John Houston Sellars v. Raymond K. Procunier

ALARCON, Before HUG and Circuit *, Judges, and BLUMENFELD District Judge.

ALARCON, Judgе: Circuit (“Sel- Petitioner John Houston Sellars lars”) is an inmate of the California Mens Colony Obispo. Luis Respondent San Procunier was chairman the California Authority.1 Petitioner filed this ac- court, tion district alleging that Procuni- er and California Adult Authority other conspired officials deprive had him of first, fifth, rights sixth, under the eighth by giving fourteenth amendments him requires release date that him to excessively prison serve an long sentence. granted The district court summáry judg- ment for ground the defendants on the absolutely boаrd members are im- (42 mune to suit under the Civil Act 1983)2 U.S.C. for taken pro- § actions cessing parole applications. question before us is whether Sellars, Cal, John Diego, Houston San enjoy any board members

plaintiff-appellant. rights brought against civil suits them so, prisoners,3 Guardia, Sacramento, Cal., and if whether Ramon De La for defendant-appellee. qualified.4 absolute or * Blumenfeld, Joseph subjected, any M. Honorable United States to be citizen of United Connecticut, Judge, sitting District person jurisdiction District of States or other within by designation. deprivation any privi- rights, thereof to the leges, or immunities secured the Constitu- repealed 1. Under California’s Indeterminate laws, party tion and shall be liable to the Law, Authority Sentence the California Adult injured law, equity, in an action at suit in or prison fixed the term and set the release proper proceeding other for redress. every person date of a trial sentenced court prison. Subsequent filing to state day 3. We leave to another wheth- lawsuit, of this State of California abolished enjoy any immunity er board officials Authority replaced the Adult it with the rights brought by persons from civil in- Board of Prison Terms. Cal.Penal Code 5078. § jured by dangerous parolee. Cf. Grimm repealed California also its Indeterminate Sen- Paroles, Arizona Bd. of Pardons 115 Ariz. & replaced tence Law and awith Determinate (1977) (parole 564 P.2d 1227 seq., Sentence Law § Cal.Penal Code et arising cials not immune from suits out of under which terms are now set trial grossly negligent highly or reckless release of pursuant prescribed by stаndards dangerous prisoners). legislature. provides: 2. 42 U.S.C. § 1983 If officer has absolute who, suit, Every person any any the trial court must dismiss color stat- ute, custom, ordinance, regulation, usage, suit filed that officer Territory subjects, scope State or or causes actions taken within the of his sweep statutory broad language. FACTS City Independence, See Owen 1973, petitioner was convicted of arson 1408; Ray, Pierson S.Ct. at Superior Angeles County Court. Pe- in Los 1213, 1221-22, 561-63, 87 probation report indicates that titioner's J., (1967) (Douglas, dissenting). petitioner period a 10-month had within liquid flammable doors ignited Despite statutory language Angeles-area studios. Peti- four Los ballet legislative history absence four had been enrolled as tioner’s children language, it is attempt to narrow that well appar- and he students at schools had public that certain classes established ently grown dissatisfied instruc- enjoy at least some of im- receiving. tion munity from suits under Su- sentencing judge peti- characterized premе approaches two utilized grave danger “a to the tioner as communi- determining given public whether a official him to state ty,” and committed any is in from 1983 shielded liabili- § 23, 1975, an Au- November 1973. In cases, ty. In some Court has of thority panel consisting respondents held survive that some immunities 1983 § petitioner’s prison Brown and Castro fixed passage of because at the time 1983’s § years at 11 set a of term date firmly were common “so rooted in the law December strong supported by policy [werе] ‘Congress specifi- would have reasons that suit, Petitioner then filed instant cally had provided so it wished abolish that his in alleging release date was set ” Independence, v. City Owen of [them.]’ expression political retaliation for his Ray, citing 100 at Pierson v. S.Ct. 386 having corpus views and for his filed habeas U.S. at 87 at 1218. S.Ct. petitions and other in various courts. INTRODUCTION however, case, longer It is no immunity at common law in 1871 is sine language of 42 U.S.C. 1983 is broad § qua according public non for officials immu- who, sweeping; “Every pеrson” under nity circumstances, 1983. In under some § custom, “subjects, color of state law or the Court has examined the “functional any subjected, causes to be citizen of the comparability” of the of the official role deprivation United ... States scrutiny analogous under to the role of rights, privileges, or immunities secured enjoyed immunity cials who under common laws, the Constitution shall be liable 5 law in order to determine whether mod- injured party (emphasis added) . ern-day any degree official is terms, “By its ‘creates a species 1983 § See, g., Economou, e. v. immunity. Butz liability face tort that on its admits of no ” 512-17, 2913-16, 98 U.S. S.Ct. City v. of Independ- immunities.’ Owen (1978); Pachtman, ence, 1398, 1407, Imbler U.S. S.Ct. 20; at 991 at 423 n. n. (1980), quoting U.S. Imbler 232, 245-49, U.S. S.Ct. 1683, 1691-92, (1976). The 5.Ct. 40 L.Ed.2d 90 congres- surrounding passage Immunity sional debates board officials was 1871,17 well at apparently 1 of the Civil Act of established common Stat. § predecessor 13—the 1983—confirm the law when was enacted.6 The in 1871 § § duty. inquiring official Without into merits 6. Parole boards did not exist when contrast, an officer who has immu- was enacted. Prior to Ohio nity only can be liable under became the first state to enact a statewide law faith, governing actions taken bad and not an adminis- for actions adults merely princi- agency, paroles negligent. that are See v. Pacht- doled out Imbler trative man, pally through auspices n. of elected officials. Bramer, (1926); generally n. 47 L.Ed.2d See 19-43 J. Parole Giardini, (1959); 5-16 G. I. The Parole Process Cromwell, supra. Kerper, Killinger, See note G. H. P. Probation therefore, us, adversary system. questiоn before His or her sole task impartial vigorously make enjoy board officials decisions con- actions, tested to “decide in- liability the test of from § ‘[controversies volving merely great pecuniary inter- comparability.” “functional ests, but liberty and character of the Qualified Immunity 1. Absolute and parties, and consequently exciting deep- ” feelings.’ Economou, Butz est Immunity a. Absolute quoting Bradley at 2912 Of the who have been ac Fisher, (13 Wall) 20 L.Ed. immunity, corded absolute and those litiga- The threat of constant performing judge-like functions are tion the decision-maker instituted view, analogous, most in our by disappointed litigants is apparent; officials.7 gainsaid cannot be loser in one “[t]he will granting frequently another, cases forum seek charg- ing the first participants with judges recognize extraordinary uncon- reasons stitutional animus.” Butz v. required justify are the drastic step Judges 98 S.Ct. at 2913. genuinely wronged barring individual “should not have to fear unsatisfied wrongdoer. redress litigants may litigation hound ‍‌‌​​‌​‌‌‌​​‌​‌‌‌‌​​‌​​‌‌​‌​​​​​​‌​‌‌​​‌​​​‌‌​​​​‍with [them] thus enunciаted charging corruption.” malice or Pierson v. policy striking several reasons for the bal- 554, Ray, 386 at U.S. 87 S.Ct. at 1217. completely ance in these cases in favor of shielding the judge Thus, from suits under proper functioning the and indeed judge unique The is in a posture very the any independent, survival of dis- System, 984, & Parole in the Criminal Justice 17-33 v. Imbler 424 U.S. 96 S.Ct. (1976). per- 47 L.Ed.2d 128 to and those who concept immunity judicial judge-like prosecutor-like The of absolute form functions Floyd Economou, dates back to at least 1607. agency, Seе v. Bark- within a federal Butz er, (Star Eng.Rep. Chamber (1978). U.S. 98 S.Ct. 57 L.Ed.2d 895 Ap- New the York Court of participants judicial proc- Unlike other in peals approved first doctrine this coun- ess, appointed defense counsel —even if court try. Lansing, (N.Y.1810). Yates v. Johns. compensated not entitled to immuni- —are approved Court first the doctrine Ackerman, ty. Ferri v. 444 U.S. S.Ct. Fisher, Bradley (13 Wall) 80 U.S. (court (1979) appointed (1871). concept L.Ed. of absolute im- malpractice defense counsel sued for gent indi- munity personnel еxercising for non-court cer- immunity). not defendant entitled to functions, however, adjudicatory tain did not is There a marked difference between defense early century. arise until the Gray, See twentieth responsibilities counsel’s and those of other of- Servants, Wrongs Private Public judge prosecu- ficers court. The and the (1959) Calif.L.Rev. 303 cited as [hereinafter duty primary represent tor’s is to the interests Jaffe, Gray]; Against Suits Governments society as a whole. In their conduct Actions, Damage Offiсers: Harv.L.Rev. duties, they may adversely official a affect wide (1963); Jennings, Liability of Tort Administra- variety individuals, of different each of whom Officers, (1937); tive 21 Minn.L.Rev. 263 may potential litigation. be a source of future Kirkpatrick, McCormack & Immunities of State Immunity necessary is to forestall atmo- an 1983, Rutgers Under Officials Section Cam- intimidation, sphere of and to insure that these Casenote, (1976); den L.J. 65 Torts-Govern- ability officials have a maximum to deal fear- Immunity-Absolute mental Immunity Versus Qualified lessly contrast, public. By defense Acting for Public Officials in Quasi- appointed privately counsel —whether re- Capacities, Wayne Judicial L.Rev. 1513 duty public large, tained —has a not at This extension of absolute to personnel “quasi-ju- serve the interests of de- non-court under the rubric undivided dicial” was described some critics fendant. “The fear that an unsuccessful de- dangerous charge as a erosion of the common law. fense of a criminal lead a mal- will See, g., Gray, supra practice perform- e. at 347-48. claim with does conflict anything, provides ance of that function. If it 7. Absolute from 1983 has actions appointed the same incentive for and retained legislators, Tenney been accorded to v. Bran- perform competently.” counsel that function dhove, 341 U.S. S.Ct. 95 L.Ed. 1019 Id. at (1951), judges, Ray, Pierson (1967), prosecutors, essary public to insulate these ser- order requires that system pute-resolving possibility of vexatious liti- prevented lawsuits vants from the subsequent dread of addition, acceрted gation. it judge’s in a assess- becoming a factor Moreover, prompt must take ‍‌‌​​‌​‌‌‌​​‌​‌‌‌‌​​‌​​‌‌​‌​​​​​​‌​‌‌​​‌​​​‌‌​​​​‍action of a case. these officials ment of the merits provided would be diverted to judge’s time which based on information them severely litigation could contesting parties. third 1691; per- time available for Wood constrict at at v. Strick- 94 S.Ct. primary duties.8 land, his or formance of as the immunity, reason,

Absolute For that it is genuinely leaves the acknowledged, subject them to thought to be unfair redress. person without wronged faith actions liability good based However, societal concerns dictate broader turns out to that later be incor- information free- rect, balance be struck favor of actions good or for faith taken ing the constant fear of retali- judges from press of time. The alternative of atory suits. held, however, that such cases have all, would immunity, or no require complete public do not officials interest, these public because

disserve judicial protection officials. afforded subject in some de- would still a Implicit recognition decisions is in these litigation. gree vexatious judicial po- between distinction Nevertheless, balance not be might expect We re- decision-making. litical struck in favor of impartial fact quire to be presence safeguards built for the making by public finder. Decision process into reduce judicial cial, hand, tend to above all politi- on the other private damage аctions as a need for process. v. Detroit cal Abood Board of See controlling unconstitutional con means of Education, Butz duct. See do not We at 2913.9 we expect impartiality; expect rather will balance the an elected official demands Qualified Immunity b. constituency his in making of or a deci- sion, will the decision to some and that Qualified immunity accord has been pressures extent reflect the exerted on ed to certain state officials for dеcisions with an interest in the by official good faith exercise of their made in decision-making— Political recog controversy. It responsibilities.9 official has been judicial decision-making nec- unlike not immunity of nized that some —is their flailed the sertions will be contested adversar- 8. Justice Cockburn Chief immunity judicial open in his dissent in doctrine of ies court . .. Because these features Paulet, judicial process Lord Dawkins v. L.R.S.Q.B. of the tend enhance the persuaded of wrote: “I am that the number reliability impartiality He and the of information judges] [against infinite- such actions ly would be decision-making process, of the there is a less easily disposed be of.” Id. small and would pressing suits need for individual to correct argument at may While the Chief Justice’s 110. (foot- U.S. at constitutional error. 438 believe have had force we do not omitted). note today’s litigious be realistic in era would systemic enormous burden and discount immunity been has accorded to Qualified rights permitting civil costs that suits offiсials, university governors state and state judge impose judges sued would on both the Scheuer v. 416 U.S. 94 S.Ct. the federal courts themselves. on (1974), local school board mem- bers, Strickland, 95 S.Ct. Wood v. political from 9. The insulation of (1978), superintendents L.Ed.2d influence, precedent in resolv- the nature Donaldson, hospitals, controversies, state O'Connor adversary ing nature of the (1975), L.Ed.2d correctability process, 95 S.Ct. on of error officials, Navarette, Procunier v. just many and to appeal a few of the checks on are by judges. 98 S.Ct. are malicious action Advocates only by professional obli- their restrained gations, knowledge that their as- protected performing judge-like be roles pristine process must within federal infection fear of lawsuits. all cost from or agencies,11 rather to the more limited although non-judicial executives do And good immunity faith accorded to other state right suits by run some risk of civil citizens executive officials. another, for one or these disgruntled reason Rhodes,12 Prior to it had been expected suits with the same cannot the rule in this circuit members of a judicial as frequency officers. state parole absolutely board were immune officials, judge-like Unlike state rights from civil suits for taken actions adjudicators primarily officials are not processing parole applications.13 brought them disputes before advocates (9th Reagan, Johnson v. 524 F.2d legitimately expect impartial who decisions. 1975), however, Cir. this court indicated different, posture Because their is so rule immunity “may of absolute by disappointed of suits likelihood citizens is light obsolete” in Scheuer decision. correspondingly lessened. Supreme While the Court specifically 3. Parole Board Officials open question left of immunity under officers,14 state board The narrow us is before whether have federal courts entitled considered the officials are suits, so, question subsequent from to Scheuer have and if almost they exception grant parole are entitled the absolute without continued to judges, persons accorded to board members immunity.15 absolutely In Butz that defendants were immune rights performed 57 L.Ed.2d 895 Court civil suits for all acts within Agriculture Department hearing scope duty. held that ex- of their official aminers, judicial prosecuting reversed, holding officers and attor- Court that executive officers neys absolutely liability only qualified were immune from good have faith arising adjudicatory prosecutori- out suit. 416 U.S. appeals al functions. The court of held had only that the relevant immunity because were not tech- expressed 13. The rationale for this rule was nically judges, but rather officials of the execu- Dickson, Silver v. rejected tive branch. The Court a narrow 1968), test: (1969): “[T]he members Appeals placed We think that Authority are, California Adult ployed . . . while em emphasis undue fact that the officials processing applications per- sued here are—from an administrative parole, quasi-judicial performing functions. spective employees the Executive They — therefore have from suits for Judges Branch. have absolute Act, damages just under the as Civil do particular because their location within public employees engaged perform other in the special the Government but because of the quasi-judicial ance of Keeton duties.” See also responsibilities. point nature of This Procunier, 1972), (9th v. 468 810 F.2d Cir. cert. by prosecutors— underlined thе fact denied, 987, 2276, 411 U.S. 93 S.Ct. 36 L.Ed.2d themselves members Executive (1973); 965 Allison v. California Authori absolutely Branch —are also immune. “It is ty, (9th 1968); 419 F.2d 822 Cir. Bennett v. comparability judg- the functional ‍‌‌​​‌​‌‌‌​​‌​‌‌‌‌​​‌​​‌‌​‌​​​​​​‌​‌‌​​‌​​​‌‌​​​​‍of their California, (9th denied, Cir.), 406 F.2d 36 cert. ments to those of the that has resulted 966, (1969); 394 U.S. 89 1320 Villalobox S.Ct. grand jurors prosecutors being in both and Dickson, (9th 1969). v. 406 F.2d 835 Cir. officers, ‘quasi-judicial’ referred to as and being ‘quasi-judicial’ their immunities termed California, v. 444 Martinez U.S. 511-12, 2913, as well.” Id. at 98 S.Ct. at (“it (1980) 100 S.Ct. L.Ed.2d 62 481 409, quoting Imbler v. 424 U.S. necessary any question not concerning for us to decide 423 n. 96 n. S.Ct. 991 47 L.Ed.2d immunity parole of state 128 ”). cials aas matter of federal law . . . Scheuer, plaintiffs In sued the Governor Bd., Michigan Ohio various other state executive officials 15. In Bricker v. 405 Parole rights arising F.Supp. (E.D.Mich.1975), for civil violations out of 1345 court plaintiffs’ during gave following deaths of decedents anti-war rationale its decision University. grant parole at demonstrations Kent State The continue to immunity board officers Appeals light Court of for the Sixth Circuit had held in of Scheuer. 1302 granted through the following ily auspices Pro- suggested has bеen

It governors and oth- Navarette, governor.17 434 U.S. 98 S.Ct. state State v. cunier enjoyed v. at common (1978), er executive officials and O'Connor 55 immunity from suit for acts done in Donaldson, law S.Ct. malice. See every agent sued faith and without good state v. qualified U.S. 1983 is to assert a entitled § under As successors to state Procunier 40 L.Ed.2d 90. immunity damage liability. from decisions, parole Navarette, making at state governors at in S.Ct. v. at enjoy (Stevens J., dissenting opinion). parole board members should immunity enjoyed by gоver- least the same not decide that broader We need state executives under nors other here; City Owen of Inde question v. common law. offi pendence, it is clear that pa question remains enjoy some cials Owen, great board officials are entitled to the 1983 suits. at role § “[wjhere judges, afforded Court held that er within performing judge-like was well-estab roles federal claimed the defendant view, parole agencies. time In our board offi lished at common law § enacted, its was are to absolute was and where rationale cials prisoners purposes the Civil suits for actions taken when compatible with the Act,” parole applications. meant The “func Congress processing could not have immunity by comparability” inclusion test set forth most to abolish that covert tional in Butz general language explicitly 1983. Admin Court v. in the 512-17, 98 did exist S.Ct. at istrative boards 2913-16, just enacte we requires at the time 1983 was look United States official, or Prior of these the title of a state or d.16 establishment federal states, parole within primar- in various was his or location the bureaucratic boards (W.D.Va.1975), part The court immunity believe that the aff’d in and reversed in does not (4th part in Wood grounds, described Scheuer and other F.2d Cir. Strickland, v. 1977), [Wood [94 (1975)] applies to Parole L.Ed.2d 90] (1978); Reiff v. mem- Board members because Parole Board Pennsylvania, (E.D.Pa.1975); F.Supp. But see government offi- bers are not like executive Gerstein, (5th Henzel F.2d 654 Cir. deciding cials or schoоl board members. 1979); Pennsylvania Gahagan Bd. of Proba grant, deny, parole, they revoke act to quasi-judicial capacity, Parole, (E.D.Pa.1978); F.Supp. tion & sen- as an arm of the (N.D.Ohio Joyce Gilligan, F.Supp. attorneys tencing just prosecuting judge, as 1974), mem., (6th 1975). aff’d 510 F.2d 973 Cir. quasi-judicial capacity bringing in a act Whether Parole Board officers are entitled to criminal actions. only qualified immunity open absolute or is an set forth considerations Eighth DeShields v. Circuit. Ray equally applica- are Pierson Comm’n, United States Parole charged by who law ble to officers are Minnesota, (8th ‍‌‌​​‌​‌‌‌​​‌​‌‌‌‌​​‌​​‌‌​‌​​​​​​‌​‌‌​​‌​​​‌‌​​​​‍1979); Kelsey Cir. duty granting denying F.2d 507 n. Third prisoners manner in a which rehabilitates Circuit has held that board members prisoners protects society at have absolute from civil same time. If Parole Board members were “adjudicatory” for tions, exercise of their func- damages prisoner liable for dis- because a only for but a decision, agrees con- with their the threat of exercise functions.” litigation inhibiting “administrative have ef- stant would Burke, Thompson (3rd upon courageous 556 237-40 F.2d fect the free and exercise of duties, Johnson, (citations omitted). F.Supp. their Cir. Jones Cf. Muncy, (4th Douglas (E.D.Pa.1975) (parole See also F.2d 499 997 n. 4 Chew, 1978); (4th Pope Cir. 521 F.2d 400 have cers ary” absolute for “discretion- Skelton, 1975); Cir. Cruz v. only). functions 1974); v. Alabama of Pardons Cir. Paroles, Pate Bd. & (M.D.AIa.1976); F.Supp. supra. Gar 16. See note 6 Casson, F.Supp. (D.Del.1976); vey v. Procunier, (N.D. Fitzgerald F.Supp. 17. Id. Shields, 1975); F.Supp. Cal. Franklin v. superstructure, public’s right safety official’s function to would determining well in of im- become impossible. Furthermore, as almost munity. functionally If an official’s role is depositions spent time on the witness equivalent judge, to that of a the official defending stand their actions would leave granted equivalent immunity. bewill public these overburdened servants with perform even less to their time crucial parole We believe that board officials tasks. functionally comparable tasks to perform they judges grant, deny, decide to sure, To absolutе for parole. daily task of both revoke parole board officials does leave the genu judges parole board officials is the ad- inely prisoner wronged civil without redress judication specific cases or controversies. the official whose malicious or dis duty Their is often same: render deprive prisoner honest actions of liber impartial decisions cases and controver- ty. qualifying But would strong feelings sies that excite because the public disservе the broader interest. litigant’s They is at liberty stake. face the case, “As is so often the answer must risk of constant unfounded suits same a found in balance between the disappointed by parole those board’s evils inevitable in either alternative. In decisions. this thought instance it has been . . . better Judges enjoy wrongs leave unredressed the' done keep judi- order to subject dishonest officers than to decision-making process pristine. cial As who try duty to do their constant earlier, expect require noted we dread of retaliation.” impartial to be an fact finder. When case, weighs he or she the merits of a we do Imbler v. 424 U.S. at want tipped not the scales to be fear of Biddle, S.Ct. at quoting Gregoire v. litigation. The adjudicatory process simply (2d 1949), denied, F.2d adjudicator could not work if the had to 94 L.Ed. 1363 anticipate possible every a lawsuit from dis- petitioner the fact Finally, can litigant. satisfied not bring a 1983 suit against California Authority does leave him We believe that the same totally unprotected capricious or arbi protection must be accorded decision- trary law, decisions. Under California a making process parole board officials. prisoner serving an indeterminate term is process Just as the decision-making upper to have the limits of the fear, kept must be free from so must term length proportionate at a pris board officials. Without this oner’s culpability, individual and to chal protection, is danger there the same lenge length of the term way of might the decision-maker impartially ************18 corpus.5 prisoner habeas right adjudicate the often difficult cases that to apply and to due consideration come before them. If board officials and, of the application,19 if had to is anticipate they reject- that each time right a to a statement prisoner’s application why20 of reasons parole, ed periodic would have to defend that reconsideration of the decision feder- denial.21 court, already set, al task Once a date prisoner difficult of bal- ancing the risk releasing pris- involved in entitled to routine reviews his or her oner whose rehabilitation is uncertain conduct if determine the date See, Rodriquez, Sturm, re Cal.3d P.2d re 11 Cal.3d 521 P.2d Cal.Rptr. Cal.Rptr. Minnis, Schoengarth, In 19. re 66 Cal.2d 21. P.2d re Cal.3d 498 P.2d Cal.Rptr. Cal.Rptr. that such We believe be advanced.22 should right to habeas especially the

safeguards, relief, protect peti- are sufficient

corpus rights.

tioner’s constitutional

AFFIRMED.

BLUMENFELD, Judge, District concur-

ring specially: in the result.

I concur NORTHWEST, INC., Ernest F.

HINKLE

Hinkle, T. LaMear and Dennis ‍‌‌​​‌​‌‌‌​​‌​‌‌‌‌​​‌​​‌‌​‌​​​​​​‌​‌‌​​‌​​​‌‌​​​​‍Kenneth Petitioners, Reiter,

B. AND EXCHANGE

SECURITIES

COMMISSION, Respondent.

No. 79-7005. Appeals,

United States Court

Ninth Circuit.

Argued and Jan. 1981. Submitted April

Decided Stanley, Cal.App.3d re 126 Cal. Rptr.

Case Details

Case Name: John Houston Sellars v. Raymond K. Procunier

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 9, 1981

Citation: 641 F.2d 1295

Docket Number: 78-1120

Court Abbreviation: 9th Cir.