Dallin Fort v. State of Washington

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DALLIN FORT, No. 21-35265

Plaintiff-Appellant,

D.C. No.

v. 4:20-cv-05053-TOR

STATE OF WASHINGTON;

WASHINGTON STATE OPINION

DEPARTMENT OF

CORRECTIONS, a political

subdivision and agency of the

State of Washington; KECIA

L. RONGEN, wife and the

marital community composed

thereof; JOHN DOE RONGEN,

husband and marital

community composed

thereof; JEFF PATNODE,

husband and the martial

community composed

thereof; JANE DOE PATNODE,

wife and the martial

community composed

thereof; LORI RAMSDELL-

GILKEY, wife and the marital

community composed

thereof; JOHN DOE

RAMSDELL-GILKEY, husband

and the marital community

composed thereof; ELYSE

2 FORT V. STATE OF WASHINGTON

BALMERT, wife and the

marital community composed

thereof; JOHN DOE BALMERT,

husband and the marital

community composed

thereof; IRENE SEIFERT, wife

and the marital community

composed thereof; JOHN DOE

SEIFERT, husband and the

marital community composed

thereof; INDETERMINATE

SENTENCE REVIEW BOARD, a

political subdivision and

agency of the State of

Washington and Washington

Department of Corrections,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Washington

Thomas O. Rice, District Judge, Presiding

Argued and Submitted February 18, 2022

San Francisco, California

Filed July 26, 2022

FORT V. STATE OF WASHINGTON 3

Before: Ronald M. Gould and Johnnie B. Rawlinson,

Circuit Judges, and Jennifer G. Zipps,* District Judge.

Opinion by Judge Rawlinson

SUMMARY**

Prisoner Civil Rights

The panel affirmed the district court’s dismissal of an

action alleging false imprisonment, negligence and civil

rights violations arising from actions taken by the

Washington Indeterminate Sentencing Review Board in

scheduling plaintiff’s hearing.

The Indeterminate Sentencing Review Board is a parole

board created by the Washington State Legislature that is

tasked with reviewing the sentences of convicted sex

offenders to determine whether the offenders should be

released on parole. The panel held that under the facts of this

case and in the context of the proceedings as a whole, the

Review Board’s setting of hearings pursuant to Wash. Rev.

Code § 9.95.420 was “part and parcel of the decision

process,” thereby warranting quasi-judicial immunity. The

panel rejected plaintiff’s contention that the scheduling of the

hearing was an administrative task not entitled to quasi-

*

The Honorable Jennifer G. Zipps, United States District Judge for

the District of Arizona, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 FORT V. STATE OF WASHINGTON

judicial immunity. Because the panel agreed with the district

court that the Review Board was entitled to quasi-judicial

immunity, plaintiff was unable to state a plausible claim for

relief against the state defendants.

COUNSEL

Spencer Babbitt (argued), The Appellate Law Firm, Seattle,

Washington, for Plaintiff-Appellant.

Jacob E. Brooks (argued), Assistant Attorney General;

Robert W. Ferguson, Attorney General; Washington Attorney

General’s Office, Spokane, Washington; for

Defendants-Appellees.

OPINION

RAWLINSON, Circuit Judge:

This case requires us to consider whether the scheduling

of a hearing by the Indeterminate Sentencing Review Board

(Review Board) as mandated by statute is sufficiently

intertwined with judicial decisionmaking that the scheduling

of the hearing falls within the ambit of quasi-judicial

immunity.

Plaintiff-Appellant Dallin Fort (Fort) brought this action

against the State of Washington, the Review Board, and its

members (State Defendants). Fort specifically seeks review

of the district court’s decision that the Review Board’s

“actions relating to [Fort’s] release determination hearing fall

squarely within the quasi-judicial nature of the [Review

FORT V. STATE OF WASHINGTON 5

Board’s] functions,” and that defendants are entitled to

quasi-judicial immunity. We have jurisdiction under

28 U.S.C. § 1291, and we affirm the district court’s decision

granting the State Defendants’ motion to dismiss brought

pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Review Board is a parole board created by the

Washington State Legislature comprised of five members

appointed by the Governor. See Wash. Rev. Code

§§ 9.95.002; 9.95.003. The Review Board is tasked with

reviewing the sentences of convicted sex offenders to

determine whether the offenders should be released on parole.

See Wash. Rev. Code § 9.95.420. The Review Board is

directed by statute to conduct a review and hearing “to

determine whether it is more likely than not that the offender

will engage in sex offenses if released on conditions to be set

by the board.” Id. at § 9.95.420(3)(a).

If an offender’s minimum term has expired or will expire

within 120 days of arrival at a Department of Corrections

facility, the Review Board is required to conduct its

determination hearing “no later than one hundred twenty days

after the offender’s arrival at [that] facility.” Id. at

§ 9.95.420(3)(b).

Fort was convicted of two counts of rape of a child in the

first degree, and was sentenced to a minimum term of 132

months in prison and a maximum of life. The Washington

Court of Appeals affirmed his conviction, but reversed his

sentence and remanded for resentencing. The trial court

resentenced Fort to a minimum of 108 months in prison and

6 FORT V. STATE OF WASHINGTON

a maximum of life. Fort filed a second notice of appeal, and

a personal restraint petition, which was stayed by the Court

of Appeals.

In 2014, after a hearing held in accordance with RCW

9.95.420, the Review Board determined that Fort should not

be released, and added 60 months to his minimum term. In

2015, the Court of Appeals granted Fort’s personal restraint

petition (after having previously stayed it), vacated judgment,

and remanded for a new trial, following which Fort was again

convicted in 2017.

Following his second conviction, Fort was sentenced to a

minimum of 120 months in prison with credit for time served,

and transferred to Washington Corrections Center in Shelton,

Washington. In his complaint, Fort alleged that at that point

he had already served over 120 months in prison and the

governing statute mandated that a hearing before the Review

Board be scheduled no later than “on or about” October 20,

2017. The Review Board held its hearing on July 25, 2018,

and issued a final decision on August 14, 2018,

recommending Fort’s release. The parties agree that Fort was

released in 2018.

After his release, Fort brought this action against the State

Defendants asserting claims for false imprisonment,

negligence, and civil rights violations. The State Defendants

moved to dismiss on the basis of quasi-judicial immunity.1

1

It is important to note that because Fort was apparently released in

2018, and did not bring this action until 2020, he had no viable claim for

prospective injunctive relief. See Harris v. Itzhaki, 183 F.3d 1043, 1050

(9th Cir. 1999). Thus, our analysis does not address, or opine on, the

effect a potential claim for prospective injunctive relief would have on the

availability of quasi-judicial immunity. But see Taggart v. State, 822 P.2d

FORT V. STATE OF WASHINGTON 7

Specifically, the State Defendants argued that because they

were entitled to quasi-judicial immunity, Fort was unable to

state a plausible claim for relief. Rejecting Fort’s argument

to the contrary, and granting quasi-judicial immunity, the

district court concluded that “[b]ecause the hearing date, the

calculation of [Fort’s] minimum sentence and the ultimate

decision whether and when to release [Fort] are intertwined,

the act of setting the hearing date [was] not purely

administrative.” The district court relied on Washington

precedent holding that “statutorily imposed actions which are

so closely related to the judicial or quasi-judicial process

must be protected by immunity.” Fort filed this timely appeal

of the district court’s decision.

II. STANDARD OF REVIEW

We review de novo an order granting a motion to dismiss

for failure to state a claim under Fed. R. Civ. P. 12(b)(6). See

Depot, Inc. v. Caring for Montanans, 915 F.3d 643, 652 (9th

Cir. 2019). We must determine whether, taking the

allegations in the complaint as true, and construing them “in

the light most favorable” to Fort, the district court erred in

concluding that Fort failed to state a plausible claim for relief.

Kwan v. SanMedica Int’l, 854 F.3d 1088, 1096 (9th Cir.

2017) (citation omitted).

243, 247 (Wash. 1992) (en banc) (noting that “judicial immunity is not a

bar to . . . prospective injunctive relief”) (citation omitted); Malik v.

Morgan, Case No. 3:17-CV-05875-RBL, 2018 WL 1963797, at *3 (W.D.

Wash. Apr. 26, 2018) (recognizing that “immunity does not apply to . . .

injunctive claims”).

8 FORT V. STATE OF WASHINGTON

III. DISCUSSION

The parties agree that the State Defendants are entitled to

quasi-judicial immunity for the discretionary actions and

decisions linked to the actual sentencing determination. But,

Fort contends that the motion to dismiss was improvidently

granted because the scheduling of Fort’s hearing does not

qualify for quasi-judicial immunity, as scheduling is an

“administrative task.”

Authority in both the State of Washington and this Court

supports the agreed-upon principle that a sentencing review

board, or a parole board, is generally entitled to quasi-judicial

immunity for judicial-related actions. See Taggart v. State,

822 P.2d 243, 248–49 (Wash. 1992) (en banc); see also

Plotkin v. State Dept. of Corr., 826 P.2d 221, 223 (Wash.

App. 1992); Sellars v. Procunier, 641 F.2d 1295, 1302–03

(9th Cir. 1981).

More broadly, “we have extended absolute quasi-judicial

immunity” to “non-judicial officers for purely administrative

acts—acts which taken out of context would appear

ministerial, but when viewed in context are actually a part of

the judicial function.” Castillo v. Castillo (In re Castillo),

297 F.3d 940, 952 (9th Cir. 2002), as amended (citation

omitted) (emphases added). In Castillo, a Bankruptcy

Trustee miscalendered a bankruptcy confirmation hearing

without notice to the debtor of the rescheduled date, resulting

in the debtor’s home being sold. See id. at 943–44. Castillo

successfully sought leave in the bankruptcy court to bring an

action against the Trustee. See id. at 944. The Bankruptcy

Appellate Panel (BAP) affirmed the bankruptcy court in part

and reversed the bankruptcy court in part. See id. at 943. The

BAP agreed that the Castillo action could proceed against the

FORT V. STATE OF WASHINGTON 9

Trustee for failure to give notice of the rescheduled hearing

date. See id. at 944. However, the BAP held that Castillo’s

action could not proceed against the Trustee for damages

related to the miscalendaring because that action was

protected by quasi-judicial immunity. See id. at 943–44. We

reversed the BAP’s denial of quasi-judicial immunity for

failure to give notice of the rescheduled hearing date, holding

that “the scheduling of hearings by the bankruptcy trustee is

a discretionary function protected by absolute immunity.” Id.

at 951. We determined that the “purely ministerial act[]” of

failing to give notice of the hearing was similarly protected.

Id. at 947, 953. We reasoned that “[b]oth the scheduling and

giving of notice of hearings are part of the judicial function

of managing the bankruptcy court’s docket in the resolution

of disputes.” Id. at 951 (emphasis added). We noted the

“uniform[ity] among the circuit courts” that have reached this

issue. Id. We specifically cited with approval the Seventh

Circuit’s decision in Wilson v. Kelkhoff, 86 F.3d 1438, 1444

(7th Cir. 1996). See id. at 952.

In Wilson, the plaintiff filed a complaint under 42 U.S.C.

§ 1983 against an employee of the Illinois Department of

Corrections and three members of the Illinois Prisoner

Review Board, alleging violations of his due process rights

during revocation of his supervised release. See 86 F.3d at

1440. Wilson enumerated the violations as: (1) failure to

provide adequate notice; (2) failure to provide an opportunity

to present evidence and witnesses; (3) failure to adequately

explain that the hearing was final; and (4) failure to provide

adequate written notice of the reasons for the revocation. See

id. at 1444. Wilson maintained that “the board members

should not be accorded absolute immunity for any of these

acts because the acts were not discretionary, but involved

simple compliance with the law.” Id. (internal quotation

10 FORT V. STATE OF WASHINGTON

marks omitted) (emphasis added). The Seventh Circuit

concluded that, despite the argument that the Board lacked

discretion to deny or postpone the hearing, Board members

were protected by immunity, as was the case for the

“scheduling failure in Thompson.”2 Id. at 1444–45.

The Seventh Circuit determined that “activities that are

inexorably connected with the execution of parole revocation

procedures and are analogous to judicial action invoke

absolute immunity.” Id. at 1444 (citation and internal

quotation marks omitted) (emphasis added). The Court

clarified that it is “not only the actual decision to revoke

parole” that is protected by judicial immunity, “but also

activities that are part and parcel of the decision process.”

Id. (citation omitted) (emphasis added). The Seventh Circuit

explicated that “judicial acts that are part of the judicial

function are [not] excluded from absolute immunity because

they could be characterized as nondiscretionary or even

ministerial.” Id. (emphasis added). Instead, the Seventh

Circuit reiterated its analysis from Thompson, 882 F.2d at

1184,3 “that conduct deserving of protection includes not only

actual decisions, but also those mundane, even mechanical,

tasks undertaken by judges that are related to the judicial

process: The fact that the activity is routine or requires no

adjudicatory skill renders that activity no less a judicial

function.” Id. at 1444–45 (citation, alteration, and internal

2

Thompson v. Duke, 882 F.2d 1180 (7th Cir. 1989), involved a

“failure to schedule and conduct a timely parole violation hearing.”

3

The Seventh Circuit reasoned in Thompson that “[i]n the continuum

of judicial proceedings some judicial acts require extensive exercise of a

judge’s decision-making skills and others do not—yet all such acts make

up the judicial function regardless of their isolated importance.” 882 F.2d

at 1184.

FORT V. STATE OF WASHINGTON 11

quotation marks omitted) (emphases added). We adhere to

our holding in Castillo and continue to be persuaded by the

Seventh Circuit’s reasoning in Wilson and Thompson.

We are not persuaded that the Supreme Court’s holding

in Antoine v. Byers & Anderson, Inc., 508 U.S. 429 (1993),

dictates a different outcome. In Antoine, a court reporter was

tasked with providing a “verbatim transcript” of a two-day

criminal jury trial. See id. at 430–31. As a result of her

extensive delay in providing the transcript, Antoine’s appeal

was not heard until four years after his conviction. See id. at

431. Antoine’s subsequent legal action against the court

reporter and her firm was rejected by the district court and

this court on the basis of absolute immunity. See id. at

431–32. The Supreme Court reversed, see id. at 438,

explaining that a court reporter’s singular duty of creating a

verbatim transcript of proceedings is not “functionally

comparable” to a judge’s duty. Id. at 436. Rather, the duty

of a court reporter is purely ministerial and non-discretionary,

not requiring “the kind of judgment that is protected by the

doctrine of judicial immunity.” Id. at 436–37.4

This distinction between a court reporter, whose main

duty is the creation of a verbatim transcript, and parole board

officials, who have consistently been recognized by courts as

“perform[ing] functionally comparable tasks to judges” is

important. Sellars, 641 F.2d at 1303; see also Wilson, 86

F.3d at 1444 (rejecting Wilson’s reliance on Antoine).

4

We repeat the Supreme Court’s important pronouncement that

“[w]e do not mean to suggest that [a court reporter’s] task is less than

difficult, or that reporters who do it well are less than highly skilled. But

the difficulty of a job does not by itself make it functionally comparable

to that of a judge.” Antoine, 508 U.S. at 436 (citation omitted).

12 FORT V. STATE OF WASHINGTON

Indeed, members of the Review Board perform a plethora of

discretionary tasks comparable to that of a judge, including:

(1) “consider[ing] the department’s recommendations”;

(2) “contract[ing] for additional, independent examination”

of the offender; (3) “conduct[ing] a hearing to determine

whether it is more likely than not that the offender will

engage in sex offenses if released”; (4) “impos[ing]

conditions in addition to those recommended by the

department”; and (5) establishing “a new minimum term” if

the offender is not released. Wash. Rev. Code

§ 9.95.420(1)–(4).

Another crucial distinction exists between an

administrative act unrelated to a judicial function (i.e., a

judge firing a probation officer, see Forrester v. White, 484

U.S. 219, 220–21 (1988)), and an administrative act

“inexorably connected” with a judicial function (i.e.,

scheduling a hearing, see Wilson, 86 F.3d at 1444). Although

scheduling a hearing may be characterized by some as

“mechanical or routine,” the fact that scheduling a hearing is

an “integral judicial . . . function” places it within the realm

of activities protected by quasi-judicial immunity.

Thompson, 882 F.2d at 1184–85.

In Castillo, we took the opportunity to point out that our

application of quasi-judicial immunity to administrative acts

post-dated Antoine. See 297 F.3d at 952. Indeed, we

emphasized that if “purely administrative acts . . . when

viewed in context are actually a part of the judicial function,”

“we have extended absolute quasi-judicial immunity.” Id.

Under the facts of this case and in the context of the

proceedings as a whole, we conclude that the Review Board’s

setting of hearings pursuant to Wash. Rev. Code § 9.95.420

FORT V. STATE OF WASHINGTON 13

is “part and parcel of the decision process,” thereby

warranting quasi-judicial immunity. Wilson, 86 F.3d at 1444.

IV. SUMMARY

Because we agree with the district court that the Review

Board is entitled to quasi-judicial immunity, Fort is unable to

state a plausible claim for relief against the State Defendants.

See Castillo, 297 F.3d at 952; see also Kwan, 854 F.3d at

1096 (discussing the standard for surviving a motion to

dismiss for failure to state a plausible claim).

AFFIRMED.