Curtin v. Leahy
Case Date: 10/05/1994
Court: United States Court of Appeals
Docket No: 94-1632
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October 5, 1994 [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 94-1632 LAWRENCE CURTIN, Plaintiff, Appellant, v. JUDGE VINCENT F. LEAHY,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- |