               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit

No. 12-1403

                           DANNY L. BROWN,

                       Plaintiff, Appellant,

                                    v.

                 STATE OF RHODE ISLAND, ET AL.,

                      Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF RHODE ISLAND

          [Hon. William E. Smith, U.S. District Judge]



                                 Before

                 Torruella, Howard and Thompson,
                         Circuit Judges.



     Danny L. Brown on brief pro se.




                          February 22, 2013
     Per Curiam.       Plaintiff Danny Brown, now serving a 20-year

prison   term   on   sexual-assault    and   child-molestation       charges,

appeals from the dismissal of his pro se 42 U.S.C. § 1983 action.

Plaintiff brought that action against members of the Rhode Island

parole board and others (the state, the governor, and the prison

director), complaining that he had been denied parole for an

impermissible reason--namely, the fact that he had a legal matter

pending in state court.      The district court screened the complaint

upon filing and dismissed it for failure to state a claim, without

affording plaintiff notice or an opportunity to amend.              In doing

so, the court invoked 28 U.S.C. §§ 1915(e) and 1915A, which permit

dismissal at any time of two categories of suits--those brought in

forma    pauperis    (IFP)   and   those   filed   by   prisoners    against

government defendants--for, inter alia, failure to state a claim.

Finding that the requirements attending such sua sponte dismissals

have not been met, we vacate and remand for further proceedings.

     Ordinarily, before dismissal for failure to state a claim is

ordered, some form of notice and an opportunity to cure the

deficiencies in the complaint must be afforded.           See, e.g., Chute

v. Walker, 281 F.3d 314, 319 (1st Cir. 2002); Street v. Fair, 918

F.2d 269, 272-73 (1st Cir. 1990) (per curiam).               But no such

safeguards need be provided if it is "crystal clear that ...

amending the complaint would be futile," i.e., if the complaint is

"patently meritless and beyond all hope of redemption."             Gonzalez-


                                     -2-
Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir. 2001).    These

same standards apply to dismissals under § 1915(e) and § 1915A.

See, e.g., Abbas v. Dixon, 480 F.3d 636, 639-40 (2d Cir. 2007);

Griffiths v. Amtrak, 2004 WL 1754043, at *1 (1st Cir. 2004) (per

curiam); Curley v. Perry, 246 F.3d 1278, 1283 (10th Cir. 2001).

     In several respects, plaintiff's complaint is indeed incurably

without merit. Neither the state nor the other defendants in their

official capacities are subject to suit for damages under § 1983.

See, e.g., Will v. Michigan Dep't of State Police, 491 U.S. 58, 71

(1989). The claims for damages against the parole board members in

their individual capacities also fail, since such defendants enjoy

absolute immunity for actions taken within the scope of their

official duties.    See, e.g., Johnson v. Rhode Island Parole Bd.

Members, 815 F.2d 5, 6-8 (1st Cir. 1987) (per curiam).        And no

claim exists against the governor or prison director in their

personal capacities, since respondeat superior is unavailable and

plaintiff has not alleged any direct actions taken by either of

those defendants.   See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 676

(2009) ("vicarious liability is inapplicable to ... § 1983 suits").

     But characterizing other aspects of the complaint as patently

meritless is more difficult.    Plaintiff's central contention is

that, after a hearing in May 2009, the parole board denied his

parole application with the written explanation that he was "in

court with a legal matter"--a reference, plaintiff later clarifies,


                                -3-
to a renewed motion for post-conviction relief then pending in

superior court. Defendants appear to have satisfied the procedural

due process requirements that apply in this context: "afford[ing]

an opportunity to be heard" and informing plaintiff "in what

respects he [fell] short of qualifying for parole."            Greenholtz v.

Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 16 (1979).1              But

defendants arguably ran afoul of substantive due process.               This

constitutional doctrine, according to some courts, forbids the

denial of parole for arbitrary or impermissible reasons, see, e.g.,

Graziano v. Pataki, 689 F.3d 110, 115 (2d Cir. 2012), and more

particularly for exercising one's right of access to the courts,

see, e.g., Burkett v. Love, 89 F.3d 135, 140 (3d Cir. 1996);

Inmates of Neb. Penal & Corr. Complex v. Greenholtz, 436 F. Supp.

432, 437 (D. Neb. 1976), aff'd, 567 F.2d 1381 (8th Cir. 1977).

       We refrain from reaching a firm conclusion in this regard

because of the possible involvement of an additional factor: the

fact       that,   for   sex   offenders   in   particular,   "acceptance    of

responsibility for past offenses" is often a "critical first step"

in rehabilitation programs. McKune v. Lile, 536 U.S. 24, 33 (2002)

(plurality opinion).2           Citing this factor, we have joined with


       1
        Rhode Island is one of the few states whose statutory
scheme has been held to create a liberty interest in parole. See,
e.g., Bishop v. State, 667 A.2d 275, 276 (R.I. 1995).
       2
        Of course, the parole board simply referred to plaintiff
being "in court with a legal matter." On its face, this could
include something that did not implicate the question of guilt--

                                       -4-
other courts in finding no constitutional infirmity in cases where

parole eligibility is conditioned upon completion of a treatment

program requiring admission of guilt.       See, e.g., Newman v. Beard,

617 F.3d 775, 780-85 (3d Cir. 2010), cert. denied, 131 S. Ct. 2126

(2011); Ainsworth v. Stanley, 317 F.3d 1, 4-6 (1st Cir. 2002).        But

no access-to-court issue was involved in those cases.3           In any

event,   it   suffices   for   present    purposes   to   conclude   that

plaintiff's substantive due process claim, to which he alluded in

his complaint and on appeal, is not patently without merit.

     The remaining question is whether injunctive or declaratory

relief is available.      Plaintiff has made clear that he is not

seeking an injunction ordering his immediate release--relief that

would affect "the fact or duration of ... confinement" and so could

only be sought in a habeas action.       Preiser v. Rodriguez, 411 U.S.

475 (1973).    By contrast, an injunction ordering a new parole



such as a post-conviction challenge to his sentence, or even a
civil suit unrelated to the criminal case.      As it turns out,
however, plaintiff's renewed motion for post-conviction relief,
which was denied by the superior court on October 28, 2011, sought
to overturn his convictions.
     3
        In Jimenez v. Conrad, 678 F.3d 44 (1st Cir. 2012), one
parole board member deemed it relevant that the applicant, who had
been convicted of murder, had unsuccessfully moved for a new trial
several years earlier.    We noted that "a successful attempt to
obtain a new trial could not be held against him consistently with
due process," but that "consideration of an unsuccessful effort"
was permissible since refusal to "accept responsibility for the
crime" affected "the chance of recidivism." Id. at 48. We had no
occasion there to consider what would happen if the motion for new
trial had been pending at the relevant time.

                                  -5-
hearing could be sought in a § 1983 action.       See Wilkinson v.

Dotson, 544 U.S. 74, 82 (2005).        But such a request (which

plaintiff has not explicitly advanced) arguably would be barred by

the Federal Courts Improvement Act (FCIA), Pub. L. No. 104-317, 110

Stat. 3847, § 309(c), which in 1996 amended § 1983 to restrict

injunctive relief against "judicial officers."4      Most courts to

have addressed the issue have concluded that the FCIA applies to

quasi-judicial officials like parole board members, see, e.g., Roth

v. King, 449 F.3d 1272, 1287 (D.C. Cir. 2006); Montero v. Travis,

171 F.3d 757, 761 (2d Cir. 1999), although the vote has not been

unanimous, see Simmons v. Fabian, 743 N.W.2d 281 (Minn. Ct. App.

2007).

     The availability of declaratory relief, in turn, might depend

on matters not revealed by the present record.   We have stated that

a "declaratory judgment is unavailable where ... there is no

ongoing legal violation."   Mills v. State of Maine, 118 F.3d 37, 55

(1st Cir. 1997) (footnote omitted).    In other words, "declaratory

judgment is meant to define the legal rights and obligations of the

parties in anticipation of some future conduct, not simply to

proclaim liability for a past act."   Ysais v. State of New Mexico,

2010 WL 1511403, at *1 (10th Cir. 2010).    But the record does not


     4
        In pertinent part, the FCIA provides that "in any action
brought against a judicial officer for an act or omission taken in
such officer's judicial capacity, injunctive relief shall not be
granted unless a declaratory decree was violated or declaratory
relief was unavailable." 42 U.S.C. § 1983.

                                -6-
disclose whether plaintiff still is "in court with a legal matter."

Nor, if a new parole hearing cannot be ordered because of the

unavailability of injunctive relief, is it clear whether plaintiff

will receive another regularly-scheduled hearing before his release

date.

     Given these various considerations, the question of whether

plaintiff has stated a claim is not without some difficulty.    But

what can be safely concluded is that plaintiff's complaint is not

"patently meritless and beyond all hope of redemption."   Gonzalez,

257 F.3d at 37.   We thus vacate the judgment and remand for further

proceedings not inconsistent with this decision.

     Vacated and remanded.




                                 -7-
