                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-29-2006

Williams v. Consovoy
Precedential or Non-Precedential: Precedential

Docket No. 04-3569




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                                             PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 04-3569


                      JOHN C. WILLIAMS,
                                  Appellant


                                v.

                  ANDREW CONSOVOY;
               ROLANDO GOMEZ-RIVERA;
              RACHEL TORRES-CHOWANIEC;
                  RUBY WASHINGTON;
                    DON E. GIBBONS;
                   KEVIN MAHONEY;
            NEW JERSEY STATE PAROLE BOARD




          On Appeal from the United States District Court
                    for the District of New Jersey
                    (D.C. Civil No. 01-cv-01809)
           District Judge: Honorable Mary Little Cooper


          Submitted Pursuant to Third Circuit LAR 34.1(a)
                          June 29, 2006

     Before: BARRY, VAN ANTWERPEN, and JOHN R.
                 GIBSON,* Circuit Judges



      *
       The Honorable John R. Gibson, Circuit Judge for the
United States Court of Appeals for the Eighth Circuit, sitting by
designation.
                     (Filed: June 29, 2006 )


Stephen M. Latimer
Loughlin & Latimer
Hackensack, NJ 07601
      Counsel for Appellant

Zulima V. Farber
       Attorney General of New Jersey
Lisa A. Puglisi
       Deputy Attorney General
Patrick DeAlmeida
       Assistant Attorney General
Richard J. Hughes Justice Complex
Trenton, NJ 08625
       Counsel for Appellees Andrew Consovoy, Rolando
       Gomex-Rivera, Rachel Torres-Chowaniec, Ruby
       Washington, Kevin Mahoney, and the New Jersey State
       Parole Board

Daniel R. Esposito
Kalison, McBride, Jackson & Murphy, P.A.
Warren, NJ 07059
       Counsel for Appellee Donald E. Gibbons, Ph.D.




                    OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

      Before us is John Williams’s appeal from the District

Court’s dismissal of his claims asserted under 42 U.S.C. § 1983

against a New Jersey parole officer and certain members of the

New Jersey State Parole Board (“Parole Board”) for,

                               2
respectively, arrest and false incarceration, and failure to

properly investigate the likelihood he would commit a crime if

released on parole. Williams also appeals from the District

Court’s grant of summary judgment on his § 1983 claim against

a private psychologist engaged by the Parole Board to perform a

psychological evaluation. We have jurisdiction pursuant to 28

U.S.C. § 1291, and for the following reasons, we will affirm.

                                 I.

       In 1993, Williams pleaded guilty to second-degree sexual

assault against a ten-year old girl, N.J.S.A. 2C:14-2b, pursuant to

a plea agreement. In 1995, Williams was sentenced to a 10-year

period of incarceration with no period of parole ineligibility, but

in 1996, Williams was released on parole.

       In 1997, Parole Officer Kevin Mahoney arrested Williams

as a parole violator for Williams’s failure to obtain approval for

a change in his employment and residence and for failure to

comply with the registration provisions of Megan’s Law. On

November 26, 1997, an Adult Panel of the New Jersey State

Parole Board (“Parole Board”) composed of Andrew Consovoy

and Rolando Gomez-Rivera revoked Williams’s parole. In



                                 3
reaching this decision, the Parole Board considered and rejected

the report of Officer Diane Formica, who recommended

Williams’s parole be continued because he had expressed

remorse for his failure to comply with the conditions of his

parole. The Parole Board then declared Williams ineligible for

parole until 1998.

       In April 1998, an Adult Panel of the Parole Board – this

time consisting of Rachel Torres-Chowaniec and Ruby

Washington – again evaluated Williams for parole. Before

rendering a decision, the Parole Board ordered a psychological

evaluation of Williams.

       This evaluation was performed by Don E. Gibbons,

Ph.D., a licensed psychologist employed at the time by

Correctional Behavior Solutions, a private company with which

New Jersey contracted to provide mental health services. In the

course of his evaluation, Gibbons performed a clinical interview

and administered various psychological and personality




                                4
examinations. Relying in part on Gibbons’s evaluation, the

Parole Board denied parole.1

       On April 18, 2001, Williams filed an action pursuant to

42 U.S.C. § 1983 in the District Court, asserting four separate

claims. First, Williams alleged Mahoney had seized him without

probable cause and caused him to be arrested and falsely

incarcerated, which seizure was in violation of the Fourth and

Eighth Amendments. Second, Williams alleged Consovoy and

Gomez-Rivera, on or before November 27, 1997, failed and

refused to conduct an adequate investigation into whether

Williams was likely to commit a crime if released on parole and

caused him to be falsely incarcerated, which failure was

deliberately indifferent to Williams’s Eighth Amendment right to

be free from cruel and unusual punishment. Third, Williams

alleged Torres-Chowaniec and Washington, on or before April

27, 1999, failed to adequately investigate whether Williams was




       1
        This denial was eventually reversed on appeal by the New
Jersey Superior Court, Appellate Division in Williams v. N.J. State
Parole Board, 763 A.2d 747 (N.J. Super. Ct. App. Div. 2000), in
which that court concluded the Parole Board’s finding that
Williams would commit another crime if released was not
supported by credible record evidence.

                                5
likely to commit another crime if released on parole, which

failure caused Williams’s false incarceration and was

deliberately indifferent to his Eighth Amendment rights. Finally,

Williams alleged that Gibbons had reported false and misleading

information intended to cause the Parole Board to deny Williams

parole, which denial resulted in Williams’s false imprisonment

and was deliberately indifferent to Williams’s Eighth

Amendment rights.

       Gomez-Rivera, Torres-Chowaniec, Washington, and

Mahoney moved to dismiss Williams’s complaint pursuant to

Fed.R.Civ.P. 12(b)(6). The District Court granted the motion

with respect to Mahoney and Gomez-Rivera on the ground that

Williams did not have a cognizable § 1983 claim against them.2



       2
         With respect to Torres-Chowaniec and Washington, the
District Court concluded that those defendants were not entitled to
absolute immunity in that although those defendants had performed
adjudicative duties in deciding to deny Williams parole for which
duties they were entitled to absolute immunity, those defendants
had also performed investigative functions with regard to their
failure to conduct an adequate investigation. On appeal, this Court
disagreed and directed the District Court to enter summary
judgment on Williams’s claims against them on the ground that
Torres-Chowaniec and Washington were entitled to absolute
immunity because the acts they performed were wholly
adjudicative in nature. Williams v. Consovoy, et al., 53 Fed. Appx.
664, 665 (3d Cir. 2002) (Becker, J.) (bench order).

                                6
Citing Heck v. Humphrey, 512 U.S. 477 (1994), the District

Court reasoned that William’s claim was uncognizable because

§ 1983 actions in which prisoners allege that a parole revocation

decision was constitutionally infirm are challenges to the fact or

duration of their confinement and are collateral attacks on state

convictions that are properly addressed in habeas corpus

proceedings. See Dist. Ct. Nov. 8, 2001 Slip. Op. at 9-17.

       Gibbons then moved for summary judgment on

Williams’s § 1983 claim. On July 29, 2004, the District Court

granted Gibbons’s motion. Williams v. Consovoy, et al., 333 F.

Supp.2d 297 (D.N.J. 2004). In that decision, the District Court

concluded that because the Parole Board had ordered Gibbons to

perform an evaluation to assist the Parole Board in making its

parole determination, Gibbons had engaged in “adjudicative

conduct” and was therefore entitled to absolute immunity. Id. at

301-02. By the parties’ agreement, the District Court dismissed

Williams’s remaining claims on August 25, 2004. This timely

appeal followed.

                                II.

                                A.



                                 7
         Williams first claims that the District Court was mistaken

in dismissing his claims against Mahoney and Gomez-Rivera on

the ground that those claims were barred by Heck v. Humphrey.

We exercise plenary review over the District Court’s grant of a

motion to dismiss under Fed.R.Civ.P. 12(b)(6). County

Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 163 (3d Cir.

2006).

         It is well-settled that when a state prisoner is challenging

the fact or duration of his confinement, his sole federal remedy is

a writ of habeas corpus, not a § 1983 action. Preiser v.

Rodriguez, 411 U.S. 475, 500 (1973). In Heck, the Supreme

Court held that where success in a § 1983 action would

implicitly call into question the validity of conviction or duration

of sentence, the plaintiff must first achieve favorable termination

of his available state or federal habeas remedies to challenge the

underlying conviction or sentence. Considering Heck and

summarizing the interplay between habeas and § 1983 claims,

the Supreme Court recently explained that,

         “a state prisoner’s § 1983 action is barred (absent prior
         invalidation) – no matter the relief sought (damages or
         equitable relief), no matter the target of the prisoner’s suit
         (state conduct leading to conviction or internal prison

                                   8
       proceedings) – if success in that action would necessarily
       demonstrate the invalidity of the confinement or its
       duration.”

Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (emphasis in

original).

       Thus, the threshold question becomes whether Williams’s

success on his § 1983 action would “necessarily demonstrate”

the invalidity of the Parole Board’s decision to revoke his parole,

which would in turn render his § 1983 action uncognizable under

Heck. We answer this question in the affirmative because

success on the § 1983 claim would necessarily demonstrate the

invalidity of the Parole Board’s decision. See White v. Gittens,

121 F.3d 803, 807 (1st Cir. 1997) (concluding that § 1983 claim

based on revocation of parole was barred by Heck; “[a]

favorable decision in the § 1983 proceeding would necessarily

call into question the validity of the state’s decree revoking

[plaintiff’s] parole and ordering him back to prison. Heck

therefore applies, and the § 1983 action is not cognizable in a

federal court”); Butterfield v. Bail, 120 F.3d 1024, 1024 (9th Cir.

1997) (“[f]ew things implicate the validity of continued

confinement more directly than the allegedly improper denial of



                                 9
parole”). Accordingly, because the Parole Board’s decision has

not been rendered invalid, Williams may not attack it via a §

1983 action, and the District Court’s dismissal of Williams’s

claims against Mahoney and Gomez-Rivera was proper.

       Williams cites Huang v. Johnson, 251 F.3d 65 (2d Cir.

2001), as support for the argument that because habeas relief is

no longer available to him, he should nonetheless be permitted to

maintain a § 1983 action. Huang held that a plaintiff for whom

habeas relief was no longer available on the ground that he had

been released from custody could nevertheless maintain a § 1983

action for false imprisonment. Id. at 75. Huang relied on the

fact that, post-Heck, five Justices took the view in Spencer v.

Kemna, 523 U.S. 1 (1998), that § 1983 relief should be available

to address constitutional wrongs where habeas relief is no longer

available. Huang, 251 F.3d at 75.

       We decline to adopt Huang here. As we recently held in

Gilles v. Davis, 427 F.3d 197, 210 (3d Cir. 2005), a § 1983

remedy is not available to a litigant to whom habeas relief is no

longer available. In Gilles, we concluded that Heck’s favorable-

termination requirement had not been undermined, and, to the



                                10
extent that its validity was called into question by Spencer, we

observed that the Justices who believed § 1983 claims should be

allowed to proceed where habeas relief is not available so stated

in concurring and dissenting opinions in Spencer, not in a

cohesive majority opinion. Gilles, 427 F.3d at 209-10. Thus,

because the Supreme Court had not squarely held post-Heck that

the favorable-termination rule does not apply to defendants no

longer in custody, we declined in Gilles to extend the rule of

Heck, and likewise decline to extend it here. See Gilles, 427

F.3d at 210-11.

                                B.

       Williams next claims the District Court erred in granting

summary judgment on his § 1983 claims against Gibbons. We

exercise plenary review over the District Court's grant of

summary judgment, County Concrete Corp., 442 F.3d at 163,

and disagree.

       While § 1983 makes no mention of an immunity defense,

an official is immune from a § 1983 suit if she was “accorded

immunity from tort actions at common law when the Civil

Rights Act was enacted in 1871.” Malley v. Briggs, 475 U.S.



                                11
335, 340 (1986). Nevertheless, even if an official did not enjoy

absolute immunity at common law, she may still be entitled to

absolute immunity if she performs “special functions” that are

analogous to those functions that would have been immune from

tort actions at the time Congress enacted § 1983. Hughes v.

Long, 242 F.3d 121, 125 (3d Cir. 2001) (citing Butz v.

Economou, 438 U.S. 478, 506, 508 (1978)). This immunity

“was and is considered necessary ‘to assure that judges,

advocates, and witnesses can perform their respective functions

without harassment or intimidation.’” McArdle v. Tronetti, 961

F.2d 1083, 1084 (3d Cir. 1992) (Alito, J.) (quoting Butz, 438

U.S. at 512). Accordingly, absolute immunity attaches to those

who perform functions integral to the judicial process. Burns v.

Reed, 500 U.S. 478, 484 (1991).

       Under this “functional” approach, courts look to the

nature of the functions being performed by the actor in question

and evaluate the effect that exposure to liability would have on

an appropriate exercise of that function. Hughes, 242 F.3d at

125. Applying this approach, courts conclude that individuals

who perform investigative or evaluative functions at a



                                12
governmental adjudicative entity’s request to assist that entity in

its decisionmaking process are entitled to absolute immunity.

See McArdle, 961 F.2d at 1085 (psychiatrist who performed

evaluation of prisoner at court’s request entitled to absolute

immunity); Morstad v. Dep’t of Corr. & Rehab., 147 F.3d 741,

744 (8th Cir. 1998) (psychologist who performed evaluation of

sex offender at court’s request entitled to absolute immunity).

       Applying this “functional” approach, we conclude that

Gibbons performed a function integral to the judicial process and

is therefore situated similarly to the mental health professionals

in McArdle and Morstad to whom absolute immunity from §

1983 claims attached. Like those individuals, Gibbons

performed an evaluation and presented his findings to the

adjudicative Parole Board, which then relied on his report and

expertise in reaching its ultimate decision to deny Williams

parole. Like the District Court, we believe that by preparing his

report at the Parole Board’s request to assist in its

decision-making, Gibbons acted as “an arm of the court,”

McCardle, 961 F.2d at 1085, and is therefore entitled to absolute

immunity from Williams’s § 1983 action.



                                 13
       Williams argues Gibbons should not be entitled to

absolute immunity because Gibbons did not make an explicit

recommendation as to whether or not to parole Williams. We

find this argument unpersuasive on the ground that the only way

to ensure unvarnished, objective evaluations from

court-appointed professionals is to afford them absolute

immunity from suit for performing evaluations, regardless of

whether those evaluations are ultimately found dispositive by the

entity that requested them or are ultimately found lacking. See

Moses v. Parwatikar, 813 F.2d 891, 892 (8th Cir. 1987)

(observing that by failing to afford absolute liability from § 1983

actions to court-appointed mental professionals, the threat of

civil liability could “taint” the professionals’ opinions and “[t]he

disinterested objectivity, so necessary to an accurate competency

determination, will be lost”); cf. Burns, 500 U.S. at 484

(observing that “it is ‘better to leave unredressed the wrongs

done by dishonest officers than to subject those who try to do

their duty to the constant dread of retaliation’”) (citation

omitted).

                                III.



                                 14
       For the foregoing reasons, we conclude that Williams’s §

1983 action against the Parole Board members is foreclosed by

Heck and reiterate that § 1983 suits that would otherwise be

barred by Heck are not cognizable merely because habeas relief

is no longer available to the plaintiff. We also conclude that

Gibbons is entitled to absolute immunity from § 1983 liability

because his actions of evaluating Williams and preparing a

report of that evaluation were performed at the Parole Board’s

request to assist in its adjudicative function of evaluating

Williams’s eligibility for parole. Accordingly, we will affirm the

District Court.




                                 15
