White v. GittensWhite v. Gittens
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Thе 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
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 plaintiffs favor).
Gary White was conviсted of armed robbery in 1987 and sentenced to twelve years’ imprisonment. He was paroled 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 сhanged, 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 evidencе 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 revocation heаring was held on November 19, 1992. Throughout the proceedings, White maintained he had not abused his stepchildren. 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 сounsel. 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 parolе on several grounds. On April 21, 1995, the Superior Court ruled that White was entitled to
Although White had styled his state court action as one for habeas сorpus relief, the Massachusetts Superior Court, citing Massachusetts Parole Bd. v. Brusgulis, 403 Mass. 1010, 532 N.E.2d 45 (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, 1995 WL 808873.
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 vаcated 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., 40 Mass.App.Ct. 1133, 667 N.E.2d 920 (1996), review denied, 424 Mass. 1103, 674 N.E.2d 1085 (1996). 1 On motion for rehearing, the state appeals court affirmed its original order, аnd the Massachusetts Supreme Judicial Court denied White’s application for further review, White v. Massachusetts Parole Bd., 424 Mass. 1103, 674 N.E.2d 1085 (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 wаs moot, White filed the present complaint under
White requested monetary damages from the former parole board members for the violation of his rights. He also requested declaratory relief against the parole board’s сurrent 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
On June 11,1996, the district court allowed thе 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 appeаl.
II. Cognizability of the
White’s
In Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (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 appeаl, 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, 114 S.Ct. at 2373 (footnote omitted).
The Court ruled that habeas corpus was the only permitted mode оf federal collateral attack on a state conviction.
Id.
at 481-82, 114 S.Ct. at 2369-70. The Court analogized
In a footnote, the Heck Court refused to relax the rule requiring termination of the prior criminаl 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 rоoted 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. 10,114 S.Ct. at 2374 n. 10.
Whit now contends that his parole revocation violated the Due Process Clause оf the Fourteenth Amendment, giving rise to a cause of action under
After the federal district court had dismissed White’s
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 declаration of invalidity “by a state tribunal authorized to make such determination.” 512 U.S. at 487, 114 S.Ct. at 2372. 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 thе state parole board’s action. Heck, 512 U.S. at 486-87, 114 S.Ct. at 2371-72.
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 hable 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 аnd remand the case, directing the district court to dismiss the action without prejudice. See Heck, 512 U.S. at 479, 490, 114 S.Ct. at 2368, 2374 (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.
Notes
. The appeals сourt’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 rendеred 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. Micou,
114 U.S. 218, 223, 5 S.Ct. 857, 859, 29 L.Ed. 94 (1885) (“The law of any State of the Union, whether deрending 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 judiciаl notice of a state court‘s opinion).
See generally
. 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, 114 S.Ct. 996, 1000, 127 L.Ed.2d 308 (1994) (stating that this is what “cognizable” ordinarily means).
. The Heck rule applies to § 1983 actions for declaratory relief as well as to § 1983 suits for damages. See Edwards v. Balisok, — U.S.-, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997) (applying the Heck rule to a request for declaratory relief under § 1983).