HERRING v. GORBEY

Filing 11

MEMORANDUM. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 11/27/2017. 11/28/2017 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(amas)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CAROL HERRING,
Plaintiff,
v.
THE HONORABLE LESLIE GORBEY,

CIVIL ACTION
NO. 17-278

Defendant.

MEMORANDUM
SCHMEHL, J. /s/ JLS

NOVEMBER 27, 2017

The Honorable Leslie Gorbey moves to dismiss Plaintiff Carol Herring’s Complaint
under Eleventh Amendment immunity and absolute judicial immunity. Ms. Herring pro se
alleges 42 U.S.C. §§ 1981 and 1983 1 violations against Judge Gorbey, a judicial officer of
Lancaster County Court of Common Pleas. Ms. Herring brings this suit against Judge Gorbey in
her official and individual capacity. For the reasons stated below, this Court will grant Judge
Gorbey’s motion to dismiss with prejudice.
A.

STANDARD OF REVIEW
“To survive a motion to dismiss, 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim
satisfies the plausibility standard when the facts alleged “allow[] the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Burtch v. Millberg Factors,
Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) (citing Iqbal, 556 U.S. at 678). While the plausibility

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Ms. Herring also alleges Judge Gorbey violated her right to “free speech and association”; however, she does not
allege facts giving rise to a claim under the First Amendment. Therefore, this Court will not address this claim.

standard is not “akin to a ‘probability requirement,’” there nevertheless must be more than a
“sheer possibility that a defendant has acted unlawfully.”

Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a
defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement
to relief.’” Id. (quoting Twombly, 550 U.S. at 557).
The Court of Appeals requires us to apply a three-step analysis under a 12(b)(6) motion:
(1) “it must ‘tak[e] note of the elements [the] plaintiff must plead to state a claim;’” (2) “it should
identify allegations that, ‘because they are no more than conclusions, are not entitled to the
assumption of truth;’” and, (3) “[w]hen there are well-pleaded factual allegations, [the] court
should assume their veracity and then determine whether they plausibly give rise to an
entitlement for relief.” Connelly v. Lane Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016)
(quoting Iqbal, 556 U.S. at 675, 679); see also Burtch, 662 F.3d at 221; Malleus v. George, 641
F.3d 560, 563 (3d. Cir. 2011); Santiago v. Warminster Township, 629 F.3d 121, 130 (3d. Cir.
2010).
However, a document filed pro se must be “liberally construed.” Estelle v. Gamble, 429
U.S. 97, 106 (1976). A pro se complaint, “however inartfully pleaded,” must be held to “less
stringent standards than formal pleadings drafted by lawyers” and can only be dismissed for
failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief. Haines v. Kerner, 404 U.S. 519, 520–21
(1972). The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure
to state a claim, the district court must permit a curative amendment, unless an amendment
would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.
2002).

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B.

ALLEGED FACTS
Judge Gorbey is a Judicial Officer of Lancaster County Court of Common Pleas. (ECF

Docket No. 2, ¶1.)

Carol Herring, an active and licensed member of the Bar in the

Commonwealth of Pennsylvania, came before The Honorable Leslie Gorbey as she presided
over Family Court dependency matters in the Lancaster County Court of Common Pleas. (ECF
Docket No. 1, at 3.) While presiding over a dependency matter in Family Court with Ms.
Herring, Judge Gorbey filed a complaint to the Pennsylvania Disciplinary Board based on Ms.
Herring’s ongoing conduct under Rule 2.15 of the Code of Professional Conduct. (ECF Docket
No. 2, ¶10.) Prior to Judge Gorbey’s complaint, Ms. Herring filed a “King’s Bench Appeal” to
the Pennsylvania Supreme Court (ECF Docket No. 1, at 4.) According to Ms. Herring, however,
Ms. Herring’s “King’s Bench Appeal” and Judge Gorbey’s complaint have yet to be decided
after two years.
C.

ANALYSIS
Ms. Herring asserts federal law claims against Judge Gorbey in her official and individual

capacity. Ms. Herring alleges Judge Gorbey retaliated against her and acted in bad faith by
making false claims of misconduct to intimidate Ms. Herring into not filing a claim against Judge
Gorbey, and prevent Ms. Herring from filing a King’s Bench appeal to the Pennsylvania
Supreme Court. Ms. Herring requests an investigation into Judge Gorbey’s judicial decisions,
specifically: the number of minority children removed from their families leading to the
termination of parental rights, and all of Judge Gorbey’s referrals to the Lancaster County Youth
Center.
Judge Gorbey now moves for dismissal asserting: 1) she is entitled to immunity under the
Eleventh Amendment; 2) she is entitled to absolute judicial immunity for acts taken in her

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judicial capacity; and 3) Ms. Herring failed to state a claim under § 1981. Ms. Herring failed to
respond directly to Judge Gorbey’s arguments, and instead moved for multiple extensions citing
“medical necessity.” This Court provided Ms. Herring with several extensions but denied any
further extensions in its June 8, 2017 Order. (ECF Docket No. 7.)
1. Judge Gorbey’s motion to dismiss is uncontested.
Ms. Herring failed to respond to Judge Gorbey’s April 27, 2017 motion to dismiss. (ECF
Docket No. 2.)

Failure to make a timely response allows the court to treat a motion as

uncontested. Move Organization v. City of Philadelphia, 89 F.R.D. 521, 523 (E.D. Pa. 1981).
There is no question that Ms. Herring actually received a copy of the motion to dismiss, as the
certificate of service states that the motion was served and Ms. Herring has requested multiple
extensions in response. (ECF Docket No. 3, 4, 6, and 8.) Ms. Herring’s response, based on the
Court’s June 8, 2017 Order, was due in July of 2017; she has not yet responded.
The Court may grant uncontested or unopposed motions under Rule 7.1(c). This rule,
governed by the Rules of Civil Procedure for the Eastern District of Pennsylvania, provides:
“[i]n the absence of a timely response, the motion may be granted as uncontested except as
provided under [the Federal Rules of Civil Procedure governing summary judgment motions].”
See also Celestial Community Development Corp., Inc., v. City of Philadelphia, 901 F.Supp.2d
566, 578 (E.D. Pa. 2010) (“To put it simply: plaintiffs who fail to brief their opposition to
portions of motions to dismiss do so at the risk of having those parts of the motions to dismiss
granted as uncontested.”); Nelson v. DeVry, Inc., No. 07-4436, 2009 WL 1213640 (E.D. Pa.
April 23, 2009) (“Failure to address even part of a motion in a responsive brief may result in that
aspect of the motion being treated as unopposed.”).

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Although Ms. Herring is proceeding pro se, she is also a licensed attorney. Even so, Ms.
Herring fails to timely respond to Defendant’s motion (or respond at all). Ms. Herring has been
an active licensed attorney in the Commonwealth of Pennsylvania since 1994, and certainly
should be familiar with the legal system. Ms. Herring’s failure to respond to Judge Gorbey’s
motion clearly endangers the success of her lawsuit. This Court could grant Judge Gorbey’s
motion to dismiss as unopposed. However, notwithstanding Ms. Herring’s failure to respond,
this Court will decide the motion on its merits and address the arguments below.
2. Judge Gorbey is immune from suit in her official-capacity under the
Eleventh Amendment.
Claims brought under § 1983 are subject to the Eleventh Amendment which precludes
private federal litigation against states, state agencies, and state officials in their official
capacities. Suits against state officials in their official capacity are treated as suits against the
State. Hafer v. Melo, 502 U.S. 21,25- 26 (1991). The United States Supreme Court finds an
official-capacity suit against a state officer “is not a suit against the official but rather is a suit
against the official’s office . . . [and] is no different from a suit against the State itself.” Id. at 26
(citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989)). As a result, when a state
official is sued in their official-capacity, the “real party in interest” is the government entity of
which the official is an agent.
The Court of Common Pleas – the governmental entity of which Judge Gorbey is an
agent – is considered an instrumentality of the Commonwealth of Pennsylvania afforded
immunity under the Eleventh Amendment. Our Circuit has stated: “All courts and agencies of
the unified judicial system, including the Philadelphia Municipal Court, are part of
‘Commonwealth government’ and thus are state rather than local agencies.” Callahan v. City of
Philadelphia, 207 F.3d 668, 672 (3d Cir. 2000) (citing Pa. Const. art. V, § 6(c)). Because the

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Eleventh Amendment precludes private federal litigation against states, immunity extends to the
Pennsylvania court system for claims raised under § 1983. 2 See Benn v First Judicial District,
426 F.3d 233, 241 (3d Cir. 2005) (finding the Philadelphia Court of Common Pleas entitled to
federal Eleventh Amendment immunity.)
While suits against officials in their official-capacity are suits against the State and
protected by immunity, it is a well-settled that judges are generally immune from suit for money
damages. Figueroa v. Blackburn, 208 F.3d 435, 440 (3d Cir. 2000) (declining to distinguish
between judges of limited jurisdiction and those of general jurisdiction for purposes of judicial
immunity).

However, this judicial immunity is limited as follows: 1) no immunity for

nonjudicial acts – actions taken outside the judge’s judicial capacity; and 2) no immunity from
judicial actions taken “in the complete absence of all jurisdiction.” Id. (citing Mireles v. Waco,
502 U.S. 9, 11-12 (1991) (per curiam)).
Judge Gorbey, while presiding over dependency matters in Family Court, “witnessed
Plaintiff’s conduct on an ongoing basis” and decided Ms. Herring’s conduct warranted referral to
the Board under Rule 2.15 of the Code of Professional Conduct. (ECF Docket No. 2, ¶ 9-10.)
Rule 2.15 permits judges to take appropriate action if they have knowledge or receive
information indicating a substantial likelihood that a lawyer “has committed a violation of the
Rules of Professional Conduct” or has committed a violation which raises a “substantial question
regarding the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” ABA
Model Rules of Professional Conduct, Rule 2.15(A), (B). Judge Gorbey relied on her authority
2

Eleventh Amendment immunity is subject to three basic exceptions: “(1) Congress may specifically abrogate a
state’s sovereign immunity by exercising its enforcement power under the Fourteenth Amendment; (2) a state may
waive its sovereign immunity by consenting to suit; or (3) under Ex parte Young, a state official may be sued in his
or her official capacity for prospective injunctive relief. Hollihan v. Pennsylvania Department of Corrections, 159
F.Supp.3d 502, 510 (M.D. Pa. 2016) (citing Ex parte Young, 209 U.S. 123 (1908)); see also Idaho v. Coeur d’Alene
Tribe of Idaho, 521 U.S. 261, 267-70 (1997). None of the three exceptions apply here. Pennsylvania has not
waived its immunity and statutory law provides the Commonwealth with immunity from suit. 1 Pa. C.S. § 2310; see
also 42 Pa. C.S. § 8521(b).

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under Rule 2.15 when she filed the complaint against Ms. Herring. Thus, Judge Gorbey’s
actions were within her judicial capacity and within her jurisdiction.
Accordingly, Judge Gorbey is entitled to immunity from suit under the Eleventh
Amendment in her official-capacity for referring Ms. Herring to the Pennsylvania Disciplinary
Board.
3. Judge Gorbey is immune from suit in her individual-capacity under the
doctrine of absolute judicial immunity.
It is well settled that judges, in exercise of their judicial functions, are entitled to absolute
immunity. Butz v. Economou, 438 U.S. 478, 508 (1978) (citing Bradley v. Fisher, 80 U.S. 335,
347 (1871)). Absolute immunity extends to all acts taken in their judicial capacity, including
suits under § 1983.

Stump v. Sparkman, 435 U.S. 349, 356 (1978).

Therefore, a judge

individually is absolutely immune from suit as long as: 1) the judge has jurisdiction over the
subject matter before him; and 2) the judge is performing a “judicial act.” Id.
First, judicial immunity depends “whether at the time [they] took the challenged action
[they] had jurisdiction over the subject matter before [them].” Id. In analyzing immunity, the
scope of the judge’s jurisdiction must be construed broadly; therefore, clear errors, malice, or
excess of authority will not suffice to preclude judicial immunity. A judge will be subject to
liability only when there is a clear absence of jurisdiction. 3
Second, whether a judge performs a “judicial act” depends on two factors: 1) whether the
act is a function normally performed by a judge; and 2) whether the parties dealt with the judge
in the judge’s official capacity. Stump, 435 U.S. at 362; see also Rush v. Wiseman, 2010 WL
3

“In Bradley, the Court illustrated the distinction between lack of jurisdiction and excess of jurisdiction with the
following examples: if a probate judge, with jurisdiction over only wills and estates, should try a criminal case, he
would be acting in the clear absence of jurisdiction and would not be immune from liability for his action; on the
other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be
acting in excess of his jurisdiction and would be immune.” Stump, 435 U.S. at 357 n.7 (citing Bradley v. Fisher, 80
U.S. at 352)).

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1705299, at *8 (E.D. Pa. Apr. 27, 2010). Moreover, a “[l]ack of formality” does not convert a
judicial act into a non-judicial one. Id. at 360 (rejecting plaintiff's argument that approval of
sterilization petition was not a judicial act because the petition was not given a docket number,
was not placed on file with the clerk's office, and was approved in an ex parte proceeding
without notice or a hearing).
As discussed above, Judge Gorbey had jurisdiction over the subject matter underlying
Ms. Herring’s complaint and performed a “judicial act” by filing a complaint with the
Disciplinary Board. Judge Gorbey clearly had jurisdiction to preside over Ms. Herring’s state
court action, as she is a Judge in the Court of Common Pleas of Lancaster County presiding over
dependency matters. Furthermore, Judge Gorbey performed a judicial act when she: 1) reported
Ms. Herring to the Pennsylvania Disciplinary Board under Rule 2.15 while presiding over
dependency matters; and 2) the act was to the expectation of the party as Ms. Herring dealt with
Judge Gorbey in her judicial capacity.
The Comment section under Rule 2.15 provides, “[t]aking action to address known
misconduct is a judge’s obligation.” ABA Model Rules of Professional Conduct, Comment [1]
on Rule 2.15.

Moreover, Comment 2 specifies that appropriate action may include

“communicating directly with the lawyer who may have committed the violation, or reporting
the suspected violation to the appropriate authority or other agency or body.” Id. at Comment
[2]. Clearly, Judge Gorbey acted within her judicial capacity by reporting Ms. Herring to the
Disciplinary Board.
Given Judge Gorbey’s actions were within her jurisdiction and were “judicial acts,”
Judge Gorbey is entitled to absolute judicial immunity from suit in her individual-capacity for
referring Ms. Herring to the Pennsylvania Disciplinary Board.

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4. Ms. Herring fails to state a claim under Section 1981.
Section 1981 prohibits racial discrimination “in the making and enforcement of contracts
and property transactions.” 42 U.S.C. § 1981(a). By enacting § 1981, Congress intended to
enact “sweeping legislation implementing the thirteenth amendment to abolish all the remaining
badges and vestiges of the slavery system.” Brown v. Philip Morris Inc., 250 F.3d 789, 797 (3d
Cir. 2001) (citing Mahone v. Waddle, 564 F.2d 1018, 1030 (3d Cir. 1977)). In order to state a
claim under § 1981, the plaintiff must allege: “(1) [that plaintiff] is a member of a racial
minority; (2) intent to discriminate on the basis of race by the defendant; and (3) discrimination
concerning one of more of the activities enumerated in the statute[,] which includes the right to
make and enforce contracts . . .” Id. (citing Yelverton v. Lehman, No. Civ. A. 94–6114, 1996
WL 296551, at *7 (E.D. Pa. June 3, 1996), aff'd. mem., 175 F.3d 1012 (3d Cir.1999)).
Ms. Herring fails to state a claim alleging racial discrimination in the “making and
enforcement of contracts and property transactions.” Ms. Herring also fails to plead any of the
above requirements under § 1981. Ms. Herring does not allege she is a member of a racial
minority; she does not allege intentional discrimination on the basis of race; and, she does not
allege discrimination concerning activities enumerated in the statute. Ms. Herring argues Judge
Gorbey filed a disciplinary complaint in bad faith to intimidate her from filing a King’s Bench
appeal. (ECF Docket No. 1, at 3-4.) Thus, Ms. Herring fails to state a claim under § 1981.
Although Ms. Herring’s prayer for relief appears to allege discriminatory behavior by
Judge Gorbey, Ms. Herring still lacks first and/or third-party standing. Clearly, Ms. Herring
lacks first-party standing as she does not allege an actual or imminent particularized injury
regarding racial discrimination. However, third-party standing requires: 1) the litigant suffer an
injury in fact which gives them sufficient concrete interest in the outcome; 2) a close relationship

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to the third party; and 3) “some hindrance to the third party's ability to protect his own interest.”
Taliaferro v. Darby Tp. Zoning Bd., 458 F.3d 181, 189 (3d Cir. 2006).
Here, Ms. Herring requests an investigation into Judge Gorbey’s judicial decisions;
particularly, Ms. Herring requests an investigation into the number of African-American and
minority children removed from their families terminating parental rights, and all of Judge
Gorbey’s referrals to the Lancaster County Youth Center. (ECF Docket No. 1, at 4.) Ms.
Herring, however, fails to allege third-party standing. Specifically, Ms. Herring does not allege a
sufficient relationship between her and a third party, nor does she allege some “hindrance to the
third party’s ability to protect its own interest.”
Accordingly, Ms. Herring fails to state a claim under § 1981 given her lack of first and/or
third party standing and failure to state a claim upon which relief may be granted.
D.

CONCLUSION
In the accompanying Order, this Court grants Judge Gorbey’s Motion to dismiss Ms.

Herring’s Complaint with prejudice. Ms. Herring’s § 1983 official-capacity claim is barred by
both Eleventh Amendment immunity in her official-capacity and absolute judicial immunity in
her individual capacity. Ms. Herring also fails to state a claim under § 1981.

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