FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

D A L L I N F O R T , P laintiff-Appellant
,

v.

S T A T E O F W A S H I

N G T ON ; W A S H I N G T ON S T A T E D E P A R T M E N T O F C O R R E C T I O N S , a political subdivision and agency of the State of W ashington; K E C I A L. R ON G E

N , wife and the

m arital com m

unity com

p osed thereof; J O H

N D O E R O

N G E N , husband and m arital

comm unity com

posed thereof; J E F F P A T

N O D E , husband and the m artial

comm unity com

posed thereof; J A

N E D O E P A T

N O D E , wife and the m artial

comm unity com

posed thereof; L O R

I R AM S D E L L

G I L K E Y , wife and the m arital

comm unity com

posed thereof; J O H

N D O E R AM S D E L L -G I L K

E Y , husband and the m arital com m

unity

com p osed thereof; E L Y S E No. 21-35265

D.C. No. 4:20-cv-05053-TOR

OPINIONF O R T V

. S T A T E O F W A S H I N G T ON 2

B A L M E R

T , wife and the

m arital com m

unity com

p osed thereof; J O H

N D O E B AL M E R

T , husband and the m arital

comm unity com

posed thereof; I R

E N E S E I F E R

T , wife and the m arital com m

unity

com p osed thereof; J O H

N D O E S E I F E R T , husband and the

m arital com m

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p osed thereof; I N D E T E R

M I N A T E S E N T E N C E R E V I E W B O A

R D , a political subdivision and agency of the State of W ashington and W ashington Departm ent of Corrections, Defendants-Appellees

.

Appeal from

the United States District Court for the Eastern District of W ashington Thom as O. Rice, District Judge, Presiding

Argued and Subm itted February 18, 2022 San Francisco, California

Filed July 26, 2022F O R T V

. S T A T E O F W A S H I N G T ON 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 affirm ed the district court’s dism issal of an action alleging false im p risonm ent, negligence and civil rights violations arising from actions taken b y t he W ashington Indeterm ina te Sentencing Review Board in scheduling plaintiff’s hearing.

The Indeterm i n a t e Sentencing Review Board is a parole board created by the W ashington State Legislature that is tasked with reviewing t he sentences of convicted sex offenders to determ ine whether the offenders should be released on parole. The panel held that under the facts of this

case and in the context of the proceeding s a s a whole, the Re v i e w Board’s setting of hearings pursuant to W ash. R ev. Code § 9 .95.420 was “part and parcel of the decision process,” thereby warranting quasi- judicial imm

unity. The panel rejected plaintiff’s contention that the scheduling of the hearing wa s a n adm inistrative task not entitled to quasi-

* The H o n o rable Jennifer G. Zipps, United States District Judge f o r the District of Arizona, sitting by designation.

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.F O R T V

. S T A T E O F W A S H I N G T ON 4
judicial imm

unity. B ecause the panel agreed with the district court that the Review Board was entitled to quasi-jud i c i al imm unity, plaintiff was un able to state a plausible claim for relief against the state defendants.

C OUNSEL

Spencer Babbitt (argued), The Appellate Law Firm
, S eattle, W ashington, for Plaintiff-Appellant.

Jacob E

. Brooks (argued), Assistant Attorney G ene ral; R o b ert W

. Ferguson, A tto rn e y G en eral; W ash i n g t o n A tto rn ey G e n e r a l ’ s O f f

i c e , S p o k a n e , W a s h i n g t o n ; f o r Defendants-Appellees.

OPINION

RAW LINSON, Circuit Judge:

This case requires us to consider whether the scheduling of a hearing by the Indeterm inate Sentencing Review Board (Review Board) a s m andated by statute is sufficiently intertwined with judicial decisionm aking that the scheduling of the hearing fal l s within the am bit of quasi-judicial imm unity.

Plaintiff-Appellant Dallin Fort (Fort) brought this action against the State of W ashin g t o n , t he Review Board, and its

m em bers (State Defendants). Fort specifically seeks review of the district c o u r t ’s decision that the Review Board’s “actions relating to [Fort’s] release determ ination hearing fall squarely within the q

uasi-jud i c i al nature of the [ReviewF O R T V

. S T A T E O F W A S H I N G T ON 5
Board’s] functions,” and that defendants are entitled to quasi-judicial imm

unity. W e have jurisdiction under 28 U.S.C. § 1 291, and we affirm the district court’s decision granting the State Defendants’ m otion to di s miss brought pursuant to Rule 12(b)(6) o f the Federal R ules o f Civil Procedure.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Review B oard is a parole board created b y the W ashington State L egislature com p ri s e d of five m em

bers appointed by the Governor. S e e W ash. Rev. Code §§ 9.95.002; 9.95.003. Th e Review Board is tasked with reviewing the sen t ences of convicted sex offenders to determ ine whether the offenders should be released o n p a ro l e. See W as h. Re v

. Code § 9.95.420. The Review Board is directed by s t atute to conduct a review and hearing “to determ ine whether it is m ore 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 m inimum term has expired or will expire within 1 20 days of arrival a t a Departm ent of Corrections facility, the Review B oard is required t o c o n duct its determ ination hearing “no later than one hundred twenty days after the offender’s arrival at [t h a t ] 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 m inimum term of 132

m onths in prison and a m aximum of life. The Wa s hi n g ton Court of Appeals affirm ed his conviction, but reversed his sentence and rem anded for resentencing. The tria l court resentenced Fort to a m inim um of 108 m onths in prison andF O R T V

. S T A T E O F W A S H I N G T ON 6

a m aximum of life. Fort filed a second notice of appeal, and

a personal restraint p e t i tion, which w as stayed by the Court of Appeals.

In 2014, after a hearing h eld in accordance with RCW 9.95.420, the Review Board determ ined that Fort should not b e released, and added 6 0 m o nths to his m inimum ter m. I n 2015, the Court o f Appe als granted Fort’s personal restraint petition (after h aving previously stayed it), vacated ju d g m ent, and rem anded for a new trial, following which Fort was again convicted in 2017.

Following his second conviction, F ort was sentenced to a
m inimum of 120 m onths in prison with credit for tim e served, and transferred to W ashington Corrections Center in Shelton, W ashington. In his com

plaint, Fort alleged that at that point he had a l r e ady served over 120 m onths in p rison and the governing statute m andated that a hearing before the Review Board be scheduled n o later than “on or about” October 20, 2017. The Review Bo a r d held its hearing on July 25, 2018, and issued a final decision on August 14, 2018,

recom m ending Fort’s release. The parties agree that Fort was released in 2018.

After his release, Fort brought this action against the State Defendants asserting cl a i m s for false im prisonm ent, negligence, and civil rights v iolations. The State Defendants

m ov e d t o dism iss on the basis of quasi-judicial imm unity. 1

1 It i s im portant to note that because Fort was apparently released in 2018, and did not bring this action until 2020, he had no viable claim f o r prospective injunctive relief. See H arris v. Itzhaki
, 183 F.3d 1043, 1050 (9th Cir. 1999). Thus, our analysis d oes n ot address, or opine on, the effect a potential claim for prospective injunctive relief would have o n the availability of quasi-judicial im m unity. But see Taggart v. State
, 822 P.2dF O R T V

. S T A T E O F W A S H I N G T ON 7
Specifically, t h e State Defendants argued that because they were entitled to quasi-judicial im m unity, Fort was unable to state a plausible claimfor relief. R eje c t i n g Fort’s argum ent to the contrary, and granting quasi-judicial imm u nity, the district court concluded that “[b]ecause the hearing date, the calculation of [Fort’s] m inimum sentence and the u l t imate decision w hether and when to release [Fort] are intertwined, the act o f setting the h earing d ate [wa s ] n ot purely adm inistrative.” The district court relied on W ashingt o n precedent holding that “statutorily im posed actions w hich are
so closely related to the judicial or quasi-judicial p r o c ess
m ust be protected by imm

unity.” Fort filed this tim ely appeal of the district court’s decision.

II. STANDARD OF REVIEW

W e review de novo an order granting a m otion to dism iss for f ailure 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). W e m

ust determ ine w hether, taking the allegations in the com

p laint as true, and construing them “in the light m o st favorable” to Fort, the district court erred in concluding that Fort failed to state a plausible claim f or relief. Kwan v. SanMedica Int’l
, 854 F.3d 1088, 1096 (9th Cir. 2017) (citation om itted).

243, 247 (W ash. 1992) (en banc) (noting that “judicial im m unity is not a bar to

. . . prospective inju n c tive relief”) ( citation om itted); Malik v. Morgan
, Case N o. 3:17-CV-05875-RBL, 2018 W L 1 963797, at *3 (W .D. W ash. Apr. 26, 2018) (recognizing that “im m unity does not apply to . . . injunctive claim s”).F O R T V

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III. DISCUSSION

The parties agree that the State Defendants are entitled to quasi-judicial imm

unity for the discretionary a c tions and decisions linked to the actual sentencing determ ination. But, Fort contends that the m o tion to dism iss was im providently g ranted because the scheduling of Fort’s hearing do e s n o t qualify for qu asi-judicial imm unity, as scheduling is an “adm inistrative task.”

Authority in both the State of W ashington and this Court support s th e agreed-upon principle that a sentencing review board, or a parole board, is generally entitled to quasi-judicial imm unity for judicial-related actions. See Taggart v. St at e , 822 P.2d 243, 248–49 (W ash. 1 992) ( e n banc); see also Plotkin v. St a te Dept. of Corr.
, 826 P .2d 2 21, 223 (W ash. App. 1 992 ) ; Sellars v. Procunier
, 641 F.2d 1 2 95, 1302–03 (9th Cir. 1981).

More broadly, “we h ave extended absolute quasi-judicial imm unity” to “non-judicial o fficers for purely administrative
acts —acts wh i c h taken out o f context would appear ministerial
, but when viewed in context are actually a part o f the judicial function.” Castillo v. Castillo ( In re Castillo ), 297 F.3d 9 40, 952 (9th C ir. 2002), as amended (citation

om itted) (em

phases ad de d). In Castillo
, a Bankruptcy Trustee m iscalendered a bankruptcy confirm ation heari n g without notice to the debtor of the rescheduled date, resulting in the debtor’s hom e being sold. See id

. at 943–44. C astillo successfully sought leave in the bankruptcy court to bring an action against the Trustee. See i d

. a t 944. The Bankruptcy Appellate Panel (BAP) affirm ed 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 theF O R T V

. S T A T E O F W A S H I N G T ON 9

Trustee for f

ailure to give notice of the rescheduled h e a r i ng date. See id

. at 944. However, the BAP held that Castillo’s action could not proceed against the Tru s tee for d am ages
r elated to the m iscalendaring because that action wa s protected by quasi-judicial imm unity. See id

. at 943–44. W e
r e v ersed the BAP’s denial of quasi-judicial imm unity fo r failure to g ive notice of the rescheduled hearing date, holding that “the scheduling of hearings b y the bankruptcy trustee is

a d iscretionary function protected by absolute imm unity.” Id

. at 951. W e determ ined that the “purely m inisterial act[]” of failing to give notice of the hearing was sim ilarly protected. Id

. at 947, 953. W e reasoned that “[b]oth the scheduling and giving o f notice of hearings are part of the ju d i c i al function of m anaging the bankruptcy court’s docket in the resolution of dispute s.” Id

. at 951 (em phasis added). W e noted the “uniform [ ity] am ong the circuit courts” that have reached this issue. Id

. W e specifically cited with approval the Se ve nth Circuit’s d ecision in Wilson v. K elkhoff
, 86 F.3d 1438, 1444 (7th Cir. 1996). See id

. at 952.

In Wilson
, the plaintiff filed a com plaint under 42 U.S.C. § 1983 against an em

ployee of the Illin ois Departm ent o f Corrections and three m em bers of the Illi n o is Prisoner Review B o ard, alleging violations of h is due process r ights during revocation of his supervis e d release. See 8 6 F.3d at 1440. W ilson enum erated the violations a s : ( 1 ) failure to provide adequate notice; (2) failure to provide an opportunity to p resent evidence and witnesses; (3) failure to adequately explain t h a t the hearing was final; and (4) failure to provide adequate written notice o f the reasons for the revocation. See id

. at 1 444. W ilson m aintained that “the board m em bers should not be accorded absolute imm unity f or an y of these acts because the acts were not discretionary, but i n v olved simple compliance with the law .” Id

. (internal quotationF O R T V

. S T A T E O F W A S H I N G T ON 10

m arks om itted) (em

p hasis added). The Seventh Ci rcuit concluded that, despite the argum ent that the Board l a c ked discretion to deny or p ostpone the hearing, Board m em bers

were protect e d b y imm unity, as was the case for the “scheduling failure in Thompson. ” 2 Id . at 1444–45.

The Se v e n t h Circuit determ ined that “activities that are inexorably connected with the execution of parole revocation procedu r e s and are analogous to judicial action invoke absolute imm

unity.” Id

. at 1444 (citation and in t e rnal quotation m arks o mi tted) (em phasis added). The Court clarified that it is “not o n ly the actual d ecision to revoke parole ” t h at is protected by judicial imm unity, “but also activities that are part a nd parcel of the decision p ro c e s s .” Id

. (citation om itted) (em

phasis added). The Seventh Circuit exp l i c a ted that “judicial acts that are part of the judicial function are [not] excluded from absolute imm unity because they could be char a c t e r ized as nondiscretionary or even ministerial .” Id

. ( em

phasis added). Instead, the Seventh Circuit reiterate d i t s analysis from Thompson
, 882 F.2d at 1 1 8 4
, 3 “that conduct deserving of protection includes n o t o n ly actual decisi ons, but also those mundane, even mechanical,
t a s k s undertaken by judges that are related to the judicial process: The fact that the activity i s r o utine or requires no adjudicatory skill renders that activity no les s a judicial fu n c ti on.” Id

. at 1444–45 (citation, alteration, and interna l

2 Thompson v. Duke
, 882 F.2d 1180 (7th Cir. 1 989 ), i n volved a “failure to schedule and conduct a tim ely parole violation hearing.”

3 The Seventh Circuit reasoned in Thompson that “[i]n the continuum of judicial proceedings som e judicial acts require extensive exercise of a judge’s decision-m aking skills and others do not—yet all such acts m ake up the judicial function regardless of their i solated im portance.” 882 F.2d at 1184.F O R T V

. S T A T E O F W A S H I N G T ON 11
quotation m arks om itted) (em phases added). W e adhere to

our hold in g i n Castillo and continue to be persuaded by the Seventh Circuit’s reasoning in Wilson and Thompson

.

W e are not per s uaded that the S uprem e Court’s holding in Antoine v. Byers & A nderson, Inc.
, 508 U.S. 4 2 9 ( 1993), dictates a different outcom e. In Antoine
, a court reporter was tasked with providing a “verbatim transcr i pt” of a two-day crim inal jury t rial. See id

. at 430–31. As a result of her extensive delay in providing the transcript, Antoine’s appeal

was not h eard until four years after his conviction. S ee id

. at 431. Antoine’s subsequent legal action against the court reporter and her firm was rejecte d b y t h e district court and this cou r t o n the basis o f absolute imm unity. See id

. at 431–32. The Suprem e Court reversed, se e i d

. at 438, explaining that a court reporter’s singular d uty of cre ating a verbatim transcript of proceedings is not “functionally

c o mparable” to a judge’s duty. Id

. at 436. R ather, the dut y of a court reporter is purely m inisterial and non-discretionary, not requiring “the kind of judgm ent that is protected by the doctrine of judicial im m

unity.” Id . at 436–37. 4

This d istinction b et ween a court reporter, whose m ain duty is the creation of a verbatim transcript, and parole board officials, who have consistently been recognized by courts as “perform [ ing] functionally com p a r able tasks to judges” is im p o r t a n t. Sellars
, 641 F.2d at 1303; see also Wilson
, 86 F.3 d at 1 444 (rejecting W ilson’s reliance on A ntoine )

.

4 W e repeat t h e Suprem e Court’s im portant pronouncem ent t hat “[w]e do not m ea n t o s u ggest that [a court reporter’s] task is less than difficult, or t

hat reporters who do it well are less than highly skilled. But the difficulty of a job does not by itself m ake it functionally com parable to that of a judge.” Antoine , 508 U.S. at 436 (citation om itted).F O R T V

. S T A T E O F W A S H I N G T ON 12

Indeed, m em

bers o f the Review Board perform a p lethora o f discretionary tasks com p arable to that of a judge, including: (1) “consider[ing] the departm e n t’s recom m endations”; (2) “contract[ing] for additional, independent exam inat ion” of the o ffender; (3) “conduct[ing] a hearing to determ ine whether it is m ore likely than not that the offen de r will engage in sex offe n s es if released”; (4) “im pos[ing] conditions in addition to those recom m ended by the d epartm ent”; and (5) establishing “a new m inimum term ” i f the offender is not released. W ash. Rev. Code § 9.95.420(1)–(4).

Another crucial d i s t inction exists between an adm inistrative act unre l a t e d to a judicial function ( i.e. , a judge firing a probation officer, see For r e ster v. White
, 484 U.S. 219, 220–21 ( 1 9 8 8 ) ), and an adm inistrative act “inexorably connected” with a judicial function ( i.e. , scheduling a h earing, see Wilson
, 86 F.3d at 1444). Although scheduling a hearing m a y b e characterized by som e as “m echanical or routine,” the fact that scheduling a hearing is

an “integral judicial

. . . f unction” p laces it within th e r ealm

o f ac t i v i ti e s p rotect e d by qu a s i- ju d i c i a l i mmun i t y

. Thompson
, 882 F.2d at 1184–85.

In Castillo
, we took the o pportunity to point out that our application of quasi-judicial imm unity to adm inistrative acts post-dated Antoine

. See 297 F.3d at 952. Indeed, we
e m phasized that if “purely adm inistrative acts

. . . when viewed in context are actually a part of the judicial function,” “we have extended absolute quasi-judicia l imm unity.” Id

. Under the f

acts of this case and in the conte x t of t he proceedings as a whole, we conclude that the Review Board’s setting of hearings pursuant to W ash. Rev. Code § 9

. 9 5

. 4 20F O R T V

. S T A T E O F W A S H I N G T ON 13

is “part and parcel of the decision process,” th ereby warranting quasi-judicial imm unity. Wilson
, 86 F.3d at 1444.

IV. SUMMARY

Because w e agree w ith the d istrict court that the Review Board is entitled to quasi-judicial imm unity, Fort is unable to state a plausible claim f

or relief against the State Defendants. S ee Castillo
, 297 F.3d at 9 52; see a lso Kwan
, 854 F.3d at 1096 (discussing the standard for surviving a m o ti o n to dism iss for failure to state a plausible claim ).

AFFIRMED.