Omar Gay v. Jennifer Shaffer ( 2020 )

NOT FOR PUBLICATION FILED
DEC 16 2020
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OMAR SHARRIEFF GAY, No. 20-15249
Plaintiff-Appellant, D.C. No. 2:19-cv-01471-TLN-AC
v.
MEMORANDUM*
JENNIFER SHAFFER, Secretary, Board of
Parole Hearings; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted December 2, 2020**
Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.
California state prisoner Omar Sharrieff Gay appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional
claims related to parole hearings. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo a dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
F.3d 443, 447 (9th Cir. 2000). We affirm.
The district court properly dismissed Gay’s claims for damages against
defendants in their official capacities as barred by the Eleventh Amendment. See
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (“[A] suit against a
state official in his or her official capacity is not a suit against the official but rather
is a suit against the official’s office.”); Krainski v. Nev. ex. rel. Bd. of Regents of
Nev. Sys. of Higher Educ., 616 F.3d 963, 967 (9th Cir. 2010) (“The Eleventh
Amendment bars suits against the State or its agencies[.]” (citation and internal
quotation marks omitted)); Brown v. Cal. Dep’t of Corrs., 554 F.3d 747, 752 (9th
Cir. 2009) (applying bar to action against California Department of Corrections
and California Board of Prison Terms).
The district court properly dismissed Gay’s claims for damages against
defendants in their individual capacities because defendants are entitled to absolute
immunity. See Sellers v. Procunier, 641 F.2d 1295, 1302-03 (9th Cir. 1981)
(explaining that absolute immunity applies to parole board officials’ decisions to
grant, deny, or revoke parole).
The district court properly dismissed Gay’s claims for prospective
declaratory and injunctive relief against defendants because Gay failed to allege
facts sufficient to show that defendants violated his constitutional rights. See Cal.
Penal Code §§ 3041.5(b)(1), (b)(3) (decision to grant or deny parole lies within the
2 20-15249
discretion of the Board of Parole Hearings; setting forth deferment periods for
parole hearings without regard to the nature of the underlying conviction).
The district court did not abuse its discretion in denying Gay’s motion for
transfer of venue. See 28 U.S.C. § 1404(a); Jones v. GNC Franchising, Inc., 211
F.3d 495, 498-99 (9th Cir. 2000) (setting forth standard of review and factors to
weigh in determining whether transfer is appropriate in a particular case).
We reject as without merit Gay’s contention that the magistrate judge erred
by entering findings and recommendations for the district judge’s consideration.
See 28 U.S.C. § 636(b) (magistrate judge shall file proposed findings and
recommendations to which a party may file written objections; district judge shall
make a de novo determination accepting, rejecting, or modifying the findings or
recommendations).
Gay’s motion to proceed in forma pauperis (Docket Entry No. 4) is denied
as unnecessary.
All other pending motions and requests are denied.
AFFIRMED.
3 20-15249