June 23, 1995 [NOT FOR PUBLICATION]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,
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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.
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