UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT OMAR SHARRIEFF GAY, No. 21-16906 Plaintiff-Appellee, D.C. No. v. 3:16-cv-05998- CRB AMY PARSONS, Senior Psychologist; GREGORY S. GOLDSTEIN, Psychologist, OPINION Defendants-Appellants, and JENNIFER SHAFFER, Secretary, Board of Parole Hearings; CLIFF KUSAJ, Chief Psychologist, Defendants.

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding

Argued and Submitted November 14, 2022 San Francisco, California

Filed March 13, 2023 2 OMAR GAY V. AMY PARSONS

Before: M. Margaret McKeown and Richard A. Paez, Circuit Judges, and Donald W. Molloy, * District Judge.

Opinion by Judge McKeown

SUMMARY **

Civil Rights

In an action brought pursuant to 42 U.S.C. § 1983, the panel affirmed the district court’s denial of absolute immunity to California Board of Parole Hearings psychologists who prepare comprehensive risk assessment reports for the parole board. Plaintiff Omar Sharrieff Gay brought a civil rights suit alleging that he was asked racially and religiously biased questions in a psychological evaluation required for his parole review. He claimed that the psychologists were prejudiced against him as an African-American, Muslim man, which influenced their conclusion that Gay presented a “high” risk of future violence. The psychologists contended that they were absolutely immune from suit because they performed a discretionary function integral to the Board of Parole Hearings’(“Board”) quasi-judicial decision- making.

* The Honorable Donald W. Molloy, United States District Judge for the District of Montana, 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. OMAR GAY V. AMY PARSONS 3

Applying the functional approach laid out in the watershed case Antoine v. Byers & Anderson, Inc., 508 U.S. 429 (1993), the panel declined to extend absolute immunity in this case. The panel held that the psychologists’ assessments, while informative, were neither binding nor controlling in any way nor did the psychologists function in a judicial decision-making capacity. Thus, while the psychologists provided a risk level based on their clinical experience, they had no power of decision in the judicial sense; the psychologists were not members of the Board and the Board made its own determination about an inmate’s current risk of dangerousness if released to the community. The panel did not address whether qualified immunity was available, leaving the question for the district court to consider.

COUNSEL Iram Hasan (argued) and Michael J. Quinn, Deputy Attorneys General; Neah Huynh, Supervising Deputy Attorney General; Monica N. Anderson, Senior Assistant Attorney General; Rob Bonta, Attorney General of California; Office of the California Attorney General; San Francisco, California; for Defendants-Appellants. Alexandra S. Farley (argued), Carolee A. Hoover, and Kevin B. Frankel, McGuireWoods, San Francisco, California; Jamie D. Wells, Scale LLP, San Francisco, California; for Plaintiff-Appellee. 4 OMAR GAY V. AMY PARSONS

OPINION McKEOWN, Circuit Judge:

This appeal concerns whether California Board of Parole Hearings psychologists who prepare comprehensive risk assessment reports for the parole board are entitled to absolute immunity. 1 Omar Sharrieff Gay brought a civil rights suit alleging that he was asked racially and relig