                                                      NOT PRECEDENTIAL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
