Olma v. Collins , 499 F. App'x 98 ( 2012 )

11-3563-cv
Olma v. Collins
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 S U M M A R Y O R D E R
5
6 Rulings by summary order do not have precedential effect. Citation
7 to a summary order filed on or after January 1, 2007, is permitted
8 and is governed by Federal Rule of Appellate Procedure 32.1 and
9 this court’s Local Rule 32.1.1. When citing a summary order in a
10 document filed with this court, a party must cite either the
11 Federal Appendix or an electronic database (with the notation
12 “summary order”). A party citing a summary order must serve a copy
13 of it on any party not represented by counsel.
14
15 At a stated term of the United States Court of Appeals for
16 the Second Circuit, held at the Daniel Patrick Moynihan United
17 States Courthouse, 500 Pearl Street, in the City of New York, on
18 the 10th day of October, two thousand twelve.
19
20 Present: RALPH K. WINTER,
21 REENA RAGGI,
22 DEBORAH ANN LIVINGSTON,
23 Circuit Judges.
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25 GREGORY B. OLMA,
26 Plaintiff-Appellee,
27
28 v. 11-3563-cv
29
30 CHRIS COLLINS, Individually, CHRISTOPHER M. GRANT, Individually,
31 JOHN GREENAN, Individually, COUNTY OF ERIE, GREGORY SKIBITSKY,
32 Individually,
33 Defendants-Appellants.
34
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36
1 APPEARING FOR APPELLANTS:Jeremy A. Colby, Erie County Department
2 of Law, Buffalo, New York.
3
4 APPEARING FOR APPELLEE: James Ostrowski, Buffalo, New York.
5
6 Appeal from an order by the United States District Court for
7 the Western District of New York (Arcara, J.).
8
9 UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED
10 AND DECREED that the order of said court be and hereby is
11 AFFIRMED in part, VACATED in part, and REMANDED.
12
13 Chris Collins, Christopher Grant, John Greenan, the County
14 of Erie, and Gregory Skibitsky appeal from Judge Arcara’s order
15 denying their motion to dismiss based on legislative immunity.
16 Appellants assert that the district court erred in concluding
17 that it lacked sufficient factual information to conclude as a
18 matter of law that appellants’ actions were protected by
19 legislative immunity. We assume familiarity with the underlying
20 facts, the procedural history, and the issues presented for
21 review.
22 When a district court denies absolute or qualified immunity
23 in response to a motion to dismiss, we review the district
24 court’s denial de novo. State Emps. Bargaining Agent Coal. v.
25 Rowland, 494 F.3d 71, 82 (2d Cir. 2007). Accepting as true all
26 factual allegations in the complaint, we conclude that the
27 individual appellants, but not the County of Erie, are entitled
28 to absolute legislative immunity.
2
1 State, regional, and local legislators are entitled to
2 absolute immunity from liability under 42 U.S.C. § 1983 for
3 official action undertaken in “the sphere of legitimate
4 legislative activity.” Tenny v. Brandhove, 341 U.S. 367, 376
5 (1951) (state legislators); Lake Country Estates, Inc. v. Tahoe
6 Reg’l Planning Agency, 440 U.S. 391, 404-05 (1979) (regional
7 legislators); Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998)
8 (local legislators).
9 More pertinently, “[l]egislative immunity shields from suit
10 not only legislators, but also officials in the executive and
11 judicial branches when they are acting ‘in a legislative
12 capacity.’” Rowland, 494 F.3d at 82 (quoting Bogan, 523 U.S. at13 55 (finding that actions by mayor that were “integral steps in
14 the legislative process” were protected by legislative
15 immunity)); see also Supreme Court v. Consumers Union of the
16 U.S., Inc., 446 U.S. 719, 734 (1980) (holding that Virginia
17 Supreme Court justices were entitled to legislative immunity for
18 actions taken in their legislative capacities). “Under the
19 Supreme Court’s functional test [for determining the
20 applicability] of absolute legislative immunity, whether immunity
21 attaches turns not on the official’s identity, or even on the
22 official’s motive or intent, but on the nature of the act in
23 question.” Almonte v. City of Long Beach, 478 F.3d 100, 106 (2d
24 Cir. 2007); see also Bogan, 523 U.S. at 54-55.
3
1 Olma’s position was eliminated in a budget amendment
2 approved by the Erie County Legislature on February 7, 2008. Olma
3 was thereafter terminated by letter dated February 15, 2008. He
4 was not administratively fired prior to the passage of the
5 budget. Cf. Jessen v. Town of Eastchester, 114 F.3d 7, 8 (2d
6 Cir. 1997) (upholding district court’s denial of motion to
7 dismiss based on legislative immunity “[b]ecause the complaint
8 allege[d] that defendants fired Jessen before eliminating his
9 position through any legislative action”).
10 The individual appellants acted “in a legislative capacity,”
11 Bogan, 523 U.S. at 55, when they prepared and submitted to the
12 City Council the proposed budget amendment and accompanying memo
13 suggesting elimination of the position filled by Olma. See id.
14 (finding that mayor’s introduction of budget was legislative,
15 even though mayor was an executive official). Their motives for
16 preparing and submitting the proposed budget amendment and memo
17 are irrelevant for purposes of the immunity analysis. Id. at 54-
18 55 (holding that legislative immunity depends on the nature of
19 the act, rather than the motive or intent of the official
20 performing it).
21 Accordingly, the individual appellants, sued in their
22 personal capacities, are entitled to legislative immunity, and
23 the order of the district court is vacated insofar as it applies
24 to them.
4
1 However, the County of Erie does not enjoy the immunity. In
2 Rowland, we stated:
3 While legislative immunity is available to
4 local officials who are sued in their
5 individual capacities, see Bogan, 523 U.S. at
6 54, the Supreme Court has made clear that,
7 due to the historical unavailability of
8 various immunity defenses to local
9 governments, those governments (or “municipal
10 corporations”) are not entitled to the
11 benefit of any immunities that might be
12 available to local officials sued under §
13 1983. See Owen v. City of Independence, 445
14 U.S. 622, 638 (1980) (“[T]here is no
15 tradition of immunity for municipal
16 corporations, and neither history nor policy
17 supports a construction of § 1983 that would
18 justify the qualified immunity accorded
19 [defendant municipality]”); see also
20 Leatherman v. Tarrant Cnty. Narcotics
21 Intelligence & Coordination Unit, 507 U.S.
22 163, 166 (1993) ("[U]nlike various government
23 officials, municipalities do not enjoy
24 immunity from suit -- either absolute or
25 qualified -- under § 1983."); Goldberg [v.
26 Town of Rocky Hill], 973 F.2d [70,] 73 [(2d
27 Cir. 1992)] (noting that “the immunities
28 historically granted other government actors
29 in § 1983 actions had not been available to
30 municipal corporations”).
31
32 494 F.3d at 86.
33 For the foregoing reasons, the order of the district court
34 is hereby VACATED in part, AFFIRMED in part, and REMANDED.
35
36 FOR THE COURT:
37 Catherine O’Hagan Wolfe, Clerk
38
5