                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-1249
                                   ___________

Nicole Figg,                         *
                                     *
            Appellant,               * Appeal from the United States
                                     * District Court for the District
     v.                              * of South Dakota.
                                     *
Duane Russell; Mary Lou Jorgensen;   *
Robert Hofer; Brent Walker;          *
Brenda Hyde; J. Does, 1-10,          *
                                     *
            Appellees.               *
                                ___________

                             Submitted: September 12, 2005
                                Filed: January 5, 2006
                                 ___________

Before MELLOY, BEAM, and BENTON, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

       Nicole Figg appeals the district court's grant of summary judgment dismissing
a 42 U.S.C. § 1983 claim and several state-law causes of action arising from her
incarceration in the South Dakota Women's Prison. The district court held that since
Figg's sentence of incarceration had not been invalidated, her section 1983 action was
barred by the "favorable-termination" rule established in Heck v. Humphrey, 512 U.S.
477 (1994), and that her state-law causes of action were likewise interdicted. We
affirm the dismissal of the 1983 action on alternative grounds, and reverse the grant
of summary judgment on the state-law claims.
I.    BACKGROUND

       In April 1997, Figg pled guilty to one count of forgery in Butte County, South
Dakota. She received a suspended sentence from a South Dakota Circuit Court. In
September 1998, Figg admitted she violated the terms of her suspended sentence. The
circuit court revoked the suspended sentence, and sentenced Figg to five years'
incarceration in the South Dakota State Penitentiary, with three of the five years
suspended. On October 26, 1998, Figg signed a parole agreement (October
Agreement) with the South Dakota Board of Pardons and Paroles (Parole Board),
which did not indicate that the suspended portion of her sentence was subject to
reinstatement should she violate parole. On November 9, 1998, Figg signed a second
parole agreement (November Agreement) which did indicate the suspended portion
could be reinstated if she violated parole.

       In December 1998, Figg was released on parole. In March 1999, a parole
services report alleged that Figg had violated her parole, referring to the October
Agreement, but not to the November Agreement. In May 1999, Figg received notice
of her parole hearing, which indicated that she was accused of a violation which could
result in revocation of her parole, reinstatement of her suspended sentence, or both.
At her parole hearing, Figg was not informed that she was facing reinstatement of the
suspended portion of her sentence. The board member conducting the hearing issued
recommended findings of fact and conclusions of law, in which he concluded that
Figg had violated parole, and recommended that parole be revoked and the suspended
part of her sentence be reinstated. In May 1999, the Parole Board revoked Figg's
parole and reinstated the suspended portion of the sentence.

        In August 2001, Figg filed a petition in state court for habeas corpus relief. At
the habeas hearing, Figg testified she was not informed that a parole violation could
result in reinstatement of the suspended portion of her sentence. The habeas court had
before it the October Agreement, but not the November Agreement, when it granted

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the writ in December 2001. Relying on Smith v. Board of Pardons and Paroles, 515
N.W.2d 219, 223 (S.D. 1994) ("'[D]ue process mandates that the petitioner cannot be
subjected to a forfeiture of his liberty for . . . acts unless he is given prior fair
warning'") (quoting United States v. Dane, 570 F.2d 840, 843-44 (9th Cir. 1977)), the
habeas court found that Figg had no warning that violation of her parole could result
in reinstatement of her suspended sentence. No appeal was taken from the habeas
court's grant of the writ. Figg then brought a section 1983 action in the United States
District Court for the District of South Dakota against Parole Board members Robert
Hofer and Mary Lou Jorgensen; against South Dakota Women's Prison staffers Duane
Russell and Brenda Hyde; and against Brent Walker, a parole agent and administrative
assistant; for "illegally" incarcerating her for 416 days (the time she was held after the
Parole Board reinstated the suspended portion of her sentence).

       In December 2002, the defendants intervened in the already terminated state
habeas proceeding and, on the basis of the November Agreement, moved the court to
vacate the writ and/or order a new trial. In December 2003, they moved in the district
court for summary judgment in the section 1983 action on the basis of absolute and
qualified immunity. The district court denied the motion without prejudice and stayed
the action until the state habeas court finished revisiting its grant of the writ, noting
that the state court might decide issues related to the federal action and thus
collaterally estop the district court from revisiting them.

       The state habeas court made its decision in June 2004. Because Figg's parole
supervision ended in August 2003, and South Dakota no longer had authority to
reincarcerate Figg, the court declined to order a new habeas trial. But the court found
that Figg's lack of candor to the court in the first habeas proceeding regarding her
knowledge of the November Agreement constituted grounds–based in fraud,
misrepresentation, or other misconduct–to vacate the writ. Vacatur of the writ was
filed July 1, 2004.



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       The habeas tribunal sent its decision to the district court. The district court held
that in order to seek section 1983 relief for her "illegal" incarceration, Figg must first
prove that the underlying sentence was "reversed, expunged, invalidated, or impugned
by the grant of a writ of habeas corpus." Heck, 512 U.S. at 489. Because Figg could
not satisfy Heck's "favorable-termination" rule given that her writ of habeas corpus
had been vacated, the court concluded her section 1983 action could not proceed. The
district court also held that since the state habeas court had set aside that court's earlier
due process determination, collateral estoppel barred relitigating that decision as part
of the section 1983 action. Finally, the district court granted summary judgment on
Figg's state-law claims because they were premised on illegal incarceration, and the
writ had been vacated.

      Figg appeals the district court's dismissal of her section 1983 action and state-
law claims, and asserts that the court erred in dismissing her actions when no motion
was pending.

II.    DISCUSSION

       We review the district court's grant of summary judgment de novo, Wilson v.
Spain, 209 F.3d 713, 716 (8th Cir. 2000), and may affirm the district court on any
basis supported by the record. Gonzales-Perez v. Harper, 241 F.3d 633, 638 n.6 (8th
Cir. 2001).

       A.     Procedure Used In Granting Summary Judgment

      Figg first asserts that the district court erred in granting summary judgment to
defendants because no motion was pending before the court at the time. In its order
denying without prejudice defendants' motion for summary judgment, the district
court stated that defendants could reassert their motions for summary judgment
without refiling the relevant documents, after the state habeas court had resolved

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defendants' motion to vacate the writ. Figg asserts that she had no opportunity to
argue that Heck did not apply to her claims because she had no notice that the district
court would grant the defendants summary judgment, apparently sua sponte. Sua
sponte orders of summary judgment will be upheld "only when the 'party against
whom judgment will be entered was given sufficient advance notice and an adequate
opportunity to demonstrate why summary judgment should not be granted.'" Shur-
Value Stamps, Inc. v. Phillips Petroleum Co., 50 F.3d 592, 595 (8th Cir. 1995)
(quoting Interco Inc. v. Nat'l Sur. Corp., 900 F.2d 1264, 1269 (8th Cir. 1990)). Figg
was on notice that the court might grant summary judgment without defendants
having to refile their motion. But more importantly, "a party waives the notice
requirement when it fails to object based on insufficient notice and fails to assert
prejudice." Id. Nothing in the record indicates that Figg raised an objection before
the district court when summary judgment was entered, and thus she has waived any
defect in notice.

      B.     Defendants' Entitlement to Immunity

       Though the district court granted summary judgment on the basis that Figg's
section 1983 claim was barred by Heck, we find that the defendants are immune from
suit notwithstanding the court's Heck analysis. "'An absolute immunity defeats a suit
at the outset, so long as the official's actions were within the scope of the immunity.'"
Patterson v. Von Riesen, 999 F.2d 1235, 1237 (8th Cir. 1993) (quoting Imbler v.
Pachtman, 424 U.S. 409, 419 n.13 (1976)) (alteration omitted). Defendants moved
for summary judgment based on absolute immunity, and we affirm on that basis.1




      1
       Defendants also based their motion on Eleventh Amendment and qualified
immunity. We need not reach these arguments, however, as we dispose of the case
under absolute immunity.

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       Defendants Robert Hofer and Mary Lou Jorgensen were members of the Parole
Board. We have said that "parole board members are absolutely immune from suit
when considering and deciding parole questions." Id. at 1238-39. Figg's section 1983
claim against the Parole Board members is that as a result of violating her due process
rights by failing to inform her that parole violations would affect her suspended
sentence, she was illegally incarcerated when the Parole Board reinstated her
suspended sentence. Though the Parole Board found that Figg had violated her
parole, Figg's claim is based on the board's decision to reinstate her suspended
sentence. In determining whether officials have acted within their official jurisdiction
for purposes of absolute immunity, "the inquiry focuses on whether the subject matter
of the decision was within the official's power, and whether the official was acting in
her official capacity at the time of decision." Id. at 1239. Thus, though Figg's claim
is not based on the Parole Board's decision regarding her parole per se, absolute
immunity will still attach in this case if the board members have the power to make
decisions regarding suspended sentences.

       South Dakota law provides that "[t]he [Parole Board] is charged with the
responsibility for enforcing the conditions imposed by the sentencing judge, and the
board retains jurisdiction to revoke the suspended portion of the sentence for violation
of the terms of the suspension." S.D. Codified Laws § 23A-27-19. See Smith, 515
N.W.2d at 221-22. Given that the November Agreement states that "the rules of
parole supervision shall also apply to the suspended portion of [Figg's] sentence,"
when Figg violated her parole, she also violated the terms of her suspended sentence.
"The operation of law . . . [does] not automatically translate the conditions of [Figg's]
parole into the conditions of [her] suspended sentence. That is certainly within the
power of the Board of Pardons and Paroles and [is] easily accomplished." Id. at 224
(emphasis added). If the defendant is given notice, "the Board of Pardons and Paroles
may impose conditions on a defendant's suspended sentence in addition to those
imposed by the sentencing court so long as the additional conditions are reasonable
and not inconsistent with those mandated by the court." Id. The state habeas court

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found that Figg received and remembered signing the November Agreement.
Accordingly, the Parole Board was within its power when it applied the conditions of
Figg's parole to her suspended sentence, and when it took action concerning her
suspended sentence when she violated parole. Thus, under our holding in Patterson,
the Parole Board's actions regarding Figg's parole and suspended sentence are entitled
to absolute immunity.2

      Defendant Duane Russell was the warden of the South Dakota Women's Prison.
Defendant Brenda Hyde was an employee of the prison. Like defendants Hofer and
Jorgensen, they are entitled to absolute immunity. Figg's suit against Russell and
Hyde is based on the fact of her confinement and the resulting deprivation of rights
attending that status.3 In Patterson, the plaintiff brought a section 1983 action against
the wardens of the prison in which he was incarcerated after he was issued a writ of
habeas corpus. In affirming the dismissal of the claim, this court held that jailors and
wardens are "absolutely immune from damages flowing from the fact of a prisoner's
incarceration, when that incarceration occurs pursuant to a facially valid order of


      2
        Even if the Parole Board had acted in violation of Figg's constitutional rights,
as Figg asserts, those actions would not fall outside the board's power, such that
absolute immunity would not apply. "An official does not act outside her jurisdiction
simply because she makes an unconstitutional or unlawful decision." Patterson, 999
F.2d at 1239. Rather, the subject matter of the action is the measure of the board's
proper exercise of power. "A decision about whether or not to grant parole is at the
heart of a parole board member's jurisdiction, whether that decision is based on lawful
or unlawful considerations." Id. In this case, decisions regarding a suspended
sentence are also at the heart of the board members' jurisdiction, and thus are entitled
to absolute immunity.
      3
        Figg's complaint states that "[d]uring the 416 days that Nicole Figg was
illegally detained in prison, she was treated in all respects as a penitentiary inmate and
subjected to the same restrictions, deprivations of freedom, sanctions, and
punishments as those inmates who were rightfully being imprisoned in the South
Dakota Women's Prison."

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confinement." 999 F.2d at 1241. During the 416 days that Figg alleges she was
confined "illegally," the state habeas court had not yet issued her writ, and thus the
jailors and warden were acting pursuant to facially valid orders from the Eighth
Judicial Circuit Court of South Dakota and the Parole Board. "'Officials such as the
[wardens] must not be required to act as pseudo-appellate courts scrutinizing the
orders of judges.'" Id. (quoting Valdez v. City & County of Denver, 878 F.2d 1285,
1289 (10th Cir. 1989)). Defendants Russell and Hyde are entitled to absolute
immunity.

      The basis for Figg's suit against defendant Brent Walker, a parole agent and
administrative assistant to the Parole Board, is not clear. Her complaint alleges that
Walker offered her the October Agreement for parole, which she accepted, but the
agreement did not state that conditions applicable to her parole likewise applied to her
suspended sentence. She contends only that "defendants" failed to notify her that her
parole conditions applied to the suspended sentence. Thus, Figg's claim appears to be
that Walker participated in the alleged due process violation that led to her
incarceration.

        "Parole agents" in South Dakota are apparently akin to "parole officers" in other
states, responsible for "direct supervision of parolees on a daily basis." S.D. Codified
Laws § 3-12-47. "[T]he extent of immunity accorded an official depends solely on
the official's function." Nelson v. Balazic, 802 F.2d 1077, 1078 (8th Cir. 1986). The
Supreme Court has held that "judicial, prosecutorial, and legislative functions require
absolute immunity." Id. (citing Harlow v. Fitzgerald, 457 U.S. 800 (1982)). We have
found parole officers to be entitled to either absolute immunity or qualified immunity
depending on the function at issue. Id. at 1078-79 (finding parole officer entitled only
to qualified immunity because the officer's decision not to take a parolee into custody
was not a quasi-judicial function or prosecutorial decision; the decision was akin to
function of police officer); Anton v. Getty, 78 F.3d 393 (8th Cir. 1996) (finding parole
officers entitled to absolute immunity where they made recommendations to parole

                                          -8-
board that parole be delayed, similar to quasi-judicial function performed by parole
officers preparing presentence reports).

       In the instant case, Walker's only function was to offer Figg the October
Agreement, without giving her notice that the terms of parole applied to the suspended
sentence. This is essentially the same claim Figg brings against the Parole Board
members. Thus, we think Walker's function in this case is so associated with the
function of the Parole Board that he, too, is cloaked in absolute immunity. See S.D.
Codified Laws § 24-15-1.1. Walker apparently made no independent decisions in
offering the October Agreement to Figg. When he offered the agreement to her, he
acted as a representative of the Parole Board, conveying to Figg the board's decision.
His actions were so connected to the quasi-judicial role the Parole Board performed
in granting parole in the first place, that they were but an extension of that function.
So, at least in this limited sense, Walker is entitled to absolute immunity. See Anton,
78 F.3d at 396 (holding parole officers entitled to absolute immunity because their
recommendations that parole be delayed "had a similar, close connection" to parole
board commissioner's decision to delay parole).

      C.     Dismissal of State-Law Claims

        The district court also granted summary judgment to defendants on Figg's state-
law causes of action for false imprisonment, invasion of privacy, infliction of
emotional distress, battery, assault, and negligence because they were "premised on
the illegality of Plaintiff's incarceration." Collateral estoppel does not bar the
litigation of these claims because the issue central to each of them–whether Figg's
incarceration was unlawful–has not been determined by a valid and final judgment.
See Morse v. C.I.R., 419 F.3d 829, 834 (8th Cir. 2005). Though the state habeas court
vacated its earlier grant of the writ because Figg's lack of candor in the first
proceeding "very likely would have changed the results," the court did not
substantively deny Figg habeas relief, it simply refused to continue to consider the

                                          -9-
merits of her claim because of her fraud upon the court. Thus, the vacatur does not
equal a final and valid determination of the soundness of Figg's due process allegation
although the appearance of the November Agreement appears to have dealt a fatal
blow to her contentions. We have found nothing in the record to support jurisdiction
based on diversity, and both parties agree the district court exercised supplemental
jurisdiction over Figg's state-law claims. In this case, when the district court
dismissed the federal section 1983 action, we believe it should have exercised its
discretion to dismiss the state-law claims without prejudice, leaving it to Figg to
determine whether to reassert them in state court. See ACLU v. City of Florissant,
186 F.3d 1095, 1098-99 (8th Cir. 1999) (holding that where state and federal claims
are joined and federal claims are dismissed by summary judgment, the state claims
are usually dismissed without prejudice in the interests of comity).

III.   CONCLUSION

      We affirm the district court's dismissal of Figg's section 1983 claim on the
grounds of absolute immunity. We reverse the district court's grant of summary
judgment on Figg's state-law claims, and remand for dismissal of those claims without
prejudice.
                       ______________________________




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