ALD-354 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 16-1544

___________ MOURAD ELLAKKANY, Appellant

v. THE COMMON PLEAS COURT OF MONTGOMERY COUNTY; THE DISTRICT ATTORNEY OFFICE OF MONTGOMERY COUNTY; MAURINO J. ROSSANESE, JR.; PATRICIA E. COONAHAN; WILLIAM J. FURBER, JR.; J OHN DOES; MICHAEL D. MARINO

___________________ _________________ On Appeal from the United States District Court for the Middle Distri ct of Pennsylvania (D.C. Civil No. 1-14-cv-00983) District Judge: Honorabl e Christopher C. Conner

___________________ _________________ Submitted for Possible Summary Action Pursuant to Third Circu it LAR 27.4 and I.O.P. 10.6 July 21, 2016 Before: AMBRO, SHWARTZ, a nd NYGAARD, Circuit Judges (Opinion filed: July 27, 2016)

_________ OPINION *

_________ PER CURIAM

* This disposition is not an op inion of the full Court and pu rsuant to I.O.P. 5.7 does not constitute binding precedent.2 Appellant Mourad Ellakkany appeals from the district court’s order denying his motion for a temporary restraining order an d preliminary injunction. Because we conclude that this appeal pr esents no substantial question, we will grant the Appellees’ Motions to summarily affirm the order. See 3d Cir. LAR 27.4; I.O.P. 10.6.

I. Ellakkany, a pro se prisoner, initiated th is action by filing a Complaint alleging that multiple defendants affi liated with the Court of Common Pleas of Montgomery County violated various provisions of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) by engaging in a conspiracy that caused Ellakkany to be subjected to peonage and imprisonment. El lakkany named the follo wing parties in the Complaint: (1) the Court of Common Pleas of Montgomery County; (2) the District Attorney’s Office of Montgo mery County; (3) Ju dge Maurino J. Rossanese, Jr.; (4) Michael D. Marino, former Montgomery Count y District Attorney; (5) President Judge William J. Furber, Jr.; and (6) Patricia E. Coonahan, former Montgomery County

Assistant District Attorn ey and current Judge. Ellakkany’s Complaint involves three char ges that he alleges were to be nolle prossed. Ellakkany maintains that Marino and Judge Rossanese arbitrarily entered a guilty plea and an additional consecutive 7.5- 15 years sentence based on those charges

without a trial and without notif ication to Ellakkany. Ellakkany alleges that originally he was sentenced to 7.5 to 15 years on three ot her charges and that, at some subsequent3 point, Judge Rossanese and Marino “cancell ed and expunged” the sentences and

convictions associated with th ose other charges. Ellakkany further alleges that, at this point, Judge Rossanese and Ma rino improperl y substituted the nolle prossed charges to fill the void left by the other expunged charges. Ellakkany alleges that when he sought to remedy this, Coonahan and Judge Rossanese vi olated provisions of RICO by using the U.S. Postal Service to send to him, and to various courts, fra udulent documentation. On March 6, 2008, a hearing was condu cted in front of Judge Rossanese. Allegedly, despite an acknowledgement by Co onahan and Judge Rossanese that the three charges had indeed been no lle prossed and were eligible for expungement, Judge Rossanese issued an order “conceal[ing] th e actual facts” of the case and denying expungement. This order was mailed to Ellakka ny. According to Ellakkany, he appealed this denial to the Superior Court and, in May 2009, Coonahan used the U.S. Postal Service to send a brief to the Superior Court denying that the charges had ever been nolle prossed. The appeal was deni ed. Accordingly, Ellakkany filed the instant Complaint, alleging that he had been wrongfully imprisoned and subjected to peonage. 1 The District Court denied Ellakkany’s “Motion for Temporary Restraining Order and Preliminary Injunction Wi thout Written Notice and Hear ing – RICO and Peonage” (“Motion”) because he could not meet the re quirements for injunctive relief. Ellakkany

1 Ellakkany alleged five counts in his comp laint as follows: (1) RICO violations; (2) conspiracy to violate RICO; (3) involuntary servitude Thirteenth Amendment violations; (4) human trafficking violations; and (5) un compensated labor violations. Ellakkany sought injunctive, declaratory, and moneta ry relief, including immediate release from prison.4 appeals and has filed a Motion to Expedite hi s appeal. The Appellees have filed Motions for Summary Affirmance.

II. We have jurisdiction unde r 28 U.S.C. § 1292(a)(1). “I n reviewing [a] district court’s order denying [a] motion for a preliminary injunction, 2 ‘[w]e review [its] conclusions of law in plenary fashion, its findings of fact unde r a clearly erroneous standard, and its decision to grant or deny the injunction for an abuse of discretion.’” 3 N.J. Hosp. Ass’n v. Waldman, 73 F.3d 509, 512 (3d Cir. 1995 ) (quoting AT&T v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994)). Those standards are employed in judging the followi ng factors: “(1) the likelihood that the plaintiff will prevail on the merits at the final hearing; (2) the extent to which the plaintiff is being irreparably harmed by the conduct complained of; (3) the extent to which the defendant will suffer irreparable harm if the preliminary inj unction is issued; and (4) the

2 The denial of a temporary restraining or der is generally not an appealable order, Richardson v. Kennedy, 418 F.2d 235, 235 (3d Cir. 1969), unless the TRO “decides the merits of the case or is equivalent to a dismis sal of the claim,” Page v. Bartels, 248 F.3d 175, 185-86 (3d Cir. 2001), which is not th e case here. Therefore, to the extent Ellakkany’s Motion seeks a TRO, we do not cons ider that claim on appeal. We do find it to be a fair reading of the Complaint, Mo tion and Notice of Appeal that Ellakkany is appealing the denial of the preliminary injunc tion, and we have the jurisdiction to review the denial of such. 3 Our review of the district court’s decision is limited. We must affi rm unless, in denying the motion, “‘there has been an abuse of discre tion, an error of law, or a clear mistake in the consideration of the proof.’” Frank’s GM C Truck Ctr., Inc. v. Gen. Motors Corp., 847 F.2d 100, 101 (3d Cir. 1988) (quoting Moteles v. Univ. of Pa., 730 F.2d 913, 918 (3d Cir. 1984)). The scope of our review is na rrow because “‘the gran t or denial of a preliminary injunction is almost always based on an abbreviated set of facts, requiring a delicate balancing [that] is the responsibility of the district judge.’” Frank’s GMC Truck Ctr., 847 F.2d at 101–02 (alteration in original ) (quoting U.S. Steel Corp. v. Fraternal Ass’n of Steelhaulers, 431 F. 2d 1046, 1048 (3d Cir. 1970)).5 public interest.” AT&T, 42 F.3d at 1427. An injunction is an “extraordinary remedy” that should be granted only in “limited circumstances.” Id. at 1426-27 (internal quotations omitted). Here, the District Court properly conc luded that Ellakkany does not have a

likelihood of success on the merits of his cl aims. The Eleventh Amendment bars suit against the Montgomery County Court of Common Pleas becaus e it is a state entity. See Laskaris v. Thornburgh, 661 F. 2d 23, 25-26 (3d Cir. 1981); Pa. Const. art. 5, § 1 (1992) (creating unified state judicial system); Call ahan v. City of Phila delphia, 207 F.3d 668, 672 (3d Cir. 2000) (“All courts and agencies of the unified judi cial system . . . are part of ‘Commonwealth government’ and thus are stat e rather than local agencies.”). The District Attorney’s Office of Montgomery County is unlikely to survive as a defendant because the department would not be consid ered separate from the municipality itself (which is not named as a party to this lawsuit ). See, e.g., Reitz v. County of Bucks, 125 F.3d 139, 144-45 (3d Cir. 1997). Next, as the District Court aptly concluded, prosecutors Marino and Coonahan are likely absolutely i mmune from suit. See, e.g., Imbler v. Pachtman, 424 U.S. 4 09, 430 (1976). Finally, the District Court properly de termined that judicial immunity bars Ellakkany’s claims against Judges Rossanese and Furber. A judicial officer in the performance of his duties has absolute imm unity from suit and will not be liable for his judicial acts. Mireles v. W aco, 502 U.S. 9, 12 (1991). “A ju dge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the clear6 absence of all jurisdiction.” Stump v. Spar kman, 435 U.S. 349, 356–57 (1978) (citation omitted). All of the allegations in Ellakkan y’s Complaint and Motion, and the injunctive relief sought therein, relate to actions ta ken by Judges Rossanese and Furber in their capacity as judges. Ellakkany has not set forth any facts that would sh ow that the judges’ actions were taken in clear absence of their ju risdiction. See also Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir. 2006) (per curiam). 4

Because we believe that the District C ourt did not abuse its discretion in holding that Ellakkany had failed to sh ow a likelihood of success on th e merits, our analysis ends and we need not consider Ellakkany’s likelih ood of prevailing on the remaining elements required for a preliminary injunction to issu e. Accordingly, we grant the Appellees’ Motions for Summary Affirmance and will affirm the District Court’s order. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6. Due to the disposition of this appeal, Ellakkany’s Motion to Expedite is denied.

4 The Appellees correctly contend that Ella kkany’s request for im mediate release from prison is cognizable only in an action for hab eas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (“[W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he s eeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.”); Brown v. Fa uver, 819 F.2d 395, 397 (3d Cir. 1987) (same). To the extent that such is the basis of Ella kkanny’s request for inju nctive relief, we also reject it on that ground. As Ellakkany indi cates, however, his Complaint contains other claims not dependent upon the duration of his imprisonment.