Gay v. Shaffer

• Court: District Court, N.D. California
• Decided: October 14, 2021
• Docket: 3:16-cv-05998
• Status: Unknown

Opinion

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 OMAR SHARRIEFF GAY, Case No. 16-cv-05998-CRB

9 Plaintiff, ORDER DENYING MOTION FOR 10 v. SUMMARY JUDGEMENT

11 AMY PARSONS, et al., 12 Defendants.

13 14 Plaintiff Omar Sharrieff Gay brings a claim under 42 U.S.C. § 1983 against Board 15 of Parole (“BOP”) psychologists Amy Parsons and Gregory Goldstein (“Defendants”). 16 Plaintiff alleges that in preparing a risk assessment in advance of a parole hearing, 17 Defendants assessed Plaintiff to be a high risk for future violence at least in part because 18 he is African American and Muslim, thereby violating his rights under the equal protection 19 clause. On April 25, 2019, Defendants moved for judgement on the pleadings, arguing 20 that they were entitled to quasi-judicial immunity that absolutely shielded them from 21 liability against Plaintiff’s claim. The Court denied the motion, holding that it could not 22 decide the issue based on the pleadings. The Ninth Circuit affirmed. Defendants now 23 move for summary judgment on the issue, arguing that the undisputed facts establish that 24 they are entitled to quasi-judicial immunity as a matter of law. See Motion for Summary 25 Judgment (“Motion”) (dkt. 83). For the reasons set forth below, the Court denies the 26 Motion. 27 I. BACKGROUND 1 A. Plaintiff’s Allegations 2 Plaintiff is African American and Muslim. Gay Decl. (dkt. 88–2) ¶ 2. He is 3 currently an inmate in the custody of the California Department of Corrections and 4 Rehabilitation. Id. ¶ 3. He alleges that Defendants discriminated against him based on 5 race and religion when they prepared a Comprehensive Risk Assessment (“CRA”) report 6 that found that Plaintiff posed a high risk for future violence. See generally Compl. (dkt. 7 1). 8 Multiple prior orders describe Plaintiff’s allegations in detail.1 In summary, 9 Plaintiff was incarcerated at the Correctional Training Facility in Soledad in September 10 2015. Order on Pleadings at 2. In advance of a parole suitability hearing, Defendants 11 interviewed Plaintiff as part of the process of preparing a CRA report. Id. CRA reports 12 assess an inmate’s risk for future violence and are provided to the BOP for use in 13 determining an inmate’s eligibility for parole. Id. The CRA report prepared by 14 Defendants concluded that Plaintiff presented a high risk for future violence. Id. at 3. 15 The parties disagree about the basis of the report’s conclusion. Id. at 1–3. The 16 report details several findings that purport to support the conclusion, such as Plaintiff’s 17 “histories of violent crime and other antisocial behavior,” including “a history of substance 18 abuse, negative relationships, a violent attitude, and employment problems.” Id. at 2–3. 19 Defendants contend that these and other similar findings stated in the report supported the 20 conclusion that Plaintiff presented a high risk for future violence. Id. 21 Plaintiff tells a different story. He alleges that during the assessment interview, 22 Defendants repeatedly asked him “racially charged anti-Islamic questions” and made 23 racially and religiously charged comments that revealed clear bias against Plaintiff based 24 on his race and religion. Id. at 1. He alleges that Defendants assessed him to be a high 25 risk for violence at least in part because he is African American and Muslim. Id. 26

27 1 See Order of Service (dkt. 16); Order Granting in Part and Denying in Part Defendants’ Motion B. Defendants’ Judicial Immunity Defense 1 On April 25, 2019, Defendants moved for judgement on the pleadings, arguing that 2 they were entitled to quasi-judicial immunity. See generally Mot. for Judgment on the 3 Pleadings (dkt. 55). 4 The Court denied the motion. Order on Pleadings at 8. It explained that whether 5 Defendants are entitled to quasi-judicial immunity turns on whether they “exercised 6 discretion functionally comparable to that of a judge” in preparing the CRA report. Id. at 7 5. The Court held that it could not make that determination on the pleadings because the 8 complaint did not make clear whether the process of preparing the CRA report involved 9 the requisite level of discretion. Id. at 8. The Court concluded that “there are outstanding 10 factual disputes as to the nature of [Defendants’] actions” and that Defendants “have not 11 shown they are entitled to quasi-judicial immunity at this time.” Id. at 8–9. 12 Defendants appealed the ruling. Notice of Appeal (dkt. 70). On June 22, 2020, the 13 Ninth Circuit affirmed it. USCA Memorandum (dkt. 74). In affirming, the Ninth Circuit 14 similarly expressed “no view on [Defendants’] entitlement to immunity, should the 15 evidence show the facts to be other than as pleaded.” Id. at 3 (citation omitted). 16 C. The Developed Factual Record 17 Following the denial of Defendants’ motion for judgment on the pleadings, the 18 parties developed a factual record regarding the process of preparing CRA reports, and the 19 record now contains the following undisputed facts regarding the reports. 20 The Forensic Assessment Division (“FAD”) is a recently created arm of the BOP. 21 Shaffer Decl. (dkt. 83-2) ¶ 6.2 One of the FAD’s main functions is to develop standardized 22 psychological risk assessment processes, such as CRA reports. Id. ¶¶ 6–7. CRA reports 23 present an assessment of an inmate’s risk of future violence. Id. ¶ 7; Goldstein Decl. (dkt. 24 25 2 Plaintiff objects to the admissibility of the Shaffer Declaration on the grounds of lack of 26 foundation, lack of personal knowledge, and improper opinion testimony. Opp. at 14, fn. 1. The arguments lack merit because the declaration establishes that Shaffer, the Executive Officer of the 27 California Board of Parole hearings since 2011, has the requisite foundation and personal 1 83-1) ¶ 3. The reports are provided to BOP parole panels for use in determining whether 2 to grant an inmate parole. Shaffer Decl. ¶ 7; Goldstein Decl. ¶ 3. CRA reports provide the 3 parole panel with an expert’s assessment of an inmate’s risk of violence, but they do “not 4 substitute for the panel’s determination of an inmate’s current risk of dangerousness if 5 released to the community.” Shaffer Decl. ¶ 7. The panel makes its own independent 6 determination about an inmate’s risk of violence and may choose not to adopt the 7 recommendation in a CRA report. Id.; Mastromonaco Decl. (dkt. 88-1) Ex. 3 at 29:15–20. 8 FAD psychologists follow a multi-step process to prepare CRA reports. Shaffer 9 Declaration ¶¶ 8–9. The process generally begins with a comprehensive review of an 10 inmate’s personal file. Id. The personal file contains an array of background information 11 about an inmate, including medical, criminal, and educational history. Id. After an FAD 12 psychologist reviews an inmate’s personal file, they perform an “extensive” interview with 13 the inmate. Goldstein Decl. ¶ 4; Shaffer Decl. ¶ 9. The interview covers a broad range of 14 topics, including “programming efforts, disciplinary infractions, possible parole plans and 15 community support.” Shaffer Decl. ¶ 9. 16 Throughout the process of reviewing an inmate’s file and interviewing the inmate, 17 FAD psychologists incorporate structured risk assessment instruments, including the 18 widely used HCR 20-V3 (Historical Clinical Risk Management -20), Psychopathy 19 Checklist, and STATIC-99R. Id. ¶¶ 9–10; see also HCR-20 Assessing Risk for Violence 20 User Guide, Shaffer Decl. Ex. A (dkt. 83–3). The risk assessment instruments help FAD 21 psychologists determine an inmate’s profile for violence and anti-social behavior using 22 standardized criteria. Shaffer Decl. ¶¶ 9–10. 23 Based on the file review, interview, and risk assessments, FAD psychologists 24 exercise their judgement to reach a conclusion about an inmate’s risk of violence. Id. ¶ 11. 25 The conclusion is expressed as low, moderate, or high. Id. ¶ 12. There is “not a numerical 26 risk score or algorithm for determining risk.” Id. Rather, risk assessment determinations 27 reflect FAD psychologists’ assessment of a particular inmate, based on social, health, 1 psychologists document their risk assessment and the findings supporting the assessment 2 in CRA reports and provide the reports to parole panels for use in parole proceedings. 3 Shaffer Decl. ¶¶ 15–16. 4 D. The Instant Summary Judgment Motion 5 Defendants now move for summary judgment based on the developed factual 6 record. See generally Motion. Plaintiff opposes the Motion. Opposition to MSJ (“Opp.”) 7 (dkt. 88). 8 II. LEGAL STANDARD 9 Summary judgment is appropriate “if the movant shows that there is no genuine 10 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 11 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A 12 genuine issue of fact is one that could reasonably be resolved in favor of either party. See 13 Celotex, 477 U.S. at 323–24. A dispute is “material” only if it could affect the outcome of 14 the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 15 (1986). 16 “A moving party without the ultimate burden of persuasion at trial—usually, but not 17 always, a defendant—has both the initial burden of production and the ultimate burden of 18 persuasion on a motion for summary judgment.” Nissan Fire & Marine Ins. Co. v. Fritz 19 Cos., 210 F.3d 1099, 1102 (9th Cir. 2000) (citation omitted). “In order to carry its burden 20 of production, the moving party must either produce evidence negating an essential 21 element of the nonmoving party's claim or defense or show that the nonmoving party does 22 not have enough evidence of an essential element to carry its ultimate burden of persuasion 23 at trial.” Id. (citing High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 24 563, 574 (9th Cir. 1990)). “In order to carry its ultimate burden of persuasion on the 25 motion, the moving party must persuade the court that there is no genuine issue of material 26 fact.” Id. (citation omitted). 27 “If a moving party fails to carry its initial burden of production, the nonmoving 1 moving party carries its burden of production, the nonmoving party must produce evidence 2 to support its claim or defense. See id. If the nonmoving party fails to produce enough 3 evidence to create a genuine issue of material fact, the moving party wins the motion for 4 summary judgment. See id. But if the nonmoving party produces enough evidence to 5 create a genuine issue of material fact, the nonmoving party defeats the motion. See id. 6 III. DISCUSSION 7 Defendants’ Motion turns on whether they have shown that there is no genuine 8 dispute of material fact that preparing a CRA report is a function entitled to judicial 9 immunity as a matter of law. Defendants argue that the exercise of discretionary judgment 10 is the touchstone of judicial immunity and that the undisputed facts establish that they 11 exercised discretionary judgment in preparing CRA reports. Motion at 10–12. In 12 response, Plaintiff argues that Defendants have failed to demonstrate that preparing CRA 13 reports involves a level of discretionary judgment comparable to that exercised by judges 14 and so Defendants are not entitled to judicial immunity as a matter of law. Opp. at 9–13. 15 For the reasons explained below, Plaintiff is correct. 16 A. Judicial Immunity from § 1983 Claims 17 Plaintiff brings his claim under 42 U.S.C. § 1983. See Order on Pleadings at 8. 18 Section 1983 enables “individuals whose rights were deprived by persons acting under 19 color of state law to bring their claims in federal court.” Miller v. Gammie, 335 F.3d 889, 20 895 (9th Cir. 2003). Despite the law’s broad scope, the Supreme Court has recognized that 21 certain government actors enjoy varying degrees of immunity from § 1983 claims. See, 22 e.g., Butz v. Economou, 438 U.S. 478 (1978); Forrester v. White, 484 U.S. 219 (1988). 23 Judges are one category of government actor that receives certain immunities 24 against § 1983 claims. Forrester, 484 U.S. at 221. Most relevant here, judges receive 25 absolute immunity against claims that are based on their “judicial or adjudicative” acts. Id. 26 The “touchstone” of a judicial or adjudicative act is the “performance of the function of 27 resolving disputes between parties, or of authoritatively adjudicating private rights.” 1 non-adjudicative acts, judges may be entitled to qualified immunity. See Forrester, 484 2 U.S. at 221. 3 The rationale for absolute immunity for judicial acts is “long-settled.” See Antoine, 4 508 U.S. at 435. Judges regularly adjudicate “controversies involving not merely great 5 pecuniary interests, but the liberty and character of the parties, and consequently exciting 6 the deepest feelings.” Butz, 438 U.S. at 509. Resolution of such disputes generally results 7 in “at least one losing party” who is “apt to complain of the judgment against him” and “to 8 pass the ascription of improper motives to the judge.” Id.; see also Forrester, 484 U.S. at 9 226 (“the nature of the adjudicative function requires a judge frequently to disappoint 10 some of the most intense and ungovernable desires that people can have”). Absolute 11 immunity for judicial acts accordingly protects “judicial independence by insulating judges 12 from vexatious actions prosecuted by disgruntled litigants.” Forrester, 484 U.S. at 225. 13 In this vein, there are safeguards “built into the judicial process that tend to reduce 14 the need for private damages actions as a means of controlling unconstitutional conduct.” 15 See Butz, 438 U.S. at 512. The safeguards include “insulation of the judge from political 16 influence, the importance of precedent in resolving controversies, the adversary nature of 17 the process, and the correctability of err on appeal.” Id. The safeguards further support 18 absolute immunity for judicial acts. See id. 19 B. Extension of Judicial Immunity to Non-Judges 20 Defendants here are not judges, but they argue that absolute judicial immunity 21 should be extended to them because they act as an agent of the BOP and “exercise a 22 discretionary judgment in preparing CRAs.” See Motion at 11–13. 23 Non-judicial actors “performing the duties of [a] judge may enjoy quasi-judicial 24 immunity for some functions.” Swift v. California, 384 F.3d 1184, 1188 (9th Cir. 2004). 25 “The proponent of a claim to absolute immunity bears the burden of establishing the 26 justification for such immunity.” Antoine, 508 U.S. at 432. “The presumption is that 27 qualified rather than absolute immunity is sufficient to protect government officials in the 1 484 U.S. at 224 (“the Court has recognized a category of ‘qualified’ immunity that avoids 2 unnecessarily extending the scope of the traditional concept of absolute immunity”). 3 In Antoine, the Supreme Court articulated a new standard for determining whether a 4 non-judicial actor is entitled to judicial immunity. Antoine, 508 U.S. at 437. Under prior 5 precedent, the inquiry focused on the relation of a particular action to the judicial process. 6 Swift, 384 F.3d at 1190. Antoine overruled that test and explained that the inquiry now 7 centers on the level of discretionary judgement involved in the relevant function. See, e.g., 8 Swift, 384 F.3d at 1190 (Antoine “worked a sea change in the way in which we are to 9 examine absolute quasi-judicial immunity for nonjudicial officers”). Under Antoine, 10 “judicial immunity is extended to officials other than judges” when “their judgments are 11 functionally comparable to those of judges—that is, because they, too, exercise a 12 discretionary judgment as part of their function.” Antoine, 508 U.S. at 436 (cleaned up). 13 1. Analysis 14 a. Arm of the BOP 15 Defendants argue that they are entitled to judicial immunity because they act as an 16 arm of the BOP and are “integral” to the decision of whether parole should be granted. 17 Motion at 11–13. Plaintiff responds that an actor’s relation to a particular process is no 18 longer relevant for determining judicial immunity. Opp. at 11. Plaintiff is right. 19 Antoine held that judicial immunity is not extended to an official simply “because 20 they are part of the judicial function.” 3 See Antoine, 508 U.S. at 437 (tasks “essential to 21 the very functioning of the courts, have not . . . been regarded as judicial acts”) (citation 22 omitted); Swift, 384 F. 3d at 1190. Under Antoine, simply acting as an agent of the BOP 23 provides no basis for extending Defendants judicial immunity, regardless of how integral 24 their functions are to the parole proceedings.4 Antoine, 508 U.S. at 436–37; see also 25 3 Defendants seize on language from Swift that they claim “confirms that absolute immunity 26 extends to parole officials for ‘tasks integrally related’” to parole decisions. Motion at 15 (citing Swift, 384 F.3d at 1189). But that passage in Swift discusses the prior “relates to” test applied in 27 Anderson, and Swift confirms that Antoine overruled it. See Swift, 384 F.3d at 1190 (“[T]o the 1 Miller, 335 F.3d at 897. Instead, the dispositive question is whether preparation of CRA 2 reports involves the exercise of discretion comparable to that of a judge.5 Antoine, 508 3 U.S. at 436–37. 4 b. Exercise of Discretion 5 Defendants argue that preparing a CRA report is a function entitled to judicial 6 immunity because it necessarily involves an exercise of discretionary judgment as to an 7 inmate’s risk for violence. Motion at 11–13. Defendants specifically argue that they 8 “exercise a discretionary judgment” to determine whether an inmate’s release “would pose 9 a low, moderate, or high risk of danger to society.” Id. at 12. This argument falls short for 10 several reasons. 11 To start, the “touchstone” of judicial discretion is that it applies in the context of 12 “resolving disputes between parties, or of authoritatively adjudicating private rights.” 13 Antoine, 508 U.S. at 435–36. Defendants offer no evidence suggesting that CRA reports 14 are prepared in a similarly adversarial context. But it is the adversarial context that 15 supports absolute immunity for judges. Given that adversarial proceedings generally result 16 in “at least one losing party” apt to “to pass the ascription of improper motives to the 17 judge,” see Butz, 438 U.S. at 509, judicial immunity ensures that judges have the 18 independence to exercise impartial judgment. Defendants fail to show that they exercise 19 their judgment in a similar context and thus warrant similar protection. 20 Consovoy, 453 F.3d 173 (3rd Cir. 2006) is unavailing. In Burkes, the Ninth Circuit applied the 21 “related to the judicial process” standard that Antoine subsequently overruled. See Swift, 384 F.3d at 1190. Similarly, while the out-of-circuit decision in Williams purported to apply a 22 “functional approach,” the analysis centers on whether the psychologist “performed a function integral to the judicial process.” See Williams, 453 F.3d at 178–79. As explained, this is no 23 longer the controlling test in the Ninth Circuit, where the focus is on the level of discretion involved in the function, not its importance to the judicial process. Swift, 384 F.3d at 1190. 24 5 To be sure, the Ninth Circuit has found that parole hearings are akin to judicial proceedings and 25 that parole hearing officers who make decisions to grant or revoke parole perform functions comparable to those of judges. See Swift, 384 F.3d at 1189. But Defendants were not members 26 of the BOP parole panel tasked with determining Plaintiff’s eligibility for parole. Mastromonaco Decl., Ex. 3 at 30:11–12; 47:15–19. Defendants prepared a CRA report for use by the panel, but 27 neither had any direct role in the panel’s decisions themselves. Id.; see also Mastromonaco Decl. 1 The Ninth Circuit has also made clear that the mere presence of discretion in a 2 function does not automatically give rise to judicial immunity. See Miller, 335 F.3d at 898 3 (stating that not all “discretionary decisions and recommendations” are “functionally 4 similar” to the discretion exercised by judges). In Miller, examples of discretionary 5 decisions that were not entitled to judicial immunity included a social worker’s “decisions 6 and recommendations as to the particular home where a child is to go or as to the particular 7 foster parents who are to provide care.” Id. 8 Here, Defendants’ CRA reports are analogous to the examples in Miller. Like 9 social workers, Defendants provide a recommendation that reflects their informed 10 judgment, but that recommendation does not reflect a judge-like exercise of discretion. 11 For instance, judges exercise their discretion to fashion a wide range of rulings based on 12 the unique circumstances of each case. In contrast, Defendants’ ability to exercise 13 discretion is limited to a determination of whether an inmate poses “a low, moderate, or 14 high risk of danger to society.” Motion at 12 (citing Schaffer Decl. ¶ 12). While 15 Defendants do have to make a judgment as to the particular risk category of a given 16 inmate, the range of their discretionary judgments is not nearly as broad as that of a judge. 17 This fact cuts against finding that their discretionary judgment should be entitled to the 18 same protection. 19 In addition, judges exercise their discretion to issue rulings that bind the parties 20 before them. In contrast, the CRA reports prepared by Defendants are not binding on the 21 BOP parole panel. Shaffer Decl. ¶ 7. They are more analogous to a social worker 22 providing an informed recommendation on a home placement than a binding order issued 23 by a judge to resolve a dispute between multiple parties. See Miller, 335 F.3d at 898. 24 Defendants’ argument that the threat of legal liability would compromise the 25 objectivity of CRA reports is not persuasive. Motion at 13–14. Defendants offer no 26 evidence “of any significant volume of vexatious and burdensome actions against [BOP 27 psychologists].” Antoine, 508 U.S. at 437. In addition, the judicial process involves 1 err on appeal’—that support absolute immunity for a judge’s judicial acts. See Butz, 438 2 || U.S. at 512. Defendants identify no analogous safeguards that would support absolute 3 immunity for the preparation of CRA reports here. 4 || IV. CONCLUSION 5 The Supreme Court has stated that absolute immunity from monetary damages is 6 “strong medicine,” Forrester, 484 U.S. at 230, and Defendants have not established that 7 || they are entitled to it as a matter of law. The Court thus denies Defendants’ Motion. 8 9 IT IS SO ORDERED. 10 Dated: October 14, 2021 11 co ; CHARLES R. BREYER %L United States District Judge

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