
USCA1 Opinion

	




          June 23, 1995         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                               ____________________        No. 94-2248                              FRANK A. GRECO, M.D., Ph.D.,                                Plaintiff, Appellant,                                          v.                             MARY C. FITZPATRICK, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Richard G. Stearns, U.S. District Judge]                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Frank A. Greco, M.D., Ph.D., on brief pro se.            ___________________________            Scott  Harshbarger, Attorney  General,  and Rebecca  P.  McIntyre,            __________________                          _____________________        Assistant Attorney General, on brief for appellees.                                 ____________________                                 ____________________                 Per Curiam.   We  affirm the judgment  substantially for                 __________            the  reasons  recited in  the  district  court's decision  of            November 10, 1994, adding only the following comments.                 In  objecting to  the district  court's reliance  on the            Rooker-Feldman doctrine,  see Rooker  v. Fidelity  Trust Co.,            ______________            ___ ______     ___________________            263 U.S. 413 (1923); District of Columbia Court of Appeals v.                                 _____________________________________            Feldman, 460 U.S. 462 (1983), plaintiff argues that he is not            _______            seeking to overturn any state court judgment per se and that,            in  fact, many of the challenges here advanced to the probate            court  proceedings  were never  pursued  in  the state  court            system.    The  Rooker-Feldman  doctrine  recognizes  that  a                            ______________            federal district court lacks appellate jurisdiction to review            a  state  court judgment.   See,  e.g.,  id. at  482-86; Gash                                        ___   ____   ___             ____            Assocs.  v. Village of  Rosemont, Ill., 995  F.2d 726, 728-29            _______     __________________________            (7th Cir. 1993);  Lancellotti v.  Fay, 909 F.2d  15, 17  (1st                              ___________     ___            Cir. 1990).  What  plaintiff fails to recognize is  that such            "impermissible appellate  review may  occur  when a  district            court is asked  to entertain a claim that was not even argued            in the state court but is 'inextricably intertwined' with the            state court judgment."   Ritter  v. Ross, 992  F.2d 750,  753                                     ______     ____            (7th Cir.  1993) (quoting  Feldman, 460  U.S.  at 483  n.16),                                       _______            cert.  denied,  114 S.  Ct. 694  (1994); accord,  e.g., Keene            _____________                            ______   ____  _____            Corp. v.  Cass, 908 F.2d  293, 296-97 (8th  Cir. 1990).   The            _____     ____            multiple claims here  presented--alleging violations of  such            matters  as due process,  equal protection, and  the right to            counsel--are  sufficiently  "intertwined"  with  the  probate            court  proceedings so  as to  fall within  the Rooker-Feldman                                                           ______________            doctrine's embrace.   Plaintiff's remedy is  to appeal within            the state  court system and  then, if necessary,  to petition            the United States Supreme Court for a writ of certiorari.                 We add that plaintiff's various allegations would falter            even if the merits were to  be considered.  To list just some            of  the  infirmities affecting  his complaint:   In  order to            state a cause of action under  the second clause of 42 U.S.C.               1985(2),  plaintiff  was required  to  allege class-based,            invidiously  discriminatory  animus,   see,  e.g.,  Hahn   v.                                                   ___   ____   ____            Sargent, 523 F.2d 461, 469 (1st Cir. 1975), cert. denied, 425            _______                                     ____________            U.S. 904  (1976); divorced  fathers seeking custody  of their            children  do not  form a  protected class  under   1985.   No            Sixth Amendment right to counsel obtains in civil proceedings            of this nature.  See, e.g., Wilson v. State of New Hampshire,                             ___  ____  ______    ______________________            18  F.3d 40, 41 (1st  Cir. 1994) (per  curiam).  Unauthorized            conduct  that  cannot be  foreseen  and  controlled does  not            constitute  a due  process violation  "until and  unless [the            state]  ...  refuses to  provide  a  suitable postdeprivation            remedy,"  Hudson v. Palmer, 468 U.S. 517, 533 (1984); no such                      ______    ______            showing has been  made here.   With respect  to those  claims            that were  or  could  have been  presented  in  state  court,                                         -3-            relitigation thereof would  be barred on preclusion  grounds.            See, e.g., Willhauck v.  Halpin, 953 F.2d 689, 705  (1st Cir.            ___  ____  _________     ______            1991).   The judicial defendants would be immune from most if            not  all of  the damage  claims here  presented.   See, e.g.,                                                               ___  ____            Mireles v.  Waco, 502  U.S. 9 (1991)  (per curiam).   And the            _______     ____            Commonwealth and  the probate  court (along with  the private            defendants in  their official  capacities) are  not "persons"            within the  meaning of 42 U.S.C.   1983.  See, e.g., Hafer v.                                                      ___  ____  _____            Melo,  502 U.S. 21, 25-26  (1991); Will v.  Michigan Dep't of            ____                               ____     _________________            State Police, 491 U.S. 58, 62-70 (1989).              ____________                 Affirmed.                 _________                                         -4-
