Decker v. Hillsborough County Attorney's Office, s. 87-1725

• Decision Date: 22 April 1988
• Docket Number: 87-1839,Nos. 87-1725,s. 87-1725
• Citation: 845 F.2d 17
• Parties: Robert W. DECKER, Plaintiff, Appellant, v. HILLSBOROUGH COUNTY ATTORNEY'S OFFICE, et al., Defendants, Appellees. Robert W. DECKER, Plaintiff, Appellant, v. Paul McDONOUGH, etc., et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 17

845 F.2d 17

Robert W. DECKER, Plaintiff, Appellant, v. HILLSBOROUGH COUNTY ATTORNEY'S OFFICE, et al., Defendants,

Appellees.

Robert W. DECKER, Plaintiff, Appellant, v. Paul McDONOUGH, etc., et al., Defendants, Appellees.

Nos. 87-1725, 87-1839.

United States Court of Appeals First Circuit.

Submitted March 11, 1988.

Decided April 22, 1988.

Robert Decker, pro se.

Larry M. Smukler, Asst. Atty. Gen., Stephen E. Merrill, Atty. Gen., Concord, N.H., and Maria Verbeck, on brief for defendants, appellees Linda S. Dalianis, the Hillsborough County Superior Court, and the State of N.H.

Lawrence S. Smith, Diane L. Perin, and Ransmeier & Spellman, Concord, N.H., on brief, for defendants, appellees Manchester Police Dept., City of Manchester, and Thomas King, Chief of Police.

Robert G. Whaland, and McDonough & O'Shaughnessy, P.A., Manchester, N.H., on brief for defendant, appellee The City of Manchester.

David Horan, Asst. Co. Atty., Manchester, N.H., on brief for defendants, appellees Paul McDonough, Paul Gagnon, Hillsborough County, and the Hillsborough County Attorney's Office.

Before BREYER, TORRUELLA and SELYA, Circuit Judges.

PER CURIAM.

The district court dismissed plaintiff's two pro se complaints on various grounds including judicial immunity and failure to state a claim. The heart of plaintiff's complaints was that defendants had seized and then failed to return plaintiff's personal property despite, plaintiff alleged, court orders that various items be returned. Plaintiff has appealed from the dismissal. We review the background as gathered from the pleadings. We do not consider new matter not contained in the pleadings and asserted for the first time on appeal in plaintiff's main brief or rebuttal brief. Glaros v. Perse, 628 F.2d 679, 681 (1st Cir.1980).

Plaintiff's first complaint named as defendants the county attorney for Hillsborough County, an assistant county attorney, the Hillsborough County Attorney's Office, Hillsborough County, the Manchester Police Department, and the state of New Hampshire. The complaint alleged that on or about January 20, 1983, a state judge issued a search warrant, the validity of which, plaintiff said, was "still a matter of serious question." As a result of the warrant, Manchester police conducted a "fishing expedition" and seized property from plaintiff's residence. Some seized items were not even listed in the warrant. The next day at least two more search warrants issued and further "fishing expeditions" occurred. Only a small portion of the seized items was used at trial. Plaintiff was found not guilty on June 26, 1984 at a jury trial over which Superior Court Justice Linda Dalianis presided. (Justice Dalianis was not a named defendant in the first complaint, but was sued in a second action, to be subsequently discussed, that plaintiff brought.) After that, plaintiff's property should have been immediately returned, plaintiff claimed, as it was not contraband or otherwise illegal. It was not returned, however, forcing plaintiff to file a motion for return of property. Without holding any hearing at which plaintiff was present (plaintiff was incarcerated), Justice Dalianis, on March 1, 1985, "abused her judicial discretion" by ordering some of the property destroyed. The rest was ordered returned to plaintiff. Plaintiff received no written notice of the March 1, 1985 order until June 14, 1985, whereupon he filed a motion for preservation of all property. Plaintiff's mother attempted to obtain the property ordered by the court to be returned from the County Attorney's office and the Manchester Police Department, but only received "put-offs," "run-arounds," and excuses from defendants.

After further time had passed and defendants had not complied with the March 1, 1985 order, plaintiff filed further motions (another motion for return of property, motion for transcript, and motion for inventory) on July 15, 1985 aimed at obtaining his property. No hearing was held until November 13, 1985 at which time, plaintiff said, Justice Dalianis allotted him insufficient time to argue his motions, kept trying to cut him short, and seemed hostile to plaintiff. An order issued that day requiring defendants, specifically defendant McDonough, the assistant county attorney, to deliver certain of the property to plaintiff's mother, to provide her with an inventory by November 30, 1985, and to produce the rest of the property in court by December 13, 1985. Defendants neither delivered any property to plaintiff's mother nor produced any in court, plaintiff claimed.

On October 6, 1986, plaintiff filed more motions (for transcripts, for continued preservation of property, and to hold defendants in contempt). Justice Dalianis issued another order on October 31, 1986 stating that assistant county attorney McDonough had failed to comply with the March 1, 1985 and November 13, 1985 orders and ordering County Attorney Paul Gagnon personally to oversee compliance with the court's order. Justice Dalianis failed to rule on all of plaintiff's outstanding motions. Plaintiff's mother made further attempts to retrieve the property, but without success. Plaintiff amended his contempt motion to seek a jury trial and damages. A hearing was put off, at defendants' request and over plaintiff's objection, to February 12, 1987. What happened thereafter is not revealed in the pleadings. On February 24, 1987, plaintiff filed his first complaint in federal court.

On April 24, 1987, plaintiff filed his second complaint in federal court. In addition to the defendants named in the first complaint were the Manchester Chief of Police, the City of Manchester, Justice Dalianis, and the Hillsborough County Superior Court. The substance of the second complaint was essentially the same as that of the first. The second complaint indicated for the first time what type of property had been seized and ordered destroyed--photographs (apparently of unclothed persons), costumes, a make-up kit, and books.

With respect to the first complaint, a magistrate ruled that to the extent plaintiff was complaining about actions judges had taken, the judges were entitled to absolute immunity and, as for the rest of the complaint, plaintiff was still pursuing state judicial remedies and had not been denied due process. The district court accepted the magistrate's recommendation and dismissed the action. The magistrate recommended the second complaint be dismissed on res judicata grounds, and the court also accepted that recommendation. Plaintiff has appealed from these dismissals.

We turn to plaintiff's various contentions.

1. Fourth Amendment.

Plaintiff apparently may be attempting to challenge not only defendants' failure to return plaintiff's property to him but also the validity of the January 20 and 21, 1983 searches and seizures. If plaintiff unsuccessfully attacked the searches and seizures on fourth amendment grounds at his state criminal trial, then plaintiff would be collaterally estopped from relitigating that matter now. Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); Sanders v. Frisby, 736 F.2d 1230 (8th Cir.1984) (plaintiff who unsuccessfully litigated motion to suppress is collaterally estopped from challenging search and seizure in Sec. 1983 action). But, as it is not entirely clear from the complaints whether the validity of the searches and seizures was litigated in state court, we do not rest our decision on this basis.

We conclude instead that plaintiff has failed to allege sufficient facts to state a fourth amendment claim. Plaintiff alleged that the validity of the search warrants was a "matter of serious question" and that the searches were "fishing expeditions." But these are subjective characteristics and state no facts outlining why the searches and seizures might be illegal. Nor do plaintiff's additional allegations that the warrant "bore hand written additions" or that all the seized property was not designated in the warrant suffice. The fourth amendment does not require that the warrant be entirely typewritten. And items not listed in a warrant may be properly seized if, for example, their seizure is authorized by the plain view doctrine.

To the extent plaintiff is claiming that the subsequent destruction of his property violates the fourth amendment, ¹ see Hudson v. Palmer, 468 U.S. 517, 528 n. 8, 104 S.Ct. 3194, 3201 n. 8, 82 L.Ed.2d 393 (1984), plaintiff is not entitled to relief in this court. Plaintiff's remedy, if he believed that Justice Dalianis's destruction order violated the constitution, was to seek review within the state court system and, if unsuccessful, further review from the United States Supreme Court. Lower federal courts may not sit in review of state court orders. Atlantic Coast Line Railroad Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 296, 90 S.Ct. 1739, 1747, 26 L.Ed.2d 234 (1970); Fortune v. Mulherrin, 533 F.2d 21, 22-23 (1st Cir.), cert. denied, 429 U.S. 864, 97 S.Ct. 170, 50 L.Ed.2d 143 (1976).

2. Justice Dalianis.

Plaintiff complains that Justice Dalianis failed to accord him a hearing before ruling on his motion for return of property, improperly ordered some of his property destroyed, unduly delayed scheduling hearings on plaintiff's motions, gave plaintiff inadequate time to argue on November 13, 1985, failed to rule timely or at all on various of plaintiff's motions, and failed to swiftly hold defendants in contempt to enforce compliance with the order of return.

Judges are absolutely immune from damages liability for actions taken in a judicial capacity unless the judge has acted "in the clear absence of all jurisdiction." Stump v. Sparkman, 435 U.S. 349, 357, 98 S.Ct. 1099, 1105, 55 L.Ed.2d 331 (1978). Plaintiff contends that Justice Dalianis's actions--for example, her failure to accord him a hearing before ordering some of his property destroyed--were unconstitutional and consequently plaintiff believes the...