
USCA1 Opinion

	




        October 15, 1992        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1329                                   ROBERT F. BICKEL,                                Plaintiff, Appellant,                                          v.                               EDWARD GINSBURG, ET AL.,                                Defendants, Appellees.                                 ____________________        No. 92-1599                                   ROBERT F. BICKEL,                                Plaintiff, Appellant,                                          v.                                 EDWARD GINSBURG AND                                   CHRISTINE HARMS,                                Defendants, Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Robert F. Bickel on brief pro se.            ________________            Scott   Harshbarger,  Attorney   General,  and   Steve   Berenson,            ___________________                              ________________        Assistant  Attorney General,  on Memorandum  in Support  of Appellees'        Motion to Dismiss Appeal or for Summary Affirmance.                                 ____________________                                 ____________________                      Per Curiam.  Appellant brought this action under 42                      __________            U.S.C.     1983 essentially  alleging  that  two state  court            probate judges violated his Fourteenth  Amendment due process            rights by  refusing to  appoint counsel  to represent  him in            divorce  proceedings.     The  district   court  granted  the            defendants' motion to dismiss the complaint.                      Appellant's argument is basically  as follows.   In            Boddie v. Connecticut, 401 U.S. 371 (1971), the Supreme Court            ______    ___________            held that due process prohibits  a state from imposing  court            costs that  deny indigent  persons access  to  its courts  in            order to secure judicial dissolution of their marriages.  Id.                                                                      ___            at  374.   In  so holding,  the  court stated  that "marriage            involves interests of basic importance  in our society."  Id.                                                                      ___            at 376.    Because  divorce  proceedings  are  like  criminal            actions, where defendants have the right to counsel to defend            their liberty,  this thesis runs,  and because marriage  is a            fundamental  "liberty  interest," due  process  also requires            states  to  provide the  assistance  of  counsel to  indigent            individuals in divorce proceedings.                      Appellant's  complaint  fails   for  two   reasons.            First, to the extent that he is seeking an order holding that            the  state  court  decision  concerning  the  appointment  of            counsel  was  wrong, he  is not  entitled  to relief  in this            court.  Lower federal courts  have no power to sit in  review            of state court orders.  District of Columbia Court of Appeals                                    _____________________________________            v. Feldman,  460 U.S.  462 (1983);  Rooker v. Fidelity  Trust               _______                          ______    _______________            Co.,  263 U.S. 413 (1983).   See also Lancellotti v. Fay, 909            ___                          ___ ____ ___________    ___            F.2d  15, 17 (1st Cir. 1990) (federal court may not entertain            action seeking to  enjoin state court  from enforcing  orders            entered in state  divorce proceedings).   Appellant's  remedy            was  to pursue his  claim of constitutional  error within the            appellate courts of Massachusetts  and, if not successful, to            seek  further review  from the  United States  Supreme Court.            See Decker v. Hillsborough County Attorney's Office, 845 F.2d            ___ ______    _____________________________________            17, 20-21 (1st Cir. 1988) (per curiam).                      Even  assuming  federal   review  of  the   merits,            however,  the complaint would fail  to state a  claim under              1983.   Generally,  there is  no constitutional right  to the            appointment of counsel in civil cases.  See, e.g., Cookish v.                                                    ___  ____  _______            Cunningham, 787  F.2d  1, 2  (1st  Cir. 1986)  (per  curiam);            __________            Caruth v. Pinkney, 683  F.2d 1044, 1048 (7th Cir.  1982) (per            ______    _______            curiam), cert. denied, 459 U.S. 1214 (1983); Watson v.  Moss,                     ____________                        ______     ____            619  F.2d  775, 774  (8th Cir.  1980)  (per curiam).   Accord                                                                   ______            Lassiter  v. Dep't of Social Services, 452 U.S. 18, 25 (1981)            ________     ________________________            ("such  a right has been  recognized to exist  only where the            litigant  may  lose  his  physical liberty  if  he  loses the            litigation").1  Despite appellant's  attempt to posit a right            to counsel in  divorce proceedings, he  cites no cases  which            have so held.                                            ____________________            1.  Lassiter  is an exception  to this general  rule.  There,                ________            the  Supreme Court  held that due  process might  require the            appointment of counsel for  indigent parents in some parental            termination proceedings.  It relied on the important interest            of the parent in the accuracy and justice of a decision which            worked a "unique kind of deprivation."  Id. at 27.   Lassiter                                                    ___          ________            is limited to  such terminations and espouses a  narrow case-            by-case approach.                                         -3-                      Appellant's  remaining  arguments  were not  raised            before the  district court.  As such, we do not consider them            on appeal.  See Decker, 845 F.2d at 19 (court of appeals does                        ___ ______            not  address  new  matters  not included  in  district  court            pleadings but  instead asserted  for first time  in appellate            briefs).                      For the  foregoing reasons, we affirm  the judgment                                                     ______            of the district court.                                         -4-
