White v. Gittens

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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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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