Omar Gay v. Jennifer Shaffer

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 16, 2020
• Docket: 20-15249
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED DEC 16 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

OMAR SHARRIEFF GAY, No. 20-15249

Plaintiff-Appellant, D.C. No. 2:19-cv-01471-TLN-AC

v. MEMORANDUM* JENNIFER SHAFFER, Secretary, Board of Parole Hearings; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding

Submitted December 2, 2020**

Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.

California state prisoner Omar Sharrieff Gay appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional

claims related to parole hearings. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo a dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). F.3d 443, 447 (9th Cir. 2000). We affirm.

The district court properly dismissed Gay’s claims for damages against

defendants in their official capacities as barred by the Eleventh Amendment. See

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (“[A] suit against a

state official in his or her official capacity is not a suit against the official but rather

is a suit against the official’s office.”); Krainski v. Nev. ex. rel. Bd. of Regents of

Nev. Sys. of Higher Educ., 616 F.3d 963, 967 (9th Cir. 2010) (“The Eleventh

Amendment bars suits against the State or its agencies[.]” (citation and internal

quotation marks omitted)); Brown v. Cal. Dep’t of Corrs., 554 F.3d 747, 752 (9th

Cir. 2009) (applying bar to action against California Department of Corrections

and California Board of Prison Terms).

The district court properly dismissed Gay’s claims for damages against

defendants in their individual capacities because defendants are entitled to absolute

immunity. See Sellers v. Procunier, 641 F.2d 1295, 1302-03 (9th Cir. 1981)

(explaining that absolute immunity applies to parole board officials’ decisions to

grant, deny, or revoke parole).

The district court properly dismissed Gay’s claims for prospective

declaratory and injunctive relief against defendants because Gay failed to allege

facts sufficient to show that defendants violated his constitutional rights. See Cal.

Penal Code §§ 3041.5(b)(1), (b)(3) (decision to grant or deny parole lies within the

2 20-15249 discretion of the Board of Parole Hearings; setting forth deferment periods for

parole hearings without regard to the nature of the underlying conviction).

The district court did not abuse its discretion in denying Gay’s motion for

transfer of venue. See 28 U.S.C. § 1404(a); Jones v. GNC Franchising, Inc., 211

F.3d 495, 498-99 (9th Cir. 2000) (setting forth standard of review and factors to

weigh in determining whether transfer is appropriate in a particular case).

We reject as without merit Gay’s contention that the magistrate judge erred

by entering findings and recommendations for the district judge’s consideration.

See 28 U.S.C. § 636(b) (magistrate judge shall file proposed findings and

recommendations to which a party may file written objections; district judge shall

make a de novo determination accepting, rejecting, or modifying the findings or

recommendations).

Gay’s motion to proceed in forma pauperis (Docket Entry No. 4) is denied

as unnecessary.

All other pending motions and requests are denied.

AFFIRMED.

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