Jesse Engebretson v. Mike Mahoney

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JESSE K. ENGEBRETSON; No. 10-35626
CATHERINE T. ENGEBRETSON,
Plaintiffs-Appellants, D.C. No.
9:09-cv-00098-
v. DWM

MIKE MAHONEY, Warden,
Montana State Prison; STATE OPINION
OF MONTANA; WILLIAM
SLAUGHTER, Director of the
Department of Corrections
for the State of Montana,
Defendants-Appellees.

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

Argued and Submitted
April 8, 2013—Seattle, Washington

Filed May 30, 2013

Before: Dorothy W. Nelson, A. Wallace Tashima, and
Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan
2 ENGEBRETSON V. MAHONEY

SUMMARY*

Civil Rights

Affirming the district court’s Fed. R. Civ. P. 12(b)(6)
dismissal of a complaint, the panel held that prison officials
enjoy absolute immunity from liability under 42 U.S.C.
§ 1983 for conduct prescribed by facially valid court orders.

Plaintiffs sought money damages for an alleged illegal
term of probation. The panel held that prison officials who
simply enforce facially valid court orders are performing
functions necessary to the judicial process and they must not
be required to second-guess the courts if that process is to
work fairly and efficiently.

COUNSEL

Kayla Liatti (argued) and Claudia Menjivar (argued), Ninth
Circuit Clinical Externship, Loyola Law School, Los
Angeles, California; Erica L. Reilley, Jones Day, Los
Angeles, California, for Plaintiffs-Appellants.

Brenda K. Elias (argued) and Ira Eakin, Special Assistant
Attorneys General, Montana Department of Corrections,
Helena, Montana, for Defendants-Appellees.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 ENGEBRETSON V. MAHONEY 3

OPINION

CALLAHAN, Circuit Judge:

In this appeal we are asked to decide whether prison
officials enjoy absolute immunity from liability under 42
U.S.C. § 1983 for conduct prescribed by facially valid court
orders. We conclude that they do.

BACKGROUND

In 1993, Plaintiff-Appellant Jesse Engebretson pleaded
guilty to four counts of sexual assault. The state trial court
sentenced him to four concurrent 20-year prison terms. The
court also found that because Engebretson had been convicted
of burglary (a felony) within five years of committing the
sexual assaults, he was a persistent felony offender under
Montana law. See Mont. Code Ann. § 46-18-501. The court
accordingly sentenced Engebretson to serve an additional 30
years in prison, to run consecutively to the assault sentences.
However, the trial court suspended Engebretson’s entire 30-
year sentence and imposed probation instead, even though
Montana’s persistent felony offender law provides that “the
imposition or execution of the first 5 years of a sentence
imposed under” the law “may not be deferred or suspended.”
Id. § 46-18-502(3).

Engebretson did not appeal, and he began serving his 20-
year prison sentence in November 1993. He was discharged
for good behavior about ten years later, in September 2003.
Engebretson then began serving his probationary term under
the supervision of a probation officer.
4 ENGEBRETSON V. MAHONEY

Three years later, while he was on probation, Engebretson
filed a habeas petition with the Montana Supreme Court. He
argued that the state trial court’s sentencing order was illegal
because his entire 30-year persistent felony offender sentence
was suspended, in violation of § 46-18-502(3). In other
words, the law required Engebretson to serve at least five
years of his 30-year sentence in prison. The Montana
Supreme Court granted Engebretson’s petition, concluding
that the “sentencing court lacked authority to suspend
Engebretson’s entire sentence as a persistent felony
offender.”

On remand, the state trial court (through a different judge)
adjudged Engebretson guilty of the four counts of sexual
assault for which he previously had been charged, sentenced
him to four concurrent 20-year terms (with credit for time
served), and prescribed “terms and condition[s] of probation
of any remaining time.” However, the court proceeded to
amend the judgment to state that Engebretson’s “sentence has
been discharged,” and to delete all the terms and conditions
of his probation. The court’s orders did not mention
Engebretson’s status as a persistent felony offender, and they
did not impose a five-year prison term under § 46-18-502(3).
The State did not appeal.

Nearly two years later, Engebretson and his wife,
Catherine Engebretson, filed a pro se action under 42 U.S.C.
§ 1983 in federal district court against Defendants-Appellees
Mike Mahoney, the warden of the prison where Engebretson
had served his sentence, and William Slaughter, the director
of the Montana Department of Corrections. In an amended
complaint, which added the State of Montana as a defendant,
the Engebretsons alleged that Mahoney and Slaughter “would
only release me [Jesse Engebretson] to a probationary
 ENGEBRETSON V. MAHONEY 5

sentence, even though I had informed them that such was an
illegal sentence.” In other words, the Engebretsons sought
damages because Jesse Engebretson was released from prison
earlier than he should have been.1 The Engebretsons more
specifically alleged that: (1) Mahoney and Slaughter “had a
duty to ascertain that I [Jesse Engebretson] had a legal
sentence prior to accepting me into their custody;” (2)
Engebretson “was stopped from filing in the court by the lack
of legal reference materials” during his imprisonment; and (3)
Engebretson was “stopped from gaining the assistance” of
another inmate in his legal filings during his imprisonment,
after that inmate “was moved to another facility after the
Department of Corrections found out that he was assisting
inmates in their legal research.” The complaint also alleged
that Mahoney, Slaughter, and Jesse Engebretson’s probation
officer (who was not named as a defendant)
unconstitutionally restrained Engebretson’s liberty during his
“illegal” term of probation. The Engebretsons sought $10
million in damages.

The defendants filed a motion to dismiss the complaint
for lack of jurisdiction and failure to state a claim. Upon a
magistrate’s recommendation, the district court dismissed the
claims against Mahoney and Slaughter because they

subjected Jesse Engebretson to restrictions on
his liberty based on a facially valid court
order. Even though the order was later
invalidated by the Montana Supreme Court,

1
Engebretson apparently thought he should not have been sentenced to
probation, either, as the state trial court did not identify him as a persistent
felony offender, and therefore did not impose a five-year prison term or
probation, on remand from the Montana Supreme Court.
6 ENGEBRETSON V. MAHONEY

they cannot be held liable for complying with
the order while it was in place.

The district court also dismissed the Engebretsons’ claims
against the State of Montana on Eleventh Amendment
grounds, and declined to exercise supplemental jurisdiction
over a state-law loss-of-consortium claim that Catherine
Engebretson appeared to assert in the amended complaint.
The Engebretsons appeal only the district court’s conclusion
that Mahoney and Slaughter are entitled to absolute
immunity.

STANDARDS OF REVIEW

We review de novo the district court’s dismissal for
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). Botello v. Gammick, 413 F.3d 971, 975 (9th Cir.
2005). We must “take as true all factual allegations in the
complaint and draw all reasonable inferences in the plaintiff’s
favor.” Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir.
2011). “[W]e construe pro se complaints liberally and may
only dismiss a pro se complaint for failure to state a claim if
it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to
relief.” Id. (internal quotation marks omitted). Finally, we
review de novo whether a public official is entitled to
absolute or qualified immunity. Slater v. Clarke, 700 F.3d
1200, 1203 (9th Cir. 2012); Botello, 413 F.3d at 975.

DISCUSSION

Although the parties and the district court do not discuss
it, the first question we must address is whether the
Engebretsons have standing to bring this action. Jesse
 ENGEBRETSON V. MAHONEY 7

Engebretson did not suffer any actual injury from the
defendants’ enforcement of the state court’s unlawful
sentencing order; indeed, that order saved him five years’
mandatory prison time. See Memphis Cmty. Sch. Dist. v.
Stachura, 477 U.S. 299, 307 (1986) (explaining that the
“basic purpose of § 1983 damages is to compensate persons
for injuries that are caused by the deprivation of
constitutional rights” (quotation marks omitted)).

However, Jesse Engebretson alleges that the term of
probation prescribed by the state court’s sentencing order,
and enforced by the defendants, was unlawful because, after
the Montana Supreme Court vacated and remanded the state
trial court’s initial sentencing order, a different trial judge did
not identify him as a persistent felony offender and
accordingly relieved him of any further prison or probation
time. In other words, in Engebretson’s view, he never should
have served any probation time. Engebretson also alleges
that the defendants had a duty to investigate whether the
initial sentencing order was lawful before enforcing it. While
we think these allegations lack merit, because we are
reviewing this case at the dismissal stage, and because the
Engebretsons proceeded pro se below, the allegations are
sufficient for purposes of standing to assert a § 1983 claim.
See Bernhardt v. Cnty. of Los Angeles, 279 F.3d 862, 872 (9th
Cir. 2002) (“We are doubtful that Bernhardt’s damages
claims are plausible . . . . But we accept her allegations
because we examine only the face of her complaint and
therefore conclude that she has standing to pursue her claim
for damages.”). Finally, even without any actual injury for
which they may seek compensatory damages, the
Engebretsons would be entitled to nominal damages under
§ 1983 if they can establish a violation of a constitutional
8 ENGEBRETSON V. MAHONEY

right. See Memphis Cmty. Sch. Dist., 477 U.S. at 308 n.11;
Bernhardt, 279 F.3d at 872.

The next question is whether prison officials who, like
Mahoney and Slaughter, simply enforce facially valid court
orders are absolutely immune from any liability under § 1983.
We have not yet had occasion to address this question. See
Sadoski v. Mosley, 435 F.3d 1076, 1080 (9th Cir. 2006)
(Gould, J., concurring). However, several of our cases point
in the direction of absolute immunity. In Hoffman v. Halden,
268 F.2d 280, 301 (9th Cir. 1959), overruled on other
grounds by Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962) (en
banc), we held that a hospital superintendent who prevented
the prisoner from leaving a mental hospital pursuant to a
court order “enjoyed the immunity of a jailor.” We
explained:

We think the failure of a jailor or keeper to
release a prisoner held on a warrant or
commitment cannot be the basis for a civil
rights action regardless of allegations of
malice, motive or intent. His act is required
by law. Even if the statute were later held
void or the conviction later set aside, so long
as he acted under authority of the writ or
warrant, he was performing a duty which the
law at that time required him to perform.

Id. at 300. In Coverdell v. Department of Social & Health
Services, 834 F.2d 758, 762–65 (9th Cir. 1987), we held that
a child services worker who faithfully executed a court order
to apprehend a child from her mother enjoyed absolute quasi-
judicial immunity. See id. at 765 (“The fearless and
unhesitating execution of court orders is essential if the
 ENGEBRETSON V. MAHONEY 9

court’s authority and ability to function are to remain
uncompromised.”). And in Miller v. Gammie, 335 F.3d 889,
895–96 (9th Cir. 2003) (en banc), we explained that “when
Congress enacted § 1983, it was aware of a well-established
and well-understood common-law tradition that extended
absolute immunity to individuals performing functions
necessary to the judicial process.”

The Supreme Court also has not decided whether prison
officials are entitled to absolute immunity from § 1983
liability for enforcing facially valid court orders. However,
the Court has long expressed the general idea that public
officials who ministerially enforce facially valid court orders
are entitled to absolute immunity. See, e.g., Matthews v.
Densmore, 109 U.S. 216, 218–19 (1883); Erskine v.
Hohnbach, 81 U.S. 613, 616–17 (1872). More directly
relevant here, the Court has extended absolute immunity in
§ 1983 cases where doing so would “free the judicial process
from the harassment and intimidation associated with
litigation.” Burns v. Reed, 500 U.S. 478, 494 (1991).2

In recent years, the Supreme Court has emphasized this
functional approach for determining when public officials
may claim absolute immunity under § 1983. An official must

2
For example, the Court has extended absolute immunity to prosecutors
and judges for their roles in judicial proceedings. See Imbler v. Pachtman,
424 U.S. 409, 427–28 (1976); Pierson v. Ray, 386 U.S. 547, 554–55
(1967). In contrast, the Court has declined to extend absolute immunity
to judges and prison, school, and executive officials acting in their non-
judicial capacities. See, e.g., Forrester v. White, 484 U.S. 219, 229–30
(1988); Harlow v. Fitzgerald, 457 U.S. 800, 813 (1982); Cleavinger v.
Saxner, 474 U.S. 193, 203–06 (1985); Procunier v. Navarette, 434 U.S.
555, 561 (1978); Wood v. Strickland, 420 U.S. 308, 322 (1975); Scheuer
v. Rhodes, 416 U.S. 232, 247–48 (1974).
10 ENGEBRETSON V. MAHONEY

be “performing a duty functionally comparable to one for
which officials were rendered immune at common law,” and
“it is only the specific function performed, and not the role or
title of the official, that is the touchstone of absolute
immunity.” Miller, 335 F.3d at 897 (citing Antoine v. Byers
& Anderson, Inc., 508 U.S. 429, 435–36 (1993); Kalina v.
Fletcher, 522 U.S. 118, 127 (1997)).

Consistent with this functional approach, the courts of
appeals that have addressed whether prison officials are
absolutely immune from § 1983 liability for enforcing
facially valid court orders have uniformly concluded that they
are. Absolute immunity applies even where a prisoner claims
that the order at issue is invalid or the order is later
overturned. See, e.g., Figg v. Russell, 433 F.3d 593, 599 (8th
Cir. 2006) (absolute immunity for prison officials who
confined the prisoner pursuant to “facially valid orders”
before a habeas writ was issued); Hamilton v. Leavy, 322
F.3d 776, 782–83 (3d Cir. 2003) (explaining that, in a case
against prison officials, an “action taken pursuant to a facially
valid court order receives absolute immunity from § 1983
lawsuits for damages”); Patterson v. Von Riesen, 999 F.2d
1235, 1239–41 (8th Cir. 1993) (prison wardens enjoyed
absolute immunity for continuing to incarcerate prisoner
pursuant to a valid court order, even though the prisoner
claimed he was wrongfully convicted and his conviction was
later overturned); Valdez v. City & Cnty. of Denver, 878 F.2d
1285, 1287–89 (10th Cir. 1989) (law enforcement officials
entitled to absolute immunity for imprisoning plaintiff at
direction of county judge, even though plaintiff was later
released on a habeas writ); Francis v. Lyman, 216 F.2d 583,
585 (1st Cir. 1954) (same with respect to state judge order);
Ravenscroft v. Casey, 139 F.2d 776, 778 (2d Cir. 1944)
(“Whether [the judge’s] orders were correct or erroneous he
 ENGEBRETSON V. MAHONEY 11

had jurisdiction to make them and they provide immunity to
the jail authorities who did nothing other than perform
them.”).3

We now join our sister circuits and hold that prison
officials charged with executing facially valid court orders
enjoy absolute immunity from § 1983 liability for conduct
prescribed by those orders. Our reasons are straightforward.
First, such immunity is grounded in the common law. See
Patterson, 999 F.2d at 1240; Valdez, 878 F.2d at 1287;
Francis, 216 F.2d at 588–89; cf. Miller, 335 F.3d at 895–96
(recognizing the “common-law tradition that extended
absolute immunity to individuals performing functions
necessary to the judicial process”). Second, such immunity
is consistent with the Supreme Court’s recent case law,
because it is beyond dispute that prison officials enforcing
court orders are “performing functions necessary to the

3
The courts have similarly extended absolute immunity to law
enforcement and other public officials who simply enforce facially valid
sentencing orders. See, e.g., Moss v. Kopp, 559 F.3d 1155, 1163–68 (10th
Cir. 2009) (absolute immunity for sheriff’s deputies enforcing court search
orders); Mays v. Sudderth, 97 F.3d 107, 112–13 (5th Cir. 1996) (absolute
immunity for sheriff’s attachment of prisoner pursuant to a court order,
even though sheriff allegedly knew the order was invalid); Bush v. Rauch,
38 F.3d 842, 847–48 (6th Cir. 1994) (absolute immunity for probate
official who enforced court order requiring that juvenile be placed in
detention home, even though subsequent investigation revealed that the
court order was based on incomplete information); Roland v. Phillips, 19
F.3d 552, 556 (11th Cir. 1994) (holding that county law enforcement
officials had absolute immunity in § 1983 action arising from their actions
in enforcing facially valid judicial orders).
12 ENGEBRETSON V. MAHONEY

judicial process.” Miller, 335 F.3d at 895–96.4 It is no
accident that most courts refer to absolute immunity for
prison officials enforcing court orders as “quasi-judicial
immunity.”5 Third, absolute immunity is necessary to free
prison officials from the fear of litigation and “insure that
such officials can perform their function without the need to
secure permanent legal counsel.” Valdez, 878 F.2d at 1288;
see also id. at 1289 (“Officials such as the defendants must
not be required to act as pseudo-appellate courts scrutinizing
the orders of judges.”). Finally, absolute immunity ensures
“the public’s trust and confidence in courts’ ability to
completely, effectively and finally adjudicate the
controversies before them.” Id. at 1289.

The Engebretsons nonetheless argue against absolute
immunity on two grounds. First, they contend that we are
bound by two prior Ninth Circuit cases which held that the
defendant prison officials were entitled to qualified
immunity. See Alston v. Read, 663 F.3d 1094, 1098–1100
(9th Cir. 2011); Stein v. Ryan, 662 F.3d 1114, 1119–20 (9th
Cir. 2011). However, only Stein was concerned with liability

4
See also Richman v. Sheahan, 270 F.3d 430, 435 (7th Cir. 2001) (“The
absolute immunity afforded to judges has been extended to apply to
‘quasi-judicial conduct’ of ‘[n]on-judicial officials whose official duties
have an integral relationship with the judicial process.’” (citation
omitted)); Ostrzenski v. Seigel, 177 F.3d 245, 249 (4th Cir. 1999) (holding
that “‘quasi-judicial’ agency officials whose duties are comparable to
those of judges or prosecutors” are likewise entitled to absolute
immunity).
5
The exception is the Third Circuit, which reserves “quasi-judicial
immunity” for circumstances in which a defendant is “acting in a role that
is functionally comparable to that of a judge, rather than under the
authority of a court order.” Hamilton, 322 F.3d at 783 n.5.
 ENGEBRETSON V. MAHONEY 13

for the officials’ enforcement of a facially valid court order,6
and in both cases, the parties did not brief, and we did not
address, whether the prison officials were entitled to absolute
immunity. Alston and Stein accordingly do not dictate our
answer to that question. See Brecht v. Abrahamson, 507 U.S.
619, 631 (1993) (prior rulings do not serve as binding
precedent on issues “never squarely addressed”); Morales-
Garcia v. Holder, 567 F.3d 1058, 1064 (9th Cir. 2009)
(explaining that while three-judge panels are bound by prior
decisions, “the term ‘decision’ . . . encompasses only those
issues that are raised or discussed”).

Second, the Engebretsons argue that qualified immunity
is sufficient to protect prison officials enforcing court orders.
It is true that there is a presumption in favor of qualified
immunity, and that a defendant public official bears the
burden of showing a need for absolute immunity. Antoine,
508 U.S. at 433 n.4; Miller, 335 F.3d at 897. That burden is
met here. “[I]t is simply unfair to spare the judges who give
orders while punishing the officers who obey them,” and
prison officials would be subject to harassing litigation even
with qualified immunity. Valdez, 878 F.2d at 1289.
Moreover, the judicial process itself would suffer without
absolute immunity. “[N]ot only may the threat of litigation
impede an official’s compliance with judicial orders, but ‘fear
of bringing down litigation on the [official] might color a
court’s judgment in some cases.’” Mays, 97 F.3d at 112

6
Alston was concerned with whether the prison officials were liable for
incorrectly calculating the defendant’s sentencing date pursuant to an
internal policy, not with their mere enforcement of a court order. See 663
F.3d at 1096–97. We have consistently analyzed such claims under a
qualified immunity rubric. See, e.g., Alexander v. Perrill, 916 F.2d 1392,
1393–94 (9th Cir. 1990); Haygood v. Younger, 769 F.2d 1350, 1356–59
(9th Cir. 1985) (en banc).
14 ENGEBRETSON V. MAHONEY

(quoting Coverdell, 834 F.2d at 765) (alteration in Mays). In
addition, the expense of litigation, “the diversion of
[officials’] attention from more socially productive
obligations,” and the “deterrence of qualified individuals
from accepting public employment” all weigh against
granting only qualified immunity. Valdez, 878 F.2d at
1288–89. Finally, absolute immunity does not leave
prisoners who are incarcerated pursuant to illegal court orders
without a remedy; they may directly appeal their convictions
and/or seek habeas relief. Id. at 1289–90. We are cognizant
that “absolute immunity always comes at a price.” Id. at
1289. But “the public interest in the enforcement of court
orders that is essential to the effective functioning of our
judicial process far outweighs the benefits” of providing only
qualified immunity. Id.

Our sister circuits have been careful to extend absolute
immunity only to the fact of a prisoner’s incarceration
pursuant to a facially valid court order—i.e., the prison
official in question must act within his or her authority and
strictly comply with the order. See, e.g., Patterson, 999 F.2d
at 1241 (“We note the limits of our holding. We simply
conclude that a warden is absolutely immune from damages
flowing from the fact of a prisoner’s incarceration, when that
incarceration occurs pursuant to a facially valid order of
confinement.” (emphasis omitted)); Valdez, 878 F.2d at 1286
(“[W]e hold that an official charged with the duty of
executing a facially valid court order enjoys absolute
immunity from liability for damages in a suit challenging
conduct prescribed by that order.” (emphasis added)); see
also Moss, 559 F.3d at 1163, 1167–68 (“[T]he judge issuing
the disputed order must be immune from liability in his or her
own right, the officials executing the order must act within
the scope of their own jurisdiction, and the officials must only
 ENGEBRETSON V. MAHONEY 15

act as prescribed by the order in question.”); Hamilton, 322
F.3d at 778, 783–86 (holding that questions of fact about the
manner in which prison officials executed court orders may
defeat absolute immunity).

This case fits within these limitations. There can be no
question that the state court had the authority to issue
Engebretson’s sentencing order, that the defendants had the
authority to enforce the order, or that the order was facially
valid. See Mont. Code Ann. § 3-5-302(1)(a) (providing for
original jurisdiction in the state trial courts over felony cases);
id. § 46-19-101(1) (providing for authorization to imprison or
confine a defendant); Sadoski, 435 F.3d at 1079 (only a
“judge who acts in the clear absence of all jurisdiction is not
entitled to absolute immunity” (internal quotation marks
omitted)); Francis, 216 F.2d at 585 (“facially valid” means
that an order is “fair and regular on [its] face”). Moreover,
the Engebretsons seek to hold Mahoney and Slaughter liable
only for the conduct prescribed the state court’s sentencing
order (to subject Engebretson to probation following his
release from prison); they do not make any allegations about
how the defendants enforced the order.7 Thus, we need not

7
The Engebretsons’ amended complaint alleges that Mahoney and
Slaughter had an independent duty to investigate the legality of the court’s
sentencing order before enforcing it. They did not. See, e.g., Stein, 662
F.3d at 1119 (“[There is] no authority requiring prison officials to review
sentencing orders independently to make sure the court got it right.”);
Valdez, 878 F.2d at 1289 (prison officials have no duty “to act as pseudo-
appellate courts scrutinizing the orders of judges”).

The complaint also alleges that Mahoney and Slaughter
impermissibly restricted Jesse Engebretson’s access to adequate legal
reference materials and an inmate who might have helped him prepare his
habeas petition. But those allegations concern how the defendants
allegedly ran the prison system, not whether they could enforce, or how
16 ENGEBRETSON V. MAHONEY

decide whether allegations regarding a lack of authority to
issue or enforce a facially valid court order, or a prison
official’s engaging in conduct not prescribed in such an order,
might defeat that official’s absolute immunity.

CONCLUSION

Prison officials who simply enforce facially valid court
orders “are performing functions necessary to the judicial
process.” Miller, 335 F.3d at 895–96. They must not be
required to second-guess the courts if that process is to work
fairly and efficiently. For this and the other reasons discussed
above, we hold that prison officials, like the defendants in this
case, who are charged with executing facially valid court
orders enjoy absolute immunity from § 1983 liability for
conduct prescribed by those orders.

AFFIRMED.

they enforced, the state trial court’s sentencing order. As such, the
allegations do not undermine Mahoney and Slaughter’s absolute immunity
from liability for simply and strictly enforcing that order. Because the
Engebretsons do not appeal the district court’s failure to separately address
these allegations, we do not address them further.