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

molested

his

authorities alleging that

step-daughter.

White

was

not

he had

offered

furnished with counsel at his parole revocation hearing.

brought this

action under

42 U.S.C.

1983 in

district court against the former and current

Massachusetts Parole Board, asserting

him of his

constitutional due process

or

He

the federal

members of the

that they had deprived

rights by failing

to

adopt regulations providing for the appointment of counsel at

parole revocation hearings

his case.

counsel in

The district court dismissed, holding that White's

1983 action was

board

and by not furnishing

barred by res judicata and that the parole

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

to White.

1993)

See Watterson
___ _________

(on motion

complaint

as true

facts in the light

v. Page, 987
____

to dismiss, a

and makes

all

most favorable

F.2d 1, 3

court takes

(1st Cir.

allegations in

reasonable inferences

in

plaintiff's favor).

Gary White was

convicted of armed robbery

and sentenced to twelve years' imprisonment.

-22

in 1987

He was paroled

on

September 19,

current wife, Gina

1989.

While

paroled, White

married his

White, and began living with

her and her

three children, Melany (age 3), Matthew (age 4), and

Marlene

(age 5).

In 1990,

evaluated

Melany met

to

Melany's behavior

determine

if she

had

changed,

been

and she

was

sexually abused.

with an evaluator once a week for six weeks, with

Gina

White present

inconclusive,

and

at

each meeting.

Melany's

evidence of sexual contact.

Department

of

Social

The evaluation

physician

could not

Nevertheless,

Services

children from the Whites' home

("DSS")

find

was

any

the Massachusetts

removed

the three

on April 25, 1990, and placed

them in foster care.

The

DSS filed

sexually abusing his

report

The

to

a report

alleging

step-children and sent

the Plymouth

County District

that White

was

a copy of

this

Attorney's office.

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

house, White

informed his parole officer of

of the

the DSS's abuse

report and

of the

agency's request that

parole officer thereupon

parole

1992.

revocation hearing

notified White

would be

After the preliminary

-33

held

he move.

that a

White's

preliminary

on September

10,

hearing, a final parole

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,

offer to

board

provide White with

voted to

and the parole board

appointed counsel.

revoke White's

parole and

did not

The parole

returned

him to

prison.

On March 29, 1995,

he

labeled

petition

Massachusetts Superior

his

parole on

several

White filed an action

for

habeas

corpus

Court, challenging the

grounds.

Superior Court ruled that White

On

April

which

in

the

revocation of

21, 1995,

the

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.

1729-C,

slip. op.

at 4

White v. Bissonnette, No. 95_____

___________

(Mass. Dist.

Ct. April

21, 1995),

vacated as moot, 667 N.E.2d 920 (Mass. App. Ct. 1996), review
_______________
______

denied,
______

674

Scarpelli,
_________

N.E.2d 1085

411 U.S.

(Mass.

1996).

778 (1973), the

Citing

Gagnon v.
______

Massachusetts Superior

Court also held that the Due Process Clause of the Fourteenth

Amendment

required the parole

White at the

board to appoint

new hearing if the board

was indigent.

counsel for

determined that White

Id. at 6.
___

Although White had styled his state court action as

one

for habeas

corpus

relief, the

Massachusetts

Superior

-44

Court,

citing Massachusetts Parole Bd.

__________________________

N.E.2d 45 (Mass.

1989), held that the suit

v. Brusgulis,
_________

532

was actually for

declaratory relief because, if his suit was successful, White

would not

parole.

be freed

altogether but

Bissonnette, slip op. at 6.

___________

would instead

return to

The parole board appealed from the Superior Court's

order that

hearing.

the board provide

White appealed

that his action

not

White with counsel at

from the Superior

should be regarded

habeas corpus, relief.

the new

Court's holding

as one for

declaratory,

Before the parole board provided

White with a new hearing, White's sentence expired and he was

released

from prison.

voluntary dismissal of

on

July 27,

Appeals Court

vacated

1995.

The

its appeal.

On July

ordered the

because the matter

released from prison, and

Court

with a

Massachusetts

parole

22,

board then

This

Superior Court's

Massachusetts

judgment to

moot when

remanded the case to the

direction to

dismiss

Parole Bd.,

667 N.E.2d

for

motion was allowed

1996, the

had become

moved

the action.

920

be

White was

Superior

White
_____

(Mass. App.

v.

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."
920.

White, 667 N.E. 2d at

_____

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.

-55

See Lamar v.
___ _____

motion

for rehearing, the

state appeals court

original order, and the Massachusetts

denied

White's

application

for

affirmed its

Supreme Judicial Court

further

review, White
_____

v.

Massachusetts Parole Bd., 674 N.E.2d 1085 (Mass. 1996).

________________________

On

ordered

a new

February 11, 1996, after the Superior Court had

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

the

defendants had

Board.

White's

complaint alleged that

violated his constitutional

due process

rights by neglecting to establish procedures for when counsel

should

be

appointed

revocation hearings.

also

violated

failing to

his

for

constitutional

provide him with

from

the

facing

He claimed that

parole revocation hearing.

damages

persons

former

final

the parole board

due

process

appointed counsel at

White

parole

parole

requested

board

members

rights

had

by

his final

monetary

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).

_____________

-66

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

on a

a parole revocation "is entitled to appointed counsel

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,

defendants' motion

barred

by res

protected

by

to dismiss

judicata

qualified

expressed doubt as

and

the district court

both because

because

immunity.

the action

the

defendants

The

district

to whether the defendants

by absolute immunity.

allowed the

was

were

court

were sheltered

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

and to

sponte into its subject

proceed no

matter jurisdiction,

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).

-77

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

allegedly unconstitutional

damages

for

conviction or

imprisonment, or for other harm caused by

actions whose unlawfulness would render a
conviction or sentence

invalid, a

1983

plaintiff must prove

or sentence

that the conviction

has been reversed

appeal,

expunged

by

declared

invalid

by

on direct

executive
a

state

order,
tribunal

authorized to make such determination, or

called into question by a federal court's
issuance of
U.S.C.

a writ of habeas

corpus, 28

2254.

Id. at 487 (footnote omitted).

___

The Court

permitted

mode of

conviction.

Id.
___

ruled that

habeas corpus

federal

collateral

at 481-82.

The

was the

attack

on

only

state

Court analogized

1983

actions seeking damages for alleged constitutional violations

related

to

state

malicious prosecution

prior

criminal

claims, for which

criminal proceeding

essential element.

conviction

in

the

Id. at 484-86.

common

law

termination of

the

accused's

to

favor

1983 suit

is

an

like the

___

present,

contending

that

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.

-88

1995)

(per curiam);

Ct.

cf. Edwards v.
___ _______

1584 (1997)

deprivation

of

disciplinary

(8th Cir.

state

(applying

the Heck
____

good-time

credits

proceeding); Schafer v.
_______

1995) (per

decision

Rodriguez,
_________

Balisok, ___ U.S. ___,

_______

to

411 U.S.

petition for

attacking "the

rule

in

475,

parole);

490-92

prisoner's

state

prison

Moore, 46 F.3d
_____

curiam) (applying the

deny

to a

117 S.

Heck rule
____

see also
_________

(1973)

43, 45

to a

Preiser
_______

(holding

that

v.

habeas corpus is the only federal procedure for

validity of

the fact or

length" of

prisoner's confinement and applying this principle

a state

to "areas

of

particular

deprivation

of

state

administrative

prisoner's

concern"

such

as the

good-conduct-time credits

in

state prison disciplinary proceedings).

In a footnote, the Heck Court refused to

____

rule requiring

termination of the prior

in the

accused's favor in

served

his sentence

challenges

principle

deeply

available.

barring

no

The

collateral

rooted feature

criminal proceeding

cases in which the

and so

of both

jurisprudence--is not rendered

longer had

Court

relax the

wrote,

attacks--a

the common

plaintiff had

post-conviction

"We

think

the

longstanding

and

law and

inapplicable by the

that a convicted criminal is no longer incarcerated."

490 n.10.

our own

fortuity

Id. at
___

Whit

violated

now

contends

that

his

parole

revocation

the Due Process Clause of the Fourteenth Amendment,

-99

giving

rise

contention

denying that

to

is

based

he had

cause

of

on his

action

under

allegation

1983.

that,

molested step-daughter,

The

despite his

White was

not

offered

and

hearing.

deprived

Without

of the

therefore, of

1983

furnished

an

due process.

of the

ordering

him back to

reversed

prove

decree

prison.

for

his

expunged

the

parole

the

and

therefore applies,3 and

court, see

revocation "has

by

executive

declared invalid by a state tribunal authorized to

determination, or called

was

and,

into question

is not cognizable in a federal

appeal,

he

decision in

revoking

the parole

parole

his innocence,

call

Heck
____

his

maintains,

A favorable

supra, unless
_____

on direct

White

necessarily

state's

1983 action

attorney

attorney,

proceeding would

footnote 1,

an

opportunity to

validity

the

with

into question by a

issuance of a writ of habeas corpus, 28 U.S.C.

been

order,

make such

federal court's

2254."

Id.
___

at 487.

After

White's

the

1983 action

released from

federal

district

on other grounds,

confinement, his

court had

dismissed

White was

sentence having

finally

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

____

relief as well as to

1983 actions for declaratory

1983 suits for damages.

See Edwards
___ _______

v. Balisok, 117 S. Ct. 1584 (1997) (applying the Heck rule to

_______
____
a request for declaratory relief under

-1010

1983).

case to

Hence

the Superior Court

there

is

White's parole

revocation

in effect

with a direction to

no

revocation (nor,

invalidated by a

state

dismiss it.

judgment invalidating

of course,

was the

parole

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

parties are

judgment had

of the

ever been

entered.");

Comm. of Boston, 290 N.E.2d

_______________

case which

is vacated

left as

cf.
___

though no

Reilly v.
______

such

School
______

516 (Mass. 1972) (holding that a

as moot on

appeal has

no collateral

estoppel consequences).

We have carefully

reviewed the

reasoning in

and related cases and can find no basis for

vacated

state

decision

revocation meets

invalidity

"by

Heck's
____

that

state tribunal

holding that the

impugned

requirement

of

Heck
____

White's

authorized

parole

declaration

to

of

make such

determination.

"512 U.S. at 487.

that White's Section 1983 action

award of damages

into question the

We are constrained to hold

is not cognizable since any

or declaratory relief would

as yet undisturbed

parole board's action.

seriously call

validity of the

Heck, 512 U.S. at 486-87.

____

-1111

state

As

White's

suit

therefore be dismissed,

error

or the

barred by res

relief

is

not

cognizable

we do not address

parole board's arguments

judicata and that his

is moot.

Nor

contention that its

do we

and

must

White's claims of

that his

claims are

request for declaratory

consider

the parole

board's

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

district court to dismiss the action without prejudice.

the

See
___

Heck, 512 U.S.

____

prejudice

at 479, 490 (affirming

of a

1983 action

which

Fottler v. United States, 73 F.3d

_______
______________

1996)

(holding that the

because

it

was

not yet

without prejudice); Perez

_____

Cir.

1995) (per

Rosa, 49 F.3d
____

the dismissal without

was not

1064, 1065-66 (10th

dismissal of a

under

v. Sifel,
_____

57 F.3d

Trimble
_______

583, 585 (9th Cir. 1995)

Schafer, 46 F.3d at 45 (same).

_______

Vacated and remanded.

____________________

Cir.

Section 1983 action

cognizable

curiam) (same);

cognizable);

Heck
____

should be

503, 505

(7th

v. City of Santa
______________

(per curiam) (same);

-1212