NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 18 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CODY WILLIAM MARBLE, No. 16-35171

Plaintiff-Appellee, D.C. No. 9:13-cv-00186-DWM-JCL v.

JARED POOLE, MEMORANDUM *

Defendant,

and

HEATHER SMITH,

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding

Argued and Submitted April 5, 2017 Pasadena, California

Before: CLIFTON and OWENS, Circuit Judges, and ANTOON,** District Judge.

Defendant parole officer Heather Smith appeals from the district court’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. order denying her summary judgment in a 42 U.S.C. § 1983 action brought by

plaintiff parolee Cody Marble. Marble alleged that Smith violated his due process

rights by failing to properly contact his requested witnesses for his preliminary

parole revocation hearing, at which Smith also served as a hearing officer. As the

parties are familiar with the facts, we do not recount them here. We reverse and

remand.

We conclude that the district court erred in determining that Smith was not

entitled to qualified immunity. “In determining whether an officer is entitled to

qualified immunity, we consider (1) whether there has been a violation of a

constitutional right; and (2) whether that right was clearly established at the time of

the officer’s alleged misconduct.” C.V. by & through Villegas v. City of Anaheim,

823 F.3d 1252, 1255 (9th Cir. 2016) (citation omitted). Here, even if there were a

violation of Marble’s due process rights, Smith is entitled to qualified immunity

because those rights were not clearly established.

Marble claims that because he was in custody, his due process rights were

violated by Smith’s alleged failure to adequately contact his three requested

evidentiary witnesses to inform them of the preliminary hearing. However,

Morrissey v. Brewer, 408 U.S. 471, 487 (1972), which set forth the minimum due

process requirements for parole revocation proceedings, held only that at a

preliminary hearing “the parolee . . . may bring . . . individuals who can give

2 relevant information to the hearing officer.” There is no precedent that due process

requires a parole officer to contact an incarcerated parolee’s evidentiary witnesses.

Rather, Marble relies on a Montana regulation, which at the time provided

that “[i]f the parolee is being detained pending hearing, the parole officer shall

contact the requested witnesses and inform [them] of the time and place of the

hearing.” Mont. Admin. R. 20.2.209(3) (2011). But, “[a]s a general rule, a

violation of state law does not lead to liability under § 1983.” Campbell v. Burt,

141 F.3d 927, 930 (9th Cir. 1998). Montana’s regulation did not create a clearly

established federally protected right. See James v. Rowlands, 606 F.3d 646, 657

(9th Cir. 2010) (“[W]hen a state establishes procedures to protect a liberty interest

that arises from the Constitution itself . . . the state does not thereby create a new

constitutional right to those procedures themselves, and non-compliance with those

procedures does not necessarily violate the Due Process Clause.”); see also Marsh

v. County of San Diego, 680 F.3d 1148, 1159 (9th Cir. 2012). Therefore, we

conclude that Smith is entitled to qualified immunity regarding her alleged failure

to adequately contact Marble’s evidentiary witnesses.

Marble also claims that his due process rights were violated by Smith’s

alleged failure to make his requested adverse witness available at the preliminary

hearing. However, it was not clearly established that failing to make the adverse

witness available for questioning at a preliminary hearing in these particular

3 circumstances would have violated Marble’s due process rights. See White v.

Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (“[T]he clearly established law

must be ‘particularized’ to the facts of the case.” (citation omitted)). Marble relies

on cases involving final revocation hearings, but he fails to “identify a case where

an officer acting under similar circumstances” at a preliminary hearing was held to

have violated due process. Id. Moreover, this case does not involve an “obvious”

violation of the minimum due process requirements for a preliminary hearing set

forth in Morrissey. Id.; see also Morrissey, 408 U.S. at 487. Therefore, we

conclude that Smith is entitled to qualified immunity regarding her alleged failure

to make Marble’s requested adverse witness available at the preliminary hearing.

Because we have determined that Smith is entitled to qualified immunity, we

need not reach Smith’s alternative arguments regarding absolute quasi-judicial

immunity and an adequate postdeprivation remedy.

REVERSED AND REMANDED.

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FILED

No. 16-35171, Marble v. Smith

APR 18 2017

CLIFTON, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I respectfully dissent. It was clearly established by the Supreme Court in

Morrissey v. Brewer, 408 U.S. 471, 485 (1972), that due process entitles a parolee

to a hearing to determine whether there is reason to believe that he has violated

parole conditions. In addition, the Court held that “[o]n request of the parolee, [a]

person who has given adverse information on which parole revocation is to be

based is to be made available for questioning in his presence.” Id. at 487. Cody

Marble was not given the opportunity to question the adverse witness upon whose

information his parole was revoked. The exception recognized by Morrissey, “if

the hearing officer determines that an informant would be subjected to risk of harm

if his identity were disclosed,” id., did not justify the failure to produce the adverse

witness whose presence was requested by Marble, because her identity was already

known to him. Qualified immunity should not be available to Defendant Heather

Smith for violating Marble’s clearly established due process right to question the

witness upon which the allegation of a parole violation was based.

Nor should qualified immunity protect Smith from her failure to advise other

witnesses of the date and time of the hearing. That obligation to provide such

notice might not be clearly established as a matter of due process constitutional

law, but it is clearly established as a matter of Montana law. The purpose of the “clearly established” requirement is to protect a government employee from

liability in circumstances where it is not clear what the employee’s obligations

were. See Pearson v. Callahan, 555 U.S. 223, 231 (2009) (“The doctrine of

qualified immunity protects government officials from liability for civil damages

insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” (citation

and internal quotation marks omitted)); Hope v. Pelzer, 536 U.S. 730, 739 (2002)

(“[Q]ualified immunity operates to ensure that before they are subjected to suit,

officers are on notice their conduct is unlawful.” (citation and internal quotation

marks omitted)). Smith’s obligations were clear here.

The end result of the failure to give proper notice was that the hearing was

held without Marble being able to obtain testimony from witnesses that he

expected he would and should have been able to present. His clearly established

right to a hearing was effectively vitiated. Applying the doctrine of qualified

immunity in this situation serves no legitimate purpose. See Pearson, 555 U.S. at

231 (explaining that the purpose of qualified immunity is to “shield officials from

harassment, distraction, and liability when they perform their duties reasonably.”).

I would affirm the order of the district court.

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