Unpublished Disposition, 933 F.2d 1015 (9th Cir. 1991)

MEMORANDUM^** 

Appellant Norman E. Tedder appeals pro se the district court's dismissal of his civil rights action for failure to state a claim upon which relief can be granted. We have jurisdiction of this timely appeal pursuant to 28 U.S.C. § 1291. We review the district court's decision to dismiss the action, as well as the question of immunity, de novo. Holt v. Castenada, 832 F.2d 123, 124 (9th Cir. 1987), cert. denied, 485 U.S. 979 (1988). We affirm in part, vacate in part and remand for further proceedings.

A complaint should not be dismissed under Rule 12(b) (6) of the Federal Rules of Civil Procedure unless it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Id. We have construed Tedder's allegations as true and liberally construed his complaint. See Anderson v. Boyd, 714 F.2d 906, 908 (9th Cir. 1983).

Read liberally, Tedder's complaint alleges that Dr. Stuckey furnished a false psychological report about Tedder to the Oregon Board of Parole, that the Board relied upon this false report to extend Tedder's prison term, and that all defendants conspired jointly in a common illegal scheme to extend his imprisonment.

Tedder requests damages for the alleged deprivation of his constitutional rights. However, because Tedder's action also challenges the length of his confinement, his action should have been construed as a habeas corpus petition. Young v. Kenny, 907 F.2d 874, 876-77 (9th Cir. 1990), cert. denied, 111 S. Ct. 1090 (1991). We therefore remand the case to the district court to make a finding on the issue of failure to exhaust state remedies. See id. at 876.

Unlike the case in Young, a stay is not necessary in this case to preserve Tedder's Sec. 1983 action while the issue of state remedies is addressed. Relief under Sec. 1983 cannot be granted upon any of Tedder's claims. The eleventh amendment bars Tedder's suit for damages against the state and state officials acting in their official capacities. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). The individual claims against defendants Goldschmidt and Maass are based solely on the theory of respondeat superior and are therefore not a basis for liability under 42 U.S.C. § 1983. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 691, 694 (1978).

Defendant Board of Parole is entitled to absolute, quasi-judicial immunity for their acts when they act to grant, deny or revoke parole. Anderson, 714 F.2d at 908-909; Sellars v. Procunier, 641 F.2d 1295, 1302-1303 (9th Cir.), cert. denied, 454 U.S. 1102 (1981). The Board's act of postponing Tedder's parole is of the same adjudicatory nature as revoking parole. Tedder's allegations cannot overcome the bar of absolute immunity.

Defendant Stuckey is also immune from liability in this case. A court-appointed psychologist has a quasi-judicial immunity from liability for acts committed "in the performance of an integral part of the judicial process," such as preparing and submitting medical reports. Burkes v. Callion, 433 F.2d 318, 319 (9th Cir. 1970) (per curiam) (quoting Robichaud v. Ronan, 351 F.2d 533, 536 (9th Cir. 1965)), cert. denied, 403 U.S. 908 (1971); cf. Demoran v. Witt, 781 F.2d 155 (9th Cir. 1986) (probation officers preparing presentencing reports for state court judges are entitled to absolute judicial immunity from Sec. 1983 damage claims). We agree with appellees that there is no material distinction between a psychologist performing an evaluation of a defendant at the direction of a judge, and a psychologist performing the same function at the direction of a parole board, as provided for by statute. OR.REV.STAT. Secs. 144.223(1), 144.125(3).

The district court properly dismissed Tedder's 1983 claims without leave to amend, and that decision is affirmed. However, if the complaint is read as raising a habeas corpus claim, as it can, then it would be proper for the district court to consider whether Tedder has exhausted his state remedies. The Attorney General's concise and well-written brief raises the possibility that there may also be a state procedural bar to relief in federal court, citing 28 U.S.C. § 2254(b); Reed v. Ross, 468 U.S. 1 (1984); and Wainwright v. Sykes, 433 U.S. 72(1977). We remand to the district court to determine whether Tedder failed to exhaust his state remedies and is thus subject to a state procedural bar, not excused by cause and prejudice.

AFFIRMED IN PART, VACATED AND REMANDED.