NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OMAR SHARRIEFF GAY, 

Plaintiff-Appellee, 

 v. 

AMY PARSONS, Senior Psychologist; 

GREGORY S. GOLDSTEIN, Psychologist, 

Defendants-Appellants, 

and 

JENNIFER SHAFFER, Secretary, Board of 

Parole Hearings; CLIFF KUSAJ, Chief 

Psychologist, 

Defendants.

No. 19-16662 

D.C. No. 3:16-cv-05998-CRB 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted June 11, 2020

San Francisco, California

Before: M. SMITH and HURWITZ, Circuit Judges, and EZRA,** District Judge.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable David A. Ezra, United States District Judge for the 

District of Hawaii, sitting by designation.

FILED

JUN 22 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

In this 42 U.S.C. § 1983 action, Omar Gay, a California state prisoner, alleged 

in a pro se complaint that Amy Parsons and Gregory Goldstein, psychologists with 

the California Board of Parole Hearings (“BPH”), issued a negative report about him 

in advance of a parole board hearing because of his race and religion. Parsons and 

Goldstein (collectively, the “psychologists”) appeal from the district court’s denial 

of their motion for judgment on the pleadings seeking quasi-judicial absolute 

immunity. We have jurisdiction under 28 U.S.C. § 1291 and affirm. 

Non-judicial “officials performing the duties of advocate or judge may enjoy 

quasi-judicial immunity for some functions.” Swift v. California, 384 F.3d 1184, 

1188 (9th Cir. 2004) (cleaned up). But not all “actions taken with court approval or 

under a court’s direction are . . . in and of themselves entitled to quasi-judicial, 

absolute immunity.” Miller v. Gammie, 335 F.3d 889, 897 (9th Cir. 2003) (en banc). 

Instead, under the “functional approach” adopted by the Supreme Court in Antoine 

v. Byers & Anderson, Inc., 508 U.S. 429, 437 (1993), the “relevant test now is 

whether the 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, 335 F.3d at 897). “The proponent of a claim to absolute immunity bears the 

burden of establishing the justification for such immunity.” Antoine, 508 U.S. at 

432. “The presumption is that qualified rather than absolute immunity is 

sufficient. . . .” Burns v. Reed, 500 U.S. 478, 486 (1991).
3 

Applying the teaching of Antoine, we have held that “parole officers are not 

entitled to absolute immunity for conduct taken outside an official’s adjudicatory 

role,” such as when “performing investigatory or administrative functions.” Swift,

384 F.3d at 1191 (cleaned up). Gay’s pro se complaint describes the psychologists’

responsibilities as merely providing information to the “BPH Panel” empowered to 

decide whether to grant or deny parole. The district court thus properly found 

absolute immunity unavailable to the psychologists at the pleading stage, noting that 

Gay had alleged that they “did not participate in the parole hearing—the most judgelike component of the parole process . . . but rather a fact-gathering process similar 

to that of a police officer.” In affirming, we “intimate no view on [the 

psychologists’] entitlement to immunity, should the evidence show the facts to be 

other than as pleaded.” Id. at 1193 n.7. 

AFFIRMED.