Brown v. California Department of Corrections ( 2009 )

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).