Ever Perez v. Richard Gamez

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 14-3539
____________
EVER PEREZ,
Appellant
v.
TROOPER RICHARD GAMEZ; OFFICER ANDREW RICHARD CRONE;
BRIAN HUNTER; OFFICERS JOHN DOES 1–6;
PRESIDENT JUDGE TODD A. HOOVER; CAROLYN C. THOMPSON;
JUDGE BERNARD L. COATES, JR.; JUDGE DEBORAH E. CURCILLO;
JASON ANTHONY LAMBRINO; STEVEN ALLEN MIMM; JOSEPH MARTIN
GAVAZZI; DAUPHIN COUNTY JANE DOES 1–6
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-13-cv-01552)
District Judge: Honorable Sylvia H. Rambo
____________
Submitted Under Third Circuit LAR 34.1(a)
April 29, 2015
Before: FISHER, HARDIMAN and ROTH, Circuit Judges.
(Filed: July 20, 2015)
____________
OPINION*
____________
HARDIMAN, Circuit Judge.
Ever Perez appeals the District Court’s order dismissing his federal civil rights
action brought pursuant to 42 U.S.C. § 1983. We will affirm.
I
Perez is a Mexican citizen with a limited understanding of English. In June 2011,
he was arrested because of mistaken identity. Perez spent 129 days in prison during which
his case was continued four times because an interpreter was not available; each
continuance was either at the request or acquiescence of the public defender. In August
2011, Perez retained private counsel, who moved to dismiss the charges because the
police had arrested the wrong man. During a hearing in October 2011, an interpreter was
provided, the arresting officer recognized that Perez was not the person he believed he
was, and the Commonwealth agreed to dismiss the charges against Perez.
Perez filed suit in June 2013 in the U.S. District Court for the Middle District of
Pennsylvania, alleging, among other things, violations of his substantive and procedural
rights under the Due Process Clause of the Fourteenth Amendment. Specifically, he
alleged that two Court of Common Pleas judges—Judge Bernard L. Coates, Jr. and Judge
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
2
Deborah E. Curcillo—violated his rights when they failed to appoint an interpreter for
him. He also alleged that President Judge Todd A. Hoover and District Court
Administrator Carolyn C. Thompson violated his rights by failing to adopt policies and
procedures that ensured interpreters were available for criminal defendants with limited
English proficiency.
Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), and
the District Court granted their motion. The District Court held that judicial immunity
barred the claims against Judges Coates and Curcillo, legislative immunity barred the
claims against President Judge Hoover, and Perez failed to state a claim upon which relief
could be granted against District Court Administrator Thompson. This timely appeal
followed.1
II
Perez asserts that the District Court erred in dismissing his claims on the ground of
judicial immunity because the judges’ failures to appoint an interpreter for him were not
“judicial acts.” He next argues that the District Court erred in dismissing his claims on the
ground of legislative immunity because the failure to adopt procedures to ensure the
appointment of interpreters was not a “legislative act.” Finally, he asserts that the District
Court erred in dismissing his claims against the District Court Administrator for failure to
1
The District Court had jurisdiction under 28 U.S.C. § 1331 and we have
jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the District Court’s
dismissal under Rule 12(b)(6). Glover v. FDIC, 698 F.3d 139, 144 (3d Cir. 2012).
3
state a claim and that, in any event, he should be allowed to amend his complaint to name
a different official as a defendant. We address each argument in turn.
A
Perez first argues that Judges Coates and Curcillo are not immune from suit
because their failures to appoint an interpreter were ministerial or administrative acts, and
it is well established that “judges are immune from suit under section 1983 for monetary
damages arising from their judicial acts.” Gallas v. Supreme Court of Pa., 211 F.3d 760,
768 (3d Cir. 2000). To determine whether this doctrine applies, we must decide (1)
whether the judges’ actions were “judicial” in nature; and (2) whether the judges acted in
the “clear absence of all jurisdiction over the subject matter.” Id. at 768–69 (quoting
Stump v. Sparkman, 435 U.S. 349, 356 n.6 (1978)). Here, the only question is whether the
judges’ failures to act pursuant to a mandatory statute were judicial acts.
An act is judicial in nature if “it is a function normally performed by a judge” and
the parties “dealt with the judge in his judicial capacity.” Stump, 435 U.S. at 362.
Appointing interpreters and continuing hearings are clear examples of acts “normally
performed by a judge,” and the allegations in the amended complaint show that Perez
interacted with the judges in their “judicial capacity.” Id. Nevertheless, Perez asserts that
the failure to appoint an interpreter is not a judicial act because appointing an interpreter
is mandatory under 42 Pa. Cons. Stat. § 4412(a) and is therefore a non-discretionary
4
administrative function. While Perez’s argument has some appeal, it is ultimately
unpersuasive.
Section 4412(a) states that “[u]pon request or sua sponte, if the presiding judicial
officer determines that a principal party in interest or witness has a limited ability to speak
or understand English, then a certified interpreter shall be appointed.” Under a plain
reading of the statute, once the presiding judicial officer determined that Perez had a
limited ability to speak or understand English, an interpreter should have been appointed.
See id.; In re Garcia, 984 A.2d 506, 511 (Pa. Super. Ct. 2009). And we agree with Perez
that Judges Coates and Curcillo recognized (or at least did not dispute) that Perez needed
an interpreter, yet they failed to appoint one. Instead, they relied on passive indications
from defense counsel that the public defender’s office would provide an interpreter for
Perez. While this failure to act by the judges appears contrary to the requirements of
§ 4412(a), that does not make them amenable to suit. A judicial error in interpreting or
applying the requirements of a statute is still a “judicial act” entitled to immunity from
suit. See Figueroa v. Blackburn, 208 F.3d 435, 443 (3d Cir. 2000).
In Figueroa, a state municipal judge held a defendant in contempt of court and
sentenced him to 30 days in prison. Id. at 438. Although a New Jersey Court Rule
mandated that the execution of sentence for contempt be stayed for five days, the judge
did not do so, resulting in a 15-day period of incarceration for the defendant. Id. We
explained that the power of the judge to order the immediate service of a sentence for
5
contempt was restricted by the New Jersey Court Rule. Nonetheless, we found that the
apparent error by the judge “does not alter the judicial nature of the act” and judicial
immunity still applied. Id. at 443. Indeed, “[a] judge will not be deprived of immunity
because the action he took was in error, was done maliciously, or was in excess of his
authority.” Stump, 435 U.S. at 356–57; see also Dawson v. Newman, 419 F.3d 656, 661–
62 (7th Cir. 2005) (affording judicial immunity to a county judge even though he failed to
comply with a statutory requirement).
Judges Coates and Curcillo both made a number of decisions in Perez’s criminal
proceedings, all of which constituted judicial acts. They continued Perez’s hearings on
multiple occasions when an interpreter was not available, they relied on the public
defender’s office to provide interpreters for Perez, and they failed to appoint an
interpreter or request that one be appointed for Perez. While these decisions were
detrimental to Perez, the fact remains that they were all judicial acts.
B
Perez next asserts that the District Court incorrectly shielded President Judge
Hoover from § 1983 liability on the ground of legislative immunity. Perez argues that
President Judge Hoover’s alleged failure to establish policies or procedures that
adequately provided interpreters was not a legislative act.
Legislators are entitled to immunity from liability for their legislative acts. See
Bogan v. Scott-Harris, 523 U.S. 44, 46 (1998); Gallas, 211 F.3d at 773. And the Supreme
6
Court has recognized that judges sometimes perform acts entitled to legislative immunity.
See Forrester v. White, 484 U.S. 219, 227 (1988); Supreme Court of Va. v. Consumers
Union of U.S., 446 U.S. 719, 731–34 (1980). Accordingly, we have established a two-part
test to determine whether actions are to be regarded as legislative for immunity purposes:
“(1) the action must be ‘substantively’ legislative, which requires that it involve a policy-
making or line-drawing decision; and (2) the action must be ‘procedurally’ legislative,
which requires that it be undertaken through established legislative procedures.” Acierno
v. Cloutier, 40 F.3d 597, 610 (3d Cir. 1994) (en banc).
It is clear that, had President Judge Hoover actually enacted policies or procedures
establishing protocols for the appointment of interpreters, he would be entitled to
legislative immunity. Under Pennsylvania law, the president judge of each Court of
Common Pleas is the “executive and administrative head of the court” and is statutorily
authorized to “promulgate all administrative rules and regulations” for the court. 42 Pa.
Cons. Stat. § 325(e). Each Court of Common Pleas may make rules and orders as “the
interest of justice or the business of the court may require,” 42 Pa. Cons. Stat. § 323, and
the adoption of any rule is regulated by the Rules of Judicial Administration, 201 Pa.
Code Rule 103. As a president judge, Hoover is authorized to enact rules and regulations
for the Dauphin County Court of Common Pleas and enjoys legislative immunity for
actions taken pursuant to that authority. See Consumers Union, 446 U.S. at 731 (affording
legislative immunity to justices of state supreme court when acting in their rulemaking
7
capacity); Gallas, 211 F.3d at 776–77 (holding that legislative immunity applied to state
supreme court justices’ promulgation of an administrative order); Alia v. Mich. Supreme
Court, 906 F.2d 1100, 1106–07 (6th Cir. 1990) (finding that absolute legislative
immunity applied to state court justices’ promulgation of mediation rule).
Here, Perez argues that Hoover’s alleged failure to enact such policies and
procedures deprives him of immunity. We disagree. Although there is scant caselaw on
this issue—presumably because legislators are rarely sued for actions they fail to take—
the Supreme Court and at least one of our sister circuits have recognized that legislative
immunity should apply for failures to act. “It would be strange public policy indeed to
inform legislators that they are immune from liability if they decide to take action but not
immune if they decide that action would be contrary to the public interest.” Sable v.
Myers, 563 F.3d 1120, 1126 n.2 (10th Cir. 2009); see Consumers Union, 446 U.S. at 734
(noting that judges’ failure to amend bar admission rules would be entitled to legislative
immunity). We agree and therefore conclude that the District Court did not err in
affording legislative immunity to President Judge Hoover.
C
Finally, Perez argues that the District Court erred in dismissing his complaint
against District Court Administrator Thompson for failure to state a claim. Perez made
two factual allegations against Thompson—that she was the district court administrator
for the Dauphin County Court of Common Pleas and that she and President Hoover failed
8
to adopt policies and procedures to ensure that interpreters were available for criminal
defendants. The District Court held that Perez failed to adequately plead Thompson’s
personal involvement in the deprivation of his due process rights.
As the District Court noted, Perez relied on 42 Pa. Cons. Stat. § 4411, which
states: “The Court Administrator may establish a program to appoint and use certified
interpreters in judicial proceedings,” § 4411(a), and “shall compile, maintain and
disseminate a current list of interpreters,” § 4411(b). However, this statute applies to the
court administrator of Pennsylvania and therefore does not grant authority to or impose
obligations on district court administrators such as Thompson. See 42 Pa. Cons. Stat.
§ 4402. Perez’s amended complaint did not make any other allegations against Thompson
that would support an affirmative duty to create policies or procedures regarding
interpreters. Moreover, even assuming that Thompson was required to implement policies
and procedures for appointing interpreters, Perez did not plead any personal involvement
by Thompson in the deprivation of Perez’s rights. See C.H. ex rel. Z. H. v. Oliva, 226
F.3d 198, 201 (3d Cir. 2000) (en banc) (“It is, of course, well established that a defendant
in a civil rights case cannot be held responsible for a constitutional violation which he or
she neither participated in nor approved.”). Accordingly, the District Court did not err in
dismissing Perez’s complaint against Thompson for failure to state a claim.
Acknowledging that the amended complaint failed to distinguish between the state
court administrator and the district court administrator, Perez requests leave to amend his
9
complaint for the first time on appeal. “The liberal standard announced in Fed. R. Civ.
Proc. 15(a) becomes less flexible after a final judgment is entered.” Werner v. Werner,
267 F.3d 288, 296 (3d Cir. 2001). After final judgment, leave to amend will be granted
only sparingly and will be the “long-odds exception.” Id. (citation omitted). In addition,
“[a]bsent exceptional circumstances, this Court will not consider issues raised for the first
time on appeal.” In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 261 (3d Cir. 2009)
(quoting Del. Nation v. Pennsylvania, 446 F.3d 410, 416 (3d Cir. 2006)). As Perez has
provided no compelling reason for such a late amendment, we will deny his request to
amend his complaint.
III
For the reasons stated, we will affirm the order of the District Court.
10