
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                                         -2-                                          2            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                                         -3-                                          3            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                                         -4-                                          4            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.                                                          ___ _____                                         -5-                                          5            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).                                _____________                                         -6-                                          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).                                         -7-                                          7            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)            _________________________                                         -8-                                          8            (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,                                         -9-                                          9            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).                                         -10-                                          10            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.                                    ____                                         -11-                                          11                      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.                      ____________________                                         -12-                                          12
