2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-20-2015

Ever Perez v. Richard Gamez

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Recommended Citation

"Ever Perez v. Richard Gamez" (2015). 2015 Decisions. Paper 764.

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NOT PRECEDENTIAL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)
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____________

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.
3

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).
4

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 
5

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 
6

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 
7

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 policymaking 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 
8

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 
9

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 
10

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.