White v. Gittens ( 1997 )

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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