Vitale v. Brock ( 1993 )

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                                [NOT FOR PUBLICATION]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-