Unpublished Disposition, 869 F.2d 1496 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 869 F.2d 1496 (9th Cir. 1989)

Aliconn COLE, Plaintiff-Appellant,v.Chuck CHOATE, Hearing Officer, individually and in hisofficial capacity; Mike King, Parole Officer,individually and in his officialcapacity, Defendants- Appellees.

No. 87-3706.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 20, 1988.* Decided Feb. 23, 1989.

Before FLETCHER, PREGERSON and CANBY, Circuit Judges.


MEMORANDUM** 

Aliconn Cole, an Oregon state prisoner, appeals pro se the district court's grant of summary judgment in favor of two parole officers in Cole's action under 42 U.S.C. §§ 1983 and 1985(3). Cole contends that the parole officers are not immune from damages and that he was improperly denied equitable relief. We affirm.

Cole's parole officer, Mike King, initiated Cole's parole revocation proceedings on the basis of Cole's indictment for being an ex-convict in possession of a firearm. Chuck Choate, a hearing officer, conducted Cole's parole revocation hearing over the telephone with the participation of Cole and King. Choate denied Cole's request for appointment of counsel after determining that Cole's challenge to the parole violation charge lacked substantial merit. Choate recommended to the Parole Board that Cole's parole be revoked. Following Choate's recommendation, the Parole Board revoked Cole's parole for possessing a weapon; Cole's criminal proceeding was subsequently dismissed because the evidence was suppressed.

In his complaint, Cole alleged that parole officers Chuck Choate and Mike King violated his equal protection and due process rights by failing to hold a formal parole revocation hearing and refusing to appoint him counsel. The court granted defendants' motion for summary judgment after Cole failed to respond.1 

Before addressing Cole's contentions, we note that in bringing a civil rights action instead of a habeas corpus petition, Cole chose the proper vehicle to present his claims. A prisoner may bring a section 1983 action that arises from facts which would also support a habeas corpus challenge to the fact or duration of his confinement so long as he seeks only damages or a declaratory judgment as a predicate to a damage award. Wolff v. McDonnell, 418 U.S. 539, 554-55 (1974) (proper in a section 1983 action to examine procedures employed in revocation of good-time credits when considering petitioner's request for declaratory judgment, short of ordering the restoration of good time already cancelled); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 682 and n. 5 (9th Cir. 1984). Cole seeks neither immediate release nor a reduction in the duration of his confinement. Therefore he properly brought this action as a section 1983 claim.

Parole officials are absolutely immune from damages in civil rights actions for acts directly related to the revocation of parole. Anderson v. Boyd, 714 F.2d 906, 909 (9th Cir. 1983); cf. Sellars v. Procunier, 641 F.2d 1295, 1302 (9th Cir.) (absolute immunity for acts taken when processing parole application), cert. denied, 454 U.S. 1102 (1981). Chuck Choate, who conducted Cole's parole revocation hearing, was acting in a quasi-judicial capacity when he denied Cole's request for appointment of counsel and a formal hearing. Therefore, he is absolutely immune from the damages sought by Cole in this civil rights action. See Anderson, 714 F.2d at 908-09. Mike King, Cole's parole officer, also is absolutely immune from damages for his role in initiating the parole revocation. See id.

Cole cannot pursue his claims for injunctive and declaratory relief because they are moot. Cole's implicit assertion that he may again be subject to a parole revocation hearing without the appointment of counsel does not create the actual present case or controversy that must exist for injunctive relief to be entered. See Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) (injunctive relief is available only if there is a real or immediate threat that the plaintiff will be wronged again).

AFFIRMED.

 *

This panel unanimously agrees that this case is appropriate for submission without oral argument. Fed. R. App. P. 34(a), 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The district court erred in failing to advise Cole of Fed. R. Civ. P. 56 requirements before it ruled on the defendants' motion for summary judgment. See Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988) (district courts are obligated to advise pro se litigants that they must submit responsive evidence to ward off summary judgment). Cole, however, could not have overcome the defense of absolute immunity even with the benefit of Rule 56 instructions. Furthermore, in light of the fact that the court ruled on the merits of the case in granting summary judgment to the defendants, it appears that Cole was not prejudiced by the court's failure to advise Cole of the Rule 56 requirements. Cf. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (pro se litigant need not be given leave to amend his complaint if it is absolutely clear that he cannot cure the deficiencies of his complaint by amendment)