NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 19-3526
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ROBERT J. MURPHY, ESQUIRE, INDIVIDUALLY AND ON BEHALF OF
ALL OTHERS SIMILARLY SITUATED,
Appellant
v.
OFFICE OF DISCIPLINARY COUNSEL; PAUL J. KILLIAN, ESQ., CHIEF
DISCIPLINARY COUNSEL IN HIS OFFICIAL CAPACITY AND IN HIS
INDIVIDUAL CAPACITY; MICHAEL GOTTSCH, ESQ., IN HIS OFFICIAL
CAPACITY AND IN HIS PERSONAL CAPACITY; THE DISCIPLINARY
BOARD OF THE SUPREME COURT OF PENNSYLVANIA; JANE G.
PENNY, ESQ., IN HER OFFICIAL CAPACITY AND IN HER PERSONAL
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; 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 OFFIICAL
CAPACITY AND IN HIS INDIVIDUAL CAPACITY
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 2-17-cv-01239)
District Judge: Honorable Edward G. Smith
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Submitted under Third Circuit L.A.R. 34.1(a)
July 2, 2020
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Before: GREENAWAY, JR., SHWARTZ, and RENDELL, Circuit Judges.
(Filed: July 7, 2020)
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OPINION
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SHWARTZ, Circuit Judge.
Attorney Robert J. Murphy sued the Disciplinary Board of the Supreme Court of
Pennsylvania (“Board”), the Pennsylvania Office of Disciplinary Counsel (“ODC”), and
their officials (collectively, “Defendants”), alleging that Defendants violated his
constitutional rights during disciplinary proceedings against him. The District Court
dismissed his complaint on various immunity grounds and for failure to state a claim and
denied his request for leave to file a third amended complaint. We will affirm.
I1
The Pennsylvania Supreme Court and the Board have exclusive jurisdiction to
discipline attorneys admitted in Pennsylvania, such as Murphy. Pa. R.D.E. 201(a)(1).
ODC has the “power and duty” to investigate attorney misconduct and to prosecute
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
1
Because Murphy appeals an order granting a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6), we draw the facts from non-conclusory allegations in
his complaint and matters of public record. Hartig Drug Co. Inc. v. Senju Pharm. Co.
Ltd., 836 F.3d 261, 268 (3d Cir. 2016).
2
disciplinary proceedings before the Board. Pa. R.D.E. 207(b)(1), (3). ODC initiated
disciplinary proceedings against Murphy.
While the disciplinary process was ongoing, Murphy, proceeding pro se, sued the
Board, Board officials, and ODC employees in their individual and official capacities2 in
federal court under 42 U.S.C. § 1983, alleging that their conduct in prosecuting and
adjudicating his disciplinary matter violated his constitutional rights. Murphy sought
monetary, declaratory, and injunctive relief. Defendants moved to dismiss. After
motion practice, an amendment to the complaint, and an abandoned appeal, Murphy filed
a second amended complaint. Defendants again moved to dismiss.
The District Court granted the motion to dismiss, concluding that, among other
things, (1) claims against the individual defendants in their individual capacities for
damages were barred by quasi-judicial immunity; and (2) immunities aside, Murphy
failed to state a plausible claim for violations of his constitutional rights.3 Murphy v.
Office of Disciplinary Counsel, Civil Action No. 17-1239, 2019 WL 4752059, at *26
2
The individual defendants fall into two groups: (1) Chief Disciplinary Counsel
Paul Killion and disciplinary counsel Richard Hernandez, Anthony Sodroski, Mark
Gilson, and Michael Gottsch; and (2) Board Chair Jane G. Penny, Board Secretary Julia
Frankston-Morris, and Board officials Stewart Cohen, Dion Rassias, Jerry LeHocky,
David Fitzsimons, and Brian Cali.
3
The District Court also dismissed the damages claims against the Board, ODC,
and individual defendants in their official capacity based on the Eleventh Amendment
and held that it would abstain from ruling on his requests for injunctive relief under
Younger v. Harris, 401 U.S. 37 (1971). Murphy, 2019 WL 4752059, at *14-15, 17. The
Court also dismissed damages claims against the ODC defendants based on prosecutorial
immunity, at least from the commencement of formal proceedings. Id. Murphy does not
appeal these rulings. To the extent he challenges the Court’s ruling on prosecutorial
immunity only in his reply brief, he has failed to preserve that issue. Haberle v. Borough
of Nazareth, 936 F.3d 138, 141 n.3 (3d Cir. 2019).
3
(E.D. Pa. Sept. 30, 2019). The Court also denied leave to amend the complaint,
concluding that amendment would be futile. Id.
Murphy appeals.
II4
Murphy asserts that the District Court erred by (1) holding that the ODC
defendants were entitled to quasi-judicial immunity, (2) dismissing his complaint for
failure to state a claim, and (3) denying leave to amend.
A
We first consider whether the ODC defendants are entitled to quasi-judicial
immunity.5 The doctrine of quasi-judicial immunity provides that those “who perform
functions closely associated with the judicial process” are immune from damages suits in
their individual capacities, Russell v. Richardson, 905 F.3d 239, 247 (3d Cir. 2018)
(quoting Cleavinger v. Saxner, 474 U.S. 193, 200 (1985)), and the immunity extends to
disciplinary counsel, Capogrosso v. Supreme Court of N.J., 588 F.3d 180, 185 (3d Cir.
2009); see also, e.g., Hirsh v. Justices of Supreme Court of State of Cal., 67 F.3d 708,
4
The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
under 28 U.S.C. § 1291.
5
We exercise plenary review of a district court’s order granting a motion to
dismiss. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220 (3d Cir. 2011). We must
determine whether the complaint, construed “in the light most favorable to the plaintiff,”
Santomenno ex rel. John Hancock Tr. v. John Hancock Life Ins. Co., 768 F.3d 284, 290
(3d Cir. 2014) (citation omitted), “contain[s] 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)), “but we
disregard rote recitals of the elements of a cause of action, legal conclusions, and mere
conclusory statements,” James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012).
4
715 (9th Cir. 1995). Thus, the District Court correctly held that the ODC defendants are
entitled to quasi-judicial immunity.6
B
Murphy also argues that the District Court erred in dismissing his complaint for
failure to state a claim.7 However, he forfeited that argument on appeal because his brief
makes only a threadbare argument for why the District Court erred and instead refers us
to his opposition to Defendants’ motion to dismiss. Bastardo-Vale v. Att’y Gen., 934
F.3d 255, 268 (3d Cir. 2019) (en banc) (“If an argument on appeal is not ‘supported
specifically by the reasons for [it], with citations to the authorities and parts of the record
on which the appellant relies,’ it is not properly preserved.” (alteration in original)
(quoting Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 145 (3d
Cir. 2017))). Moreover, Murphy’s effort to incorporate his arguments to the District
Court violate Federal Rule of Appellate Procedure 28. Norman v. Elkin, 860 F.3d 111,
6
Murphy argues that quasi-judicial immunity does not apply because the ODC
defendants’ alleged misconduct was not quasi-judicial. However, “in evaluating whether
quasi-judicial immunity grants immunity to a particular official, a court inquires into ‘the
official’s job function, as opposed to the particular act of which the plaintiff complains.’”
Keystone Redev. Partners, LLC v. Decker, 631 F.3d 89, 95 (3d Cir. 2011) (quoting
Dotzel v. Ashbridge, 438 F.3d 320, 325 (3d Cir. 2006)). Our Court and others have held
that disciplinary counsel’s job functions render them immune, Capogrosso, 588 F.3d at
185; Hirsh, 67 F.3d at 715, so Murphy’s argument is misplaced. Further, we agree with
the District Court that, “to the extent that [we] can ascertain the crux of Murphy’s
allegations, his complaints relate to his contention that the ODC unfairly charged him
with disciplinary violations and he has numerous issues with the prosecution of those
violations.” Murphy, 2019 WL 4752059, at *18. As a result, any alleged misconduct
occurred in the exercise of the ODC defendants’ quasi-judicial functions, so quasi-
judicial immunity applies. Keystone, 631 F.3d at 95.
7
The only claims remaining after the Court’s immunity rulings were those for
injunctive relief against the individual defendants.
5
130 (3d Cir. 2017) (“[A]n attempt to incorporate by reference arguments made in the
District Court does not satisfy the rules of appellate procedure. . . . Elkin has thus waived
his argument . . . .”). Because Murphy has not preserved any argument regarding
dismissal for failure to state a claim, and his brief on this point fails to comply with Rule
28, we will not disturb the District Court’s Rule 12(b)(6) dismissal.
C
Finally, Murphy argues that the District Court erred in denying him leave to
amend his second amended complaint.8 A party may amend a pleading with “the court’s
leave,” Fed. R. Civ. P. 15(a)(2), but courts may deny leave when the proposed
“amendment would be futile,” Wolfington v. Reconstructive Orthopaedic Assocs. II PC,
935 F.3d 187, 210 (3d Cir. 2019) (quoting U.S. ex rel. Customs Fraud Investigations,
LLC v. Victaulic Co., 839 F.3d 242, 249 (3d Cir. 2016)). Amendment here would be
futile because Murphy has not explained how any amendment could overcome the
immunities that bar almost all of his claims. See U.S. ex rel. Atkinson v. PA.
Shipbuilding Co., 473 F.3d 506, 516 (3d Cir. 2007) (“Repleading is futile when the
dismissal was . . . . based on some legal barrier other than want of specificity or
particularity.”). Moreover, despite two prior pleadings and a request to amend again,
Murphy did not provide the facts he would allege that would show he would be entitled
8
“[W]e review the District Court’s denial of leave to amend for abuse of
discretion, and review de novo its determination that amendment would be futile.” U.S.
ex rel. Schumann v. Astrazeneca Pharms. L.P., 769 F.3d 837, 849 (3d Cir. 2014).
6
to relief for any non-immunized conduct.9 Accordingly, we will affirm the District
Court’s order denying leave to amend.
III
For the foregoing reasons, we will affirm the District Court’s order dismissing
Murphy’s second amended complaint and denying leave to amend.
9
The District Court also acted well within its discretion in denying leave to amend
because Murphy did not provide a proposed amended complaint to the District Court, and
“the court may deny a request if the movant fails to provide a draft amended
complaint[.]” Cureton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 273 (3d Cir.
2001).
7