Chester J. Chalupowski, Jr. v. Janis M. Berry

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-1193
CHESTER J. CHALUPOWSKI, JR., ET AL.,
Plaintiffs, Appellants,
v.
JANIS M. BERRY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Howard, Circuit Judges.
Chester J. Chalupowski, Jr., on brief pro se.
Thomas F. Reilly, Attorney General, and David Hadas,
Assistant Attorney General, on brief for appellee.
September 27, 2005

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Per Curiam. This is an appeal from the denial of a
motion under Fed. R. Civ. P. 60(b)(6). The district court
dismissed the pro se appellants' civil rights suit with prejudice
on motion of the defendant. It then summarily denied the
appellants' Rule 60(b) motion, which asserted that they had not
received notice that the court was considering dismissal of their
suit. We affirm.
On this record, we conclude that the dismissal of the
suit without notice did not affect the appellants' substantial
rights, and so the denial of Rule 60(b) relief was proper. See
Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 462 (2d
Cir. 1994) (stating that a Rule 60(b) motion based on lack of
notice may be denied where there is no prejudice to substantial
rights). Even if the appellants had received notice of the motion
to dismiss, their official capacity suit for injunctive and
declaratory relief would have been properly dismissed based on
Younger abstention principles. Appellants asked the federal court
to order the defendant, a state court appellate judge before whom
a motion for contempt was then the only pending matter, to recuse
herself "from further hearing in this matter." This the court
could not do. See Juidice v. Vail, 430 U.S. 327, 335 (1977)
(applying Younger to a case seeking to enjoin state court judges
from pursuing contempt proceedings against the plaintiffs); accord
Casa Marie, Inc. v. Superior Court of Puerto Rico, 988 F.2d 252,

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263 (1 Cir. 1993); Gersten v. Rundle, 833 F. Supp. 906, 912-13 st
(S.D. Fla. 1993); Williams v. North, 638 F. Supp. 457, 463 (D. Md.
1986).
A dismissal based on Younger is without prejudice.
Maymo-Melendez v. Alvarez-Ramirez, 364 F.3d 27, 32 n.4 (1 Cir.), st
cert. denied, 125 S. Ct. 110 (2004). Therefore, insofar as
appellants brought an official capacity suit seeking injunctive and
declaratory relief, we affirm but direct the district court to
modify its judgment to be without prejudice. See Caldwell v. Camp,
594 F.2d 705, 708 (8 Cir. 1979) (directing such modification under th
similar circumstances). Insofar as the individual capacity suit
was dismissed with prejudice based on the defendant's absolute
immunity from suit, we affirm. See Bagby v. Brondhaven, 98 F.3d
1096, 1100 (8 Cir. 1996) (concluding that defendant was entitled th
to qualified immunity and remanding to the district court with
instructions to dismiss with prejudice); Clark v. Brown, 861 F.2d
66, 67 (4 Cir. 1988) (same); see also Romero-Barcelo v. Hernandez- th
Agosto, 75 F.3d 23, 26 (1 Cir. 1996) (affirming "in all respects" st
a with prejudice dismissal based on absolute legislative immunity).
Affirmed and remanded for the limited purpose of making
the modification described herein.

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