MURPHY v. OFFICE OF DISCIPLINARY COUNSEL et al

Filing 48

ORDER OF 9/30/2019 THAT THE MOTION TO DISMISS (DOC. NO. 38) IS GRANTED IN PART AND DENIED IN PART. ETC. THE SECOND AMENDED COMPLAINT IS DISMISSED AND MURPHY IS DENIED LEAVE TO FILE A THIRD AMENDED COMPLAINT; THE MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION (DOC. NO. 42) IS DENIED. THE CLERK OF COURT SHALL MARK THIS MATTER AS CLOSED.. SIGNED BY HONORABLE EDWARD G. SMITH ON 9/30/2019. 9/30/2019 ENTERED AND COPIES E-MAILED.(DT)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ROBERT J. MURPHY, ESQUIRE,
Individually and on behalf of all others
similarly situated,
Plaintiff,
v.
OFFICE OF DISCIPLINARY COUNSEL,
PAUL J. KILLION, ESQ., Chief
Disciplinary Counsel, in his official capacity
and in his individual capacity; MICHAEL
GOTTSCH, ESQ., in his official capacity
and in his individual capacity; RICHARD
HERNANDEZ, ESQ., in his official
capacity and in his individual capacity;
ANTHONY SODROSKI, ESQ., in his
official capacity and in his individual
capacity; MARK GILSON, ESQ., in his
official capacity and in his individual
capacity; STEWART L. COHEN, ESQ., in
his official capacity and in his individual
capacity; DION RASSIAS, ESQ., in his
official capacity and in his individual
capacity; JANE G. PENNY, ESQ., in her
official capacity and in her individual
capacity; JERRY LEHOCKY, ESQ., in his
official capacity and in his individual
capacity; DAVID FITZSIMONS, ESQ., in
his official capacity and in his individual
capacity; BRIAN CALI, ESQ., in his
official capacity and in his individual
capacity; and THE DISCIPLINARY
BOARD OF THE SUPREME COURT OF
PENNSYLVANIA,
Defendants.

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CIVIL ACTION NO. 17-1239

ORDER
AND NOW, this 30th day of September, 2019, after considering: (1) the second amended
complaint filed by the pro se plaintiff, Robert J. Murphy (“Murphy”), Doc. No. 36; (2) the motion
to dismiss the second amend amended complaint filed by the defendants, The Office of
Disciplinary Counsel (“ODC”), The Disciplinary Board of the Supreme Court of Pennsylvania
(“Disciplinary Board”), Paul J. Killian, Esquire (“Killion”), 1 Michael Gottsch, Esquire
(“Gottsch”), Richard Hernandez, Esquire (“Hernandez”), Anthony Sodroski, Esquire
(“Sodroski”), Mark Gilson, Esquire (“Gilson”), Stewart L. Cohen, Esquire (“Cohen”), Dion
Rassias, Esquire (“Rassias”), Jane G. Penny, Esquire (“Penny”), Jerry LeHocky, Esquire
(“LeHocky”), David Fitzsimons, Esquire (“Fitzsimons”), and Brian Cali, Esquire (“Cali”), Doc.
Nos. 38, 39; (3) Murphy’s response in opposition to the motion to dismiss, Doc. No. 40; (4)
Murphy’s motion for a temporary restraining order and a preliminary injunction, Doc. No. 42; (5)
the defendants’ brief in opposition to the motion for a preliminary injunction, Doc. No. 43; and (6)
the parties’ status update letters, Doc. Nos. 45, 46; and, for the reasons set forth in the separately
filed memorandum opinion, it is hereby ORDERED as follows:
1.

The motion to dismiss (Doc. No. 38) is GRANTED IN PART and DENIED IN

PART as follows:
a.

The motion to dismiss, to the extent that the defendants argue that this court

must abstain from exercising jurisdiction over this matter pursuant to Younger v. Harris,
401 U.S. 37 (1971), is GRANTED insofar as the defendants contend that the court must
abstain from presiding over Murphy’s claims for injunctive and declaratory relief, but

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Murphy incorrectly spells this defendant’s name in the second amended complaint. The court uses the proper spelling
in this order.

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DENIED insofar as the defendants claim that the court should abstain over Murphy’s
claims for damages;
b.

The motion to dismiss, to the extent that the defendants argue that this court

lacks jurisdiction over Murphy’s constitutional claims against the ODC, Disciplinary
Board, and the individual defendants in their official capacities because of their Eleventh
Amendment immunity, is GRANTED and those claims are DISMISSED WITHOUT
PREJUDICE;
c.

The motion to dismiss, to the extent that the defendants argue that absolute

prosecutorial immunity bars Murphy’s claims against Killion, Gottsch, Hernandez,
Sodroski, and Gilson is GRANTED only as to those claims asserted in the second amended
complaint relating to conduct by these defendants following the initiation of formal
disciplinary proceedings in December 2016;
d.

The motion to dismiss, to the extent that the defendants argue that quasi-

judicial immunity bars the claims again Cohen, Rassias, Fitzsimons, Cali, LeHocky,
Penny, Killion, Gottsch, Hernandez, Sodroski, and Gilson, is GRANTED;
e.

The motion to dismiss, insofar as the defendants argue that judicial

immunity bars the claims against Cohen, Rassias, Fitzsimons, Cali, LeHocky, and Penny,
is DENIED AS MOOT as these defendants are protected by quasi-judicial immunity;
f.

The motion to dismiss, insofar as the defendants argue that Murphy has

failed to state a claim for relief for a violation of the First, Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution, is GRANTED and those claims are
DISMISSED; and

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g.

The motion to dismiss, insofar as the defendants argue that they are immune

from liability for any state law claims under 1 Pa. C.S. § 2310, is DENIED because Murphy
has not asserted any state law claims;
2.

The second amended complaint is DISMISSED and Murphy is DENIED leave to

file a third amended complaint;
3.

The motion for a temporary restraining order and a preliminary injunction (Doc.

No. 42) is DENIED; and
4.

The clerk of court shall mark this matter as CLOSED.

BY THE COURT:

/s/ Edward G. Smith
_
EDWARD G. SMITH, J.

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