FAKE et al v. PHILADELPHIA COURT OF COMMON PLEAS et al

Filing 9

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD J. PAPPERT ON 12/21/2016. 12/22/2016 ENTERED AND COPIES MAILED PRO SE.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BRANDON L. FAKE

:
:
:
:
:

v.
CITY OF PHILADELPHIA, et al.

CIVIL ACTION

NO. 16-3893

MEMORANDUM
PAPPERT, J.

DECEMBER 21, 2016

Currently before the Court is plaintiff Brandon L. Fake’s second amended complaint based
on an alleged conspiracy in the Philadelphia Court of Common Pleas 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 second amended complaint.
I.

FACTS AND PROCEDURAL HISTORY

Plaintiff’s initial complaint named forty-four defendants and primarily alleged that those
defendants conspired to manipulate domestic relations proceedings in Philadelphia in favor of
plaintiff’s ex-wife, Dianne Fake née Clark, 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 her daughter Corinna Fake 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 plaintiff’s minor children. The Court
construed the complaint as raising constitutional claims under 42 U.S.C. § 1983 and 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. Among other things, the

1

Court concluded that: (1) most of plaintiff’s claims related to the domestic relations proceedings
were time-barred; (2) plaintiff’s claims based on events that occurred in the course of the
domestic relations proceedings were premised on conclusory allegations; and (3) absolute
immunity precluded plaintiff’s claims against state judges who presided over his case. Plaintiff
was given leave to file an amended complaint.
Plaintiff filed an amended complaint against twenty-eight defendants, many of whom are
judges or special masters who presided over the domestic relations proceedings in Philadelphia.
As with the initial complaint, the amended complaint primarily alleged that Dianne Fake used
her close relationship with Under Secretary Murphy and his family to rig the court against
plaintiff. In support of his conspiracy claims, plaintiff noted that the Murphy family was close
with the Clark family, that members of the Murphy family held influential positions in local and
state government, and that Under Secretary Murphy was friendly with judges who at times
presided over plaintiff’s case. The amended complaint added that the Philadelphia Police
Department and the Philadelphia Department of Human Services were similarly biased against
plaintiff because those entities failed to adequately address his concern that his daughters were
being abused by their mother. Plaintiff indicated that he sought to bring claims pursuant to 42
U.S.C. § 1983, 42 U.S.C. § 1985(3), and 18 U.S.C. § 242.
The Court dismissed the amended complaint with an October 17, 2016 Order and
accompanying Memorandum. With regard to plaintiff’s § 1983 claims, the Court concluded,
among other things, that plaintiff failed to plead a sufficient factual basis for a plausible
conspiracy claim, and that his timely claims against the judges and special masters who presided
over his case were barred by judicial immunity. The Court gave plaintiff leave to file a second
amended complaint as to those timely claims that were not dismissed with prejudice.

2

In his second amended complaint, plaintiff sued the City of Philadelphia, Dianne Fake,
Under Secretary Murphy, and four judges who served on the Philadelphia Court of Common
Pleas—Judge Kevin M. Dougherty, Judge Margaret T. Murphy, Judge Joel S. Johnson, and
Judge Holly J. Ford— during the time period relevant to his claims. The second amended
complaint raises claims pursuant to 42 U.S.C. § 1983 based on an alleged “criminal conspiracy
to deprive Plaintiff of his 4th, 5th, and 14th Amendment rights” in connection with the ongoing
proceedings in state court. (Sec. Am. Compl. at 2.)
The second amended complaint supports plaintiff’s conspiracy claim with the following
allegations:
The motive for the [Philadelphia] Court to engage in such corrupt and criminal
action is based on the close personal and professional relationships of Dianne J.
Fake, Patrick J. Murphy, Margaret T. Murphy, Kevin M. Dougherty, Jack
Murphy, Marge Murphy, Mary Clark and John Clark who have conspired to
perpetrate this unconscionable scheme to railroad the Plaintiff, as detailed in this
complaint. The factual evidence to support this claim is provided in the docket
history of support case 04-07331, custody case OC0601812 and felony case
CP51CR00128162013 in the Philadelphia Court of Common Pleas. Phone and email records between these parties will provide evidence that these parties have
conspired to violate the United States Constitution and have financially benefitted
from the establishment of fraudulent child support orders whereby defrauding the
United States Government by collecting Title IV D funds in a case where Fraud
upon the Court has taken place.[1] The ability to enact these atrocities has been
done by and through the influence that the Murphy family has within the highest
levels of the Court administration with the positions held by their closest friends
and relatives.
(Sec. Am. Compl. at 2.)
In their current form, plaintiff’s claims as they relate to the support and custody cases
appear to be premised on the issuance of child support orders that he believes are erroneous
1

Title IV-D of the Social Security Act provides federal aid to states that comply with the
requirements of the federal scheme, which includes an obligation to enforce child support orders
by collecting on overdue child support payments. See Blessing v. Freestone, 520 U.S. 329, 333
(1997).
3

because they overinflate his income, as well as his dissatisfaction with how the support
proceeding has been handled by the judges and special masters who presided over it. Plaintiff
alleges that the judges who he sued (“judicial defendants”) violated his constitutional rights by
issuing a recent support order, enforcing that order by freezing his assets and seizing funds from
him, and refusing to act promptly on motions or other filings that plaintiff submitted to the
court.2 Plaintiff was also held in contempt and incarcerated in connection with the support
proceeding.
The second amended complaint implies that by collecting on a support order that
exaggerated plaintiff’s child support obligations, the judicial defendants defrauded the federal
government to the extent their court received social security funds related to those collection
efforts. Plaintiff adds that Judge Dougherty—who served as Administrative Judge from 2004
through 2015—and Judge Murphy—who served as Supervising Judge between 2004 and 2015,
before she became Administrative Judge—violated his rights because they failed to take action
despite having been notified “that civil rights violations were taking place.” (Sec. Am. Compl. at
3, ¶ 2 & 5, ¶ 3.)
Plaintiff also attempts to garner support for his conspiracy claim from his ex-wife’s
criminal prosecution, which was ultimately nolle prossed. See Commonwealth v. Fake, Docket

2

Plaintiff unsuccessfully challenged a recent support order in the Philadelphia Court of Common
Pleas and subsequently filed an appeal with the Pennsylvania Superior Court. Shortly after
plaintiff filed his amended complaint in this case, the Superior Court affirmed the child support
order after finding that plaintiff waived his issues on appeal by failing to provide record support
for his contentions. See Fake v. Fake, No. 2192 EDA 2015, 2016 WL 5900203, at *4 (Pa. Super.
Ct. Sept. 1, 2016) (“Father waived all of the issues presented in his brief for failure to preserve
them in his Rule 1925(b) statement and, further, for filing a facially and fatally defective brief
devoid of legal authority and reference to the record.”). As in this case, plaintiff contended that
the Philadelphia Court of Common Pleas’ rulings discriminated against him and violated his
constitutional rights.
4

No. CP-51-CR-0012816-2013 (Phila. Ct. Common Pleas). Judge Dougherty presided over the
case when it was in Municipal Court and held the charges for trial after a preliminary hearing.
See Commonwealth v. Fake, Docket No. MC-51-CR-0037201-2013 (Phila. Municipal Ct.). As
part of the alleged conspiracy, plaintiff contends that Judge Dougherty “illegally” listed Ms.
Fake’s name on her criminal docket as Dianne N. Fake, rather than Dianne J. Fake, and listed her
incorrect birth date on the docket.3 (Sec. Am. Compl. at 3, ¶ 2.a.) Plaintiff adds that Judge
Dougherty signed an order to freeze assets in the criminal case, which plaintiff contends violates
his rights and was intended to clear Ms. Fake of the criminal charges.4
Plaintiff alleges that the unconstitutional manner in which the domestic and criminal
matters were handled by judges on the Philadelphia Court of Common Pleas has caused him
mental distress and other damages. Accordingly, he seeks damages in excess of three million
dollars.
II.

STANDARD OF REVIEW

As plaintiff is proceeding in forma pauperis, 28 U.S.C. § 1915(e)(2)(B)(ii) applies, which
requires the Court to dismiss the second amended complaint if it fails to state a claim. To
survive dismissal, “a complaint must contain 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
3

Plaintiff also challenges some of the orders issued in the support case on the basis that they
reflected an incorrect middle initial for Ms. Fake.
4

The date on which Judge Dougherty signed the order, September 25, 2013, is the same date that
Ms. Fake posted bail in her criminal case. See Commonwealth v. Fake, Docket No. MC-51-CR0037201-2013 (Phila. Municipal Ct.).
5

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), abrogated on
other grounds, Coleman v. Tollefson, 135 S. Ct. 1759 (2015). 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).
III.

DISCUSSION

A. Plaintiff has Failed to State a Conspiracy Claim
Plaintiff has again failed to state a plausible basis for a conspiracy claim. “[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 conspiracy will not suffice.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 556 (2007). Accordingly, to state a claim for a judicial conspiracy, a
complaint should allege facts concerning “the approximate time when the [conspiratorial]
agreement was made, the specific parties to the agreement (i.e., which judges), the period of the
conspiracy, [and] the object of the conspiracy.” Great Western, 615 F.3d at 179. “‘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 Ct. of N.J., 588 F.3d 180, 185 (3d Cir. 2009) (per curiam) (quoting Crabtree v.
Muchmore, 904 F.2d 1475, 1480-81 (10th Cir. 1990)).
Plaintiff has again failed to plead sufficient factual matter to support his conspiracy claim. It
is apparent from the second amended complaint that plaintiff’s conspiracy claim is based on: (1)
allegations that Under Secretary Murphy is close with Dianne Fake and has friends and family

6

members who are judges on the Philadelphia Court of Common Pleas; (2) the fact that several
judges, including judges who are related to or friends with Under Secretary Murphy, issued
orders or rulings in plaintiff’s case that he believes are improper and/or incorrect; (3) a
suggestion that the defendants have financially benefited from enforcing the child support orders
issued against plaintiff based solely on the operation of a federal statutory scheme; (4) the fact
that criminal charges against Ms. Fake were ultimately nolle prossed; and (5) conclusory
allegations that Under Secretary Murphy, Dianne Fake, and the judges presiding over plaintiff’s
case conspired to violate his rights, obstruct justice, and discriminate or retaliate against plaintiff.
Leaving aside the conclusory allegations, as the Court is required to do, it is apparent that
there is no substance to plaintiff’s conspiracy claim. It is not plausible to infer that the state
court is rigged against plaintiff simply because his ex-wife has prevailed against him and also
happens to be close friends with someone who has ties to state judges.5 Furthermore, to the
extent plaintiff is imparting a financial motive to the judges who either issued rulings in his
support case or who enforced orders in that case, he does not elaborate on how the judges
benefitted in a manner that would reveal a basis for his conspiracy claim.
Plaintiff has twice been given an opportunity to amend his complaint in the event he
could support his conspiracy claim with sufficient facts to move forward. Despite serious
allegations of wrongdoing, he has not been able to describe much of anything beyond his losses
in state court and the fact that Under Secretary Murphy has familial or professional ties to judges
In regard to Ms. Fake’s criminal case, the public docket reflects that Judge Dougherty presided
over the case in Philadelphia Municipal Court and held the charges for court after a preliminary
hearing. Commonwealth v. Fake, Docket No. MC-51-CR-0037201-2013 (Phila. Municipal Ct.).
It does not appear that Judge Dougherty—or any of the other judicial defendants—presided over
the criminal case while it proceeded in the Philadelphia Court of Common Pleas.
Commonwealth v. Fake, Docket No. CP-51-0012816-2013 (Phila. Ct. Common Pleas). In any
event, the simple fact that the case was nolle prossed does not support the sweeping conspiracy
alleged in the second amended complaint.
5

7

who ruled in favor of Ms. Fake. Indeed, there are no factual allegations in the second amended
complaint that Patrick Murphy said anything specific to the judicial defendants to influence their
rulings, or took a particular action that caused those judges to rule against plaintiff in the support
action. In sum, plaintiff’s allegations of unilateral judicial action supported only by generalized
allegations regarding Under Secretary Murphy’s potential to influence certain judges, as well as
unsupported conclusions of wrongdoing, do not provide a basis upon which to allow plaintiff’s
conspiracy claim to proceed. See Mikhail v. Kahn, 991 F. Supp. 2d 596, 645-48 (E.D. Pa. 2014)
(rejecting judicial conspiracy claim premised on plaintiff’s repeated losses in state court when
plaintiff failed to allege conduct by non-judicial actors), aff'd, 572 F. App’x 68 (3d Cir. 2014)
(per curiam).
As plaintiff has failed to sufficiently plead a conspiracy, he has also failed to establish
that Dianne Fake could be considered a state actor subject to liability under § 1983. See Mikhail,
572 F. App’x at 71-72; see also Dennis v. Sparks, 449 U.S. 24, 28 (1980) (“[M]erely resorting to
the courts and being on the winning side of a lawsuit does not make a party a co-conspirator or a
joint actor with the judge.”). Plaintiff’s failure to allege a plausible basis for a conspiracy is also
fatal to his claims against Under Secretary Murphy, because those claims are premised entirely
on plaintiff’s unsupported allegations that Under Secretary Murphy conspired with judges to rig
the court against him.

B. Plaintiff has not Stated a Basis for a Claim Against the City of Philadelphia
Plaintiff has failed to state a § 1983 claim against the City of Philadelphia. Those claims
are premised on plaintiff’s allegations that the Mayor and Philadelphia District Attorney’s Office
failed to address the alleged corruption in the Philadelphia Court of Common Pleas, as well as

8

“public knowledge that deep rooted corruption is rampant in the City of Philadelphia.” (Sec.
Am. Compl. at 3.) However, the Philadelphia Court of Common Pleas, as part of Pennsylvania’s
Unified Judicial System, is a state agency controlled by the Pennsylvania Supreme Court, rather
than the City of Philadelphia. See Benn v. First Judicial Dist. of Pa., 426 F.3d 233, 235 n.1 &
240 (3d Cir. 2005). Accordingly, there is no basis for plaintiff’s claims against the City. See
Collura v. Ford, 637 F. App’x 673, 675 (3d Cir. 2016) (per curiam) (“Because the City cannot be
held liable for the alleged actions of Commonwealth employees, the District Court correctly
dismissed Collura’s claims as to the City.”). Furthermore, plaintiff has already been informed
that a failure to investigate does not equate to a constitutional claim under § 1983. See Fake v.
Phila. Ct. of Common Pleas, No. CV 16-3893, 2016 WL 4039654, at *3 (E.D. Pa. July 27,
2016).
C. The Judicial Defendants are Entitled to Judicial Immunity
To the extent plaintiff raises claims against the judicial defendants apart from the conspiracy
claim, the judicial defendants are entitled to immunity. Judges are absolutely immune from
liability for damages under § 1983 for acts taken in their judicial capacity unless they acted in the
clear absence of all jurisdiction.6 See Stump v. Sparkman, 435 U.S. 349, 356-57 (1978). “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 [or her] judicial capacity.’” Perez v. Gamez, 618 F. App'x 157, 160 (3d Cir.
2015) (quoting Stump, 435 U.S. at 362). “Immunity will not be forfeited because [the] judge . . .

6

Pennsylvania courts generally have jurisdiction over domestic relations proceedings, including
support and child custody matters. See 23 Pa. Cons. Stat. § 3104. Plaintiff has not alleged a
sufficient factual basis to plausibly establish that any of the judges acted in the clear absence of
all jurisdiction so as to vitiate judicial immunity here. See Figueroa v. Blackburn, 208 F.3d 435,
443–44 (3d Cir. 2000) (“Generally, . . . where a court has some subject matter jurisdiction, there
is sufficient jurisdiction for immunity purposes.” (internal quotations omitted)).
9

committed grave procedural errors, or because [he or she] . . . conducted a proceeding in an
informal and ex parte manner.” Gallas v. Supreme Ct. of Pa., 211 F.3d 760, 769 (3d Cir. 2000)
(internal quotations and citations omitted). Nor do the judge’s subjective motivations, even if
corrupt, deprive him or her of absolute immunity for judicial acts. Id. (“[O]ur analysis must
focus on the general nature of the challenged action, without inquiry into such ‘specifics’ as the
judge’s motive or the correctness of his or her decision.” (citing Mireles v. Waco, 502 U.S. 9, 13
(1991)).
Here, the majority of plaintiff’s claims against the judicial defendants are based on how they
ruled in the support action, how they handled plaintiff’s filings or scheduling matters in the
support action, and their signing of orders, including enforcement orders, in the support action.
Those are all judicial acts protected by absolute judicial immunity. See Addlespurger v. Corbett,
461 F. App’x 82, 85 (3d Cir. 2012) (per curiam) (“The order of a judge entered against
Addlespurger in the Family Division proceedings may not serve as a basis for a civil action for
damages.”); Stankowski v. Farley, 251 F. App’x 743, 746 (3d Cir. 2007) (per curiam) (judicial
immunity applied to allegations that judge “imposed an illegal sentence, failed to address
[plaintiff’s] motions, failed to state the plea agreement in open court, and failed to announce
[plaintiff’s] sentence in open court”); Figueroa v. Blackburn, 208 F.3d 435, 443-44 (3d Cir.
2000) (granting judicial immunity to judge who held plaintiff in contempt and immediately jailed
him despite court rules to the contrary and despite directive obligating the judge to transfer the
case).
Judge Dougherty is likewise entitled to judicial immunity for issuing orders while he was
presiding over Ms. Fake’s criminal case, even if those orders incorrectly identified Ms. Fake’s
middle initial and birth date. Furthermore, the fact that Judge Dougherty and Judge Murphy at

10

times held the titles of Administrative Judge and Supervising Judge does not deprive them of
absolute judicial immunity for judicial acts such as signing orders, scheduling or canceling
hearings, or failing to intervene to prevent alleged constitutional violations in plaintiff’s support
case.7 See Andrews v. Hans-Greco, 641 F. App’x 176, 180 (3d Cir. 2016) (administrative
judge’s denial of petition for fees was judicial act even though the “determination took place
outside of the court’s docket, without a hearing, and potentially without the possibility of
appeal”); Gallas, 211 F.3d at 771-72 (administrative judge of family court division was entitled
to absolute judicial immunity from claims based on her decision to release a court order to the
news media); Watkins v. Blocker, No. CIV.A. 06-3775, 2007 WL 789425, at *5 (E.D. Pa. Mar.
14, 2007) (“Supervisory decisions regarding how courts function are adjudicative.”).
IV.

CONCLUSION

For the foregoing reasons, the Court will dismiss the second amended complaint. Despite
having given plaintiff two opportunities to amend his claims, he has not been able to provide
factual support for the vast judicial conspiracy alleged in his pleadings. Having reviewed all of
the pleadings in this case, the Court concludes that further attempts at amendment would be
futile. An appropriate order follows.

/s/ Gerald J. Pappert

7

The judicial defendants are also entitled to immunity from any claims for injunctive relief. See
Azubuko v. Royal, 443 F.3d 302, 304 (3d Cir. 2006) (per curiam).
11