Unpublished Disposition, 936 F.2d 577 (9th Cir. 1991)

MEMORANDUM^* 

At oral argument, counsel for Franklin Hurd conceded that, at the time Ann Rudin stopped him from playing an audiotape of a Christian hymn at the Sacramento City Council meeting, she was acting in a legislative capacity in her role as a member of the Sacramento City Council. Rudin is, therefore, protected from suit by the defense of legislative immunity. See Tenney v. Brandhove, 341 U.S. 267, 372 (1951) (recognizing "the privilege of legislators to be free from arrest or civil process for what they do or say in legislative proceedings").

A complaint should not be dismissed under Rule 12(b) (6) unless "it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 915 F.2d 1242, 1244 (9th Cir. 1989). The present record does not clearly demonstrate that Hurd cannot plead facts, as to the defendants other than Rudin, that would withstand a motion pursuant to Rule 12(b) (6). It is possible that certain defendants were not entitled to derivative immunity: They may have violated Hurd's rights in some way other than by carrying out Rudin's order (e.g., by use of excessive force or by acting outside the scope of their authority). Nor is it clear from the record that they were entitled to qualified immunity, which, of course, is an affirmative defense that must be raised and proven. We express no opinion on whether Hurd in fact can successfully plead claims that will withstand a motion for dismissal under Rule 12(b) (6) or for a summary judgment. But as the record stands, it has not been shown beyond a reasonable doubt that he cannot. Accordingly, the district court was required to give Hurd an opportunity to amend. See Franklin v. Oregon, 662 F.2d 1337, 1341 (9th Cir. 1981) (opportunity to amend required in sua sponte dismissal unless complaint clearly deficient).

Each party will bear its own costs.

The dismissal of the action against defendant Rudin is AFFIRMED. The dismissal of all claims against the other defendants is VACATED. The matter is REMANDED with directions to grant Hurd the opportunity to amend his pleadings.