White v. Gittens

• Citation: 121 F.3d 803
• Decision Date: 21 August 1997
• Docket Number: No. 96-1838.,96-1838.
• Parties: Gary WHITE, Plaintiff, Appellant, v. Robert GITTENS, et al., Defendant, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

121 F.3d 803

Gary WHITE, Plaintiff, Appellant, v. Robert GITTENS, et al., Defendant, Appellee.

No. 96-1838.

United States Court of Appeals, First Circuit.

Heard June 6, 1997.

Decided August 21, 1997.

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.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and STAHL, Circuit Judge.

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 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 revocation hearing 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 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, 1995 WL 808873 (Mass. Dist. Ct. April 21, 1995), vacated as moot, 40 Mass.App.Ct. 1133, 667 N.E.2d 920 (1996), review denied, 424 Mass. 1103, 674 N.E.2d 1085 (1996). Citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (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, 1995 WL 808873.

Although White had styled his state court action as one for habeas corpus 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 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., 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, and 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 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 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, "it 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." In re Recticel Foam Corp., 859 F.2d 1000, 1002 (1st Cir.1988).

In Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Supreme Court held:

In 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, 114 S.Ct. at 2373 (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, 114 S.Ct. at 2369-70. 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, 114 S.Ct. at 2371-72. 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, 114 S.Ct. at 2369; 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. 1995) (per curiam); cf. Edwards v. Balisok, ___ U.S. ___, 117 S.Ct. 1584, 137 L.Ed.2d 906 (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, 93 S.Ct. 1827, 1836-37, 36 L.Ed.2d...