District of Columbia,
129 F.3d 206, 208 (D.C. Cir. 1997).

A complaint is “frivolous”

if “it lacks an arguable basis either in law or in fact.”
27

Nietzke, 490 U.S. at 325.

Such is the case here.

I find that

any appeal would be one that plainly does not deserve additional
judicial attention.
Accordingly, I will CERTIFY that any appeal of the rulings
contained in this Memorandum and Order would not be taken in good
faith.
Should Aldrich seek in forma pampers status on an appeal, he
must obtain permission to do so directly from the First Circuit
Court of Appeals.
CONCLUSION
Based on the foregoing, it is hereby Ordered that:
1.

Plaintiff’s Motion for Leave to Proceed in forma pampers
(Docket No. 2) is ALLOWED and the filing fee is assessed
pursuant to 28 U.S.C. § 1915(b);

2.

Plaintiff’s “Motion Requesting Procedural
In Forma Pauperis and Service of Process”
ALLOWED only to the extent that plaintiff
proceed in forma pauperis; otherwise, the

3.

Plaintiff’s Motion for Leave to Effectuate Service of
Process by United States Marshal and to Waive Fees/Costs
(Docket No. 3) is DENIED;

4.

Plaintiff’s “Motion Requesting Three Summonses and Approval
to Effectuate Service of Process Through US Marshal” (Docket
No. 11) is DENIED;

5.

Plaintiff’s Motion for Appointment of Counsel (Docket No. 4)
is DENIED;

6.

Plaintiff’s “Request for hearing and Petition for Issuance
of a Writ of Habeas Corpus Ad Testificandum to Bring
Plaintiff Before the Court for Show Cause Hearing For a
Preliminary Injunction and Temporary Restraining Order”
(Docket No. 5) is DENIED;

28

Order to Proceed
(Docket No. 10) is
is permitted to
motion is DENIED;

7.

This action is DISMISSED in its entirety; and

8.

This Court CERTIFIES that any appeal of the rulings in this
Memorandum and Order would not be taken in good faith.

SO ORDERED.
/s/ Douglas P. Woodlock
DOUGLAS P. WOODCOCK
UNITED STATES DISTRICT JUDGE

29