               Not for Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                       For the First Circuit

No. 05-1576

                         JOSEPH F. GALIBOIS,

                        Plaintiff, Appellant,

                                     v.

                       JOHN FISHER, SERGEANT,
                     NASHUA POLICE DEPARTMENT,

                        Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Joseph A. DiClerico, U.S. District Judge]


                                  Before

                       Selya, Lynch and Lipez,
                           Circuit Judges.



     Joseph F. Balibois on brief pro se.
     Eric Kane and Devine, Millimet & Branch, PA on brief for
appellee.



                             March 31, 2006
     Per Curiam.        Pro se appellant Joseph Galibois appeals the

dismissal of his civil rights action by the United States District

Court   for   the    District    of     New    Hampshire.      According      to   his

complaint, Galibois's constitutional rights to free expression, due

process, and equal protection were violated on the day of the last

presidential       election    when     police    in    Nashua,    New    Hampshire,

interfered with Galibois's campaign demonstration against candidate

John Kerry.        The court dismissed the suit as barred by the so-

called 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).            We vacate the dismissal and remand

for further proceedings.

     Two days after the alleged campaign incident, Galibois filed

a civil rights suit in New Hampshire Superior Court.                     The case was

dismissed for failure to state a claim.                   No leave to amend was

granted and Galibois did not seek to appeal the judgment. Instead,

he abandoned his state court case and filed a new, similar action

in federal court on November 24, 2004.                    The federal case was

dismissed on February 15, 2005.               Galibois now appeals.

     Citing Badillo-Santiago v. Naveira-Merly, 378 F.3d 1, 6 (1st

Cir. 2004) ("Rooker-Feldman applies to state or territorial court

judgments     to    which     federal     courts       would   accord     preclusive

effect."),    the    lower    court     first     determined      that,    under   New

Hampshire law, the state court judgment had preclusive effect


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because Galibois never sought leave to amend the complaint.           Since

Galibois's   federal   claims   arose    "from    the   same   incident   and

involve[d] the same factual scenario as the claim he alleged in the

state court petition," the court concluded that Galibois, in

essence, was seeking federal review of the state decision. Such

review being beyond the jurisdiction of a federal district court,

the court dismissed the case.

     Subsequent to the district court judgment, the Supreme Court

issued an opinion that "substantially altered [the] understanding

of the Rooker-Feldman doctrine."        Federacion de Maestros de Puerto

Rico v. Junta de Relaciones del Trabajo de Puerto Rico, 410 F.3d

17, 19 (1st Cir. 2005).         In Exxon-Mobil Corp. v. Saudi Basic

Industries Corp., 125 S.Ct. 1517, 1521 (2005), the Court made clear

that Rooker-Feldman had "sometimes been construed to extend far

beyond [its original] contours" to the point that it threatened to

supersede ordinary rules of preclusion.          Such an expansive reading

was contrary to the congressional mandate, under the Full Faith and

Credit Act, 28 U.S.C. § 1738, that state law, not a uniform federal

rule, should govern the preclusive effect of state court judgments.

Lance v. Dennis, 126 S.Ct. 1198, 1202 (2006). Consequently, the

Rooker-Feldman rule, henceforth, should be "confined to cases of

the kind from which the doctrine acquired its name." Specifically,

the doctrine applies only to "limited circumstances" where "the

losing party in state court filed suit in federal court after the


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state proceedings ended, complaining of an injury caused by the

state-court judgment and seeking review and rejection of that

judgment."     Id. at 1526.    On the other hand, "[i]f a federal

plaintiff 'present[s] some independent claim, albeit one that

denies a legal conclusion that a state court has reached in a case

to which he was a party . . . then there is jurisdiction and state

law determines whether the defendant prevails under principles of

preclusion.'"    Id. at 1527 (quoting GASH Assocs. v. Village of

Rosemont, 995 F.2d 726, 728 (7th Cir. 1993));1           Lance, 126 S.Ct.

at 1202 ("Rooker-Feldman is not simply preclusion by another

name").     In other words, Exxon requires this court to examine

whether the state court loser who files suit in federal court seeks

redress for an injury caused by the state court decision itself or

for an injury cause by the defendant.           "If a federal plaintiff

asserts as a legal wrong an allegedly erroneous decision by a state

court, and seeks relief from a state court judgment based on that

decision,    Rooker-Feldman   bars    subject   matter   jurisdiction   in

federal district court. If, on the other hand, a federal plaintiff

asserts as a legal wrong an allegedly illegal act or omission by an



     1
      The language quoted above is technically dictum, since Exxon
dealt with parallel state and federal proceedings. However, since
"the Supreme Court went beyond the facts of the case to give clear
instructions to the circuits on how to address additional factual
situations . . . , [failure to heed this language] would be to
ignore these unambiguous directives from the Supreme Court." Todd
v. Weltman, Weinberg & Reis, Co., 434 F.3d 432, 437 (6th Cir.
2006).

                                     -4-
adverse party, Rooker-Feldman does not bar jurisdiction." Noel v.

Hall, 341 F.3d 1148, 1164 (9th Cir. 2003)2; see Washington v.

Willmore, 407 F.3d 274, 280 (4th Cir. 2005) (holding, post Exxon,

that       the     Rooker-Feldman         doctrine        does   not     apply    because

"[plaintiff's]          claim      of   injury    rests    not   on    the   state   court

judgment         itself,     but   rather   on     the    alleged     violation    of   his

constitutional          rights      [by   the    defendant]");        Todd   v.   Weltman,

Weinberg & Reis, Co., 434 F.3d 432, 437 (6th Cir. 2006); Jensen v.

Foley, 295 F.3d 745, 747-48 (7th Cir. 2002) ("The Rooker-Feldman

doctrine, generally speaking, bars a plaintiff from bringing a §

1983 suit to remedy an injury inflicted by the state court's

decision . . . Preclusion, on the other hand, applies when a

federal plaintiff complains of an injury that was not caused by the

state court, but which the state court has previously failed to

rectify.") (emphasis in original).

       In the instant case, Galibois sought relief not from an injury

allegedly caused by the state court but from an injury allegedly

inflicted         by   the   defendant.          That    his   federal   claim    alleged

injuries similar to those that he raised or could have raised in

his state claim, while arguably relevant to preclusion analysis,



       2
      The Seventh Circuit has suggested the following as a "rough
guide" for determining whether the Rooker-Feldman doctrine applied:
"if the federal plaintiff was the plaintiff in state court, apply
res judicata; if the federal plaintiff was the defendant in state
court, apply Rooker-Feldman." Garry v. Geils, 82 F.3d 1362, 1366-67
(7th Cir. 1996).

                                             -5-
does not bring Rooker-Feldman into play.     See Noel, 341 F.3d at

1165 (explaining that it was "error" for the lower court to

conclude that "because [the same claims] could have been raised in

the parties' [state] litigation, or were already specifically

addressed in that litigation, the federal claims are barred under

Rooker-Feldman").

      Turning, then, to the issue of preclusion, we must, pursuant

to 28 U.S.C. § 1738, "give the same preclusive effect to state

court judgments that those judgments would be given in the courts

of the State from which the judgments emerged." Kremer v. Chemical

Constr. Corp., 456 U.S. 461, 466 (1982).   Under New Hampshire law,

a dismissal for failure to state a claim has preclusive effect only

if the plaintiff is given leave to amend.     See, e.g., Cambridge

Mutual Fire Ins. Co. v. Crete, 846 A.2d 521, 526 (N.H. 2004).   To

assure that this requirement has "practical meaning, . . the trial

court must allow the plaintiff opportunity to amend the writ before

dismissing for failure to state a claim, allowing the plaintiff two

chances to state a case before precluding the plaintiff from

burdening the courts and opposing parties with further attempts."

Id.   Although leave to amend may be implicit, Warren v. Town of

East Kingston, 761 A.2d 465, 468 (N.H. 2000), Galibois's assertion

that the Superior Court gave no implicit, much less explicit, leave

to amend is uncontested at this point. Furthermore, once the court

dismissed the case and rendered final judgment, the court was


                                -6-
without authority to grant leave to amend even if Galibois had so

requested.   Arsenault v. Scanlon, 660 A.2d 1110, 1111-12 (N.H.

1995).   In these circumstances, we cannot say that Galibois was

given a "meaningful" opportunity to amend his complaint.    Thus,

under New Hampshire law, he presumably had the right to refile his

claim in state court within one year of the judgment, N.H. Rev.

Stat. § 508:10; Moulton-Garland v. Cabletron Sys., Inc., 736 A.2d

1219, 1220-21 (N.H. 1999).     On this record, then, he is not

precluded from bringing a similar suit in federal court.

     We need go no further.    The dismissal of the complaint is

vacated and the case is remanded for further proceedings.   Costs

are to be taxed in favor of the appellant.




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