
USCA1 Opinion

	




          October 5, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1632                                    LAWRENCE CURTIN,                                Plaintiff, Appellant,                                          v.                               JUDGE VINCENT F. LEAHY,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Richard G. Stearns, U.S. District Judge]                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Lawrence Curtin on brief pro se.            _______________            Scott  Harshbarger,  Attorney General,  and  Rebecca  P. McIntyre,            __________________                           ____________________        Assistant Attorney General, on Motion for Summary Affirmance.                                 ____________________                                 ____________________                      Per Curiam.   Appellant contends he  was denied due                      __________            process  in  a  state  court proceeding  because  a  judgment            entered against  him without  service ever having  been made.            Appellant  claims he did not learn of the judgment until long            after the time  to appeal  had expired, and  the state  court            judge  subsequently refused  during  a  telephone inquiry  to            reopen the case.   Apparently believing  no avenue of  relief            was available within the  state court system, appellant filed            the present civil rights action against the state court judge            and  asked  the federal  court to  enjoin enforcement  of the            state   court  judgment.     The  district   court  dismissed            appellant's action.                      We  affirm  the  dismissal  because  appellant  has            failed  to  state a  claim  for  deprivation of  due  process            cognizable  under    1983.   Appellant  has not  attacked the            constitutionality or sufficiency of  Massachusetts procedures            for  service  or  setting   aside  judgments.    Rather,  his            complaint is that these procedures were, or will be, misused.            Massachusetts,  however, affords  a procedure  for correcting            errors of the sort  alleged through a motion for  relief from            judgment,  Mass. R. Dom. Rel.  P. 60(b), and  an appeal, were            such a  motion denied.  Massachusetts  therefore provides its            litigants due  process.  See  McCulloch v. County  of Washoe,                                     ___  ______________________________            720  F.2d 1020, 1021 (9th  Cir. 1983) (even  if plaintiff was            never served  with process  and state court  default judgment            entered  improperly,  state procedure  for  vacating judgment            affords adequate due process; consequently,  plaintiff failed            to state a claim for relief under   1983).                       Affirmed.                      ________                                         -3-
