The 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NOT FOR PUBLICATION FILED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.
3