Reaffirming Sovereign and Judicial Immunity and Plausibility Pleading in Domestic‑Relations–Adjunct RICO/§ 1983 Suits: Fake v. Commonwealth of Pennsylvania (3d Cir. 2025)

Reaffirming Sovereign and Judicial Immunity and Plausibility Pleading in Domestic‑Relations–Adjunct RICO/§ 1983 Suits: Fake v. Commonwealth of Pennsylvania (3d Cir. 2025)

Note: This Third Circuit disposition is designated “NOT PRECEDENTIAL” and, under I.O.P. 5.7, does not constitute binding precedent. It was resolved by summary action under L.A.R. 27.4 because the appeal presented no substantial question.

Introduction

This commentary analyzes the Third Circuit’s per curiam summary affirmance in Brandon L. Fake; Susan B. Fake v. Commonwealth of Pennsylvania, et al., No. 25‑1798 (3d Cir. Sept. 26, 2025). The appeal arose from the dismissal of a wide‑ranging, pro se civil action alleging a racketeering conspiracy and numerous federal and state law violations tied to longstanding domestic‑relations proceedings in the Philadelphia Court of Common Pleas dating back to 2004.

At its core, the case presented recurring threshold barriers to civil litigation against governmental entities and judicial officers and underscored the rigorous plausibility requirements for complex conspiracy theories (RICO and fraud) and for municipal liability under 42 U.S.C. § 1983. The Third Circuit summarily affirmed on familiar grounds: Eleventh Amendment sovereign immunity, absolute judicial immunity, the absence of municipal policy or custom under Monell, the lack of state action for private attorneys, and the failure to plead plausibly under the Twombly–Iqbal standard, even after multiple opportunities to amend.

Background and Procedural History

  • Parties and claims: In March 2020, Brandon and Susan Fake filed a pro se complaint against 45 defendants, including the Commonwealth of Pennsylvania, state courts and judges, a federal judge, the City of Philadelphia, the Philadelphia District Attorney’s Office, various public officials, and private individuals and attorneys. The gravamen was an alleged RICO conspiracy connected to Brandon Fake’s divorce, support, and custody litigation, alongside § 1983 and other constitutional and statutory claims.
  • Initial rulings: In December 2020, the District Court dismissed the complaint against multiple defendants for failure to state a claim but permitted amendment.
  • 2023 dismissals with prejudice: The court dismissed, with prejudice, all claims against:
    • the Commonwealth of Pennsylvania (also terminating the Pennsylvania Office of Attorney General, Attorney General Joshua D. Shapiro, and Governor Thomas W. Wolf),
    • the Pennsylvania Courts and all named Pennsylvania judges in their official and individual capacities (also terminating the Judicial Conduct Board),
    • Brian Zarallo in his official and individual capacities,
    • Robert Graci and Martha Gale,
    • the City of Philadelphia,
    • the Philadelphia District Attorney’s Office,
    • Rufus Williams in his official capacity,
    • Sarah Katz, Karen Ulmer, and Russell Manning, and
    • Federal Judge Gerald Pappert.
    The court also dismissed with prejudice all claims against attorney Erik Conrad except for the plaintiffs’ RICO claim, and it dropped James Kenney and Lawrence S. Krasner because the amended complaint did not name or plead claims against them.
  • Amendments: The second amended complaint was stricken for noncompliance with the prior dismissal orders. Plaintiffs filed a third amended complaint in June 2024. In March 2025, the District Court dismissed the remaining claims for failure to state a claim.
  • Appeal: Brandon Fake appealed pro se. The Third Circuit took the matter for possible dismissal due to a jurisdictional defect and possible summary action; exercising jurisdiction under 28 U.S.C. § 1291, it summarily affirmed.

Summary of the Opinion

The Third Circuit, reviewing de novo, affirmed dismissal on these key grounds:

  • Sovereign immunity: The Eleventh Amendment barred claims against the Commonwealth of Pennsylvania, the Pennsylvania Courts, state judges in their official capacities, and state officials sued in their official capacities. Pennsylvania has not waived Eleventh Amendment immunity in federal court (42 Pa. Cons. Stat. § 8521(b)).
  • Judicial immunity: Absolute judicial immunity shielded federal and state judges sued in their individual capacities for acts undertaken in their judicial roles, as there was no allegation of actions taken in the clear absence of jurisdiction.
  • Municipal liability: The plaintiffs failed to plead a municipal policy or custom as required by Monell to hold the City of Philadelphia liable. The Philadelphia District Attorney’s Office is not a suable entity under § 1983.
  • State action: The private attorneys and individuals (e.g., Katz, Ulmer, Manning) were not state actors under § 1983 based on the pleaded facts.
  • Pleading standards: The third amended complaint did not state plausible claims—particularly as to RICO conspiracy and fraud—under the Twombly–Iqbal standard, despite multiple opportunities to amend.

Concluding that the appeal presented no substantial question, the court summarily affirmed and denied pending motions.

Detailed Analysis

Precedents and Authorities Cited

  • Geness v. Administrative Office of Pennsylvania Courts, 974 F.3d 263 (3d Cir. 2020); Gallas v. Supreme Court of Pennsylvania, 211 F.3d 760 (3d Cir. 2000); Bah v. United States, 91 F.4th 116 (3d Cir. 2024): These decisions confirm de novo review of dismissals based on sovereign immunity, judicial immunity, and failure to state a claim.
  • MCI Telecommunications Corp. v. Bell Atlantic–Pennsylvania, 271 F.3d 491 (3d Cir. 2001): Reiterates Eleventh Amendment principles: states and their agencies are generally immune from suit by private parties in federal court absent valid abrogation or waiver.
  • 42 Pa. Cons. Stat. § 8521(b): Pennsylvania’s explicit non‑waiver of Eleventh Amendment immunity in federal courts—dispositive of plaintiffs’ waiver argument.
  • Azubuko v. Royal, 443 F.3d 302 (3d Cir. 2006) (per curiam): Affirms absolute judicial immunity for acts performed in a judicial capacity; immunity is lost only if the judge acts in the clear absence of all jurisdiction.
  • Monell v. Department of Social Services, 436 U.S. 658 (1978): Municipal liability under § 1983 requires a policy, custom, or practice that is the moving force behind the constitutional injury; respondeat superior is not available.
  • Reitz v. County of Bucks, 125 F.3d 139 (3d Cir. 1997): The Philadelphia District Attorney’s Office is not a separate suable entity under § 1983; claims generally run against the municipality subject to Monell.
  • Kach v. Hose, 589 F.3d 626 (3d Cir. 2009); Angelico v. Lehigh Valley Hospital, Inc., 184 F.3d 268 (3d Cir. 1999): Articulate when private conduct may be deemed state action (state official, close nexus/joint action, or conduct chargeable to the state). Attorneys are not state actors solely because they are officers of the court.
  • Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007): Establish the plausibility pleading standard requiring factual content that allows the court to draw the reasonable inference of liability.
  • Haines v. Kerner, 404 U.S. 519 (1972) and Mala v. Crown Bay Marina, Inc., 704 F.3d 239 (3d Cir. 2013): Pro se pleadings are liberally construed, but pro se litigants must still allege sufficient facts to support claims.
  • 3d Cir. L.A.R. 27.4; I.O.P. 10.6: Provide for summary action when the appeal presents no substantial question.

Legal Reasoning Applied

A. Sovereign Immunity Disposition

The court held that the Eleventh Amendment barred all claims against the Commonwealth, the Pennsylvania Courts, and state judicial officers in their official capacities, as well as a state official (e.g., Brian Zarallo) in his official capacity. Plaintiffs’ premise that these defendants had waived immunity failed because Pennsylvania has expressly preserved its immunity from federal‑court suits (§ 8521(b)). Absent congressional abrogation (not present for § 1983 or RICO claims) or unequivocal state waiver, the claims could not proceed.

B. Judicial Immunity for Federal and State Judges

The court rejected individual‑capacity claims against Federal Judge Gerald Pappert and the Pennsylvania judges, reaffirming that judges enjoy absolute immunity for acts taken in their judicial capacity unless they act in the “clear absence of all jurisdiction.” The allegations pertained to quintessential judicial actions (rulings or conduct within judicial proceedings). The panel also rejected the appellant’s contention that the Pennsylvania Supreme Court had waived judicial immunity for the defendants.

C. Municipal Liability and Non‑suable Entities

The plaintiffs identified no municipal policy or custom to satisfy Monell. Conclusory allegations of municipal complicity, without well‑pleaded facts linking a policy or practice to the alleged harm, are insufficient. In addition, the Philadelphia District Attorney’s Office is not a separate entity subject to suit under § 1983, as recognized in Reitz. Claims must be directed, if at all, to the municipality and satisfy Monell.

D. Private Actors Are Not State Actors

With respect to private attorneys and individuals (e.g., Sarah Katz, Karen Ulmer, Russell Manning), the court concluded that the pleadings failed to convert them into state actors. Mere status as an attorney or allegations of adverse advocacy in domestic‑relations litigation do not establish state action. Absent plausible allegations of joint action with the state, coercion, or performance of an exclusive public function, § 1983 does not apply.

E. Plausibility Failures: RICO Conspiracy and Fraud

Finally, the court affirmed dismissal of all remaining claims for failure to meet Twombly–Iqbal’s plausibility threshold. The third amended complaint did not plead concrete facts showing:

  • a RICO enterprise, a pattern of racketeering activity with qualifying predicate acts, causation, and injury, or an agreement among defendants to violate RICO (for the conspiracy count), or
  • the particularized elements of fraud.
The court emphasized that even for pro se litigants, conclusory assertions and broad accusations of conspiracies—especially across a large roster of officials and private individuals—cannot substitute for specific factual matter. Multiple opportunities to amend, including after the second amended complaint was stricken for noncompliance, did not cure the defects.

Procedural Posture and Summary Affirmance

Because the legal barriers and pleading deficiencies were plain and dispositive, the Third Circuit exercised its authority to summarily affirm under Local Appellate Rule 27.4, concluding that the appeal presented “no substantial question.”

Impact and Implications

  • Domestic‑relations–adjacent federal suits: Litigants seeking to recast divorce, custody, or support disputes as federal RICO or § 1983 claims face steep hurdles. This decision reinforces that generalized claims of systemic bias or collusion, without detailed, plausible facts satisfying each element of the federal causes of action, will not proceed. Although the opinion does not rest on doctrines like Rooker–Feldman or the domestic‑relations exception, it exemplifies how immunity doctrines and pleading standards often foreclose federal relitigation of state‑court family disputes.
  • Immunity doctrines as threshold gatekeepers: The opinion underscores the breadth of Eleventh Amendment and absolute judicial immunity as early dispositive defenses. Plaintiffs must carefully distinguish official‑capacity claims (barred absent waiver/abrogation) from individual‑capacity claims, and even then, judicial acts are absolutely immune.
  • Municipal liability rigor: The court’s application of Monell illustrates the necessity of connecting a specific municipal policy or custom to the alleged constitutional injury. Naming a city is not enough, and some sub‑components (like the DA’s Office) are not suable entities.
  • State action requirement for § 1983: Private attorneys representing litigants in court are not state actors merely by participating in judicial proceedings. Plaintiffs must plead concrete joint action with state officials or other recognized bases for attributing private conduct to the state.
  • RICO and fraud pleading standards: Plaintiffs contemplating civil RICO must plead the enterprise, pattern, predicate acts, causation, and injury with specificity; fraud requires particularity. The case reflects intolerance for sprawling, conclusory conspiracy narratives across dozens of defendants.
  • Pro se litigants: While the courts afford leeway in construing pro se pleadings, leniency does not relax substantive elements or plausibility requirements. Multiple amendments without material improvement can result in final dismissal.

Complex Concepts Simplified

  • Eleventh Amendment sovereign immunity: The Constitution generally bars private suits in federal court against a state and its agencies. A state can consent (waive immunity) or Congress can validly abrogate it for particular claims. Pennsylvania has not consented to be sued in federal court for the claims at issue, as reaffirmed by statute (42 Pa. Cons. Stat. § 8521(b)).
  • Official vs. individual capacity: Suing officials in their official capacity is effectively suing the state or governmental entity (invoking sovereign immunity). Suing them individually may avoid Eleventh Amendment immunity, but other immunities—like absolute judicial immunity—can still apply.
  • Absolute judicial immunity: Judges cannot be sued for damages for acts performed in their judicial role, unless they act in a clear absence of all jurisdiction. This immunity protects the independence of judicial decision‑making.
  • Monell liability (municipal liability): A city or county is not liable just because it employs a wrongdoer. Plaintiffs must show a policy, practice, or custom caused the constitutional violation.
  • State action (for § 1983): § 1983 applies to conduct “under color of” state law. Private parties become state actors only in narrow circumstances (e.g., joint action with the state, coercion by the state, or performing exclusive public functions).
  • Plausibility pleading (Twombly–Iqbal): Complaints must include enough factual content to make liability plausible, not merely possible. Labels, conclusions, and formulaic recitations of elements do not suffice.
  • Civil RICO basics: Plaintiffs must allege an enterprise, the conduct of the enterprise through a pattern of racketeering activity (at least two qualifying predicate acts), injury to business or property, and causation. RICO conspiracy requires agreement to commit the underlying RICO violation. Vague references to “conspiracy” without specifics fail.
  • Fraud pleading: Fraud typically must be pleaded with particularity—who said what, when and where, and why it was false—rather than generalized accusations.

Practice Pointers

  • Before suing a state, state courts, or state officials, assess Eleventh Amendment immunity and whether any express waiver or valid congressional abrogation exists.
  • Avoid suing judges for their judicial acts; the proper remedy for erroneous rulings is appellate review, not damages litigation.
  • For municipal liability, identify a specific policy, longstanding custom, failure to train, or policymaker decision that caused the alleged violation, and connect it factually to the harm.
  • When alleging § 1983 claims against private actors, plead concrete facts showing joint action with state officials or other accepted bases for state action.
  • For RICO or fraud, draft with particularity: detail the enterprise, predicate acts, participants, timeline, mechanism, and causal link to injury.
  • Use amendment opportunities to cure identified defects; repeating conclusory allegations after judicial guidance risks dismissal with prejudice.

Conclusion

The Third Circuit’s non‑precedential decision in Fake v. Commonwealth of Pennsylvania is a strong reaffirmation of familiar but formidable threshold doctrines and pleading standards. It emphasizes that:

  • Eleventh Amendment immunity bars suits against Pennsylvania and its judicial apparatus absent waiver or abrogation;
  • Absolute judicial immunity forecloses damages actions against judges for judicial acts within jurisdiction;
  • Monell demands a well‑pleaded policy or custom to hold a municipality liable, and certain sub‑units (like the DA’s Office) are not suable entities;
  • Private attorneys are not state actors merely by litigating in court; and
  • Complex claims like RICO conspiracy and fraud require concrete, plausible, and particularized facts, which even generous pro se construction cannot supply when absent.

Although not binding precedent, the opinion serves as a concise roadmap for courts and litigants confronting sprawling, domestic‑relations–adjacent federal complaints. Its message is clear: immunity doctrines will be enforced at the threshold, and pleadings must move beyond broad accusations to detailed factual narratives that satisfy the elements of the asserted claims.

Case Details

Year: 2025
Court: Court of Appeals for the Third Circuit

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