United States District Court, D. Montana, Missoula Division
DONALD W. MOLLOY, District Judge.
Plaintiff Cody William Marble brings this action under 42 U.S.C. § 1983 against two parole officers, Jared Poole and Heather Smith, asserting violations of his due process and First Amendment rights under the United States Constitution. Poole and Smith have filed motions for summary judgment. (Docs. 23, 26.) Magistrate Judge Jeremiah Lynch entered Findings and Recommendations on February 27, 2015, recommending that both motions be granted. (Doc. 38.) Marble's timely objections to the findings and recommendations, (Doc. 39), are reviewed de novo, 28 U.S.C. § 636(b)(1).
Marble makes the following objections: (1) that Smith is not entitled to absolute quasi-judicial immunity; (2) that Poole and Smith cannot escape liability for their alleged failure to adequately notify Marble's witnesses of the time and place of his preliminary on-site hearing; (3) that Poole and Smith are not entitled to qualified immunity for allegedly failing to provide a prompt preliminary hearing; and (4) that Poole is not entitled to qualified immunity on Marble's First Amendment retaliation claim. (Doc. 39.) For the reasons stated below, Marble's first objection is sustained, and his third and fourth objections are overruled. Marble's second objection is sustained to the extent that the issue is referred back to Judge Lynch to prepare further findings and recommendations. Additionally, Defendants' post-deprivation remedy argument is also referred back to Judge Lynch to review in the first instance.
I. Absolute Quasi-Judicial Immunity
Marble objects to the conclusion that Smith is entitled to absolute quasi-judicial immunity. (Doc. 39 at 1-2.) Judges are entitled to absolute immunity when acting in a judicial capacity. Meek v. Cnty. of Riverside, 183 F.3d 962, 965 (9th Cir. 1999) (citing Mireles v. Waco, 502 U.S. 9, 11-12 (1991)). Non-judicial officers may be entitled to absolute quasi-judicial immunity for decisions they make while acting in a quasi-judicial capacity, if their judgments are "functionally comparable' to judges in that they "exercise a discretionary judgment' as part of their function." Swift v. California, 384 F.3d 1184, 1188 (9th Cir. 2004) (quoting Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 436 (1993)). With respect to non-judicial officers, courts apply a presumption in favor of qualified immunity as opposed to absolute immunity. Burns v. Reed, 500 U.S. 478, 486-87 (1991). The proponent of a claim to absolute immunity "bears the burden of establishing the justification" for absolute immunity. Antoine, 508 U.S. at 432.
In Antoine, the United States Supreme Court held that a court reporter's task of providing a verbatim transcript is not entitled to absolute quasi-judicial immunity under the "functional approach" because a court reporter is "afforded no discretion in the carrying out of this duty." Id. at 436. The Court reiterated its holding in Burns that the "touchstone" for the functional approach is "performance of the function of resolving disputes between parties, or of authoritatively adjudicating private rights.'" Id. at 435-36 (quoting Burns, 500 U.S. at 500). However, the Court in Antoine "worked a sea change" in how absolute immunity is analyzed by holding that the proper inquiry is whether an official is performing a duty "functionally comparable to one for which officials were rendered immune at common law.'" Swift, 384 F.3d at 1190 (quoting Miller v. Gammie, 335 F.3d 889, 897 (9th Cir. 2003) (en banc)).
In cases decided prior to the "sea change" in Antoine, the Fifth Circuit and the Seventh Circuit both held that preliminary hearing officers are entitled to absolute quasi-judicial immunity. Farrish v. Miss. State Parole Bd., 836 F.2d 969, 975-76 (5th Cir. 1988); Trotter v. Klincar, 748 F.2d 1177, 1181-82 (7th Cir. 1984). However, these cases did not analyze, as subsequently required by Antoine, whether the function performed by the preliminary hearing officers were functionally comparable to those granted immunity at common law. Antoine, 508 U.S. at 432-33.
Since Antoine, the Ninth Circuit has held that parole board members are entitled to absolute quasi-judicial immunity when they make decisions to "grant, deny, or revoke parole." Swift, 384 F.3d at 1189 (citing Anderson v. Boyd, 714 F.2d 906, 909-10 (9th Cir. 1983)). And parole officers are entitled to absolute quasi-judicial immunity for actions "integrally related to an official's decision to grant or revoke parole." Id. (citing Anderson, 714 F.2d at 909). However, parole officers'"conduct arising from their duty to supervise parolees" is not entitled to quasi-judicial immunity. Id. In analyzing claims of absolute quasi-judicial immunity, courts have carefully drawn a line between adjudicatory acts on the one hand and administrative acts on the other. Parole officers performing administrative acts are not entitled to absolute quasi-judicial immunity. Anderson, 714 F.2d at 910 ("dissemination of information outside... the parole board" is an administrative act); Swift, 384 F.3d at 1191 (administrative acts include "(1) investigating parole violations, (2) ordering the issuance of a parole hold..., and (3) recommending the initiation of parole revocation proceedings.").
Smith is not entitled to absolute quasi-judicial immunity. The key inquiry for the functional approach is whether the specific conduct complained of is adjudicatory in nature. Antoine, 508 U.S. at 435-36. Marble does not allege that Smith's adjudicatory role-her probable cause determination-caused him harm. Rather, Marble alleges that his due process rights were violated when Smith and Poole "failed to make Leann Dontigny available" and "failed to contact or allow [him] to present witnesses" at the September 22, 2011 hearing. (Amend. Compl., Doc. 20 at 7.) The act of contacting witnesses is not functionally comparable to an adjudicatory act undertaken by a judge. Instead, contacting witnesses is more similar to "dissemination of information" and "aris[es] from [the] duty to supervise parolees, " both of which the Ninth Circuit has held to be administrative acts. Anderson, 714 F.2d at 910; Swift, 384 F.3d at 1191. Further, Smith bears the burden of establishing that absolute quasi-judicial immunity applies. Antoine, 508 U.S. at 432. Smith has not argued that her act of contacting witnesses is functionally comparable to "the immunity historically accorded the relevant official at common law." Id. Consequently, Smith is not entitled to absolute quasi-judicial immunity for the administrative act of attempting to contact witnesses. Marble's objection is sustained.
II. Qualified Immunity
To determine whether an official is entitled to qualified immunity from civil lawsuits, courts ask two questions. First, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201 (2001) (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)). Second, was the right "clearly established?" Id. If an officer's conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known, '" then the ...