     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.
24   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
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
35   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
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. at

13   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




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