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King v. State

United States District Court, D. Nevada

April 4, 2019

MATTHEW KING, Plaintiff
v.
STATE OF NEVADA, et. al., Defendants

          REPORT & RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: ECF NO. 22

          William G. Cobb United States Magistrate Judge.

         This 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.

         Before 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.)

         After a 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.

         I. BACKGROUND

         Plaintiff 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.)

         The 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.

         On 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 amended complaint.

         II. DISCUSSION

         While 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).

         On 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.

         Plaintiff 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 male gender.

         While the court determined on screening that the allegations stated a colorable equal protection claim, the parole board officials Plaintiff sues are immune from suit.

         The 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 ...


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