
USCA1 Opinion

	




          July 22, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1475                                  JOSEPH B. VITALE,                                Plaintiff, Appellant,                                          v.                        THE HONORABLE DAVID A. BROCK, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                       [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Joseph B. Vitale on brief pro se.            ________________            Jeffrey  R. Howard, Attorney General, and Susan  S. Geiger, Senior            __________________                        ________________        Assistant Attorney General, on brief for appellees.                                 ____________________                                 ____________________                      Per  Curiam.   Plaintiff  appeals from  the summary                      ___________            dismissal of his action.  In essence, he wishes to relitigate            in federal court  challenges to a state  court alimony award.            We affirm the dismissal.                                          I.                                          _                      Plaintiff  filed his  federal court  action against            state court judges,  a state court marital master, his former            wife,  and the wife's attorney.  Later,  he sought to add his            own  attorney.   There was  no diversity jurisdiction  as all            parties were citizens of  New Hampshire.  Plaintiff, divorced            in  1983, complained of a 1989 alimony award requiring him to            pay  his former  wife  $525 every  month.   He stated  he was            totally  disabled,  his  sole  income  being  from  veteran's            disability and  social security disability benefits.   He had            moved  in state court in  1992 to terminate  the 1989 alimony            order  on two grounds:  1) that the Uniformed Services Former            Spouses  Protection   Act,  10  U.S.C.      1408,  prohibited            consideration of veteran disability compensation in computing            an alimony award and 2) that state law in effect  at the time            of  divorce (1983) prohibited  an award of  alimony after the            passage  of  three  years.   The  state  superior  court  had            rejected both arguments, the  New Hampshire Supreme Court had            summarily declined his appeal,  and the United States Supreme            Court had denied certiorari, plaintiff recounted.   Plaintiff            sought  to litigate these same  two challenges to the alimony            award  in federal court, and  he also contended  that the New            Hampshire  Supreme  Court  had  denied  him  due  process  by            summarily  rejecting his  appeal  without first  ordering and            reviewing a transcript.                                         II.                                         __                      Plaintiff's   action    was   properly   dismissed.            Plaintiff may not relitigate  in federal court the challenges            to the alimony award plaintiff presented to  the state court.            Migra v. Warren City School Dist. Bd. of Ed., 465 U.S. 75, 81            _____    ___________________________________            (1984)  ("a federal court must give to a state court judgment            the  same preclusive effect  as would be  given that judgment            under  the law  of  the  State  in  which  the  judgment  was            rendered");   Eastern  Marine  Construction  Corp.  v.  First                          ____________________________________      _____            Southern Leasing,  Ltd., 129 N.H.  270, 525 A.2d  709 (1987);            _______________________            Bricker v. Crane, 118 N.H. 249, 253, 387 A.2d 321, 323 (1978)            _______    _____            (party  may  not  contest  in  a  subsequent  proceeding  any            question actually  litigated and determined against  him in a            prior suit).                      As   for  plaintiff's   contention  that   the  New            Hampshire Supreme  Court denied him due  process by summarily            rejecting his appeal,  the attack on the  state court's order            is  not cognizable  in  a lower  federal  court.   Rooker  v.                                                               ______            Fidelity Trust Co., 263 U.S.  413 (1923) (lower federal court            __________________            lacks  jurisdiction  over  claim  that  state  court judgment            violated the Constitution); Lancellotti  v. Fay, 909 F.2d 15,                                        ___________     ___                                         -3-            17 (1st  Cir. 1990).   To the  extent, if  any, plaintiff  is            attempting  to attack the  constitutionality of New Hampshire            Supreme Court Rule 7 which permits the state supreme court to            "decline  to accept  an appeal" in  its "discretion,"  as the            district court  explained,  plaintiff has  no  constitutional            right  to an  appeal,  Lindsey v.  Normet,  405 U.S.  56,  77                                   _______     ______            (1972),  and  a  state court  is  not  required  to review  a            transcript  before deciding  whether  to accept  or reject  a            discretionary civil appeal.                      Affirmed.                      ________                                         -4-
