Not For Publication in West's Federal Reporter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
-2-

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,
-3-

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.