FAKE et al v. PHILADELPHIA COURT OF COMMON PLEAS et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD J. PAPPERT ON 10/17/2016. 10/17/2016 ENTERED AND COPIES MAILED TO PRO SE.(kp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BRANDON L. FAKE
PHILADELPHIA COURT OF COMMON
PLEAS, et al.
OCTOBER 17 , 2016
Currently before the Court is plaintiff Brandon L. Fake’s amended complaint based on an
alleged conspiracy in the Philadelphia courts associated with contentious divorce, support and
custody proceedings between plaintiff and his ex-wife that began in 2004. For the following
reasons, the Court will dismiss the amended complaint.
FACTS AND PROCEDURAL HISTORY
In his initial complaint, plaintiff sued forty-four defendants alleging primarily that those
defendants conspired to manipulate domestic relations proceedings in Philadelphia in favor of
plaintiff’s ex-wife, Dianne Fake, based on Ms. Fake’s ties to Under Secretary of the Army
Patrick Murphy and his family. Plaintiff also alleged that due to Dianne Fake’s relationship with
the Murphy family, she and Corinna Fake—who the amended complaint clarifies is Dianne’s
daughter—were treated leniently by the criminal justice system after having been charged with
certain crimes. The complaint also indicated that certain municipal defendants failed to protect
minor children, which the Court understood to be an attempt by plaintiff to raise claims on behalf
of his children. The Court construed the complaint to raise constitutional claims under 42 U.S.C.
§ 1983 and also understood plaintiff to be raising claims under various criminal statutes.
After granting plaintiff leave to proceed in forma pauperis, the Court dismissed the
complaint in part as frivolous and in part for failure to state a claim pursuant to 28 U.S.C. §
1915(e)(2)(B). The dismissal was based on the following grounds: (1) plaintiff lacked standing
to pursue any claims premised on harm to his children; (2) any claims based on criminal statutes
were frivolous because criminal statutes generally do not give rise to civil liability and the Court
cannot direct the filing of criminal charges; (3) claims based on alleged defects in the
prosecutions of Dianne Fake and Corinna Fake were frivolous because those claims did not
implicate plaintiff’s constitutional rights; (4) most of plaintiff’s claims related to the domestic
relations proceeding were barred by the two-year statute of limitations; (5) plaintiff’s claims
based on events that occurred in the course of the domestic relations proceedings were premised
on conclusory allegations that were insufficient to state a claim; (6) the Philadelphia Court of
Common Pleas, which was identified as a defendant, was entitled to Eleventh Amendment
immunity and is not a person for purposes of § 1983; (7) departments of the City of Philadelphia
could not be sued separately from the City; and (8) to the extent plaintiff was suing state judges,
the judges were entitled to absolute immunity for acts taken in their judicial capacity. Plaintiff
was given leave to file an amended complaint.
Plaintiff filed an amended complaint naming the following twenty-eight defendants, many of
whom are judges or special masters who presided over the domestic relations proceeding in
Philadelphia: (1) Philadelphia Court of Common Pleas; (2) City of Philadelphia; (3) Kevin M.
Dougherty; (4) Margaret T. Murphy; (5) Holly J. Ford; (6) Joel S. Johnson; (7) Robert J.
Matthews; (8) Maria McLaughlin; (9) Dianne J. Fake; (10) Patrick J. Murphy; (11) Jack Murphy;
(12) Marge Murphy; (13) Mary Clark; (14) John Clark; (15) Katie Gallen; (16) Daniel Sulman;
(17) Anita N. Botchway; (18) William Ketterlinus; (19) Harry Frank; (20) Allyson Totaro; (21)
Stephen M. Older; (22) the Philadelphia Department of Human Services (DHS); (23) Jessica S.
Shapiro; (24) Gary D. Williams; (25) Jonathan Houlon; (26) Courtney Norella; (27) Philadelphia
Police Department 8th District; and (28) Officer Marafino. As with the initial complaint, the
amended complaint is primarily predicated on allegations that Dianne Fake used her close
relationship with Under Secretary Murphy and his family to rig the court against plaintiff.
Plaintiff alleges that Mary Clark and Dianne Fake née Clark lived next door to the
Murphy family in Philadelphia for approximately two decades, and that the two families
sustained a close relationship. At some point before his relationship with Ms. Fake deteriorated,
plaintiff attended a Murphy family wedding and became aware that Under Secretary Murphy
was friendly with judges in Philadelphia. John Clark, who appears to be Dianne Fake’s father,
allegedly stated that the groom who was marrying into the Murphy family “better hope that they
never get a divorce.” (Am. Compl. at 4.)
Plaintiff also alleges that Under Secretary Murphy used to work in the Philadelphia
District Attorney’s office with Kevin Dougherty and Maria McLaughlin, both of whom went on
to become judges. Additionally, other members of the Murphy family served as judges on the
family court, worked for judges in Philadelphia, and were employed by the local and state
governments. Both Dianne Fake and John Clark allegedly told plaintiff that “if they ever had
any legal trouble all they had to do was go to Jack [Murphy],” who was a Sargent with the
Philadelphia Police Department in the 8th District. (Am. Compl. at 5.)
Between February and May of 2004, plaintiff initiated divorce, custody and child support
proceedings against Dianne Fake in Monroe County. It appears that in connection with those
proceedings, Mary Clark was given primary custody of the couple’s children in Philadelphia,
while plaintiff shared legal custody and was given partial physical custody. In April of 2004,
Ms. Fake filed for spousal support in the Family Division of the Philadelphia Court of Common
Pleas even though, according to plaintiff, venue was improper in Philadelphia. Plaintiff alleges
that his ex-wife initiated that legal action “with the full knowledge and understanding that the
Murphy’s [sic] family and close friends would act under color of law to abuse and violate the
Plaintiff’s civil rights, Constitutional rights and rules of civil procedure.” (Am. Compl. at 6.)
The amended complaint describes events that occurred in the course of the Philadelphia
litigation that plaintiff believes are evidence the proceedings were rigged against him. Master
Daniel Sulman, who was assigned to the support matter, declined to transfer the proceedings to
Monroe County over plaintiff’s objections. In 2005, Master Anita Botchway held a modification
hearing, which plaintiff attended via telephone. After the hearing, Botchway did not hang up the
phone. Accordingly, plaintiff could hear that Sulman entered the room, discussed the matter
with Botchway, and advised her on the matter. “The name Murphy was mentioned.” (Am.
Compl. at 8.) Botchway subsequently issued an order that plaintiff contends was contrary to the
evidence because it inflated his income.
Between 2004 and 2006, plaintiff appears to have been held in contempt, arrested on
more than one occasion, and had his license seized as a result of decisions by Judge Joel
Johnson. Plaintiff alleges that in the course of one arrest in 2005, the police officers who
arrested him subjected him to excessive force and stole $100 from him. While presiding over the
case in 2007, Judge Robert J. Mathews allegedly “verbally threatene[ed], indimidate[d] and
coerce[d]” plaintiff by discriminating against him and “wrongfully dismissing exceptions that
were filed timely.” (Am. Compl. at 12 ¶ 30.) Based on those and several other judicial rulings
throughout the litigation, including the rescheduling of hearings in the matter, plaintiff alleges
that the state court treated him unfairly and unconstitutionally.
In 2007 and 2008, Plaintiff wrote letters to Judge Kevin Dougherty in his capacity as
Administrative Judge, seeking to have him investigate the manner in which the case was
handled. Dougherty forwarded at least one letter to Judge Margaret T. Murphy. Plaintiff did not
receive any additional response. Plaintiff adds that he saw Judge Dougherty and Under
Secretary Murphy “conversing in the hallway of the Court as [he] was led out of [Judge]
Johnson’s courtroom in handcuffs on or about May 9, 2006.” (Am. Compl. at 20.)
In 2012, plaintiff briefly reconciled with Ms. Fake for approximately one year. He
alleges that between June and December of 2012, he “discovered much disturbing information
about the corruption and Murphy’s role in the past events,” but he does not elaborate on what he
allegedly learned. (Am. Compl. at 21.) In 2013, Dianne Fake and Corinna Fake were criminally
charged in the Philadelphia courts, allegedly in connection with a plot to kidnap Corinna Fake’s
daughter. Plaintiff indicates that the charges were dropped after seven continuances, which he
believes is evidence that the courts were rigged in their favor. Plaintiff adds that “Mary and/or
John Clark contacted Patrick J. Murphy” on the date the Fakes were charged and that Murphy
allegedly “contacted Kevin M. Dougherty and/or Margaret T. Murphy to obstruct justice and
they did.” (Id. at 22.) The complaint does not elaborate on that allegation.
Activity resumed in the contentious domestic relations proceeding in early 2014. As with
the prior years of litigation, plaintiff believes the court intentionally delayed hearing motions or
producing transcripts, canceled or rescheduled hearings in violation of his rights, and
discriminated and retaliated against him. In December of 2014, Judge William Ketterlinus
issued a child support order to Ms. Fake that plaintiff believes is unlawful. Both parties filed
exceptions, although Dianne Fake withdrew hers and then was permitted to refile them on the
same day. Plaintiff alleges that it “appears that ex-parte communications are in the file” and that
“[s]pecial treatment [was] given to Ms. Fake and she has conspired with the Court in secret
correspondence,” but he does not describe the nature of the alleged ex-parte communications or
correspondence. (Am. Compl. at 24-25, ¶ 14.) It appears that Judge Holly Ford held a hearing
on the exceptions and ruled against plaintiff.
Plaintiff appealed Judge Ford’s order to the Superior Court. Shortly after he filed his
amended complaint in the instant civil action, the Superior Court affirmed the Court of Common
Pleas. See Fake v. Fake, 2192 EDA 2015 (Pa. Super. Ct.). While the appeal was pending, the
support proceedings continued in the Court of Common Pleas. The various judges and special
masters assigned to the case repeatedly ruled against plaintiff, seized certain funds from him in
connection with their rulings, prepared opinions that plaintiff believes are incorrect, and ordered
plaintiff arrested and detained.
While the case was proceeding, plaintiff’s two daughters allegedly contacted him “for
help to remove them from the dangerous environment that they have been living in” with Dianne
Fake and Corinna Fake. (Am. Compl. at 32.) Plaintiff contacted DHS and the Philadelphia
Police Department about incidents that took place in late 2015 and early 2016. According to
plaintiff, those “agencies acted with gross negligence and refused to provide [him] with any
documentation regarding his children and refused to take appropriate actions to protect the
welfare of [his] children,” which he believes is evidence that “the corruption has also infected
[those agencies].” (Id.)
Plaintiff further alleges that Dianne Fake conspired with Officer Marafino, presumably of
the Philadelphia Police Department, who “acted outside of his jurisdiction by contacting
[plaintiff’s] Colorado probation officer and threatening to have [plaintiff] arrested if [he tried] to
gain custody in accordance with the current order.” (Am. Compl. at 34, ¶ 10.) Plaintiff claims
that he was later refused permission to travel.
On July 18, 2016, plaintiff initiated this civil action. His amended complaint indicates
that he intends to raise claims pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 1985(3), and 18 U.S.C.
§ 242. He primarily seeks compensatory and punitive damages.
STANDARD OF REVIEW
As plaintiff is proceeding in forma pauperis, 28 U.S.C. § 1915(e)(2)(B)(i) and (ii) apply,
which require the Court to dismiss the amended complaint if it is frivolous or fails to state a
claim. A complaint is frivolous if it “lacks an arguable basis either in law or in fact,” Neitzke v.
Williams, 490 U.S. 319, 325 (1989), and is legally baseless if “based on an indisputably meritless
legal theory.” Deutsch v. United States, 67 F.3d 1080, 1085 (3d Cir. 1995).
Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same
standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see
Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to
determine whether the complaint contains “sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotations omitted). The plausibility standard requires more than a “sheer possibility that a
defendant has acted unlawfully,” and is not satisfied by “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements.” Id. Additionally, the Court may
dismiss claims based on an affirmative defense if the affirmative defense is obvious from the
face of the complaint. See Ball v. Famiglio, 726 F.3d 448, 459 (3d Cir. 2013). As plaintiff is
proceeding pro se, the Court construes his allegations liberally. Higgs v. Att’y Gen., 655 F.3d
333, 339 (3d Cir. 2011).
A. Claims under 18 U.S.C. § 242
It appears that plaintiff intends to bring claims under 18 U.S.C. § 242, because he cites that
statute in the amended complaint. However, § 242 is a criminal statute that does not provide a
basis for civil liability. See Cent. Bank of Dover, N.A. v. First Interstate Bank of Denver, N.A.,
511 U.S. 164, 190 (1994) (“We have been quite reluctant to infer a private right of action from a
criminal prohibition alone[.]”); Walthour v. Herron, No. CIV.A.10-01495, 2010 WL 1877704, at
*3 (E.D. Pa. May 6, 2010) (section 242 “do[es] not provide a private right of action under which
Plaintiff may sue”). Accordingly, the Court will dismiss with prejudice any claims under 18
U.S.C. § 242 because they are legally frivolous.
B. Claims under 42 U.S.C. 1985(3)
The amended complaint also suggests that plaintiff seeks to bring claims under 42 U.S.C. §
1985(3). “[T]o state a claim under 42 U.S.C. § 1985(3), a plaintiff must allege: (1) a conspiracy;
(2) motivated by a racial or class based discriminatory animus designed to deprive, directly or
indirectly, any person or class of persons to the equal protection of the laws; (3) an act in
furtherance of the conspiracy; and (4) an injury to person or property or the deprivation of any
right or privilege of a citizen of the United States.” Lake v. Arnold, 112 F.3d 682, 685 (3d Cir.
1997); Farber v. City of Paterson, 440 F.3d 131, 136 (3d Cir. 2006) (explaining that “§ 1985(3)
defendants must have allegedly conspired against a group that has an identifiable existence
independent of the fact that its members are victims of the defendants' tortious conduct”).
Although plaintiff generally alleges that the defendants have conspired against him, he does not
allege the type of race or class based discrimination that is required to state a claim under §
1985(3). Accordingly, the Court will dismiss his § 1985(3) claims.
C. Claims under 42 U.S.C. § 1983
1. The Philadelphia Court of Common Pleas is not Subject to Liability Under §
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
As explained in the Court’s prior memorandum, the Philadelphia Court of Common Pleas is
not a “person” subject to liability under § 1983 and, in any event, is entitled to Eleventh
Amendment immunity from plaintiff’s claims. See Will v. Mich. Dep’t of State Police, 491 U.S.
58, 65-66 (1989); Benn v. First Judicial Dist. of Pa., 426 F.3d 233, 241 (3d Cir. 2005). The
Court will therefore dismiss with prejudice plaintiff’s claims against the Philadelphia Court of
Common Pleas because there is no legal basis for a § 1983 claim against that defendant.
2. DHS and the Philadelphia Police Dept. 8th District are not Entities Subject to
Departments of the City of Philadelphia may not be sued separately from the City itself. See
53 Pa. Cons. Stat. § 16257. As DHS and the Philadelphia Police Department 8th District are
therefore not suable entities, the Court will dismiss the claims against them with prejudice.
3. The Majority of Plaintiff’s § 1983 Claims are Untimely
The allegations of the amended complaint confirm that the vast majority of plaintiff’s
claims are time-barred. Pennsylvania’s two-year statute of limitations applies to plaintiff’s
claims. See 42 Pa. Cons. Stat. § 5524; Wallace v. Kato, 549 U.S. 384, 387 (2007). The
limitations period generally begins to run from the time “the plaintiff knew or should have
known of the injury upon which [his] action is based.” Sameric Corp. of Del., Inc. v. City of
Phila., 142 F.3d 582, 599 (3d Cir. 1998).
Plaintiff filed suit on July 18, 2016. However, most of the events of which he complains
occurred in the course of litigating the support proceeding in the Philadelphia courts between
2004 and 2011, before plaintiff reconciled with Ms. Fake in 2012. During that 2012
reconciliation, plaintiff alleges that he “discovered much disturbing information about the
corruption and Murphy’s role in the past events.” (Am. Compl. at 21.) In light of that
allegation, plaintiff’s prior knowledge of Ms. Fake’s history with the Murphy family, and the
seven years of litigation history in the Philadelphia courts, plaintiff knew or should have known
of the basis for his conspiracy claims by 2012 at the latest. Accordingly, he may not recover for
conduct that occurred prior to July 18, 2014 related to the alleged conspiracy to rig the domestic
relations proceeding against him and in favor of Ms. Fake.1 See Kost v. Kozakiewicz, 1 F.3d 176,
191 (3d Cir. 1993) (“[P]laintiffs were required to seek redress for each act of the alleged
conspiracy causing injury within two years of its occurrence.”); Anders v. Bucks Cnty., No.
CIV.A. 13-5517, 2014 WL 1924114, at *4 (E.D. Pa. May 12, 2014) (“If the plaintiff's claims are
based on discrete acts which give rise to causes of action that can be brought individually, then
the continuing violations doctrine does not serve to extend the applicable statute of limitations
periods.”). The Court will dismiss the time-barred claims with prejudice.
4. Plaintiff Has not Pled a Plausible Conspiracy Claim
Even if plaintiff’s claims were not time-barred, they fail because he has failed to plead a
plausible basis for a conspiracy. “[T]o properly plead an unconstitutional conspiracy, a plaintiff
must assert facts from which a conspiratorial agreement can be inferred.” Great Western Mining
& Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010). “[A] bare assertion of
To the extent plaintiff raises claims—apart from the conspiracy claim—based on his arrest and
detention, the seizure of his license or other belongings, how he was treated by police during his
arrests, or other alleged constitutional violations that occurred prior to July 18, 2014, those
claims are also time-barred.
conspiracy will not suffice.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). “‘A
conspiracy cannot be found from allegations of judicial error, ex parte communications (the
manner of occurrence and substance of which are not alleged) or adverse rulings absent specific
facts demonstrating an agreement to commit the alleged improper actions.’” Capogrosso v. The
Supreme Court of New Jersey, 588 F.3d 180, 185 (3d Cir. 2009) (per curiam) (quoting Crabtree
v. Muchmore, 904 F.2d 1475, 1480-81 (10th Cir. 1990)). Furthermore, to state a claim against a
given defendant, the complaint must provide sufficient factual matter from which the Court
could plausibly infer that the defendant was personally involved in the violation of plaintiff’s
constitutional rights. See Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007).
In Great Western, plaintiff filed a complaint pursuant to 42 U.S.C. § 1983 alleging that the
defendants conspired to deprive it of due process in connection with an arbitration proceeding.
615 F.3d at 162. Great Western’s predecessor-in-interest had agreed to arbitrate the underlying
dispute before Thomas Rutter and Rutter’s company, ADR Options, which employed many
former state and federal judges as arbitrators. The result of the arbitration was an award for the
opposing party, who was represented by an attorney from Fox Rothschild. Great Western filed a
petition to vacate the award in the Pennsylvania courts based on an alleged failure to disclose
potential conflicts of interests between Rutter and his company on the one hand, and attorneys
from Fox Rothschild on the other. The petition was unsuccessful. Great Western subsequently
filed a civil action in the Pennsylvania courts against Rutter, ADR Options, the attorney for the
prevailing party and Fox Rothschild, claiming that an allegedly improper relationship among the
defendants corrupted the arbitration. That lawsuit was also unsuccessful.
In the federal suit against the same defendants, Great Western alleged “that the Pennsylvania
state-court decisions were corrupted by the improper influence of Defendants, arising both from
the Pennsylvania courts' reliance on Rutter's services and from Pennsylvania judges’ prospect of
future employment with ADR Options.” Id. In the course of attempting to amend the complaint,
plaintiffs included the fact “that some of the judges who had ruled against Great Western and for
ADR Options had already approached Rutter regarding the prospect of employment upon leaving
the bench.” Id. at 163.
After reviewing all of Great Western’s pleadings and disregarding conclusory allegations, the
Third Circuit concluded that Great Western failed to state a plausible basis for a conspiracy
under § 1983 despite factual allegations such as (1) a statement was made to that there was “no
way that a Philadelphia court is ever going to find against Thomas Rutter given his relationship
with the Philadelphia court system”; (2) ADR Options employed many former judges and paid
them well; and (3) some of the judges who ruled against Great Western in state court had already
approached Rutter about future employment. Id. at 178. The Third Circuit concluded that:
Great Western has not pleaded any facts that plausibly suggest a meeting of the minds
between Rutter and members of the Pennsylvania judiciary. See Twombly, 550 U.S. at
556, 127 S.Ct. 1955 (holding that a plaintiff claiming conspiracy must plead “enough
fact to raise a reasonable expectation that discovery will reveal evidence of illegal
agreement”). The complaint sets forth merely a “conclusory allegation of agreement
at some unidentified point[, which] does not supply facts adequate to show illegality.”
Id. at 557, 127 S.Ct. 1955. Specifically, Great Western has failed to allege except in
general terms the approximate time when the agreement was made, the specific
parties to the agreement (i.e., which judges), the period of the conspiracy, or the
object of the conspiracy. See, e.g., Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162,
1166 (3d Cir.1989) (“To plead conspiracy adequately, a plaintiff must set forth
allegations that address the period of the conspiracy, the object of the conspiracy, and
the certain actions of the alleged conspirators taken to achieve that purpose.”),
abrogated on other grounds by Beck v. Prupis, 529 U.S. 494, 120 S.Ct. 1608, 146
L.Ed.2d 561 (2000).
Id. at 179.
As in Great Western, plaintiff’s allegations of conspiracy do not state a claim. The Court
must disregard any conclusory allegations, such as plaintiff’s allegation that the defendants
engaged in a “criminal conspiracy to deprive [him] of civil rights,” discriminated and retaliated
against him, or generally deprived him of due process. (Am. Compl. at 2.) The factual
allegations that plaintiff relies on to state his conspiracy claim are: (1) the fact the Murphy
family, and Under Secretary Murphy in particular, was close with Dianne Fake and had personal
ties to judges and other government employees; (2) a statement that John Clark made at a
wedding before 2004 regarding a groom marrying into the Murphy family that the groom “better
hope that they never get a divorce” (Id. at 4); (3) that “[t]he name Murphy was mentioned” in a
conversation plaintiff overheard between special masters after a 2005 hearing in the support
action (Id. at 8); (4) the fact that he saw Under Secretary Murphy talking in the hallway to Judge
Dougherty in the courthouse in 2006 after he had been arrested; (5) the fact that several state
judges ruled against him throughout the support proceeding in Philadelphia from 2004 through
2016, and allegedly treated him unfairly and/or violated his rights in connection with their
rulings and scheduling decisions; (6) his discovery of “much disturbing information about the
corruption and Murphy’s role in the past events” after reconciling with his ex-wife in 2012, (Id.
at 21); and (7) his dissatisfaction with how DHS employees handled his complaints regarding his
Those allegations do not set forth a plausible basis for concluding that Under Secretary
Murphy or anyone else influenced how the Philadelphia courts or other City agencies interacted
with plaintiff. That the Murphy family was both well-connected and close with Ms. Fake and
her family does not support an inference that plaintiff’s losses in the domestic relations
proceeding were a product of a conspiracy, absent specific allegations concerning details of a
conspiratorial agreement. However, the statements that plaintiff relies on to bolster his
conspiracy claims—i.e., that he overheard the special masters mention the name Murphy or that
he learned of “corruption” and Murphy’s alleged “role” in “past events”—are vague and
conclusory. They do not specify where, when and with whom any members of the Murphy
family conspired to rig the Philadelphia courts in favor of Ms. Fake. Plaintiff has utterly “failed
to allege except in general terms the approximate time when the agreement was made, the
specific parties to the agreement (i.e., which judges), the period of the conspiracy, or the object
of the conspiracy.” Great Western, 615 F.3d at 179. It is also insufficient that plaintiff happened
to see Under Secretary Murphy conversing with Judge Dougherty at the courthouse on an
occasion when he was arrested.2 See Capogrosso, 588 F.3d at 185 (rejecting conspiracy claim
based on allegation “that Judge Fast interacted with Judge Iglesias after presumably hearing
[plaintiff] discuss her case in a hallway, and that Judge Iglesias' subsequent adverse ruling [in
plaintiff’s case, which accused Judge Fast of criminal conduct] gives rise to an inference of
Plaintiff’s allegations are particularly deficient to support the existence of a conspiracy with
respect to conduct that occurred within the limitations period.3 The amended complaint does not
provide a factual basis for concluding that the judges or special masters who presided over the
support matter in recent years agreed to partake in any conspiracy against plaintiff. The same is
It appears that Judge Dougherty was not even the judge presiding over the support case at that
time and plaintiff had not yet contacted him about the matter. (See Am. Compl. at 12, 16 & 20
(indicating that Judge Johnson was presiding over plaintiff’s case at the time he saw Judge
Dougherty in May of 2006, and that plaintiff contacted Judge Dougherty about his case in March
of 2007 and February of 2008).)
Given the absence of factual allegations supporting the existence of a conspiracy, there is also
no basis for concluding that Dianne Fake or other private actors could be considered state actors
who would be subject to liability under § 1983. See Kach v. Hose, 589 F.3d 626, 646 (3d Cir.
2009) (“[W]e have explained that the principal question at stake [in determining whether a
private actor can be considered to have acted under color of state law] is whether there is such a
close nexus between the State and the challenged action that seemingly private behavior may be
fairly treated as that of the State itself.” (quotations and alteration omitted)).
true for individuals at DHS and the Philadelphia Police Department. Even if plaintiff could
establish that a conspiracy existed when Ms. Fake initially filed the support action in
Philadelphia, he has not provided any support for his suggestion that the conspiracy continued
during the past two years, that additional judges joined the conspiracy, or that the conspiracy
somehow spread to the DHS or the Philadelphia Police Department. In any event, the judges and
special masters who presided over the support and/or custody matter in recent years are entitled
to absolute judicial immunity from plaintiff’s claims because those claims are based on acts they
took in their judicial capacity while presiding over plaintiff’s case.4 See Stump v. Sparkman, 435
U.S. 349, 356-57 (1978); see also Hughes v. Long, 242 F.3d 121, 126-27 (3d Cir. 2001) (courtappointed custody evaluator, who functioned as “arm of the court” and offered recommendation
to the court based on fact finding in order to “aid and inform the family court,” was entitled to
absolute judicial immunity).
5. Plaintiff Has Not Stated a Claim Based on Local Agencies’ Alleged Failures in
Handling His Allegations of Child Abuse
Plaintiff’s claims concerning City employees’ allegedly insufficient responses to his reports
of child abuse do not state a claim. First, as the Court explained in dismissing the initial
complaint, plaintiff lacks standing to pursue claims based on any harm suffered by his children.
See Twp. of Lyndhurst, N.J. v. Priceline.com, Inc., 657 F.3d 148, 154 (3d Cir. 2011) (“[A]
plaintiff must assert his or her own legal interests rather than those of a third party” to have
standing to bring a claim (quotations omitted)). Second, a failure to investigate does not amount
Plaintiff’s timely claims premised on events that occurred in the domestic relations proceeding
all appear to be based on how judges, special masters or judicial staff handled his case or
addressed him in court. Pennsylvania courts generally have jurisdiction over domestic relations
proceedings, including support and child custody matters, see 23 Pa. Cons. Stat. § 3104, and the
judges and special masters were engaged in judicial acts while presiding over and making rulings
in plaintiff’s case. Plaintiff’s bald legal conclusion that the Philadelphia court lacked jurisdiction
or venue over the matter does not establish a plausible basis for vitiating judicial immunity here.
to a constitutional violation. See Boseski v. N. Arlington Municipality, 621 F. App’x 131, 135
(3d Cir. 2015) (per curiam) (“Boseski has no cognizable claim against a government entity for its
failure to investigate or bring criminal charges against another individual.”); Graw v. Fantasky,
68 F. App’x 378, 383 (3d Cir. 2003) (“[A]n allegation of a failure to investigate, without another
recognizable constitutional right, is not sufficient to sustain a section 1983 claim.” (quotations
omitted)). Third, plaintiff has not alleged sufficient facts to support his bald allegations that he
has been the victim of “discrimination” or “corruption” in connection with how his allegations of
child abuse were handled by local authorities. Finally, to the extent plaintiff sought records from
DHS or other government entities, it is unclear what records he sought or how a failure to
provide those records violates plaintiff’s constitutional or federal rights.
6. Plaintiff Has Not Stated a Claim Based on His Recent Probation Condition
The only remaining allegation is plaintiff’s contention that his ex-wife conspired with Officer
Marafino, who contacted plaintiff’s probation officer in Colorado about custody issues stemming
from the domestic relations proceeding. As with his other conspiracy claims, plaintiff has not
alleged any facts to support the alleged conspiracy between the police officer and his ex-wife
beyond a general implication that Dianne Fake’s close relationship with the Murphy family
provides her with the ability to unfairly influence state and local agencies. Furthermore,
plaintiff’s undeveloped allegation, which he does not clearly tie to the probation condition he
challenges, does not support a plausible constitutional claim against Officer Marafino.
For the foregoing reasons, the Court will dismiss the amended complaint. In an abundance
of caution, the Court will give plaintiff leave to file a second amended complaint in the event it is
possible for him to state a timely claim against a proper defendant who is not entitled to
immunity. An appropriate order follows.
/s/ Gerald J. Pappert
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