USCA1 Opinion

         [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

                                  

                   UNITED STATES COURT OF APPEALS

                         FOR THE FIRST CIRCUIT

                         ____________________



No. 97-2156



                         ARTHUR ROBERTS, JR.,

                         Plaintiff, Appellant,



                                  v.



                    JOHN B. HOLMES, JR., ET AL.,

                       Defendants, Appellees.

                                  

                                       

                                  

                      ROBERTS FOOD MART, INC.,

                        Plaintiff, Appellee.

                        ____________________

                                  

                                  

            APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

                                  

          [Hon. Edward F. Harrington, U.S. District Judge]

                                  

                        ____________________

                                  

                               Before

                                  

                       Torruella, Chief Judge,

                  Selya and Boudin, Circuit Judges.

                        ____________________

                                  

    Arthur Roberts, Jr. on brief pro se.

    Michael P. Fleming, County Attorney, Lisa S. Rice, Assistant

County Attorney, and Joni Vollman, Assistant District Attorney, on

brief for appellees John B. Holmes, Jr., Russell Turbeville, and

Robert Vernier.

    Joseph L. Tehan, Jr., Katharine I. Goree and Kopelman and Paige,

P.C., Town Counsel, on brief for appellees Chief Thomas Neilen and

Sgt. Michael Ladrigan.



                         ____________________



                             May 7, 1998

                         ____________________





         Per Curiam.  Arthur J. Roberts, Jr., a resident of Scituate,

Massachusetts, is under indictment in Harris County, Texas for violation

of the Texas Securities Act, Tex. Rev. Civ. Stat. Ann. art. 581-29.  He

has been arrested several times on fugitive from justice charges

stemming from the Texas case.  On April 10, 1997, Roberts filed a pro secivil rights complaint under 42 U.S.C.  1983 in the District of

Massachusetts.  The complaint seeks, among other things, to enjoin the

prosecution of the state criminal proceedings.  Upon motion of

defendants' counsel (at least one of whom had traveled from Texas), the

district court dismissed the case based on Roberts' failure to appear at

the initial scheduling conference.  This appeal followed.

    Although dismissal is a harsh sanction, we do not think that the

district court abused its discretion in imposing that sanction here. 

See Robson v. Hallenbeck, 81 F.3d 1, 2-3 (1st Cir. 1996) (setting forth

standard of review).  In a motion for stay filed in the district court,

Roberts explained his failure to appear.  He stated that he was unaware

that any motions would be heard at the scheduling conference.  This

excuse is not legitimate.  The only motion heard at the conference was

a motion to dismiss, and Roberts was forewarned that a failure to attend

could result in dismissal.  Moreover, no motion was necessary.  Fed. R.

Civ. P. 16(f), which incorporates by reference portions of Fed. R. Civ.

P. 37(b)(2), explicitly permits a district court to impose a sanction of

dismissal on its own initiative.

     A dismissal without qualification is presumed to be with prejudice,

Fed. R. Civ. P. 41(b), and the clerk's notes confirm this intention.  If

plaintiff's complaint showed some real substance, we might well direct

that the dismissal be modified to be a dismissal without prejudice,

taking into consideration the fact that this was a first violation of a

court order, prejudice appears to have been minimal, and Roberts was

acting pro se.  However, we are persuaded that in this case such an

adjustment would be a waste of time.

     In particular, we think that his complaint suffers from glaring

weaknesses.  Although none of the parties has raised the issue, a

federal district court is barred from enjoining an ongoing state

criminal proceeding, except in extraordinary circumstances.  See Youngerv. Harris, 401 U.S. 37 (1971).  Roberts' various claims for damages also

suffer from infirmities.  Without attempting an exhaustive list, we

think that his allegations are either conclusory, fail to rise to the

level of a constitutional violation, fail to state a claim under  1983,

or are likely barred by an immunity defense.

     Affirmed.