Brown v. California Department of Corrections

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LIZA BROWN, 

Plaintiff-Appellant,

v.

No. 07-55409

CALIFORNIA DEPARTMENT OF

D.C. No.

CORRECTIONS, a Department of the

State of California; CALIFORNIA  CV-05-06048-

BOARD OF PRISON TERMS; SUSAN E. MMM

POOLE; MITCHELL HARRIS; KEITH OPINION

THOMPSON; STEVE COOLEY;

KATHLEEN TUTTLE,

Defendants-Appellees.



Appeal from the United States District Court

for the Central District of California

Margaret M. Morrow, District Judge, Presiding

Argued and Submitted

September 11, 2008—Pasadena, California

Filed January 22, 2009

Before: Alex Kozinski, Chief Judge, Andrew J. Kleinfeld

and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Rawlinson

777

BROWN v. CALIFORNIA DEPARTMENT OF CORRECTIONS 779

COUNSEL

Richard Hamlish, Westlake Village, California, for appellant

Liza Brown.

Jennifer A.D. Lehman, Senior Deputy County Counsel, Los

Angeles, California, for appellees Steve Cooley, Mitchell

Harris, Keith Thompson and Kathleen Tuttle.

Leena M. Sheet, Deputy Attorney General, Los Angeles, Cali-

fornia, for appellees California Department of Corrections,

Board of Prison Terms, and Warden Susan Poole.

OPINION

RAWLINSON, Circuit Judge:

Appellant Liza Brown challenges the district court’s grant

of summary judgment premised in part on Appellees’ immu-

780 BROWN v. CALIFORNIA DEPARTMENT OF CORRECTIONS

nity from Brown’s claims under 42 U.S.C. § 1983. Brown

was released from prison pursuant to our prior grant of her

habeas petition. We held that Brown was entitled to release

from prison based on an oral plea agreement providing that,

if she did not violate prison disciplinary rules, she would be

released in seven and one-half years. Brown was imprisoned

beyond that period of time. After she was released, she filed

a lawsuit under § 1983 against the prosecutors who appeared

on behalf of the state and advocated for her continued impris-

onment at Brown’s parole hearings. Brown also sued the

parole board members, the California Department of Correc-

tions, the California Board of Prison Terms, and the prison

warden.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and we

affirm the district court’s entry of summary judgment in favor

of all Appellees.

I. BACKGROUND

Brown’s claims stem from our grant of Brown’s habeas

petition in Brown v. Poole, 337 F.3d 1155 (9th Cir. 2003).

After being “charged with first-degree murder for shooting

her husband,” Brown entered into an oral plea agreement. Id.

at 1157. During the plea colloquy, the prosecutor stated that,

if Brown avoided disciplinary problems while in prison, she

would be released on parole in “half of the 15 years” that was

her minimum sentence. Id. at 1158. We held that Brown, who

had served more than seven and one-half years without disci-

plinary problems, was entitled to release pursuant to the pros-

ecutor’s promise made during the plea colloquy. Id. at 1160-

62.

After her release from prison, Brown filed a lawsuit pursu-

ant to 42 U.S.C. § 1983 against the prosecutors who partici-

pated in her parole hearings. Brown alleged that the

prosecutors intentionally interfered with a contractual rela-

tionship when they recommended during Brown’s parole

BROWN v. CALIFORNIA DEPARTMENT OF CORRECTIONS 781

hearings that she remain in prison. On related grounds, Brown

sued Steve Cooley, the Los Angeles District Attorney; the

parole board members; Susan Poole, the prison warden; the

California Department of Corrections; and the California

Board of Prison Terms.

The district court granted summary judgment in favor of all

Appellees. The district court concluded that the prosecutors

and the parole board members were entitled to absolute

immunity; that there was not a triable issue of fact regarding

Warden Poole’s liability; and that the California Department

of Corrections and the California Board of Prison Terms were

entitled to Eleventh Amendment immunity. Brown filed a

timely notice of appeal.

II. STANDARDS OF REVIEW

“A district court’s grant of summary judgment is reviewed

de novo, and we are to affirm if, viewing the evidence in the

light most favorable to the non-moving party, there are no

genuine issues of material fact[.]” Torres v. City of Madera,

524 F.3d 1053, 1055 (9th Cir. 2008) (citations omitted).

“Whether a public official is entitled to absolute immunity

is a question of law that is reviewed de novo.” Miller v.

Davis, 521 F.3d 1142, 1145 (9th Cir. 2008) (citation omitted).

III. DISCUSSION

A. Absolute Immunity For Parole Recommendations

Made By State Prosecutors

[1] “Parties to section 1983 suits are generally entitled only

to immunities that existed at common law.” Beltran v. Santa

Clara County, 514 F.3d 906, 908 (9th Cir. 2008) (en banc)

(citation omitted). “Absolute immunity is generally accorded

to judges and prosecutors functioning in their official capaci-

ties.” Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922

782 BROWN v. CALIFORNIA DEPARTMENT OF CORRECTIONS

(9th Cir. 2004) (citations omitted). “This immunity reflects

the long-standing general principle of the highest importance

to the proper administration of justice that a judicial officer,

in exercising the authority vested in him, shall be free to act

upon his own convictions, without apprehension of personal

consequences to himself.” Id. (citation and internal quotation

marks omitted). “Likewise, the protections of absolute immu-

nity accorded prosecutors reflect the concern that harassment

by unfounded litigation would cause a deflection of the prose-

cutor’s energies from his public duties, and the possibility that

he would shade his decisions instead of exercising the inde-

pendence of judgment required by his public trust.” Id. at 923

(citation and internal quotation marks omitted).

[2] We have not specifically addressed in our reported deci-

sions a prosecutor’s immunity for parole recommendations.

However, other circuits have resolved similar issues by grant-

ing absolute immunity. In Johnson v. Kegans, 870 F.2d 992,

994 (5th Cir.), cert. denied, 492 U.S. 921 (1989), the Fifth

Circuit considered a section 1983 claim against a county pros-

ecutor who filed a letter with the Texas Board of Pardons and

Parole recommending a denial of parole. The Fifth Circuit

opined that “[p]rosecutors and other necessary participants in

the judicial process enjoy quasi-judicial immunity . . . Prose-

cutors are absolutely immune from liability for initiating pros-

ecutions and other acts intimately associated with the judicial

phase of the criminal process. This prosecutorial immunity

extends to individuals serving prosecutorial functions at

administrative hearings.” Id. at 996 (citations and internal

quotation marks omitted). The Fifth Circuit held that “[i]f

parole decision making is immune because it is an extension

or arm of judicial sentencing, then those whose official roles

in the judicial sentencing process leads them to also partici-

pate in the parole decision-making process should enjoy no

less immunity than that afforded for their participation in the

judicial process.” Id. at 998; cf. Lucien v. Preiner, 967 F.2d

1166, 1167-68 (7th Cir.), cert. denied, 506 U.S. 893 (1992)

(holding that the state prosecutor was absolutely immune for

BROWN v. CALIFORNIA DEPARTMENT OF CORRECTIONS 783

opposing a grant of executive clemency because the determi-

nation of executive clemency, like a parole decision, is an

extension of the sentencing process); Daloia v. Rose, 849 F.2d

74, 75 (2d Cir.), cert. denied, 488 U.S. 898 (1988) (conclud-

ing that the federal prosecutor was absolutely immune for

transmitting false information to parole authorities); Allen v.

Thompson, 815 F.2d 1433, 1434 (11th Cir. 1987) (granting

federal prosecutors absolute immunity for forwarding alleg-

edly malicious information to the Parole Commission).

[3] We join our sister circuits in holding that prosecutors

should be afforded absolute immunity for parole recommen-

dations, because parole decisions are a continuation of the

sentencing process. This conclusion is warranted because of

the manner in which prosecutors participate in California’s

parole hearings. A California statute provides for the prosecu-

tor’s advocacy role in parole proceedings. Pursuant to Cal.

Code Regs. tit. 15, § 2030(a)(3), “[a] representative of the dis-

trict attorney of the county from which a life prisoner was

committed may participate in any parole consideration or

rescission hearing for that prisoner.”

The role of the prosecutor is to comment on the facts

of the case and present an opinion about the appro-

priate disposition. In making comments, supporting

documentation in the file should be cited. The prose-

cutor may be permitted to ask clarifying questions of

the hearing panel, but may not render legal advice.

Id. § 2030(d)(2). This statutorily sanctioned advocacy entitles

prosecutors in California to absolute immunity, because “[a]

prosecutor is protected by absolute immunity from liability

for damages under § 1983 when performing the traditional

functions of an advocate.” Genzler v. Longanbach, 410 F.3d

630, 636 (9th Cir. 2005) (citation and internal quotation

marks omitted).1 Accordingly, we affirm the district court’s

grant of summary judgment in favor of the prosecutors.

1

Brown asserts that prosecutors are not entitled to absolute immunity

because they are members of the executive branch rather than the judicial

784 BROWN v. CALIFORNIA DEPARTMENT OF CORRECTIONS

B. Absolute Immunity For Parole Board Decisions By

Parole Board Members

[4] The district court properly granted summary judgment

on Brown’s claims against the parole board members, as

parole board members are entitled to absolute immunity for

parole board decisions. See Bermudez v. Duenas, 936 F.2d

1064, 1066 (9th Cir. 1991) (“Although a section 1983 action

may be maintained against officials acting in their individual

capacities, parole board officials are entitled to absolute

immunity from liability for damages for their actions taken

when processing parole applications.”) (citations omitted).2

C. Warden Poole’s Liability For Failure To Release

Brown

[5] The district court properly granted summary judgment

in favor of Warden Poole, as Brown failed to present any evi-

dence that Warden Poole “set in motion a series of acts by

others, which [she] knew or reasonably should have known,

would cause others to inflict the constitutional injury.” Motley

v. Parks, 432 F.3d 1072, 1081 (9th Cir. 2005) (citation and

alterations omitted). Brown acknowledged that Warden Poole

branch. However, Brown’s proposition is contrary to controlling prece-

dent. See Butz v. Economou, 438 U.S. 478, 511-12 (1978) (“We think that

the Court of Appeals placed undue emphasis on the fact that the officials

sued here are-from an administrative perspective-employees of the Execu-

tive Branch. Judges have absolute immunity not because of their particular

location within the Government but because of the special nature of their

responsibilities. This point is underlined by the fact that prosecutors-

themselves members of the Executive Branch-are also absolutely

immune.”); see also Miller, 521 F.3d at 1145-47 (holding that the Gover-

nor of California has absolute immunity from § 1983 actions predicated on

review of parole board decisions).

2

Brown’s argument that she does not challenge the parole board’s denial

of parole, but rather its refusal to comply with the plea agreement is

unavailing as its denial of parole encompasses such considerations. See

Bermudez, 936 F.2d at 1066.

BROWN v. CALIFORNIA DEPARTMENT OF CORRECTIONS 785

did not participate in the parole hearings. Brown, therefore,

failed to raise a genuine issue of material fact precluding sum-

mary judgment. See Menotti v. City of Seattle, 409 F.3d 1113,

1149 (9th Cir. 2005).

Additionally, Warden Poole lacked independent authority

to make prison release decisions, as that is the parole board’s

responsibility. See, e.g., Cal. Code Regs. tit. 15, § 2402(a)

(“The panel shall first determine whether the life prisoner is

suitable for release on parole. Regardless of the length of time

served, a life prisoner shall be found unsuitable for and denied

parole if in the judgment of the panel the prisoner will pose

an unreasonable risk of danger to society if released from

prison.”) (emphases added); see Cal. Code Regs. tit. 15,

§ 2000(b)(10) & (53) (defining the Board of Prison Terms and

related hearing panel); Cal. Penal Code § 3041(a) (delineating

the panel’s obligation to set a release date absent extenuating

safety concerns).

D. Eleventh Amendment Immunity For Other State

Actors

[6] The district court correctly held that the California

Department of Corrections and the California Board of Prison

Terms were entitled to Eleventh Amendment immunity. See

Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir.

1999) (“In the absence of a waiver by the state or a valid con-

gressional override, under the eleventh amendment, agencies

of the state are immune from private damage actions or suits

for injunctive relief brought in federal court. The State of Cal-

ifornia has not waived its Eleventh Amendment immunity

with respect to claims brought under § 1983 in federal court,

and the Supreme Court has held that § 1983 was not intended

to abrogate a State’s Eleventh Amendment immunity[.]”)

(citations, alteration, and internal quotation marks omitted);

see also Pittman v. Oregon Employment Dep’t, 509 F.3d

1065, 1071 (9th Cir. 2007) (“[A]n unconsenting State is

786 BROWN v. CALIFORNIA DEPARTMENT OF CORRECTIONS

immune from suits brought in federal courts by her own citi-

zens as well as by citizens of another State.”) (citation omitted).3

IV. CONCLUSION

Because the prosecutors, parole board members, and state

agencies were entitled to immunity from Brown’s § 1983

claims, and Brown failed to raise a genuine issue of material

fact regarding Warden Poole’s liability, the district court

properly granted summary judgment in favor of all Appellees.

AFFIRMED.

3

In her opening brief on appeal, Brown did not challenge the district

court’s ruling that she failed to produce evidence that Steve Cooley, the

Los Angeles District Attorney, had formulated a policy opposing Brown’s

release. That issue is therefore waived. See Rick-Mik Enters. v. Equilon

Enters., 532 F.3d 963, 976 (9th Cir. 2008).