Appeal from an order of the United States District Court for the Southern District of New York, entered December 29, 1982, by Charles L. Brieant, Judge, granting defendants' Fed. R. Civ. P. 12(b)(6) motions to dismiss plaintiff's 42 U.S.C. § 1983 complaint.
Kearse, Pierce and Peck,*fn* Circuit Judges.
Plaintiff appeals from an order of the United States District Court for the Southern District of New York, entered December 29, 1982, by Charles L. Brieant, Judge, granting defendants' motions to dismiss plaintiff's 42 U.S.C. § 1983 pro se complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief could be granted.
Green is presently incarcerated at the Auburn Correctional Facility, Auburn, New York. He is serving three concurrent state sentences of eighteen years to life imprisonment for the crimes of attempted rape in the first degree, sexual abuse in the first degree and robbery in the second degree.
The criminal charges against plaintiff were tried in a jury trial, in a New York State court, which commenced on October 15, 1973. The defendants-appellees herein are: Orange County Court Judge Angelo J. Ingrassia and the official court reporter, Camilla Maraio. In his pro se complaint, dated August 27, 1982, Green set forth the following allegations which, for purposes of deciding the issues herein, we assume to be true.*fn1
Yetta Pasachoff was the first of twelve regular jurors selected on October 15th, and, as required by law, she was designated jury "foreman."*fn2 James Stegall was the sixth juror selected. The trial continued, with Judge Ingrassia presiding, until October 19, 1973, when the presentation of evidence was concluded, the jury was instructed, and it began deliberations. The jury returned that day for further instructions and re-reading of portions of the trial testimony. Seated in the chair reserved for the jury foreman, Stegall, instead of Pasachoff, requested further instructions and re-reading. Shortly thereafter, the jury returned a verdict of guilty which was confirmed upon the jury being polled at the request of defense counsel. The announcement of the jury's verdict was rendered by Stegall who was occupying the seat reserved for Pasachoff, who had switched to Stegall's seat.
Sentence was imposed on December 4, 1973. Green alleges that sometime during the period from December 5, 1973, to January 4, 1974, the court reporter, Maraio, was instructed by Judge Ingrassia to alter the record of Green's trail to indicate that Pasachoff had requested the instructions and re-reading of testimony; that Pasachoff had announced the guilty verdict at the conclusion of the jury's deliberations; that the jurors' votes upon polling were consistent with the verdict as announced by Pasachoff; and that Pasachoff had sat at all times in the seat reserved for the jury foreman. Green alleges that Maraio made these changes, as directed. Green seeks damages totalling three million dollars.
On October 25, 1982, the defendants moved to dismiss Green's complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief could be granted. Judge Brieant granted the motions and dismissed the complaint, holding that the "defendants are immune from civil liability for money damages." Following entry of the December 27 and 29, 1982 rulings, Green timely filed a notice of appeal. For the reasons which follow, we affirm.
The issue presented on appeal is whether the district court erred in granting the defendants' motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). We hold that the district court did not err and that the decision should be affirmed.
Initially, we note that a motion to dismiss for failure to state a claim tests only the sufficiency of a complaint. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). Further, a motion for failure to state a claim should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Anderson v. Coughlin, 700 F.2d 37, 40 (2d Cir. 1983). We also note, briefly, that a claim for relief under 42 U.S.C. § 1983*fn3 only need allege that some person acting under color of state law deprived the claimant of a federal right. Gomez v. Toledo, 446 U.S. 635, 640, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980).
Green's complaint alleges that Judge Ingrassia and the court reporter, Maraio, by altering his trial transcript, were acting under color of state law and deprived him of his procedural due process right to an accurate transcript on appeal.*fn4 The district court determined that Judge Ingrassia and Maraio were immunized from any "civil ...