Dallin Fort v. State of Washington

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DALLIN FORT, No. 21-35265
Plaintiff-Appellant,
D.C. No.
v. 4:20-cv-05053-TOR
STATE OF WASHINGTON;
WASHINGTON STATE OPINION
DEPARTMENT OF
CORRECTIONS, a political
subdivision and agency of the
State of Washington; KECIA
L. RONGEN, wife and the
marital community composed
thereof; JOHN DOE RONGEN,
husband and marital
community composed
thereof; JEFF PATNODE,
husband and the martial
community composed
thereof; JANE DOE PATNODE,
wife and the martial
community composed
thereof; LORI RAMSDELL-
GILKEY, wife and the marital
community composed
thereof; JOHN DOE
RAMSDELL-GILKEY, husband
and the marital community
composed thereof; ELYSE
2 FORT V. STATE OF WASHINGTON
BALMERT, wife and the
marital community composed
thereof; JOHN DOE BALMERT,
husband and the marital
community composed
thereof; IRENE SEIFERT, wife
and the marital community
composed thereof; JOHN DOE
SEIFERT, husband and the
marital community composed
thereof; INDETERMINATE
SENTENCE REVIEW BOARD, a
political subdivision and
agency of the State of
Washington and Washington
Department of Corrections,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, District Judge, Presiding
Argued and Submitted February 18, 2022
San Francisco, California
Filed July 26, 2022
FORT V. STATE OF WASHINGTON 3
Before: Ronald M. Gould and Johnnie B. Rawlinson,
Circuit Judges, and Jennifer G. Zipps,* District Judge.
Opinion by Judge Rawlinson
SUMMARY**
Prisoner Civil Rights
The panel affirmed the district court’s dismissal of an
action alleging false imprisonment, negligence and civil
rights violations arising from actions taken by the
Washington Indeterminate Sentencing Review Board in
scheduling plaintiff’s hearing.
The Indeterminate Sentencing Review Board is a parole
board created by the Washington State Legislature that is
tasked with reviewing the sentences of convicted sex
offenders to determine whether the offenders should be
released on parole. The panel held that under the facts of this
case and in the context of the proceedings as a whole, the
Review Board’s setting of hearings pursuant to Wash. Rev.
Code § 9.95.420 was “part and parcel of the decision
process,” thereby warranting quasi-judicial immunity. The
panel rejected plaintiff’s contention that the scheduling of the
hearing was an administrative task not entitled to quasi-
*
The Honorable Jennifer G. Zipps, United States District Judge for
the District of Arizona, 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.
4 FORT V. STATE OF WASHINGTON
judicial immunity. Because the panel agreed with the district
court that the Review Board was entitled to quasi-judicial
immunity, plaintiff was unable to state a plausible claim for
relief against the state defendants.
COUNSEL
Spencer Babbitt (argued), The Appellate Law Firm, Seattle,
Washington, for Plaintiff-Appellant.
Jacob E. Brooks (argued), Assistant Attorney General;
Robert W. Ferguson, Attorney General; Washington Attorney
General’s Office, Spokane, Washington; for
Defendants-Appellees.
OPINION
RAWLINSON, Circuit Judge:
This case requires us to consider whether the scheduling
of a hearing by the Indeterminate Sentencing Review Board
(Review Board) as mandated by statute is sufficiently
intertwined with judicial decisionmaking that the scheduling
of the hearing falls within the ambit of quasi-judicial
immunity.
Plaintiff-Appellant Dallin Fort (Fort) brought this action
against the State of Washington, the Review Board, and its
members (State Defendants). Fort specifically seeks review
of the district court’s decision that the Review Board’s
“actions relating to [Fort’s] release determination hearing fall
squarely within the quasi-judicial nature of the [Review
FORT V. STATE OF WASHINGTON 5
Board’s] functions,” and that defendants are entitled to
quasi-judicial immunity. We have jurisdiction under
28 U.S.C. § 1291, and we affirm the district court’s decision
granting the State Defendants’ motion to dismiss brought
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Review Board is a parole board created by the
Washington State Legislature comprised of five members
appointed by the Governor. See Wash. Rev. Code
§§ 9.95.002; 9.95.003. The Review Board is tasked with
reviewing the sentences of convicted sex offenders to
determine whether the offenders should be released on parole.
See Wash. Rev. Code § 9.95.420. The Review Board is
directed by statute to conduct a review and hearing “to
determine whether it is more likely than not that the offender
will engage in sex offenses if released on conditions to be set
by the board.” Id. at § 9.95.420(3)(a).
If an offender’s minimum term has expired or will expire
within 120 days of arrival at a Department of Corrections
facility, the Review Board is required to conduct its
determination hearing “no later than one hundred twenty days
after the offender’s arrival at [that] facility.” Id. at
§ 9.95.420(3)(b).
Fort was convicted of two counts of rape of a child in the
first degree, and was sentenced to a minimum term of 132
months in prison and a maximum of life. The Washington
Court of Appeals affirmed his conviction, but reversed his
sentence and remanded for resentencing. The trial court
resentenced Fort to a minimum of 108 months in prison and
6 FORT V. STATE OF WASHINGTON
a maximum of life. Fort filed a second notice of appeal, and
a personal restraint petition, which was stayed by the Court
of Appeals.
In 2014, after a hearing held in accordance with RCW
9.95.420, the Review Board determined that Fort should not
be released, and added 60 months to his minimum term. In
2015, the Court of Appeals granted Fort’s personal restraint
petition (after having previously stayed it), vacated judgment,
and remanded for a new trial, following which Fort was again
convicted in 2017.
Following his second conviction, Fort was sentenced to a
minimum of 120 months in prison with credit for time served,
and transferred to Washington Corrections Center in Shelton,
Washington. In his complaint, Fort alleged that at that point
he had already served over 120 months in prison and the
governing statute mandated that a hearing before the Review
Board be scheduled no later than “on or about” October 20,
2017. The Review Board held its hearing on July 25, 2018,
and issued a final decision on August 14, 2018,
recommending Fort’s release. The parties agree that Fort was
released in 2018.
After his release, Fort brought this action against the State
Defendants asserting claims for false imprisonment,
negligence, and civil rights violations. The State Defendants
moved to dismiss on the basis of quasi-judicial immunity.1
1
It is important to note that because Fort was apparently released in
2018, and did not bring this action until 2020, he had no viable claim for
prospective injunctive relief. See Harris v. Itzhaki, 183 F.3d 1043, 1050
(9th Cir. 1999). Thus, our analysis does not address, or opine on, the
effect a potential claim for prospective injunctive relief would have on the
availability of quasi-judicial immunity. But see Taggart v. State, 822 P.2d
FORT V. STATE OF WASHINGTON 7
Specifically, the State Defendants argued that because they
were entitled to quasi-judicial immunity, Fort was unable to
state a plausible claim for relief. Rejecting Fort’s argument
to the contrary, and granting quasi-judicial immunity, the
district court concluded that “[b]ecause the hearing date, the
calculation of [Fort’s] minimum sentence and the ultimate
decision whether and when to release [Fort] are intertwined,
the act of setting the hearing date [was] not purely
administrative.” The district court relied on Washington
precedent holding that “statutorily imposed actions which are
so closely related to the judicial or quasi-judicial process
must be protected by immunity.” Fort filed this timely appeal
of the district court’s decision.
II. STANDARD OF REVIEW
We review de novo an order granting a motion to dismiss
for failure to state a claim under Fed. R. Civ. P. 12(b)(6). See
Depot, Inc. v. Caring for Montanans, 915 F.3d 643, 652 (9th
Cir. 2019). We must determine whether, taking the
allegations in the complaint as true, and construing them “in
the light most favorable” to Fort, the district court erred in
concluding that Fort failed to state a plausible claim for relief.
Kwan v. SanMedica Int’l, 854 F.3d 1088, 1096 (9th Cir.
2017) (citation omitted).
243, 247 (Wash. 1992) (en banc) (noting that “judicial immunity is not a
bar to . . . prospective injunctive relief”) (citation omitted); Malik v.
Morgan, Case No. 3:17-CV-05875-RBL, 2018 WL 1963797, at *3 (W.D.
Wash. Apr. 26, 2018) (recognizing that “immunity does not apply to . . .
injunctive claims”).
8 FORT V. STATE OF WASHINGTON
III. DISCUSSION
The parties agree that the State Defendants are entitled to
quasi-judicial immunity for the discretionary actions and
decisions linked to the actual sentencing determination. But,
Fort contends that the motion to dismiss was improvidently
granted because the scheduling of Fort’s hearing does not
qualify for quasi-judicial immunity, as scheduling is an
“administrative task.”
Authority in both the State of Washington and this Court
supports the agreed-upon principle that a sentencing review
board, or a parole board, is generally entitled to quasi-judicial
immunity for judicial-related actions. See Taggart v. State,
822 P.2d 243, 248–49 (Wash. 1992) (en banc); see also
Plotkin v. State Dept. of Corr., 826 P.2d 221, 223 (Wash.
App. 1992); Sellars v. Procunier, 641 F.2d 1295, 1302–03
(9th Cir. 1981).
More broadly, “we have extended absolute quasi-judicial
immunity” to “non-judicial officers for purely administrative
acts—acts which taken out of context would appear
ministerial, but when viewed in context are actually a part of
the judicial function.” Castillo v. Castillo (In re Castillo),
297 F.3d 940, 952 (9th Cir. 2002), as amended (citation
omitted) (emphases added). In Castillo, a Bankruptcy
Trustee miscalendered a bankruptcy confirmation hearing
without notice to the debtor of the rescheduled date, resulting
in the debtor’s home being sold. See id. at 943–44. Castillo
successfully sought leave in the bankruptcy court to bring an
action against the Trustee. See id. at 944. The Bankruptcy
Appellate Panel (BAP) affirmed the bankruptcy court in part
and reversed the bankruptcy court in part. See id. at 943. The
BAP agreed that the Castillo action could proceed against the
FORT V. STATE OF WASHINGTON 9
Trustee for failure to give notice of the rescheduled hearing
date. See id. at 944. However, the BAP held that Castillo’s
action could not proceed against the Trustee for damages
related to the miscalendaring because that action was
protected by quasi-judicial immunity. See id. at 943–44. We
reversed the BAP’s denial of quasi-judicial immunity for
failure to give notice of the rescheduled hearing date, holding
that “the scheduling of hearings by the bankruptcy trustee is
a discretionary function protected by absolute immunity.” Id.
at 951. We determined that the “purely ministerial act[]” of
failing to give notice of the hearing was similarly protected.
Id. at 947, 953. We reasoned that “[b]oth the scheduling and
giving of notice of hearings are part of the judicial function
of managing the bankruptcy court’s docket in the resolution
of disputes.” Id. at 951 (emphasis added). We noted the
“uniform[ity] among the circuit courts” that have reached this
issue. Id. We specifically cited with approval the Seventh
Circuit’s decision in Wilson v. Kelkhoff, 86 F.3d 1438, 1444
(7th Cir. 1996). See id. at 952.
In Wilson, the plaintiff filed a complaint under 42 U.S.C.
§ 1983 against an employee of the Illinois Department of
Corrections and three members of the Illinois Prisoner
Review Board, alleging violations of his due process rights
during revocation of his supervised release. See 86 F.3d at
1440. Wilson enumerated the violations as: (1) failure to
provide adequate notice; (2) failure to provide an opportunity
to present evidence and witnesses; (3) failure to adequately
explain that the hearing was final; and (4) failure to provide
adequate written notice of the reasons for the revocation. See
id. at 1444. Wilson maintained that “the board members
should not be accorded absolute immunity for any of these
acts because the acts were not discretionary, but involved
simple compliance with the law.” Id. (internal quotation
10 FORT V. STATE OF WASHINGTON
marks omitted) (emphasis added). The Seventh Circuit
concluded that, despite the argument that the Board lacked
discretion to deny or postpone the hearing, Board members
were protected by immunity, as was the case for the
“scheduling failure in Thompson.”2 Id. at 1444–45.
The Seventh Circuit determined that “activities that are
inexorably connected with the execution of parole revocation
procedures and are analogous to judicial action invoke
absolute immunity.” Id. at 1444 (citation and internal
quotation marks omitted) (emphasis added). The Court
clarified that it is “not only the actual decision to revoke
parole” that is protected by judicial immunity, “but also
activities that are part and parcel of the decision process.”
Id. (citation omitted) (emphasis added). The Seventh Circuit
explicated that “judicial acts that are part of the judicial
function are [not] excluded from absolute immunity because
they could be characterized as nondiscretionary or even
ministerial.” Id. (emphasis added). Instead, the Seventh
Circuit reiterated its analysis from Thompson, 882 F.2d at
1184,3 “that conduct deserving of protection includes not only
actual decisions, but also those mundane, even mechanical,
tasks undertaken by judges that are related to the judicial
process: The fact that the activity is routine or requires no
adjudicatory skill renders that activity no less a judicial
function.” Id. at 1444–45 (citation, alteration, and internal
2
Thompson v. Duke, 882 F.2d 1180 (7th Cir. 1989), involved a
“failure to schedule and conduct a timely parole violation hearing.”
3
The Seventh Circuit reasoned in Thompson that “[i]n the continuum
of judicial proceedings some judicial acts require extensive exercise of a
judge’s decision-making skills and others do not—yet all such acts make
up the judicial function regardless of their isolated importance.” 882 F.2d
at 1184.
FORT V. STATE OF WASHINGTON 11
quotation marks omitted) (emphases added). We adhere to
our holding in Castillo and continue to be persuaded by the
Seventh Circuit’s reasoning in Wilson and Thompson.
We are not persuaded that the Supreme Court’s holding
in Antoine v. Byers & Anderson, Inc., 508 U.S. 429 (1993),
dictates a different outcome. In Antoine, a court reporter was
tasked with providing a “verbatim transcript” of a two-day
criminal jury trial. See id. at 430–31. As a result of her
extensive delay in providing the transcript, Antoine’s appeal
was not heard until four years after his conviction. See id. at
431. Antoine’s subsequent legal action against the court
reporter and her firm was rejected by the district court and
this court on the basis of absolute immunity. See id. at
431–32. The Supreme Court reversed, see id. at 438,
explaining that a court reporter’s singular duty of creating a
verbatim transcript of proceedings is not “functionally
comparable” to a judge’s duty. Id. at 436. Rather, the duty
of a court reporter is purely ministerial and non-discretionary,
not requiring “the kind of judgment that is protected by the
doctrine of judicial immunity.” Id. at 436–37.4
This distinction between a court reporter, whose main
duty is the creation of a verbatim transcript, and parole board
officials, who have consistently been recognized by courts as
“perform[ing] functionally comparable tasks to judges” is
important. Sellars, 641 F.2d at 1303; see also Wilson, 86
F.3d at 1444 (rejecting Wilson’s reliance on Antoine).
4
We repeat the Supreme Court’s important pronouncement that
“[w]e do not mean to suggest that [a court reporter’s] task is less than
difficult, or that reporters who do it well are less than highly skilled. But
the difficulty of a job does not by itself make it functionally comparable
to that of a judge.” Antoine, 508 U.S. at 436 (citation omitted).
12 FORT V. STATE OF WASHINGTON
Indeed, members of the Review Board perform a plethora of
discretionary tasks comparable to that of a judge, including:
(1) “consider[ing] the department’s recommendations”;
(2) “contract[ing] for additional, independent examination”
of the offender; (3) “conduct[ing] a hearing to determine
whether it is more likely than not that the offender will
engage in sex offenses if released”; (4) “impos[ing]
conditions in addition to those recommended by the
department”; and (5) establishing “a new minimum term” if
the offender is not released. Wash. Rev. Code
§ 9.95.420(1)–(4).
Another crucial distinction exists between an
administrative act unrelated to a judicial function (i.e., a
judge firing a probation officer, see Forrester v. White, 484
U.S. 219, 220–21 (1988)), and an administrative act
“inexorably connected” with a judicial function (i.e.,
scheduling a hearing, see Wilson, 86 F.3d at 1444). Although
scheduling a hearing may be characterized by some as
“mechanical or routine,” the fact that scheduling a hearing is
an “integral judicial . . . function” places it within the realm
of activities protected by quasi-judicial immunity.
Thompson, 882 F.2d at 1184–85.
In Castillo, we took the opportunity to point out that our
application of quasi-judicial immunity to administrative acts
post-dated Antoine. See 297 F.3d at 952. Indeed, we
emphasized that if “purely administrative acts . . . when
viewed in context are actually a part of the judicial function,”
“we have extended absolute quasi-judicial immunity.” Id.
Under the facts of this case and in the context of the
proceedings as a whole, we conclude that the Review Board’s
setting of hearings pursuant to Wash. Rev. Code § 9.95.420FORT V. STATE OF WASHINGTON 13
is “part and parcel of the decision process,” thereby
warranting quasi-judicial immunity. Wilson, 86 F.3d at 1444.
IV. SUMMARY
Because we agree with the district court that the Review
Board is entitled to quasi-judicial immunity, Fort is unable to
state a plausible claim for relief against the State Defendants.
See Castillo, 297 F.3d at 952; see also Kwan, 854 F.3d at
1096 (discussing the standard for surviving a motion to
dismiss for failure to state a plausible claim).
AFFIRMED.