NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 17-1173

___________

BRANDON L. FAKE,

Appellant

v.

CITY OF PHILADELPHIA; KEVIN M. DOUGHERTY, Judge; 

MARGARET T. MURPHY, Judge; HOLLY J. FORD, Judge; 

JOEL S. JOHNSON, Judge; DIANNE J. FAKE; PATRICK J. MURPHY

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 16-cv-03893)

District Judge: Honorable Gerald J. Pappert

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 21, 2017

Before: SHWARTZ, COWEN and FUENTES, Circuit Judges

(Opinion filed: August 22, 2017)

___________

OPINION*

___________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Brandon L. Fake appeals from orders of the United States District Court for the 

Eastern District of Pennsylvania. We will affirm.

In July 2016, Fake filed a pro se complaint against 44 defendants, alleging a 

conspiracy in the Philadelphia Court of Common Pleas in connection with divorce, 

support, and custody proceedings between Fake and his ex-wife that began in 2004. The 

District Court granted Fake’s motion to proceed in forma pauperis and screened the 

complaint under 28 U.S.C. § 1915(e). The Court dismissed some claims with prejudice 

and others without prejudice and allowed Fake to file an amended complaint. Dist. Ct. 

Mem., Dkt. #2 at 9-10. 

In October 2016, the District Court dismissed Fake’s amended complaint, 

determining that his claims were either legally frivolous or that they failed to state a 

claim upon which relief could be granted. Again, the District Court dismissed some of 

Fake’s claims with prejudice and some claims without prejudice. Dist. Ct. Mem., Dkt. 

#6. The Court allowed Fake another chance to file an amended complaint “only with 

respect to his claims that have not been dismissed with prejudice.” Dist. Ct. Order, Dkt. 

#7.

Fake then filed a second amended complaint against the City, Dianne Fake (his exwife), Patrick J. Murphy (who at the time was Under Secretary of the United States 

Army), and four judges1 who served on the Philadelphia Court of Common Pleas during 

 

1 The judges named as defendants are Judge Kevin M. Dougherty, Judge Margaret T. 

Murphy, Judge Joel S. Johnson, and Judge Holly J. Ford.
3

the time period in his complaint. In December 2016, the District Court dismissed the 

second amended complaint with prejudice, determining that Fake failed to state a viable 

conspiracy claim, that he failed to state a basis for a claim against the City, and that the 

judicial defendants were entitled to judicial immunity. Fake filed a timely appeal.

We exercise plenary review of the District Court’s sua sponte dismissal under 28 

U.S.C. § 1915(e)(2)(B)(ii). See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). 

“[W]e accept all factual allegations as true [and] construe the complaint in the light most 

favorable to the plaintiff.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 

2011) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). 

We analyze the District Court’s determination that the complaint failed to state a claim 

under the standard articulated in Ashcroft v. Iqbal, 556 U.S. 662 (2009). Under that 

standard, a pleading “must contain sufficient factual matter, accepted as true, to ‘state a 

claim to relief that is plausible on its face.’” Id. at 678 (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007)). Although pro se pleadings must be held to “less 

stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 

519, 520 (1972), “pro se litigants still must allege sufficient facts in their complaints to 

support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).

Fake raises five claims of error in his brief. First, Fake challenges the District 

Court’s decision at screening to dismiss with prejudice the claims under 42 U.S.C. 

§ 1983, 42 U.S.C. § 1985, and 18 U.S.C. § 242. In that regard, Fake argues only that it 

was error to dismiss his claims with prejudice without discovery and a fair hearing. But § 
4

1915(e)’s screening provisions function in a manner similar to a party’s motion to 

dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure—the screening

should expose the deficiencies of the complaint “‘at the point of minimum expenditure of 

time and money by the parties and the court.’” See Twombly, 550 U.S. at 558 (quoting 5

Wright & Miller § 1216, at 233-234). “Because [Fake’s] complaint is deficient under 

Rule 8, he is not entitled to discovery.” See Iqbal, 556 U.S. at 686. Nor was a hearing 

required.2

Fake’s second argument is that the District Court erred in dismissing claims 

against the Philadelphia Court of Common Pleas on the basis of Eleventh Amendment 

immunity because the state has “engaged in fraud.” However, the Commonwealth of 

Pennsylvania has not waived immunity from suit in federal court, and “Congress, in 

passing § 1983, had no intention to disturb the States’ Eleventh Amendment immunity.” 

See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989); see also 42 Pa. Cons. 

Stat. Ann. § 8521(b); Benn v. First Judicial Dist., 426 F.3d 233, 238-41 (3d Cir. 2005). 

And we further agree with the District Court that the Court of Common Pleas is not, in 

any event, a “person” subject to liability under § 1983. See Will, 491 U.S. at 65-66.

 

2 Fake does not give any other reasons for why he believes the District Court’s decision 

to dismiss these claims was wrong. He has thus waived any other arguments concerning 

these claims. See Kopec v. Tate, 361 F.3d 772, 775 n. 5 (3d Cir. 2004) (“An issue is 

waived unless a party raises it in its opening brief.”). Nonetheless, we do not discern any 

error in the District Court’s decision to dismiss these claims.
5

Fake’s third argument requires little discussion. He argues that the “District Court 

refers to the Philadelphia Court of Common Pleas as a Department of the City of 

Philadelphia” in its July 2016 memorandum. Fake misreads that opinion by eliding the 

Court’s sentence regarding Eleventh Amendment immunity with the following sentence 

regarding departments of the City. See Dist. Ct. Mem., Dkt. #2 at 10. Fake appears to 

argue that his interpretation of the opinion caused him to drop the Philadelphia Court of 

Common Pleas as a defendant in his second amended complaint. But he was not 

prejudiced by his misreading, as the Court of Common Pleas is not subject to suit, as 

explained above.

Fake’s fourth argument is that the District Court improperly determined that the 

judicial defendants are entitled to absolute immunity, since they “have acted criminally 

under color of law and without jurisdiction, as well as actions taken administratively 

[sic].” Judicial immunity extends to judicial officers, even if their actions were “in error, 

w[ere] done maliciously, or w[ere] in excess of [their] authority,” unless the officers 

acted in clear absence of all jurisdiction. Capogrosso v. Sup. Ct. of N.J., 588 F.3d 180, 

184 (3d Cir. 2009) (per curiam) (citations, quotations omitted). The complained-of acts 

were clearly performed by these defendants in their roles as judges, and the alleged 

procedural errors identified by Fake, such as those involved in scheduling or cancelling 

hearings, do not abrogate judicial immunity. See Stump v. Sparkman, 435 U.S. 349, 359, 

362 (1978); see also Doyle v. Camelot Care Centers, Inc., 305 F.3d 603, 622 (7th Cir. 

2002) (scheduling of hearings is integral to judicial functioning and mere fact that 
6

scheduling is a routine activity does not render the task “administrative or ministerial in 

nature”). Nor would judicial immunity be lost even if some of the defendants, as Fake 

suggests, engaged in improper favoritism or ex parte communications. See Nystedt v. 

Nigro, 700 F.3d 25, 31-32 (1st Cir. 2012). Finally, Fake cannot sustain his request for 

injunctive relief; such claims are barred by the language of amendments to 42 U.S.C. 

§ 1983 itself. Azubuko v. Royal, 443 F.3d 302, 303-04 (3d Cir. 2006) (per curiam).3

Fake’s last argument is that the District Court improperly dismissed claims on the 

basis of the statute of limitations “for claims that occurred during the commission of 

fraud upon the Court.” Fake states that the Philadelphia Court of Common Pleas and its 

officers “have engaged in an unconscionable scheme to commit fraud upon the Court that 

has been continuing to the present date.” But even if all of Fake’s claims against the 

Court of Common Pleas and the judicial defendants were timely, they fail on the basis of 

immunity, as described above.

For the foregoing reasons, we will affirm the District Court’s judgment.

 

3 Fake has waived any challenge to the dismissal of his claims of a judicial conspiracy 

between his ex-wife and other defendants as he does not raise such a challenge in his 

brief. But in any event, we agree with the District Court that Flake’s complaint had not 

“assert[ed] facts from which a conspiratorial agreement can be inferred.” Great W.

Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010); see also

Capogrosso, 588 F.3d at 184-85 (discussing pleading requirements in “judicial 

conspiracy” claims).