Omar Gay v. Amy Parsons

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OMAR SHARRIEFF GAY, No. 21-16906

Plaintiff-Appellee,

D.C. No.

v. 3:16-cv-05998-

CRB

AMY PARSONS, Senior

Psychologist; GREGORY S.

GOLDSTEIN, Psychologist, OPINION

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 November 14, 2022

San Francisco, California

Filed March 13, 2023

2 OMAR GAY V. AMY PARSONS

Before: M. Margaret McKeown and Richard A. Paez,

Circuit Judges, and Donald W. Molloy, * District Judge.

Opinion by Judge McKeown

SUMMARY **

Civil Rights

In an action brought pursuant to 42 U.S.C. § 1983, the

panel affirmed the district court’s denial of absolute

immunity to California Board of Parole Hearings

psychologists who prepare comprehensive risk assessment

reports for the parole board.

Plaintiff Omar Sharrieff Gay brought a civil rights suit

alleging that he was asked racially and religiously biased

questions in a psychological evaluation required for his

parole review. He claimed that the psychologists were

prejudiced against him as an African-American, Muslim

man, which influenced their conclusion that Gay presented a

“high” risk of future violence. The psychologists contended

that they were absolutely immune from suit because they

performed a discretionary function integral to the Board of

Parole Hearings’(“Board”) quasi-judicial decision-

making.

*

The Honorable Donald W. Molloy, United States District Judge for the

District of Montana, 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.

OMAR GAY V. AMY PARSONS 3

Applying the functional approach laid out in the

watershed case Antoine v. Byers & Anderson, Inc., 508 U.S.

429 (1993), the panel declined to extend absolute immunity

in this case. The panel held that the psychologists’

assessments, while informative, were neither binding nor

controlling in any way nor did the psychologists function in

a judicial decision-making capacity. Thus, while the

psychologists provided a risk level based on their clinical

experience, they had no power of decision in the judicial

sense; the psychologists were not members of the Board and

the Board made its own determination about an inmate’s

current risk of dangerousness if released to the community.

The panel did not address whether qualified immunity was

available, leaving the question for the district court to

consider.

COUNSEL

Iram Hasan (argued) and Michael J. Quinn, Deputy

Attorneys General; Neah Huynh, Supervising Deputy

Attorney General; Monica N. Anderson, Senior Assistant

Attorney General; Rob Bonta, Attorney General of

California; Office of the California Attorney General; San

Francisco, California; for Defendants-Appellants.

Alexandra S. Farley (argued), Carolee A. Hoover, and Kevin

B. Frankel, McGuireWoods, San Francisco, California;

Jamie D. Wells, Scale LLP, San Francisco, California; for

Plaintiff-Appellee.

4 OMAR GAY V. AMY PARSONS

OPINION

McKEOWN, Circuit Judge:

This appeal concerns whether California Board of Parole

Hearings psychologists who prepare comprehensive risk

assessment reports for the parole board are entitled to

absolute immunity. 1 Omar Sharrieff Gay brought a civil

rights suit alleging that he was asked racially and religiously

biased questions in a psychological evaluation required for

his parole review. He claimed that the psychologists were

prejudiced against him as an African-American, Muslim

man, which influenced their conclusion that Gay presented a

“high” risk of future violence. The psychologists contend

that they are absolutely immune from suit because they

performed a discretionary function integral to the Board of

Parole Hearings’ quasi-judicial decision-making. The

district court rejected their claim of absolute immunity.

Applying the functional approach laid out in the watershed

case Antoine v. Byers & Anderson, Inc., 508 U.S. 429

(1993), we affirm. The psychologists’ assessments, while

informative, were neither binding nor controlling in any way

nor did the psychologists function in a judicial decision-

making capacity. This appeal does not address whether

qualified immunity is available, which we leave to the

district court.

1

A review of the case law on absolute immunity for non-judicial

personnel reveals that the terms “absolute immunity,” “quasi-judicial

immunity,” and “quasi-judicial absolute immunity” have been used

interchangeably. For clarity, we follow the choice in Antoine v. Byers &

Anderson, Inc., 508 U.S. 429 (1993), and refer to the immunity at issue

here as absolute immunity.

OMAR GAY V. AMY PARSONS 5

BACKGROUND

This case began with a parole eligibility interview. Omar

Sharrieff Gay is an inmate in the custody of the California

Department of Corrections and Rehabilitation. Gregory

Goldstein and Amy Parsons (collectively, the

“psychologists”) were employed by the Board of Parole

Hearings (the “Board”) as a Forensic Psychologist and a

Senior Psychologist, respectively. The psychologists

interviewed Gay to prepare a Comprehensive Risk

Assessment (“CRA”) report for his parole suitability

hearing. The report found that Gay posed a high risk for

future violence.

Gay alleges that the psychologists discriminated against

him because of his race and religion. Gay describes an

evaluation conducted “in the manner of a military or police

style interrogation.” He claims that the psychologists asked

him hostile questions and made prejudicial comments,

including, “Why do you hate White People and Jews?” and

“With everything going on in the world, at home with

[Muslims], we don’t know if you are just another radical

Islamic terrorist.” When Gay took offense at their “racially

charged anti-Islamic questions” and asked if they would be

asking those questions if he were a white Christian,

Goldstein allegedly replied, “You’re a high risk for violence

with that sarcastic attitude.”

Despite the relatively straightforward allegations, this

case has a winding procedural history. In 2016, Gay filed a

pro se complaint against the psychologists. Liberally

construing the pleadings, the district court found that Gay

properly raised equal protection and retaliation claims under

42 U.S.C. § 1983, and ordered the United States Marshal to

serve process on the psychologists. The psychologists then

6 OMAR GAY V. AMY PARSONS

moved for summary judgment and claimed that they were

entitled to qualified immunity. The district court denied

summary judgment on Gay’s equal protection claim,

concluding that the psychologists were not entitled to

qualified immunity “at this stage in the proceedings” but

held that the psychologists were entitled to summary

judgment and qualified immunity on the retaliation claim.

Gay v. Parsons, 2018 WL 2088297, at *5 (N.D. Cal. May 4,

2018).

The psychologists tried again, this time moving for

judgment on the pleadings on Gay’s equal protection claim,

arguing that, as psychologists for the Board, they were

entitled to absolute immunity. The district court denied the

motion, explaining that immunity turned on whether the

psychologists “exercised discretion functionally comparable

to that of a judge” in preparing the CRA report, and that it

could not make that determination on the pleadings. Gay v.

Parsons, 2019 WL 3387954, at *3 (N.D. Cal. July 26, 2019),

aff’d, 810 F. App’x 552 (9th Cir. 2020). The psychologists

appealed. We affirmed in a memorandum disposition and

remanded the case to the district court, concluding that “Gay

had alleged that [the psychologists] ‘did not participate in the

parole hearing—the most judge-like component of the

parole process . . . but rather [they engaged in] a fact-

gathering process similar to that of a police officer.’” Gay

v. Parsons, 810 F. App’x 552, 553 (9th Cir. 2020).

Following remand, the parties developed a factual record

on the CRA report process and its relationship to the Board’s

hearing. According to the record, the psychologists in the

Board’s Forensic Assessment Division prepare CRA reports

for use in parole hearings. In doing so, the psychologists

review the inmate’s file, interview the inmate, and employ

structured risk assessment tools used by mental health

OMAR GAY V. AMY PARSONS 7

professionals to determine the risk of violence in

incarcerated individuals. Based on this information, the

psychologists classify the inmate as a “low, moderate, or

high risk of danger to society.” The CRA report provides

“circumstances about the crime, and the person’s prior

history and record,” as well as “expert analysis” on risk

assessment. The CRA report “does not substitute for the

panel’s determination of an inmate’s current risk of

dangerousness if released to the community.” When asked

in his deposition whether “the [Forensic Assessment

Division] psychologist[s] decide whether the prisoner or the

inmate has the right to go out on parole,” Goldstein

unequivocally replied, “No. We provide a risk assessment

of violent risk. We don’t make a determination, like, yeah,

let this guy go, or, no, don’t let this guy go.”

After engaging in discovery, the psychologists moved

for summary judgment on the basis that there was no genuine

dispute of material fact that preparing a CRA report is a

function entitled to judicial immunity as a matter of law. The

district court denied the motion, agreeing with Gay that the

psychologists “failed to demonstrate that preparing CRA

reports involves a level of discretionary judgment

comparable to that exercised by judges.” Gay v. Parsons,

2021 WL 4806321, at *4 (N.D. Cal. Oct. 14, 2021).

ANALYSIS

Under the collateral order doctrine, the district court’s

decision was immediately appealable. See Mitchell v.

Forsyth, 472 U.S. 511, 525 (1985). We review de novo

whether a public official is entitled to absolute immunity.

See Brown v. Cal. Dep’t Corr., 554 F.3d 747, 749 (9th Cir.

2009).

8 OMAR GAY V. AMY PARSONS

We begin by tracing the Supreme Court’s principles and

teachings on immunity. The Court has long connected the

level of immunity to the nature of the official’s role rather

than title, explaining that “[j]udges have absolute immunity

not because of their particular location within the

Government but because of the special nature of their

responsibilities.” Butz v. Economou, 438 U.S. 478, 511

(1978). “It is the functional comparability of their judgments

to those of the judge that has resulted in both grand jurors

and prosecutors being referred to as ‘quasi-judicial’ officers,

and their immunities being termed ‘quasi-judicial’ as well.”

Id. at 512 (quoting Imbler v. Pachtman, 424 U.S. 409, 423

n.20 (1976)).

The focus on judicial function is a common thread

throughout the Court’s immunity jurisprudence, although

the language used to describe the inquiry has varied. In

Cleavinger v. Saxner, 474 U.S. 193 (1985), the Court

explained that it has “extended absolute immunity to certain

others who perform functions closely associated with the

judicial process.” Id. at 200. But the Court has held that

even judges do not always enjoy absolute immunity. In

“attempting to draw the line between truly judicial acts, for

which immunity is appropriate, and acts that simply happen

to have been done by judges,” the Court recognized once

again that “immunity is justified and defined by the functions

it protects and serves, not by the person to whom it attaches.”

Forrester v. White, 484 U.S. 219, 227 (1988) (denying

absolute immunity to a judge acting in an administrative

capacity).

By the time the Court decided Burns v. Reed, 500 U.S.

478 (1991), it cautioned that its “decisions have also

emphasized that the official seeking absolute immunity

bears the burden of showing that such immunity is justified

OMAR GAY V. AMY PARSONS 9

for the function in question,” and “[t]he presumption is that

qualified rather than absolute immunity is sufficient to

protect government officials in the exercise of their duties.”

Id. at 486–87. Justice Scalia, in a partial concurrence and

partial dissent, invoked history and dove into the categories

of immunity at common law. Id. at 496–506 (Scalia, J.,

concurring in the judgment in part and dissenting in part).

He distinguished judicial immunity, “an absolute immunity

from all claims relating to the exercise of judicial functions,”

from quasi-judicial immunity, “official acts involving policy

discretion but not consisting of adjudication.” Id. at 499–

500 (Scalia, J., concurring in the judgment in part and

dissenting in part).

In Antoine, the Supreme Court returned to Justice

Scalia’s opinion in Burns, clarified its functional approach,

and shifted the lens for evaluating judicial immunity. 508

U.S. at 435–38. In the Ninth Circuit opinion below, we

relied on earlier precedent in concluding that court reporters

were absolutely immune because “the making of the official

record of a court proceeding by a court reporter is part of the

judicial function,” a step “inextricably intertwined with the

adjudication of claims.” Antoine v. Byers & Anderson, Inc.,

950 F.2d 1471, 1476 (9th Cir. 1991). The Court reversed

our decision because it was “unpersuaded” that its

“functional approach” to immunity shielded an officer just

“because they are ‘part of the judicial function.’” Antoine,

508 U.S. at 435 (quoting Burns, 500 U.S. at 486). Indeed,

the Court held that “some of the tasks performed by judges

themselves, ‘even though they may be essential to the very

functioning of the courts, have not . . . been regarded as

judicial acts.’” Id. at 437 (alteration in original) (quoting

Forrester, 484 U.S. at 228). Rather, the “touchstone” of the

doctrine is the “performance of the function of resolving

10 OMAR GAY V. AMY PARSONS

disputes between parties, or of authoritatively adjudicating

private rights.” Id. at 435–36 (quoting Burns, 500 U.S. at

500 (Scalia, J., concurring in the judgment in part and

dissenting in part)). “When judicial immunity is extended to

officials other than judges, it is because their judgments are

‘functional[ly] comparab[le]’ to those of judges—that is,

because they, too, ‘exercise a discretionary judgment’ as a

part of their function.” Id. at 436 (alterations in original)

(quoting Imbler, 424 U.S. at 423 n.20).

Following Antoine, our court had the opportunity to

address the Supreme Court’s absolute immunity doctrine. In

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

we reconsidered earlier circuit authority on immunity for

social workers because the Supreme Court’s revised

approach was “fundamentally inconsistent with” our earlier

reasoning. Id. at 892. The case concerned a social worker

who informed the juvenile court of her proposed placement

for a foster child with a known history of abusing other

children. See id. at 893. The juvenile court approved the

social worker’s recommendations. See id. The plaintiffs

alleged that the social worker failed to inform the court of

critical facts, including that the selected foster home had

young children who would be at risk of abuse by the foster

child. See id. Acknowledging Antoine, we concluded that

“actions taken with court approval or under a court’s

direction are not in and of themselves entitled to quasi-

judicial, absolute immunity.” Id. at 897 (citing Antoine, 508

U.S. at 435–36). Instead, we instructed the district court to

consider whether the social worker made judicial or

prosecutorial decisions that would have enjoyed common

law immunity. See id. at 898. Importantly, we explained

that “[t]o the extent, however, that social workers also make

discretionary decisions and recommendations that are not

OMAR GAY V. AMY PARSONS 11

functionally similar to prosecutorial or judicial decisions,

only qualified, not absolute immunity, is available.” Id. We

noted that “[e]xamples of such functions may include

decisions and recommendations as to the particular home

where a child is to go or as to the particular foster parents

who are to provide care.” Id.

Shortly after Miller, we decided Swift v. California, 384

F.3d 1184 (9th Cir. 2004), in which we described Antoine as

“work[ing] a sea change in the way in which we are to

examine absolute quasi-judicial immunity for nonjudicial

officers.” Id. at 1190 (quoting Curry v. Castillo (In re

Castillo), 297 F.3d 940, 948 (9th Cir. 2002)). We clarified

that “[t]he relevant test now is whether the official is

‘performing a duty functionally comparable to one for which

officials were rendered immune at common law.’” Id.

(quoting Miller, 335 F.3d at 897). We acknowledged that

“[t]he relation of the action to a judicial proceeding . . . is no

longer a relevant standard.” Id. (quoting Miller, 335 F.3d at

897) (alterations in original). Hence, we declined to extend

absolute immunity to parole officers for “conduct distinct

from the decision to grant, deny, or revoke parole.” Id. at

1186. In doing so, we contrasted a social worker’s “decision

to institute proceedings to make a child a ward of the state,”

which is “likely entitled to absolute immunity,” with “a

parole officer recommend[ing] that a senior official initiate

parole revocation proceedings.” Id. at 1192 (quoting Miller,

335 F.3d at 898). Citing the Second Circuit’s decision in

Scotto v. Almenas, 143 F.3d 105 (2d Cir. 1998), we

explained that while “the senior official who makes the

discretionary decision to issue the warrant” is absolutely

immune, the recommending officer was only entitled to

qualified immunity. Id. (citing Scotto, 143 F.3d at 112–13).

After clarifying the parameters of our absolute immunity

12 OMAR GAY V. AMY PARSONS

doctrine, we turned to the facts of Swift. There, the parole

officers were required to report suspected violations of

parole conditions to the board, but those officers were not

decisionmakers. See id. at 1191. The board, however, had

discretion to issue a warrant. See id. at 1192. We concluded

that “[t]he board, therefore, not the officer, play[ed] a quasi-

judicial role.” Id.

Our understanding of Antoine and the distinctions made

in subsequent precedent are illuminating here. In this case,

the psychologists conduct objective assessments of inmates’

risk of violent behavior, which they report to the Board. The

psychologists, however, are not decisionmakers. Rather, it

is the Board, not the evaluating psychologist, that has the

discretion and authority to determine the inmate’s eligibility

for parole. While non-judicial “officials performing the

duties of advocate or judge may enjoy quasi-judicial

immunity for some functions,” id. at 1188 (cleaned up), the

psychologists were neither acting as advocates nor as judges.

The psychologists reviewed Gay’s files, interviewed

him, and looked to a multifactor risk instrument to reach a

risk level recommendation. Their report, which was passed

on to the Board, does not include a recommendation of

whether an inmate should be released; it is instead a “tool”

that the Board can use to guide its own determination.

Though the psychologists emphasize that they exercise

discretion in recommending a risk level of low, moderate, or

high, Miller instructs that exercising some discretion is not

enough where it is not functionally comparable to a judge’s

decision. See 335 F.3d at 897. While the psychologists

provided a risk level based on their clinical experience, they

“ha[d] no power of decision in the judicial sense.” Id. at 898.

OMAR GAY V. AMY PARSONS 13

This is not to say that the reports were not helpful to the

Board’s decisions. Jennifer P. Shaffer, the Board’s

Executive Officer, called the assessments “invaluable

information.” But Antoine denied absolute immunity to

court reporters who, “despite being ‘indispensable to the

appellate process,’ do not exercise the sort of judgment for

which there is quasi-judicial immunity.” Id. (quoting

Antoine, 508 U.S. at 437). The psychologists were not

members of the Board and the Board “made its own

determination” about “an inmate’s current risk of

dangerousness if released to the community.” The

psychologists’ analysis was an information-gathering aid to

the Board’s decision, but not a judicial decision or even a

parole recommendation itself. Adhering to the approach laid

out in Antoine, Miller, and Swift, we decline to extend

absolute immunity in this case.

We are not persuaded that our pre-Antoine decision in

Burkes v. Callion, 433 F.2d 318 (9th Cir. 1970) (per curium),

requires a different result. The psychologists ask us to

recognize that Burkes remains good law or reaffirm it, as

Burkes granted absolute immunity to psychiatrists who

provided court-ordered reports to judges. See id. at 319. In

Burkes, we reasoned that “[t]his circuit has repeatedly held

that judges and other officers of government whose duties

are related to the judicial process are immune from liability

for damages under section 1983 for conduct in the

performance of their official duties.” Id. (emphasis added).

The court-appointed psychiatrists who prepared and

submitted medical reports to the state court acted within the

scope of absolute immunity because that immunity

“extend[ed] to acts committed in the performance of an

integral part of the judicial process.” Id. (internal quotation

marks omitted).

14 OMAR GAY V. AMY PARSONS

Thus, the Burkes decision rested on a now-outdated test

of “related to” the judicial process. That reasoning was

categorically rejected in Antoine. See 508 U.S. at 436–37

(“Nor is it sufficient that the task of a court reporter is

extremely important or, in the words of the Court of Appeals,

‘indispensable to the appellate process.’” (quoting Antoine,

950 F.2d at 1476)).

As we made clear in Swift, to the extent our earlier case

involving parole officers, Anderson v. Boyd, 714 F.2d 906

(9th Cir. 1983), “applied a ‘relates to’ test, as opposed to a

functional test, Antoine overruled it.” 384 F.3d at 1190.

Stated succinctly, “Antoine adopted a functional approach,

under which we must determine not whether an action

‘relates to’ the decision to grant, deny, or revoke parole . . .

but whether an action is taken by an official ‘performing a

duty functionally comparable to one for which officials were

rendered immune at common law.’” Id. (quoting Miller, 335

F.3d at 897). Intervening Supreme Court authority dictates

the result in this appeal: “[W]here the reasoning or theory of

our prior circuit authority is clearly irreconcilable with the

reasoning or theory of intervening higher authority, a three-

judge panel should consider itself bound by the later and

controlling authority, and should reject the prior circuit

opinion as having been effectively overruled.” Miller, 335

F.3d at 893.

Our recent decision in Fort v. Washington, 41 F.4th 1141

(9th Cir. 2022) does not change the calculus. The parties in

Fort agreed that the Washington parole board was entitled to

absolute immunity for its discretionary actions. See id. at

1144. Following our rationale in In re Castillo, 297 F.3d 940

(9th Cir. 2002), we confirmed that scheduling an inmate’s

parole hearing was “part and parcel of the decision process”

and also warranted absolute immunity. See id. at 1145–46.

OMAR GAY V. AMY PARSONS 15

Both In re Castillo and Fort provide absolute immunity for

administrative actions taken in the immediate leadup to the

judicial action—the act of scheduling, without which there

would be no hearing—on the theory that docket management

is a part of the judicial function. See Fort, 41 F.4th at 1145.

Fort noted that the parole board scheduled the hearing, and

this administrative act taken by those same officials

performing functionally comparable tasks to judges was

“‘inexorably connected’” with a judicial function.” Id. at

1146 (quoting Wilson v. Kelkhoff, 86 F.3d 1438, 1444 (7th

Cir. 1996)).

The psychologists argue that their risk assessment

reports are also “part and parcel of the judicial process,”

insofar as the Board considers the risk assessment reports in

deciding whether the inmate is safe to release into society.

We disagree. This interpretation misreads Fort’s narrow

question and would restore the overruled “relates to” test, an

elastic band that could fit almost any circumstance.

In holding that the Board psychologists are not entitled

to absolute immunity, we part ways with the Third Circuit in

Williams v. Consovoy, 453 F.3d 173 (3d Cir. 2006). The

Third Circuit did not address whether psychologists are

exercising judge-like discretion in their evaluations to parole

boards, instead reasoning that “the only way to ensure

unvarnished, objective evaluations from court-appointed

professionals is to afford them absolute immunity from suit

for performing evaluations, regardless of whether those

evaluations are ultimately found dispositive by the entity that

requested them or are ultimately found lacking.” Id. at 179.

Though Williams postdates Antoine, the Third Circuit does

not cite Antoine, relying instead on Burns—decided two

years earlier—for the rule that “absolute immunity attaches

to those who perform functions integral to the judicial

16 OMAR GAY V. AMY PARSONS

process.” Id. at 178 (citing Burns, 500 U.S. at 484). Because

Antoine—not Burns—provides the controlling standard, we

decline to follow this approach.

The psychologists urge us to adopt the same policy

reasoning as Williams, namely, that objectivity will suffer

without absolute immunity. This argument ironically puts

the psychologists in a position of hypothetically violating

their professional principles and standards. See Am. Psych.

Ass’n, Ethical Principles of Psychologists and Code of

Conduct 4 (2017) (“Psychologists recognize that fairness

and justice entitle all persons to . . . equal quality in the

processes, procedures, and services being conducted by

psychologists. Psychologists exercise reasonable judgment

and take precautions to ensure that their potential biases, the

boundaries of their competence, and the limitations of their

expertise do not lead to or condone unjust practices.”). But

just as importantly, an abstract fear of vexatious litigation

was not enough to persuade the Court in Antoine and it is not

enough here. The Court in Antoine understood that cases

against court reporters were “relatively rare,” and the

respondents in that case did not provide “empirical evidence

demonstrating the existence of any significant volume of

vexatious and burdensome actions against reporters, even in

the Circuits in which reporters [were] not absolutely

immune.” 508 U.S. at 437. Similarly, the district court here

found that the psychologists “offer no evidence ‘of any

significant volume of vexatious and burdensome actions

against [them].’” Gay, 2021 WL 4806321, at *6 (quoting

Antoine, 508 U.S. at 437).

Although we decline to extend absolute immunity to the

psychologists, we emphasize that this is not game over.

When the district court considered the psychologists’ motion

for judgment on the pleadings, it denied qualified immunity

OMAR GAY V. AMY PARSONS 17

“at this stage in the proceedings.” We therefore leave the

question of qualified immunity to the district court.

AFFIRMED.