White v. Gittens

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 96-1838



                                     GARY WHITE,



                                Plaintiff, Appellant,



                                          v.



                               ROBERT GITTENS, ET AL.,



                                 Defendant, Appellee.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. William G. Young, U.S. District Judge]
                                             ___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________



                           Campbell, Senior Circuit Judge,
                                     ____________________



                              and Stahl, Circuit Judge.
                                         _____________



                                 ____________________



            Douglas W. Salvesen with whom Yurko & Perry, P.C. was on brief
            ___________________           ___________________

        for appellant.

            Gregory I. Massing, Assistant Attorney General, with whom Scott
            __________________                                        _____

        Harshbarger, Attorney General, was on brief for appellee.
        ___________



                                 ____________________



                                   August 21, 1997

                                 ____________________



CAMPBELL, Senior Circuit  Judge.  The Massachusetts
                                _____________________



            Parole Board revoked Gary White's parole based on information



            from  state social service  authorities alleging that  he had



            molested  his  step-daughter.    White  was  not  offered  or



            furnished with counsel at his parole revocation hearing.   He



            brought this  action under  42 U.S.C.    1983 in  the federal



            district court against the former and current  members of the



            Massachusetts Parole Board, asserting  that they had deprived



            him of his  constitutional due process  rights by failing  to



            adopt regulations providing for the appointment of counsel at



            parole revocation hearings  and by not furnishing  counsel in



            his case.  The district court dismissed, holding that White's



              1983 action was  barred by res judicata and that the parole



            board  members were protected by qualified immunity.  Because



            of events which occurred after the district court's decision,



            we vacate the district court's order and remand with an order



            to dismiss the action without prejudice.



                                    I.  Background
                                    ______________



                      We describe the  facts in the light  most favorable



            to White.   See Watterson  v. Page, 987  F.2d 1, 3  (1st Cir.
                        ___ _________     ____



            1993)  (on motion  to dismiss, a  court takes  allegations in



            complaint  as true  and makes  all  reasonable inferences  in



            plaintiff's favor).



                      Gary White was  convicted of armed robbery  in 1987



            and sentenced to twelve years' imprisonment.   He was paroled


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on  September 19,  1989.   While  paroled, White  married his



            current wife, Gina  White, and began living with  her and her



            three children, Melany (age 3), Matthew (age 4), and  Marlene



            (age 5).



                      In 1990,  Melany's behavior  changed,  and she  was



            evaluated  to  determine  if she  had  been  sexually abused.



            Melany met  with an evaluator once a week for six weeks, with



            Gina  White present  at  each meeting.    The evaluation  was



            inconclusive,  and  Melany's  physician  could not  find  any



            evidence of sexual contact.  Nevertheless,  the Massachusetts



            Department  of  Social  Services  ("DSS")  removed  the three



            children from the Whites' home  on April 25, 1990, and placed



            them in foster care.  



                      The  DSS filed  a report  alleging  that White  was



            sexually abusing his  step-children and sent  a copy of  this



            report  to  the Plymouth  County District  Attorney's office.



            The  district attorney's office did not bring charges against



            White.



                      When  in July  of 1992  DSS  offered to  permit the



            children to return to their mother if White moved out  of the



            house, White  informed his parole officer of  the DSS's abuse



            report and  of the  agency's request that  he move.   White's



            parole officer thereupon  notified White  that a  preliminary



            parole  revocation hearing  would be  held  on September  10,



            1992.          After the preliminary  hearing, a final parole


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revocation hearing was held on November 19, 1992.  Throughout



            the proceedings, White maintained he had not abused his step-



            children.  White was not represented by counsel, being unable



            to afford  a private attorney,  and the parole board  did not



            offer to  provide White with  appointed counsel.   The parole



            board  voted to  revoke White's  parole and  returned  him to



            prison.



                      On March 29, 1995,  White filed an action     which



            he  labeled  a   petition  for  habeas   corpus      in   the



            Massachusetts Superior  Court, challenging the  revocation of



            his  parole on  several  grounds.   On  April  21, 1995,  the



            Superior Court ruled that White  was entitled to a new parole



            revocation hearing within sixty days because the parole board



            had violated its own regulations by failing to  provide White



            with a copy of the DSS report.  White v. Bissonnette, No. 95-
                                            _____    ___________



            1729-C,  slip. op.  at 4  (Mass. Dist.  Ct. April  21, 1995),



            vacated as moot, 667 N.E.2d 920 (Mass. App. Ct. 1996), review
            _______________                                        ______



            denied,  674  N.E.2d 1085  (Mass.  1996).   Citing  Gagnon v.
            ______                                              ______



            Scarpelli,  411 U.S.  778 (1973), the  Massachusetts Superior
            _________



            Court also held that the Due Process Clause of the Fourteenth



            Amendment  required the parole  board to appoint  counsel for



            White at the  new hearing if the board  determined that White



            was indigent.  Id. at 6. 
                           ___



                      Although White had styled his state court action as



            one  for habeas  corpus  relief, the  Massachusetts  Superior


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Court,  citing Massachusetts  Parole  Bd.  v. Brusgulis,  532
                           __________________________     _________



            N.E.2d 45 (Mass.  1989), held that the suit  was actually for



            declaratory relief because, if his suit was successful, White



            would not  be freed  altogether but  would instead  return to



            parole.  Bissonnette, slip op. at 6.
                     ___________



                      The parole board appealed from the Superior Court's



            order that  the board provide  White with counsel at  the new



            hearing.   White appealed  from the Superior  Court's holding



            that his action  should be regarded  as one for  declaratory,



            not  habeas corpus, relief.  Before the parole board provided



            White with a new hearing, White's sentence expired and he was



            released  from prison.    The  parole  board then  moved  for



            voluntary dismissal of  its appeal.  This  motion was allowed



            on  July 27,  1995.    On July  22,  1996, the  Massachusetts



            Appeals Court  ordered the  Superior Court's  judgment to  be



            vacated  because the matter  had become  moot when  White was



            released from prison, and  remanded the case to the  Superior



            Court  with a  direction to  dismiss  the action.   White  v.
                                                                _____



            Massachusetts  Parole Bd.,  667 N.E.2d  920  (Mass. App.  Ct.
            _________________________



            1996),  review denied,  674 N.E.2d  1085 (Mass.  1996).1   On
                    _____________



                                
            ____________________



            1.  The appeals court's order stated, "The judgment is

            vacated, not on the merits but because the case has become

            moot, and the case is remanded to the Superior Court with

            directions to dismiss the action."  White, 667 N.E. 2d at
                                                _____

            920.  Although the appeals court issued its order after the

            district court had rendered the judgment in the case below,

            and there is therefore nothing in the record evidencing the

            state appeals court's actions, we may take judicial notice of

            published state court dispositions of cases.  See Lamar v.
                                                          ___ _____



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motion  for rehearing, the  state appeals court  affirmed its



            original order, and the Massachusetts  Supreme Judicial Court



            denied  White's  application  for  further  review, White  v.
                                                                _____



            Massachusetts Parole Bd., 674 N.E.2d 1085 (Mass. 1996).
            ________________________



                      On  February 11, 1996, after the Superior Court had



            ordered  a new  parole  revocation  hearing  but  before  the



            Massachusetts Appeals Court had ruled that the proceeding was



            moot,  White filed  the present  complaint under 42  U.S.C.  



            1983 in the United States  District Court for the District of



            Massachusetts against the  current and former members  of the



            Massachusetts Parole  Board.  White's  complaint alleged that



            the  defendants had  violated his constitutional  due process



            rights by neglecting to establish procedures for when counsel



            should  be   appointed  for   persons  facing   final  parole



            revocation hearings.   He claimed that  the parole board  had



            also  violated  his  constitutional  due  process  rights  by



            failing to  provide him with  appointed counsel at  his final



            parole revocation hearing.    White     requested    monetary



            damages   from  the  former  parole  board  members  for  the


____________________



            Micou, 114 U.S. 218, 223 (1885) ("The law of any State of the
            _____

            Union, whether depending upon statutes or upon judicial

            opinions, is a matter of which the courts of the United

            States are bound to take judicial notice, without plea or

            proof."); Retired Chicago Police Association v. City of
                      __________________________________    _______

            Chicago, 7 F.3d 584, 609 n.30 (7th Cir. 1993) ("This court
            _______

            can take judicial notice of the decisions of federal and

            state courts."); Parente v. Town of West Warwick, 868 F.2d
                             _______    ____________________

            522, 523 (1st Cir. 1989) (taking judicial notice of a state

            court's opinion).  See generally Fed. R. Evid. 201(b). 
                               _____________



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                                          6



violation  of  his  rights.   He  also  requested declaratory



            relief against the parole board's current members, asking for



            a declaratory judgment stating that his parole revocation was



            unconstitutional and therefore void and stating that a person



            facing  a parole revocation "is entitled to appointed counsel



            on a  case-by-case basis  and that  appointed counsel  should



            presumptively be provided where the parolee claims he did not



            commit  the alleged violation."  White further requested that



            the parole revocation be expunged from his records.



                      On  June 11, 1996,  the district court  allowed the



            defendants' motion  to dismiss  both because  the action  was



            barred  by res  judicata  and  because  the  defendants  were



            protected  by  qualified  immunity.     The  district   court



            expressed doubt as  to whether the defendants  were sheltered



            by absolute immunity.  White then brought this appeal.



                       II.  Cognizability of the   1983 Action
                       _______________________________________



                      White's   1983 action is not cognizable.2  Although



            neither party addressed the issue, "[i]t is too elementary to



            warrant  citation of authority that a court has an obligation



            to inquire sua  sponte into its subject  matter jurisdiction,



            and to  proceed no  further if such jurisdiction is wanting."



                                
            ____________________



            2.  Black's Law Dictionary defines the term "cognizable" to
                ______________________

            mean, "Capable of being tried or examined before a designated

            tribunal; within jurisdiction of court or power given to
                      ____________________________

            court to adjudicate controversy."  Black's Law Dictionary 259
                                               ______________________

            (6th ed. 1990) (emphasis added).  See also F.D.I.C. v. Meyer,
                                              ________ ________    _____

            510 U.S. 471, 476 (1994) (stating that this is what

            "cognizable" ordinarily means).



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In  re Recticel  Foam Corp.,  859 F.2d  1000, 1002  (1st Cir.
            ___________________________



            1988).



                      In  Heck  v.  Humphrey, 512  U.S.  477  (1994), the
                          ____      ________



            Supreme Court held:



                      [I]n   order  to   recover  damages   for

                      allegedly unconstitutional  conviction or

                      imprisonment, or for other harm caused by

                      actions whose unlawfulness would render a

                      conviction or sentence  invalid, a   1983

                      plaintiff must prove  that the conviction

                      or sentence  has been reversed  on direct

                      appeal,  expunged  by   executive  order,

                      declared  invalid  by  a  state  tribunal

                      authorized to make such determination, or

                      called into question by a federal court's

                      issuance of  a writ of habeas  corpus, 28

                      U.S.C.   2254.



              Id. at 487 (footnote omitted).
              ___



                      The Court  ruled that  habeas corpus  was the  only



            permitted  mode of  federal  collateral  attack  on  a  state



            conviction.   Id.  at 481-82.   The  Court analogized    1983
                          ___



            actions seeking damages for alleged constitutional violations



            related   to  a  state  criminal  conviction  to  common  law



            malicious prosecution  claims, for which  termination of  the



            prior  criminal proceeding  in  the  accused's  favor  is  an



            essential element.   Id. at 484-86.   A   1983 suit  like the
                                 ___



            present,  contending  that  a  state  parole  revocation  was



            constitutionally invalid, challenges the "fact or duration of



            [the  plaintiff's] confinement." Id.  at  481; accord Crow v.
                                             ___           ______ ____



            Penry, 102 F.3d 1086, 1087 (10th Cir. 1996); Littles v. Board
            _____                                        _______    _____



            of Pardons & Paroles Div.,  68 F.3d 122, 123 (5th Cir.  1995)
            _________________________


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(per curiam);  cf. Edwards v.  Balisok, ___ U.S. ___,  117 S.
                           ___ _______     _______



            Ct.  1584 (1997)  (applying  the Heck  rule  to a  prisoner's
                                             ____



            deprivation  of   good-time   credits  in   a  state   prison



            disciplinary  proceeding); Schafer v.  Moore, 46 F.3d  43, 45
                                       _______     _____



            (8th Cir.  1995) (per  curiam) (applying the  Heck rule  to a
                                                          ____



            state  decision  to  deny  parole);    see  also  Preiser  v.
                                                   _________  _______



            Rodriguez,  411 U.S.  475,  490-92  (1973)  (holding  that  a
            _________



            petition for  habeas corpus is the only federal procedure for



            attacking "the  validity of  the fact or  length" of  a state



            prisoner's confinement and applying this principle  to "areas



            of  particular  state  administrative  concern"  such  as the



            deprivation  of  a  prisoner's  good-conduct-time credits  in



            state prison disciplinary proceedings).



                      In a footnote, the Heck Court refused to  relax the
                                         ____



            rule requiring  termination of the prior  criminal proceeding



            in the  accused's favor in  cases in which the  plaintiff had



            served  his sentence  and so  no  longer had  post-conviction



            challenges  available.    The  Court  wrote,  "We  think  the



            principle  barring  collateral  attacks--a  longstanding  and



            deeply  rooted feature  of both  the common  law and  our own



            jurisprudence--is not rendered  inapplicable by the  fortuity



            that a convicted criminal is no longer incarcerated."  Id. at
                                                                   ___



            490 n.10.



                      Whit  now  contends  that   his  parole  revocation



            violated  the Due Process Clause of the Fourteenth Amendment,


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giving  rise  to  a  cause  of  action  under     1983.   The



            contention  is  based  on his  allegation  that,  despite his



            denying that  he had  molested step-daughter,  White was  not



            offered  and  furnished  with  an  attorney  for  his  parole



            hearing.   Without  an  attorney,  White  maintains,  he  was



            deprived  of the  opportunity to  prove  his innocence,  and,



            therefore, of  due process.   A favorable  decision in  the  



            1983  proceeding would  necessarily  call  into question  the



            validity  of the  state's  decree  revoking  his  parole  and



            ordering  him back to  prison.  Heck  therefore applies,3 and
                                            ____



            the   1983 action  is not cognizable in a federal  court, see



            footnote 1,  supra, unless  the parole  revocation "has  been
                         _____



            reversed  on direct  appeal,  expunged  by  executive  order,



            declared invalid by a state tribunal authorized to  make such



            determination, or called  into question by a  federal court's



            issuance of a writ of habeas corpus, 28 U.S.C.   2254."   Id.
                                                                      ___



            at 487.



                      After  the  federal  district  court had  dismissed



            White's    1983 action  on other grounds,  White was  finally



            released from  confinement, his  sentence having  terminated,



            and the Massachusetts Appeals Court then vacated the Superior



            Court's judgment  as being  moot and  remanded White's  state


____________________



            3.  The Heck rule applies to   1983 actions for declaratory
                    ____

            relief as well as to   1983 suits for damages.  See Edwards
                                                            ___ _______

            v. Balisok, 117 S. Ct. 1584 (1997) (applying the Heck rule to
               _______                                       ____

            a request for declaratory relief under   1983).



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case to  the Superior Court  with a direction to  dismiss it.



            Hence  there  is  in effect  no  state  judgment invalidating



            White's parole  revocation (nor,  of course,  was the  parole



            revocation  invalidated by a  federal habeas petition).   See
                                                                      ___



            United States v. Munsingwear, Inc., 340 U.S. 36, 39-40 (1950)
            _____________    _________________



            (holding that vacating  a judgment as  moot and remanding  it



            with a direction to dismiss "eliminates a judgment, review of



            which  was   prevented  through  happenstance");   49  C.J.S.



            Judgments   357  (1997) ("Where a judgment is  vacated or set
            _________



            aside by a valid order  or judgment, it is entirely destroyed



            and the rights  of the  parties are  left as  though no  such



            judgment had  ever been  entered.");   cf.  Reilly v.  School
                                                   ___  ______     ______



            Comm. of Boston, 290 N.E.2d  516 (Mass. 1972) (holding that a
            _______________



            case which  is vacated  as moot on  appeal has  no collateral



            estoppel consequences).



                      We have carefully  reviewed the  reasoning in  Heck
                                                                     ____



            and related cases and can find no basis for  holding that the



            vacated   state   decision  that   impugned   White's  parole



            revocation meets  Heck's  requirement  of  a  declaration  of
                              ____



            invalidity  "by  a  state tribunal  authorized  to  make such



            determination.  "512 U.S. at 487.  We are constrained to hold



            that White's Section 1983 action  is not cognizable since any



            award of damages  or declaratory relief would  seriously call



            into question the  as yet undisturbed  validity of the  state



            parole board's action.  Heck, 512 U.S. at 486-87.
                                    ____


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As  White's   suit  is  not  cognizable   and  must



            therefore be dismissed,  we do not address  White's claims of



            error  or the  parole board's arguments  that his  claims are



            barred by res  judicata and that his  request for declaratory



            relief  is moot.    Nor  do we  consider  the parole  board's



            contention that its  former members are not liable in damages



            for any errors made in  respect to the appointment of counsel



            because of their absolute immunity.



                                   III.  Conclusion
                                   ________________



                      We vacate the district court's dismissal of White's



            suit  on  the  merits  and remand  the  case,  directing  the



            district court to dismiss the action without prejudice.   See
                                                                      ___



            Heck, 512 U.S.  at 479, 490 (affirming  the dismissal without
            ____



            prejudice  of a     1983 action  which  was not  cognizable);



            Fottler v. United  States, 73 F.3d  1064, 1065-66 (10th  Cir.
            _______    ______________



            1996)  (holding that the  dismissal of a  Section 1983 action



            because  it  was  not yet  cognizable  under  Heck  should be
                                                          ____



            without prejudice); Perez  v. Sifel,  57 F.3d  503, 505  (7th
                                _____     _____



            Cir.  1995) (per  curiam) (same);  Trimble  v. City  of Santa
                                               _______     ______________



            Rosa, 49 F.3d  583, 585 (9th Cir. 1995)  (per curiam) (same);
            ____



            Schafer, 46 F.3d at 45 (same).
            _______



                      Vacated and remanded.
                      ____________________


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