Brandon Fake v. City of Philadelphia, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: SHWARTZ, COWEN and FUENTES, Circuit Judges. Total Pages: 6.

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Document: 003112706975

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Date Filed: 08/22/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-1173
___________
BRANDON L. FAKE,
Appellant
v.
CITY OF PHILADELPHIA; KEVIN M. DOUGHERTY, Judge;
MARGARET T. MURPHY, Judge; HOLLY J. FORD, Judge;
JOEL S. JOHNSON, Judge; DIANNE J. FAKE; PATRICK J. MURPHY
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 16-cv-03893)
District Judge: Honorable Gerald J. Pappert
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 21, 2017
Before: SHWARTZ, COWEN and FUENTES, Circuit Judges
(Opinion filed: August 22, 2017)
___________
OPINION*
___________
PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Brandon L. Fake appeals from orders of the United States District Court for the
Eastern District of Pennsylvania. We will affirm.
In July 2016, Fake filed a pro se complaint against 44 defendants, alleging a
conspiracy in the Philadelphia Court of Common Pleas in connection with divorce,
support, and custody proceedings between Fake and his ex-wife that began in 2004. The
District Court granted Fake’s motion to proceed in forma pauperis and screened the
complaint under 28 U.S.C. § 1915(e). The Court dismissed some claims with prejudice
and others without prejudice and allowed Fake to file an amended complaint. Dist. Ct.
Mem., Dkt. #2 at 9-10.
In October 2016, the District Court dismissed Fake’s amended complaint,
determining that his claims were either legally frivolous or that they failed to state a
claim upon which relief could be granted. Again, the District Court dismissed some of
Fake’s claims with prejudice and some claims without prejudice. Dist. Ct. Mem., Dkt.
#6. The Court allowed Fake another chance to file an amended complaint “only with
respect to his claims that have not been dismissed with prejudice.” Dist. Ct. Order, Dkt.
#7.
Fake then filed a second amended complaint against the City, Dianne Fake (his exwife), Patrick J. Murphy (who at the time was Under Secretary of the United States
Army), and four judges1 who served on the Philadelphia Court of Common Pleas during

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The judges named as defendants are Judge Kevin M. Dougherty, Judge Margaret T.
Murphy, Judge Joel S. Johnson, and Judge Holly J. Ford.
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the time period in his complaint. In December 2016, the District Court dismissed the
second amended complaint with prejudice, determining that Fake failed to state a viable
conspiracy claim, that he failed to state a basis for a claim against the City, and that the
judicial defendants were entitled to judicial immunity. Fake filed a timely appeal.
We exercise plenary review of the District Court’s sua sponte dismissal under 28
U.S.C. § 1915(e)(2)(B)(ii). See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).
“[W]e accept all factual allegations as true [and] construe the complaint in the light most
favorable to the plaintiff.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir.
2011) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).
We analyze the District Court’s determination that the complaint failed to state a claim
under the standard articulated in Ashcroft v. Iqbal, 556 U.S. 662 (2009). Under that
standard, a pleading “must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Id. at 678 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Although pro se pleadings must be held to “less
stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S.
519, 520 (1972), “pro se litigants still must allege sufficient facts in their complaints to
support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
Fake raises five claims of error in his brief. First, Fake challenges the District
Court’s decision at screening to dismiss with prejudice the claims under 42 U.S.C.
§ 1983, 42 U.S.C. § 1985, and 18 U.S.C. § 242. In that regard, Fake argues only that it
was error to dismiss his claims with prejudice without discovery and a fair hearing. But §
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1915(e)’s screening provisions function in a manner similar to a party’s motion to
dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure—the screening
should expose the deficiencies of the complaint “‘at the point of minimum expenditure of
time and money by the parties and the court.’” See Twombly, 550 U.S. at 558 (quoting 5
Wright & Miller § 1216, at 233-234). “Because [Fake’s] complaint is deficient under
Rule 8, he is not entitled to discovery.” See Iqbal, 556 U.S. at 686. Nor was a hearing
required.2
Fake’s second argument is that the District Court erred in dismissing claims
against the Philadelphia Court of Common Pleas on the basis of Eleventh Amendment
immunity because the state has “engaged in fraud.” However, the Commonwealth of
Pennsylvania has not waived immunity from suit in federal court, and “Congress, in
passing § 1983, had no intention to disturb the States’ Eleventh Amendment immunity.”
See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989); see also 42 Pa. Cons.
Stat. Ann. § 8521(b); Benn v. First Judicial Dist., 426 F.3d 233, 238-41 (3d Cir. 2005).
And we further agree with the District Court that the Court of Common Pleas is not, in
any event, a “person” subject to liability under § 1983. See Will, 491 U.S. at 65-66.

Fake does not give any other reasons for why he believes the District Court’s decision
to dismiss these claims was wrong. He has thus waived any other arguments concerning
these claims. See Kopec v. Tate, 361 F.3d 772, 775 n. 5 (3d Cir. 2004) (“An issue is
waived unless a party raises it in its opening brief.”). Nonetheless, we do not discern any
error in the District Court’s decision to dismiss these claims.
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Fake’s third argument requires little discussion. He argues that the “District Court
refers to the Philadelphia Court of Common Pleas as a Department of the City of
Philadelphia” in its July 2016 memorandum. Fake misreads that opinion by eliding the
Court’s sentence regarding Eleventh Amendment immunity with the following sentence
regarding departments of the City. See Dist. Ct. Mem., Dkt. #2 at 10. Fake appears to
argue that his interpretation of the opinion caused him to drop the Philadelphia Court of
Common Pleas as a defendant in his second amended complaint. But he was not
prejudiced by his misreading, as the Court of Common Pleas is not subject to suit, as
explained above.
Fake’s fourth argument is that the District Court improperly determined that the
judicial defendants are entitled to absolute immunity, since they “have acted criminally
under color of law and without jurisdiction, as well as actions taken administratively
[sic].” Judicial immunity extends to judicial officers, even if their actions were “in error,
w[ere] done maliciously, or w[ere] in excess of [their] authority,” unless the officers
acted in clear absence of all jurisdiction. Capogrosso v. Sup. Ct. of N.J., 588 F.3d 180,
184 (3d Cir. 2009) (per curiam) (citations, quotations omitted). The complained-of acts
were clearly performed by these defendants in their roles as judges, and the alleged
procedural errors identified by Fake, such as those involved in scheduling or cancelling
hearings, do not abrogate judicial immunity. See Stump v. Sparkman, 435 U.S. 349, 359,
362 (1978); see also Doyle v. Camelot Care Centers, Inc., 305 F.3d 603, 622 (7th Cir.
2002) (scheduling of hearings is integral to judicial functioning and mere fact that
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scheduling is a routine activity does not render the task “administrative or ministerial in
nature”). Nor would judicial immunity be lost even if some of the defendants, as Fake
suggests, engaged in improper favoritism or ex parte communications. See Nystedt v.
Nigro, 700 F.3d 25, 31-32 (1st Cir. 2012). Finally, Fake cannot sustain his request for
injunctive relief; such claims are barred by the language of amendments to 42 U.S.C.
§ 1983 itself. Azubuko v. Royal, 443 F.3d 302, 303-04 (3d Cir. 2006) (per curiam).3
Fake’s last argument is that the District Court improperly dismissed claims on the
basis of the statute of limitations “for claims that occurred during the commission of
fraud upon the Court.” Fake states that the Philadelphia Court of Common Pleas and its
officers “have engaged in an unconscionable scheme to commit fraud upon the Court that
has been continuing to the present date.” But even if all of Fake’s claims against the
Court of Common Pleas and the judicial defendants were timely, they fail on the basis of
immunity, as described above.
For the foregoing reasons, we will affirm the District Court’s judgment.

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Fake has waived any challenge to the dismissal of his claims of a judicial conspiracy
between his ex-wife and other defendants as he does not raise such a challenge in his
brief. But in any event, we agree with the District Court that Flake’s complaint had not
“assert[ed] facts from which a conspiratorial agreement can be inferred.” Great W.
Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010); see also
Capogrosso, 588 F.3d at 184-85 (discussing pleading requirements in “judicial
conspiracy” claims).
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