Omar Gay v. Amy Parsons

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 22 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

OMAR SHARRIEFF GAY, No. 19-16662

Plaintiff-Appellee, D.C. No. 3:16-cv-05998-CRB

v. MEMORANDUM* AMY PARSONS, Senior Psychologist; GREGORY S. GOLDSTEIN, Psychologist,

Defendants-Appellants,

and

JENNIFER SHAFFER, Secretary, Board of Parole Hearings; CLIFF KUSAJ, Chief Psychologist,

Defendants.

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding

Argued and Submitted June 11, 2020 San Francisco, California

Before: M. SMITH and HURWITZ, Circuit Judges, and EZRA,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. In this 42 U.S.C. § 1983 action, Omar Gay, a California state prisoner, alleged

in a pro se complaint that Amy Parsons and Gregory Goldstein, psychologists with

the California Board of Parole Hearings (“BPH”), issued a negative report about him

in advance of a parole board hearing because of his race and religion. Parsons and

Goldstein (collectively, the “psychologists”) appeal from the district court’s denial

of their motion for judgment on the pleadings seeking quasi-judicial absolute

immunity. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

Non-judicial “officials performing the duties of advocate or judge may enjoy

quasi-judicial immunity for some functions.” Swift v. California, 384 F.3d 1184,

1188 (9th Cir. 2004) (cleaned up). But not all “actions taken with court approval or

under a court’s direction are . . . in and of themselves entitled to quasi-judicial,

absolute immunity.” Miller v. Gammie, 335 F.3d 889, 897 (9th Cir. 2003) (en banc).

Instead, under the “functional approach” adopted by the Supreme Court in Antoine

v. Byers & Anderson, Inc., 508 U.S. 429, 437 (1993), the “relevant test now is

whether the official is ‘performing a duty functionally comparable to one for which

officials were rendered immune at common law.’” Swift, 384 F.3d at 1190 (quoting

Miller, 335 F.3d at 897). “The proponent of a claim to absolute immunity bears the

burden of establishing the justification for such immunity.” Antoine, 508 U.S. at

432. “The presumption is that qualified rather than absolute immunity is

sufficient. . . .” Burns v. Reed, 500 U.S. 478, 486 (1991).

2 Applying the teaching of Antoine, we have held that “parole officers are not

entitled to absolute immunity for conduct taken outside an official’s adjudicatory

role,” such as when “performing investigatory or administrative functions.” Swift,

384 F.3d at 1191 (cleaned up). Gay’s pro se complaint describes the psychologists’

responsibilities as merely providing information to the “BPH Panel” empowered to

decide whether to grant or deny parole. The district court thus properly found

absolute immunity unavailable to the psychologists at the pleading stage, noting that

Gay had alleged that they “did not participate in the parole hearing—the most judge-

like component of the parole process . . . but rather a fact-gathering process similar

to that of a police officer.” In affirming, we “intimate no view on [the

psychologists’] entitlement to immunity, should the evidence show the facts to be

other than as pleaded.” Id. at 1193 n.7.

AFFIRMED.