

                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 &amp; 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

                             -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

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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.                                                                   

                             -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 &amp; 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,

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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).

                             -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
