United States District Court, D. Nevada
REPORT & RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE RE: ECF NO. 22
William G. Cobb United States Magistrate Judge.
Report and Recommendation is made to the Honorable Miranda M.
Du, United States District Judge. The action was referred to
the undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4.
the court is Plaintiff's Motion for Leave to File a
Second Amended Complaint and Proposed Second Amended
Complaint. (ECF Nos. 22, 22-1.) Defendant Connie Bisbee filed
a notice of non-opposition. (ECF No. 24.)
thorough review, it is recommended that Plaintiff's
motion be denied and that this action be dismissed with
prejudice because the current defendant and defendants
Plaintiff seeks to add in the proposed second amended
complaint are immune from suit.
is an inmate in the custody of the Nevada Department of
Corrections (NDOC), proceeding pro se with this action
pursuant to 42 U.S.C. § 1983. (First Am. Compl., ECF No.
6.) The events giving rise to this action took place while
Plaintiff was housed at Ely State Prison. (Id.)
court screened Plaintiff's first amended complaint, and
allowed him to proceed with a single equal protection claim
against defendant Nevada Parole Commissioner Connie Bisbee
based on the allegation that Bisbee added a point to his
parole risk assessment because of his male gender, and
therefore treated him differently from female inmates who
were also having their parole risks assessed. (ECF No. 7.)
The other claims were dismissed with prejudice.
March 21, 2019, Plaintiff filed this motion seeking leave to
file a second amended complaint in order to add current and
former members of the Nevada Parole Commission as defendants.
(ECF No. 22.) In particular, he seeks to add Nevada Parole
Board Commission members Ed Gray, Christopher Dericco,
Michael Keeler, Tony Corda, Adam Endel, and Susan Jackson.
(ECF No. 22-1.) As he did in the first amended complaint, he
seeks monetary damages as relief in the proposed second
Federal Rule of Civil Procedure 15(a)(2) dictates that leave
to amend be given freely, the court need not grant leave to
amend where amendment would be futile. Amerisource Bergen
Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th
Cir. 2006) (citation omitted); Carrico v. City &
County of San Francisco, 656 F.3d 1002, 1008 (9th Cir.
2011) (leave to amend may be denied if the proposed amended
is futile or would be subject to dismissal). Before discovery
is complete, a proposed amendment is "futile" only
if it is clear "that the complaint could not be saved by
any amendment." Frainski v. State of Nev. ex rel.
Bd. of Regents of Nev. Sys. of Higher Ed., 616 F.3d 963,
972 (9th Cir. 2010).
undertaking another review of the first amended complaint and
proposed second amended complaint, the court finds that
amendment would be futile and that this action should be
dismissed with prejudice.
sues Connie Bisbee, a member of the Nevada Board of Parole
Commissioners, and his proposed second amended complaint
names Bisbee as well as other members of the board. He
alleges that they violated his equal protection rights by
adding a point to his risk assessment score because of his
the court determined on screening that the allegations stated
a colorable equal protection claim, the parole board
officials Plaintiff sues are immune from suit.
Ninth Circuit has held that "parole board officials are
entitled to absolute immunity from suits by prisoners for
actions taken when processing parole applications."
Sellars v. Procunier,641 F.2d 1295, 1302 (9th Cir.
1981); see also Brown v. Cal. Dep't of Corr.,
554 F.3d 747, 751 (9th Cir. 2009). This is based on an
analysis that the parole board members serve in a
quasi-judicial function, and so like judges, are entitled to
absolute immunity for conduct undertaken with respect to
parole determinations. Sellars, 641 F.3d at 1302-03.
The immunity does not extend to conduct "taken outside
an official's adjudicatory role." Anderson v.
Boyd, 714 F.2d 906, 909-10 (9th Cir. 1983),
abrogated in part by Swift v. California, 384 F.3d
1184, 1189 (9th Cir. 2004) (holding parole officers not