Aldrich v. Considine

ROBERT ALDRICH, Plaintiff, v. KAREN CONSIDINE, ET AL., Defendants.

Civil Action No. 13-11405-DPW

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

August 29, 2013

MEMORANDUM AND ORDER

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 JudgeMuse 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. See Commonwealth v. Aldrich, Case No. 2008-00164. 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 notguilty 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 casefor 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. Judge Muse refused to allowhis 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. Curtin claimedthat 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 sufferemotional 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 Injunctionand 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...