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[NOT FOR PUBLICATION]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-
