USCA1 Opinion

         [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

                                  

                   UNITED STATES COURT OF APPEALS

                         FOR THE FIRST CIRCUIT



                         ____________________





No. 97-1388

 



                          ROBERT P. MURPHY,

                        Plaintiff, Appellant,

                                  

                                 v.

                                  

                       PAUL BARNICLE, ET AL.,

                       Defendants, Appellees.

                                  

                        ____________________

                                  

                                  

            APPEAL FROM THE UNITED STATES DISTRICT COURT

                                  

                  FOR THE DISTRICT OF MASSACHUSETTS

                                  

            [Hon. Robert E. Keeton, U.S. District Judge]

                                  

                        ____________________

                                  

                               Before

                                  

                       Boudin, Stahl and Lynch,

                           Circuit Judges.

                                  

                        ____________________

                                  

    Robert P. Murphy on brief pro se.

    Merita A. Hopkins, Corporation Counsel, and Dawna McIntyre,

Assistant Corporation Counsel, City of Boston Law Department, on brief

for appellee Paul Barnicle.

    Scott Harshbarger, Attorney General, and Susanne G. Levsen,

Assistant Attorney General, on brief for appellee James Larkin.

    



                         ____________________



                              May 6, 1998

                         ____________________





           Per Curiam.  Appellant Robert F. Murphy appeals from

    the dismissal of his complaint.  A careful review of the record

    and the parties' briefs, however, reveals that the dismissal

    was warranted.  We therefore affirm the judgment of the

    district court for essentially the reasons stated in its

    Memorandum and Order, dated February 24, 1997.  We add only the

    following comments.

             1.  In claiming that the alleged perjury during the

    probate case violated his constitutional rights, appellant

    essentially is seeking federal review of the state court

    proceedings.  That is, even if appellant is not attacking any

    specific orders of the probate court, his claim nonetheless is

    "inextricably intertwined" with that court's proceedings.  This

    civil action may not be used as a vehicle to obtain federal

    review in the lower federal courts of the state probate court

    decision.  Appellant's recourse lies within the state appellate

    system.  See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923);

    District of Columbia Court of Appeals v. Feldman, 460 U.S. 462

    (1983).  See also Phinizy v. State of Alabama, 847 F.2d 282,

    284 (5th Cir. 1988) (the claim that a probate court's conduct

    of a proceeding denied plaintiff due process is barred by the

    Rooker-Feldman doctrine; plaintiff's remedy was to appeal

    through the state court system).

             2.  A review of the record also reveals that the

    district court did not abuse its discretion in denying

    appellant's motion for the appointment of counsel.  SeeDesRosiers v. Moran, 949 F.2d 15, 23-24 (1st Cir. 1991)

    (requiring exceptional circumstances).

             3.  We do not reach appellant's challenge to the

    district court's order to pay costs because the district court

    never assessed a specific dollar amount against appellant. 

    Therefore, there is nothing for this court to review.

             The judgment of the district court is affirmed in all

    respects.  However, we modify the judgment of dismissal to be

    without prejudice as to the  1983 claims relating to the

    criminal trial only.  See Guzman-Rivera v. Rivera-Cruz, 29 F.3d

    3, 6 (1st Cir. 1994).  The dismissal of the state claims

    remains without prejudice and the dismissal of the remainder of

    the federal claims remains with prejudice.