Raymond Heyde v. Gary Pittenger

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1388

R AYMOND R.S. H EYDE,

Plaintiff-Appellant,

v.

G ARY P ITTENGER, et al,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of Illinois.

No. 1:07-cv-01182—Michael M. Mihm, Judge.

A RGUED S EPTEMBER 16, 2010—D ECIDED JANUARY 11, 2011

Before C UDAHY, R OVNER, and E VANS, Circuit Judges.

E VANS, Circuit Judge. Raymond Heyde, the trustee of

an entity called the Raymond R.S. Heyde Revocable

Trust, holds title to residential property located in

Tazewell County, Illinois. Heyde brought suit against

five members of the Tazewell County Board of Review

(“BOR”): Gary Pittenger, Lloyd Orrick, Joe Varda,

Rob Paulin and Robert Kieser; as well as Kristal

Deininger, acting Supervisor of Assessments, Jim Unsicker,

2 No. 09-1388

temporary acting Supervisor of Assessments, and

Richard Brehmer, Deer Creek Township Assessor (“the

Assessors”). Heyde asserts that by setting his property’s

assessment at levels grossly disproportionate to its fair

market value, the BOR and the Assessors deprived him

of his equal protection rights, conspired to violate his

equal protection rights, and retaliated against him for

previously exercising his right to challenge assess-

ments—all in violation of 42 U.S.C. § 1983. He sought,

among other things, damages against the defendants.

The district judge granted the BOR’s Rule 12(b)(6)

motion, finding they had absolute immunity. The judge

later dismissed the case without prejudice against the

remaining Assessors. Citing principles of comity, he

found that the case was premature because Heyde

had not exhausted his available state remedies. The

judge also denied Heyde’s motion for reconsideration.

Heyde now appeals.

Some might think that Tazewell County, Illinois, is an

unlikely spot for a nasty dispute like the one in this case.

The county, which is just south of Peoria, describes itself

on its website as a “central Illinois community which

combines city assets with the serene beauty and quiet

countryside of rural living.” But looks can be deceiving

as Mr. Heyde’s decision to go to war in federal court

with eight of his fellow county residents is anything

but serene and quiet.

In Tazewell County, the Township Assessor makes the

initial assessment value of each property. According to

Illinois law, the assessor shall assess “the property at

No. 09-1388 3

33 a % of its fair cash value.” 35 ILCS 200/9-155. If a

resident is dissatisfied with an assessment, he is entitled

to file a complaint with the BOR. “[T]he board of

review upon application of any taxpayer or upon its

own motion may revise the entire assessment of any

taxpayer or any part of the assessment as appears to it to

be just.” 35 ILCS 200/16-30. The BOR may not increase

the assessment without giving the taxpayer notice and

an opportunity to be heard. 35 ILCS 200/16-25, -30, -55.

The BOR has the power to “summon any assessor,

deputy, or other person to appear before it to be ex-

amined under oath concerning the method by which

any evaluation has been ascertained.” 35 ILCS 200/16-10.

If, after the BOR has rendered its decision, the

property owner remains dissatisfied, he may appeal the

decision to the Illinois Property Tax Appeal Board

(“PTAB”). 35 ILCS 200/16-160. A hearing before the

PTAB “shall be granted if any party to the appeal so

requests.” 35 ILCS 200/16-170. The PTAB may request

the production of any material documents and issue

subpoenas. Id, 35 ILCS 200/16-175. All PTAB decisions

are subject to review by the state circuit courts, pursuant

to Administrative Review Law and may be further ap-

pealed through the state court system. 35 ILCS 200/16-195.

In the fall of 2003, Heyde received his 2004 notice of

assessment. The BOR assessed his property at $207,270.

Heyde filed a complaint with the BOR, challenging

the assessment as exceeding 33a % of the property’s

fair market value. The BOR granted relief and de-

creased the assessment to $140,000.

4 No. 09-1388

In August 2004, Heyde received a notice which

increased the assessment for 2005 to $149,850. Heyde

again filed a complaint with the BOR. This time, the

BOR declined to reduce the assessment.1

In January 2005, Heyde hired an independent

appraiser, who appraised his property at a fair market

value of $435,000, which would result in an assessment

of $145,000. In September 2005, Heyde received his

2006 notice of assessment. This time the assessment was

set at $153,776. Yet again, Heyde filed a challenge with

the BOR, submitting the independent appraiser’s esti-

mate as well as measurements of the house. In its June 1,

2006 decision, however, the BOR declined to reduce

the assessment. Instead, the assessment was increased,

very significantly, to $436,276. The huge jump in

assessed value was apparently based on the belief that

the house was much bigger than it was originally

thought to be. The house on the property, which sits

behind a locked gate and cannot be seen from any

public way, was thought to include over 10,000 square

feet of living space.

Following the BOR’s June 1 decision, Richard Brehmer,

the Tazewell County Assessor, reported the property’s

assessment at $458,860. Jim Unsicker, the acting Super-

1

The actual tax rates do not appear to be in the record. But

assuming, for example, that they were something in the area

of 6% of the assessed value, the increase in Heyde’s tax bill

for 2005 over 2004 would have been rather modest: a jump to

$8,991 from $8,400.

No. 09-1388 5

visor of Assessment for the county, mailed the 2007

notice of assessment to Heyde. In May 2007, Heyde

again filed a complaint with the BOR. But the BOR af-

firmed the $458,860 assessment.

For the subsequent tax years until 2009, the BOR refused

to lower the assessment on Heyde’s property. Heyde

continued to file complaints with the BOR. The roadblock

to resolving the dispute seems to be that Heyde, for

several years, declined to allow anyone from the county

onto his property to do an inspection. The BOR continued

to affirm the assessment.

On July 5, 2006, before filing this action with the

district court, Heyde appealed the BOR’s June 1, 2006

decision to the PTAB. A PTAB hearing officer heard

the case on May 4, 2009. By this time, Heyde had

allowed the BOR onto his property and both Heyde and

the BOR stipulated that the residence contained 4,021

square feet of living area.

On November 25, 2009, the PTAB ordered a reduction

in the assessment of Heyde’s property for the 2005 tax

year. The PTAB, however, did not reduce the assess-

ment to Heyde’s liking, and on December 30, 2009, he

filed a complaint with the Tenth Judicial Circuit Court

for Tazewell County, Illinois, seeking administrative

review of the PTAB decision pursuant to 735 ILCS 5/3-101

et. seq. Heyde currently has additional appeals pending

before the PTAB for other tax years up to 2009. Ap-

parently, none have been scheduled for a hearing.

In July 2007, Heyde filed a complaint in federal court

against BOR Chairman Pittenger and former BOR

6 No. 09-1388

members Orrick and Varda. On December 14, 2007, he

amended his complaint to include current BOR members

Paulin and Kieser, as well as Tazewell County Assessors

Deininger, Unsicker, and Brehmer. He sought “in excess

of $400,000 plus punitive damages.”

The district judge granted the BOR members’ Rule

12(b)(6) motion, finding that they were entitled to

absolute immunity. The remaining defendants (the As-

sessors) later filed a motion for summary judgment

arguing that Heyde’s case was premature because he

has appeals pending before the PTAB and thus he has not

exhausted his state remedies. In the alternative, they

argued that they were protected by qualified immunity.

The district judge found Heyde’s claims to be premature

under principles of comity. The judge accordingly dis-

missed Heyde’s case without prejudice and did not

reach the question of qualified immunity. The judge

also denied Heyde’s motion for reconsideration.

As a preliminary matter, the BOR and the Assessors

argue that we do not have jurisdiction to hear this

appeal because the district judge dismissed the case

without prejudice. The Assessors argue that because

Heyde can return to federal court after he has exhausted

his state remedies the district judge’s ruling was not a

final order.

In Taylor-Holmes v. Office of the Cook County Public Guard-

ian, however, we noted that “[a] dismissal without preju-

dice is an appealable final order if it ends the suit so far

as the district court is concerned.” 503 F.3d 607, 610

(7th Cir. 2007). Heyde correctly points out that the

No. 09-1388 7

district judge’s order effectively ends this suit because

after Heyde has exhausted his state remedies the only

federal court that can review the state court judgment

is the Supreme Court. See Fair Assessment in Real Estate

Ass’n, Inc. v. McNary, 454 U.S. 100, 116 (1981). Therefore,

the district judge’s order effectively ended the suit so

far as the federal district court was concerned. Accord-

ingly, we have jurisdiction to hear this appeal.

Next, we review the district judge’s grant of the BOR’s

Rule 12(b)(6) motion to dismiss finding that the BOR is

entitled to absolute immunity. Orders granting motions

to dismiss are reviewed de novo. Justice v. Town of Cicero,

577 F.3d 768, 771 (7th Cir. 2009). “In assessing whether

the plaintiff has stated a valid claim for relief, we

construe the complaint in the light most favorable to

the plaintiff, accepting as true all well-pleaded facts

alleged, and drawing all possible inferences in her favor.”

Golden v. Helen Sigman & Associates, Ltd., 611 F.3d 356, 360

(7th Cir. 2010) (internal quotations omitted). To state a

claim under 42 U.S.C. § 1983, “[a] plaintiff[] must allege

that a government official, acting under color of state

law, deprived [him] of a right secured by the Constitution

or laws of the United States.” Estate of Sims ex rel. Sims v.

County of Bureau, 506 F.3d 509, 514 (7th Cir. 2007). Dis-

missal is proper “if the complaint fails to set forth

‘enough facts to state a claim to relief that is plausible on

its face.’ ” St. John’s United Church of Christ v. City of

Chicago, 502 F.3d 616, 625 (7th Cir. 2007) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570).

Here, the members of the BOR argue, and the district

judge agreed, that Heyde’s § 1983 claims should be dis-

8 No. 09-1388

missed because they are entitled to absolute immunity.

Our approach to determining whether an official is

entitled to absolute immunity is well established; we

apply a functional approach. Buckly v. Fitzsimmons, 509

U.S. 259, 269 (1993). “That is, we look to the nature of the

function performed, not the identity of the actor who

performed it. . . . Absolute immunity is not limited to

government officials with the title of prosecutor or

judge.” Wilson v. Kelkhoff, 86 F.3d 1438, 1443 (7th Cir.

1996) (internal citation omitted). Absolute immunity

protects members of quasi-judicial adjudicatory bodies

when their duties are functionally equivalent to those of

a judge or prosecutor. Butz v. Economou, 438 U.S. 478, 512-

13 (1978). “[T]he nature of the adjudicative function

requires a judge frequently to disappoint some of the

most intense and ungovernable desires that people can

have.” Forrester v. White, 484 U.S. 219, 226 (1988). Therefore,

we have found that,

[T]he cloak of immunity is designed to prevent a

situation in which decision-makers ”act with an

excess of caution or otherwise . . . skew their decisions

in ways that result in less than full fidelity to the

objective and independent criteria that ought to

guide their conduct,” out of a fear of litigation or

personal monetary liability.

Tobin for Governor v. Illinois State Board of Elections, 268

F.3d 517, 522 (7th Cir. 2001) (quoting Forrester, 484 U.S.

at 223).

Moreover, in Butz, the Supreme Court identified

several characteristics of quasi-judicial functions that

No. 09-1388 9

courts should consider when determining whether a

public official is entitled to absolute immunity: (1) the

need to assure that the individual can perform his func-

tions without harassment or intimidation; (2) the

presence of safeguards that reduce the need for damages

actions as a means for controlling unconstitutional con-

duct; (3) the insulation from political influence; (4) the

importance of precedent; (5) the adversarial nature of the

process; and (6) the correctability of error on appeal. 438

U.S. at 512.

Absolute immunity, however, applies only to judicial

acts and does not protect the official from acts that are

ministerial or administrative in nature. Dawson v. Newman,

419 F.3d 656, 661 (7th Cir. 2005). Moreover, “the official

seeking absolute immunity bears the burden of showing

that such immunity is justified for the function in ques-

tion.” Burns v. Reed, 500 U.S. 478, 486 (1991). Here, the

district judge found that the BOR members are entitled

to absolute immunity because, under the Butz criteria

and Illinois statutes governing the BOR, their actions

while reviewing Heyde’s property assessment claim

were quasi-judicial in nature. We agree.

Heyde argues that when the BOR relied on evidence

it gathered, and did not confine its process to mate-

rials submitted by the parties (and thus increased his

property assessment on its own accord), it was acting in

an investigatory capacity, and therefore the members

should not be granted absolute immunity. In support of

his argument, Heyde cites several Supreme Court cases

in which an officer was denied absolute immunity

10 No. 09-1388

because he was acting in an investigative capacity at the

time in question. See Hartman v. Moore, 547 U.S. 250, 262 n.8

(2006) (no absolute immunity for a prosecutor for

conduct taken in an investigatory capacity); Buckley, 509

U.S. at 271-75 (no absolute immunity for a prosecutor

acting in an administrative capacity); Burns, 500 U.S. at

492-96 (no absolute immunity when a prosecutor offers

legal advice to the police regarding interrogation prac-

tices). These cases, however, are easily distinguishable.

The BOR was not acting in an investigatory capacity.

Rather, the actions of the BOR here were quasi-judicial

in nature and in accordance with Illinois law.

Under Illinois law, the BOR has the authority to:

(1) resolve complaints challenging property tax assess-

ments set by county officials; and (2) on its own

motion revise the entire assessment of any taxpayer or

any part of the assessment as appears to be just. See 35

ILCS 200/16-25, -30. The BOR is the fact-finder and

decision-maker for disputed property assessments in

its county. Therefore, Heyde’s argument that the BOR

was acting in an investigatory capacity fails. Illinois

statutes are clear—the BOR is within its bounds as a

judicial body to revise Heyde’s property assessment.

How it assembled the evidence upon which it relied

does not change the nature (quasi-judicial) of the action

it takes.

In addition to the Illinois statutes, our conclusion that

the BOR members are entitled to absolute immunity is

supported by our previous decisions. In Reed v. Village

of Shorewood, we found that “the commissioner is acting

No. 09-1388 11

in a judicial capacity when he revokes a liquor license.

He may not revoke without finding that the licensee

has violated the law; he may make that finding only

after notice and hearing; and he ‘shall reduce all evi-

dence to writing and shall maintain an official record of

the proceedings.’ ” 704 F.2d 943, 951 (7th Cir. 1983) (inter-

nal citations omitted). As the district judge noted here,

although the BOR can quite properly increase assessments

on its own, like in Reed, it can do so only if it provides

notice and hearing. 35 ILCS 200/16-30. Indeed, the BOR

engaged in a judicial proceeding, giving Heyde the oppor-

tunity to present evidence before it increased his assess-

ment.

In Crenshaw v. Baynerd, we affirmed a finding of

absolute immunity granted to the Indiana Civil Rights

Commission, determining that the Commission’s decision

that it lacked jurisdiction to investigate an allegation of

discrimination was an action taken in an adjudicatory

capacity. 180 F.3d 866, 868 (7th Cir. 1999). We have

also found that members of a prison review board that

held a hearing to evaluate whether revocation of a plain-

tiff’s supervised release was proper before revoking

the release were entitled to absolute immunity. Wilson,

86 F.3d at 1443-45. And we have affirmed a grant of

summary judgment to members of the Illinois Board

of Elections concluding that they were entitled to

absolute immunity when ruling on objections to nomina-

tions for state offices. Tobin for Governor, 268 F.3d at 522.

We have also observed that administering oaths, examin-

ing witnesses, and the power to issue subpoenas are

hallmarks of the sort of duties that entitle government

12 No. 09-1388

or administrative actors to the protection afforded by

the doctrine of absolute immunity. Id.

Here, the BOR had similar duties. It was empowered

to “summon any assessor, deputy, or any other person

to appear before it to be examined under oath con-

cerning the method by which any evaluation has been

ascertained.” 35 ILCS 200/16-10. More importantly,

the BOR can only increase an assessment if it gives the

property owner notice and an opportunity to be heard.

35 ILCS 200/16-25, -30, -55.

Additionally, in Tobin for Governor, we found that, in

accordance with the Butz factors, absolute immunity

was necessary to “protect the board members from harass-

ment and intimidation so that they can exercise their

independent judgment.” 268 F.3d at 522. Likewise, the

BOR statutory function of affirming, denying, and re-

vising property assessments is inherently controversial

and likely to result in disappointed parties and, unless

checked, a multitude of lawsuits.

Finally, in Reed we found that the ability of the

individual to appeal the decision of the administrative

official weighs toward granting absolute immunity. 704

F.2d at 951. “The basis of the absolute immunity of

judges is less that they are unlikely to commit wrongs

than that their wrongs are largely remediable through

the appellate process.” Id. at 952. This justification

applies equally to actions taken by the BOR.

Illinois law provides safeguards to review (and

correct, if necessary) BOR decisions on appeal. 35 ILCS

200/16-160. The statute guarantees an appeal as of right

No. 09-1388 13

with the PTAB. And the PTAB reviews BOR decisions

de novo. 35 ILCS 200/16-180. See Tobin for Governor, 268

F.3d at 522 (finding it important to the determination of

whether the official was entitled to absolute immunity

that Illinois statute afforded judicial review against

board decisions). Moreover, PTAB decisions are ap-

pealable to the Illinois courts pursuant to Illinois Ad-

ministrative Review Law. 35 ILCS 200/16-195; see also

Beverly Bank v. Board of Review of Will County, 117 Ill. App.

3d 656, 662 (1983).

Therefore, we agree with the district court. Heyde’s

argument that the BOR members were acting in an in-

vestigatory capacity, and thus are not entitled to

absolute immunity, is unpersuasive. The BOR has the

characteristics that counsel towards granting absolute

immunity. The BOR members’ actions while performing

their duties as instructed by Illinois statutes, Heyde’s

ability to present evidence and question witnesses, his

ability to appeal both to the PTAB and, if still dissatisfied,

to the Illinois courts, and the need to protect BOR

members from fear of intimidation and litigation, fall

squarely within the Butz factors and within our previous

decisions regarding absolute immunity for state and

local administrative officials. Accordingly, the BOR

members are entitled to absolute immunity.

We turn then to the district judge’s grant of the Asses-

sors’ summary judgment motion. Our review is de novo.

The district judge granted the Assessors’ motion

finding that Heyde’s claims are premature and barred

by principles of comity.

14 No. 09-1388

In McNary, the plaintiff, a non-profit corporation called

Fair Assessment in Real Estate, sued the Missouri State

Tax Commission alleging that the organization’s

members were deprived of equal protection and due

process by the Commission’s unequal taxation of real

property. 454 U.S. at 105-06. The Court, citing the

decision in the district court, found that,

To allow such suits would cause disruption of the

states’ revenue collection systems equal to that

caused by anticipatory relief. State tax collection

officials could be summoned into federal court to

defend their assessments against claims for refunds

as well as prayers for punitive damages, merely on the

assertion that the tax collected was willfully and

maliciously discriminatory against a certain type

of property. Allowance of such claims would result

in this Court being a source of appellate review of

all state property tax classifications.

Id. at 114 (citing Fair Assessment in Real Estate Ass’n, Inc. v.

McNary, 478 F. Supp. 1231, 1233-34 (E.D. Mo. 1979)).

Accordingly, the Supreme Court held that “taxpayers

are barred by the principle of comity from asserting

§ 1983 actions against the validity of state tax systems.”

McNary, 454 U.S. at 116. Taxpayers must first exhaust

the state remedies, and only after may they seek review

of the state court decision in the United States Supreme

Court. Id.

Heyde argues that his case is distinguishable from

McNary because the process in Illinois is not a “plain,

No. 09-1388 15

speedy and efficient” 2 remedy as McNary requires. Id.

To make this argument, Heyde relies heavily on Rosewell

v. LaSalle National Bank, 450 U.S. 503 (1981), a case

decided some eight months before McNary. There, the

Supreme Court found that the two year delay in the

Illinois property tax refund process, though regrettable,

was not “outside the boundary of a ‘speedy’ remedy.” Id.

at 520-21. Heyde argues that the delay in his case, which

is greater than two years, means that the state process is

no longer “plain, speedy and efficient.” Thus, he argues

he is entitled to pursue federal remedies at this time.

But Heyde fails to recognize that since Rosewell and

McNary, we have continually found that the available

state procedures for challenging the Illinois tax system

are acceptable under McNary. See Scott Air Force Base

Properties, LLC v. County of St. Clair, Illinois, 548 F.3d 516,

522-23 (7th Cir. 2008) (finding that a full hearing and

judicial determination of any constitutional claims

under the system created by the Property Tax Code was

sufficient); Levy v. Pappas, 510 F.3d 755, 762 (7th Cir.

2007) (finding that a plaintiff cannot bring a federal

action when the plaintiff’s claim is that the state tax

system is singling her out); Fromm v. Rosewell, 771 F.2d

1089, 1092 (7th Cir. 1985) (finding that the state property

tax appeal was adequate and that principles of comity

precluded federal review).

2

The Court noted that there is no difference between “plain,

adequate and complete” and “plain, speedy and efficient.”

ary454 U.S. at 116 n.8.

16 No. 09-1388

In Scott Air Force Base, we found that “Illinois taxpayers

are able to litigate their constitutional and other federal-

law challenges to state tax matters in the Illinois adminis-

trative and judicial system.” 548 F.3d at 523. And in

Levy, we held that principles of comity bar federal

action “[w]hen a plaintiff alleges that the state tax collec-

tion or refund process is singling her out for unjust treat-

ment.” 510 F.3d at 762.3 There, the plaintiff filed a § 1983

action against county officials arguing that the officials

retained taxpayers’ property tax refunds and retaliated

against the plaintiff for filing a state court action. We

held that McNary controlled, and the plaintiff’s § 1983

claims were barred under principles of comity. Id.

Heyde also cites Colonial Pipeline Co. v. Collins to

support his argument. 921 F.2d 1237 (11th Cir. 1991). In

Colonial Pipeline, the Eleventh Circuit found that a

district court erred in concluding it lacked jurisdiction

to hear a challenge to Georgia’s ad valorem tax system

before the court conducted a “full factual inquiry into

the truthfulness of [the plaintiff’s] allegations con-

cerning the adequacy of state remedies for its constitu-

tional claims.” Id. at 1244. What Heyde leaves out, how-

ever, is the reason the court disagreed with the

district judge in that case: recent amendments to the tax

3

We also held that the Tax Injunction Act and comity do not

bar federal action if “a plaintiff alleges that the state tax collec-

tion or refund process is giving benefits to someone else.” Levy,

510 F.3d at 762. The Supreme Court abrogated our decision

on the second holding. Levin v. Commerce Energy, Inc., 130

S.Ct. 2323, 2330 (2010).

No. 09-1388 17

system “ha[d] so significantly altered the assessment and

appeals processes . . . that their adequacy within the

meaning of [plain, speedy and efficient] remains an open

question.” Id. That is not the case here. We have con-

tinuously held that the Illinois tax system passes

muster under McNary.

Therefore, while the delays in the Illinois system are

unfortunate, this case fits within the parameters of

McNary and our previous decisions. The Illinois system,

though far from perfect, is “plain, speedy and efficient”

as understood in McNary. The district judge correctly

granted the Assessors’ motion for summary judgment.

Pursuant to principles of comity, Heyde must exhaust

his available state remedies.

The Assessors also argue that they are entitled to quali-

fied immunity. But because we believe the case was

correctly dismissed without prejudice under principles

of comity, we do not reach this issue.

As we approach the end of our consideration of this

case, we note a fallback argument advanced by Mr.

Heyde. He says if we affirm the district judge’s grant of

summary judgment to the Assessors on comity grounds,

we should vacate the order granting the Rule 12(b)(6)

motion to dismiss filed by the BOR members based on

absolute immunity. Affirming the grant of summary

judgment, Heyde maintains, means the district court

should have also dismissed the case without prejudice

against the BOR members based on comity. The judge

should not, the argument goes, have decided the

question of immunity.

18 No. 09-1388

We disagree with Heyde’s alternative argument. When

the BOR members moved to dismiss, the issue of comity,

which is an affirmative defense, was not raised. As the

case stood at that time, the district judge had juris-

diction to decide the issue that was raised: Are the mem-

bers of the BOR entitled to a ticket out of the case

because they enjoy absolute immunity from the type of

claim being asserted against them? Once that question

was answered in favor of the BOR members, it became

the law of the case. The later introduction into the case

of the issue of comity by the Assessors in their motion

for summary judgment did not require a trip back in

time to when the Rule 12 motion was decided.

Finally, we turn to the district judge’s denial of Heyde’s

Rule 59(e) Motion for Reconsideration. We review this

decision for abuse of discretion. Andrews v. E.I. DuPont

de Nemours and Co., 447 F.3d 510, 515 (7th Cir. 2006). Rule

59(e) allows a court to amend a judgment “only if the

petitioner can demonstrate a manifest error of law or

present newly discovered evidence.” Obriecht v. Raemisch,

517 F.3d 489, 494 (7th Cir. 2008). Here, Heyde has not

produced any evidence that the district judge’s grant of

absolute immunity to the BOR members was a

manifest error of law or fact. And as we discussed, the

district judge correctly granted the BOR’s Rule 12(b)(6)

motion. Therefore, there is no evidence that the

district court abused its discretion when it denied

Heyde’s motion for reconsideration.

In sum, the actions of the BOR members are quasi-

judicial in nature and they are accordingly entitled to

No. 09-1388 19

absolute immunity. Moreover, under McNary and under

our precedent, the district judge properly dismissed

without prejudice Heyde’s claims against the Assessors

citing principles of comity. The judgment of the district

court is A FFIRMED.

1-11-11