Forrest Lee Jones v. KATHLEEN ALLISON, Secretary of the California Department of Corrections

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FORREST LEE J ONES ; RODRIGO
RUBEN ESCARCEGA ; DENNIS
BARNES , on behalf of themselves and
all others similarly situated,
Plaintiffs-Appellants,
v.
KATHLEEN ALLISON,* Secretary of
the California Department of
Corrections and Rehabilitation, in
her official capacity; RALPH DIAZ , in
his individual capacity; SCOTT
KERNAN, in his individual capacity;
and J OHN D OES 1–10, in their
individual and official capacities,
Defendants-Appellees.
No. 20-15795
D.C. No.
4:19-cv-07814-
JSW
OPINION
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
* Kathleen Allison is substituted for her predecessor, Ralph Diaz, as
Secretary of the California Department of Corrections and Rehabilitation
for the claim brought against Mr. Diaz in his official capacity. See FED.
R. A PP . P. 43(c)(2).

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2 J ONES V . ALLISON
Argued and Submitted February 1, 2021
San Francisco, California
Filed August 20, 2021
Before: Sandra S. Ikuta and Jacqueline H. Nguyen, Circuit
Judges, and Richard K. Eaton,** Judge.
Opinion by Judge Eaton
SUMMARY***
Civil Rights
The panel affirmed the district court’s dismissal of an
action brought pursuant to 42 U.S.C. § 1983 alleging
violations of plaintiffs’ Fourteenth Amendment procedural
and substantive due process rights for the time they spent
incarcerated and ineligible for early parole considerations
because of regulations adopted by executive officials of the
California Department of Corrections and Rehabilitations.
In November 2016, California voters passed Proposition
57, which amended the California Constitution by adding
Article I, Section 32 (“Section 32”). Section 32 granted
eligibility for early parole consideration to state prison
inmates convicted of nonviolent felonies who had completed
** Richard K. Eaton, Judge of the United States Court of
International Trade, 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.

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J ONES V . ALLISON 3
the full term for their primary offense. Section 32 authorized
the California Department of Corrections and
Rehabilitations (“CDCR”) to adopt implementing
regulations. In 2017 and 2018, the CDCR adopted
regulations (“Regulations”) which excluded from early
parole consideration nonviolent felony offenders sentenced
to indeterminate sentences under California’s Three Strikes
Law. The California Court of Appeal subsequently found
the Regulations to be inconsistent with Section 32.
Thereafter, in 2019, the CDCR amended the Regulations to
include, for early parole consideration, state prisoners
serving indeterminate sentences for nonviolent third-strike
offenses.
Plaintiffs are felony offenders previously sentenced
under California’s Three Strikes Law whose third strike was
a nonviolent felony, and who became eligible for early
parole under the 2019 Amendments. Plaintiffs brought suit
for due process violations for the time they spent
incarcerated and ineligible for early parole consideration
because of the Regulations.
The panel first rejected plaintiffs’ argument that
defendants lacked authority to adopt the Regulations
because the Regulations were ultimately determined to be
unlawful. The panel held that defendants acted within the
legislative sphere when they participated in the adoption of
the Regulations. That the Regulations were later found to
violate the California Constitution did not diminish
defendants’ authority to adopt the Regulations in the first
place. The panel then held that defendant officials of the
CDCR were performing a legislative function when they
adopted the Regulations as directed by Section 32.
Defendants were therefore entitled to legislative immunity
from plaintiffs’ § 1983 claims for damages.

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4 J ONES V . ALLISON
COUNSEL
Ernest Galvan (argued), Michael W. Bien, and Rekha
Arulanantham, Rosen Bien Galvan & Grunfeld LLP, San
Francisco, California, for Plaintiffs-Appellants.
Cassandra J. Shryock (argued) and Jeffrey T. Fisher, Deputy
Attorneys General; Misha D. Igra, Supervising Deputy
Attorney General; Monica N. Anderson, Senior Assistant
Attorney General; Office of the Attorney General, San
Francisco, California; for Defendants-Appellees.
OPINION
EATON, Judge:
The issue before us is whether state executive officials
of the California Department of Corrections and
Rehabilitation (the “CDCR”),1 are immune from claims
brought under 42 U.S.C. § 1983 for damages stemming from
the CDCR’s adoption of regulations pursuant to the authority
delegated to it by the California Constitution.
I
In November 2016, California voters passed Proposition
57, which amended the California Constitution by adding
Article I, Section 32. See Cal. Const. art. I, § 32 (“Section
32”). Section 32 granted eligibility for early parole
consideration to state prison inmates convicted of nonviolent
1 The CDCR is the state administrative agency responsible for the
operation of California’s state prison and parole systems. See CAL.
G OV’ T CODE § 12838.5 (West 2021).

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J ONES V . ALLISON 5
felonies who had completed the full term for their primary
offense. See id. § 32(a)(1) (“Any person convicted of a
nonviolent felony offense and sentenced to state prison shall
be eligible for parole consideration after completing the full
term for his or her primary offense.”). Section 32 authorized
the CDCR to adopt implementing regulations: “The [CDCR]
shall adopt regulations in furtherance of [Section 32’s]
provisions, and the Secretary of the [CDCR] shall certify that
these regulations protect and enhance public safety.” See id.
§ 32(b).
In 2017 and 2018, the CDCR adopted regulations
(collectively, the “Regulations”), which excluded from early
parole consideration nonviolent felony offenders sentenced
to indeterminate sentences under California’s Three Strikes
Law.2 In 2018, the California Court of Appeal found that the
Regulations’ exclusion of these offenders was inconsistent
with Section 32. See In re Edwards, 237 Cal. Rptr. 3d 673,
682 (Ct. App. 2018) (“[The] CDCR’s adopted regulations
impermissibly circumscribe eligibility for Proposition 57
parole by barring relief for Edwards and other similarly
2 As in effect from March 7, 1994 to November 6, 2012, California’s
Three Strikes Law provided that a criminal defendant convicted of two
prior “serious” or “violent” felonies would receive an indeterminate
twenty-five-years-to-life sentence if convicted of a third felony, even if
that third felony was nonviolent. See People v. Superior Ct. (Romero),
917 P.2d 628, 630–31 (Cal. 1996). On November 6, 2012, voters
approved Proposition 36, which amended the Three Strikes Law to
eliminate indeterminate sentences for a criminal defendant whose third
felony was a nonserious or nonviolent crime. See 2012 Cal. Legis. Serv.
A-36 (amending C AL. P ENAL CODE §§ 667, 1170.12). As a result, since
the new law took effect on November 7, 2012, criminal defendants
receive an indeterminate twenty-five-years-to-life sentence only if their
third felony is serious, violent, or part of an enumerated list of nonviolent
or nonserious felony exceptions. See People v. Valencia, 397 P.3d 936,
942 (Cal. 2017).

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6 J ONES V . ALLISON
situated inmates serving Three Strikes sentences for
nonviolent offenses. The offending provisions of the
adopted regulations are inconsistent with section 32 and
therefore void.”).
Thereafter, in 2019, the CDCR amended the Regulations
to include, for early parole consideration, state prisoners
serving indeterminate sentences for nonviolent third-strike
offenses (the “Amendments”). See Cal. Code Regs. tit. 15,
§ 2449.30 (2019). In the Amendments, the CDCR set a
deadline of December 31, 2021 by which to schedule parole
consideration hearings for all of the previously excluded
offenders. See id. § 2449.32(b).
Forrest Jones, Rodrigo Escarcega, and Dennis Barnes
(“Plaintiffs”) are felony offenders previously sentenced
under California’s Three Strikes Law whose “third strike”
was a nonviolent felony, and who became eligible for early
parole under the Amendments. Plaintiffs brought claims
under 42 U.S.C. § 19833 on behalf of themselves, a class,
3 In addition to their § 1983 claims, Plaintiffs alleged violations of
California’s Tom Bane Civil Rights Act and the California Constitution.
They also brought a state law claim of false imprisonment. The District
Court declined to extend supplemental jurisdiction to these state law
claims. On appeal, Plaintiffs do not substantively challenge this decision.

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J ONES V . ALLISON 7
and two subclasses,4 against former and current CDCR
officials (“Defendants”).5
Plaintiffs asserted claims for damages against
Defendants in their individual capacities. Specifically,
Plaintiffs sought relief for alleged violations of their
Fourteenth Amendment procedural and substantive due
process rights for the time they spent incarcerated and
ineligible for early parole consideration because of the
unlawful Regulations.6
4 The “Eligibility Class” includes “all people who were serving an
indeterminate life sentence for a nonviolent offense under California’s
Three Strikes Law on January 1, 2017, and whose ‘full term of the
primary offense’ is scheduled to elapse on or before December 31,
2021.”
The “Released Subclass” includes “all members of the Eligibility
Class who have been released since January 1, 2017 and whose release
was not caused by events that occurred between January 1, 2017 and
January 1, 2019.” In other words, it includes members of the Plaintiff
class whose full term for their primary offense had ended before
Proposition 57 was passed and have since been released from prison, but
whose release might have been secured earlier had Defendants’
Regulations not denied them access to parole consideration.
The “Injunctive Subclass” includes “all members of the Eligibility
Class who have not yet received parole consideration since the effective
date of the January 2019 regulations.”
5 Plaintiffs did not name the CDCR as a defendant.
6 Plaintiffs also asserted a claim for injunctive relief against
Defendants in their official capacities, alleging violations of Plaintiffs’
Fourteenth Amendment procedural due process rights. Plaintiffs sought
an injunction to compel Defendants to provide for an expedited date by
which Plaintiffs’ parole consideration hearings must be scheduled.
Plaintiffs have forfeited this claim by failing to challenge its dismissal

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8 J ONES V . ALLISON
On a Rule 12(b)(6) motion by Defendants, the District
Court dismissed Plaintiffs’ case with prejudice. It dismissed
the claims for damages as barred by qualified immunity.
Thereafter, Plaintiffs appealed.
Dismissals for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6) are reviewed de novo. See Palm
v. L.A. Dep’t of Water & Power, 889 F.3d 1081, 1085 (9th
Cir. 2018). Additionally, grants of immunity to government
officials are reviewed de novo. See Kaahumanu v. County of
Maui, 315 F.3d 1215, 1219 (9th Cir. 2003).
We may affirm a District Court’s decision granting a
motion to dismiss on any ground supported by the record.
See McQuillion v. Schwarzenegger, 369 F.3d 1091, 1096
(9th Cir. 2004) (explaining that the appeals court “may
affirm on any ground supported by the record”). Here, we
affirm the dismissal of Plaintiffs’ claims for damages under
the doctrine of legislative immunity.
II
A
Under the doctrine of legislative immunity, members of
Congress and state legislators are entitled to absolute
immunity from civil damages for their performance of
lawmaking functions. See Tenney v. Brandhove, 341 U.S.
367, 376–77, 379 (1951) (finding that state legislators were
absolutely immune from damages when acting within the
“sphere of legitimate legislative activity”). Legislative
immunity, however, is not limited to officials who are
on appeal. See Cruz v. Int’l Collection Corp., 673 F.3d 991, 998 (9th Cir.
2012) (“We review only issues which are argued specifically and
distinctly in a party’s opening brief.”).

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J ONES V . ALLISON 9
members of legislative bodies. See Cleavinger v. Saxner,
474 U.S. 193, 201 (1985) (“Absolute immunity flows not
from rank or title or ‘location within the Government,’ but
from the nature of the responsibilities of the individual
official.” (citation omitted) (quoting Butz v. Economou,
438 U.S. 478, 511 (1978))). “[O]fficials outside the
legislative branch are entitled to legislative immunity when
they perform legislative functions.” Bogan v. Scott-Harris,
523 U.S. 44, 55 (1998).
Thus, under this functional approach, the Supreme Court
has held that legislative immunity does not depend on the
actor so much as the functional nature of the act itself. See
id. at 54–55 (“Absolute legislative immunity attaches to all
actions taken ‘in the sphere of legitimate legislative
activity.’” (quoting Tenney, 341 U.S. at 376)).
We too have employed a functional approach in
legislative immunity cases. In Kaahumanu, we considered
whether local council-members were entitled to legislative
immunity for their denial of a conditional land-use permit.
See 315 F.3d at 1218–20. In holding that the members’
decision was not functionally legislative in nature, we found
that the denial of the permit did not bear the “hallmarks of
traditional legislation,” in part because the decision was
made on an ad hoc basis affecting only a few individuals,
rather than developing policy. Id. at 1223–24. This idea is
also found in Cinevision Corp. v. City of Burbank, where we
stated that a legislative function “involve[s] the formulation
of policy ‘as a defined and binding rule of conduct.’”
745 F.2d 560, 580 (9th Cir. 1984) (quoting Yakus v. United
States, 321 U.S. 414, 424 (1944)).
Other circuits have held that officers, and indeed
employees, of the executive branch of a state government
may benefit from legislative immunity. See, e.g., Redwood

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10 J ONES V . ALLISON
Vill. P’ship v. Graham, 26 F.3d 839, 842 (8th Cir. 1994)
(holding that “[state] executive officials are absolutely
immune from suits for money damages under section 1983
for their promulgation of rules”); see also, e.g., State Emps.
Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 82 (2d Cir.
2007) (“Legislative immunity shields from suit not only
legislators, but also officials in the executive and judicial
branches when they are acting ‘in a legislative capacity.’”
(quoting Bogan, 523 U.S. at 55)).
B
We first address Defendants’ authority to adopt the
Regulations—a threshold requirement for entitlement to
legislative immunity. See Schmidt v. Contra Costa County,
693 F.3d 1122, 1132 (9th Cir. 2012). Plaintiffs argue that
Defendants lacked such authority because the Regulations
were ultimately determined to be unlawful. In Plaintiffs’
view, “[t]he regulatory authority in Section 32(a)(2)(b) [is]
for ‘regulations in furtherance of these provisions,’ not
regulations to re-write these provisions to withhold them
from persons the voters intended to benefit.” Plaintiffs thus
contend that the adoption of the particular Regulations was
simply not authorized by Section 32, because the California
Court of Appeal later found that the Regulations violated the
California Constitution.
We reject this argument for the reason that an official’s
“authority to regulate” does not depend on whether a
particular action yielded an enforceable or sustainable result.
Rather, it exists where “officials ‘act[ed] in the sphere of
legitimate legislative activity.’” Schmidt, 693 F.3d at 1132
(alteration in original) (quoting Tenney, 341 U.S. at 376).
There can be little doubt that Defendants acted within the
legislative sphere when they participated in the adoption of

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J ONES V . ALLISON 11
the Regulations. The authority delegated to the CDCR was
to “adopt regulations in furtherance of [Section 32’s]
provisions.” Cal. Const. art. I, § 32(b) (emphasis added).
This is precisely what Defendants did. Thus, they acted
“within their . . . delegated legislative powers.” Schmidt, 693
F.3d at 1132. That the Regulations were later found to
violate the California Constitution does not diminish
Defendants’ authority to adopt the Regulations in the first
place. In other words, Section 32’s authorization placed
Defendants’ acts adopting the Regulations in “the sphere of
legitimate legislative activity,” no matter that provisions of
the Regulations were later declared void.
Next, we consider whether Defendants performed a
legislative function entitled to immunity. We conclude that
they did. As the Kaahumanu Court observed, where an act
is one that “effectuate[s] policy” rather than one taken for a
limited “ad hoc” purpose, a finding of legislative immunity
is favored. 315 F.3d at 1220. Here, Section 32 authorized
Defendants to adopt regulations for the purpose of
implementing policy, i.e., the early parole eligibility of a
wide class of nonviolent felony offenders, rather than for a
limited, “ad hoc” purpose. See, e.g., Bateson v. Geisse, 857
F.2d 1300, 1304 (9th Cir. 1988) (“[A]n act which applies
generally to the community is a legislative one, while an act
directed at one or a few individuals is an executive one.”
(alteration in original) (quoting Cinevision, 745 F.2d
at 579)); see also Kaahumanu, 315 F.3d at 1222 (in accord).
Similarly, as in Kaahumanu, we look to the purpose and
effect of the challenged acts when deciding whether they are
legislative in nature. See 315 F.3d at 1220. The Regulations
bear the hallmarks of laws that might have been enacted by
a state legislature. As noted, by adopting them, Defendants
created binding rules of conduct affecting a wide population

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12 J ONES V . ALLISON
of individuals. See Cinevision, 745 F.2d at 580 (“[A
legislative function] involve[s] the formulation of policy ‘as
a defined and binding rule of conduct.’” (quoting Yakus,
321 U.S. at 424)). Also, like typical legislation, the
Regulations had “prospective implications that reach[ed]
beyond the particular persons immediately impacted” and
involved “the use of discretion” when acting pursuant to the
delegation in Section 32. Schmidt, 693 F.3d at 1137; see also
Kaahumanu, 315 F.3d at 1223 (finding that a “discretionary,
policymaking decision” with far-reaching implications bears
the “hallmarks of traditional legislation” (quoting Bogan,
523 U.S. at 55)).
Thus, Section 32’s delegation authorized the CDCR to
perform a legislative function, and the resulting Regulations
themselves functioned as legislation. They bore the
hallmarks of legislation—they were binding, policy-
implementing rules that operated much as laws passed by a
state legislature would. Accordingly, Defendants enjoy
absolute immunity from Plaintiffs’ claims for damages
brought under § 1983.
III
Because Defendant officials of the CDCR were
performing a legislative function when they adopted the
Regulations as directed by Article I, Section 32 of the
California Constitution, we find that they are entitled to
legislative immunity from Plaintiffs’ § 1983 claims for
damages, and affirm the dismissal of these claims.
AFFIRMED.

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