# MURPHY v. OFFICE OF DISCIPLINARY COUNSEL

> District Court, E.D. Pennsylvania · September 30, 2019

URL: https://www.frixlaw.com/law-library/cases/10397703

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** September 30, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10397703

## How later opinions describe it (automated extraction)

- explaining that “‘bad faith’ in this context generally means that a prosecution has been brought without a reasonable expectation of obtaining a valid conviction.” (citation omitted)

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT J. MURPHY, ESQUIRE, :
Individually and on behalf of all others :
similarly situated, :
:
Plaintiff, : CIVIL ACTION NO. 17-1239
:
v. :
:
OFFICE OF DISCIPLINARY COUNSEL, :
PAUL J. KILLION, ESQ., Chief :
Disciplinary Counsel, in his official capacity :
and in his individual capacity; MICHAEL :
GOTTSCH, ESQ., in his official capacity :
and in his individual 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; JANE G. PENNY, ESQ., in her :
official capacity and in her 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 :
official capacity and in his individual :
capacity; and THE DISCIPLINARY :
BOARD OF THE SUPREME COURT OF :
PENNSYLVANIA, :
:
Defendants. :
MEMORANDUM OPINION

Smith, J. September 30, 2019
The pro se plaintiff is an attorney currently in the midst of disciplinary proceedings in the
Commonwealth of Pennsylvania. He has filed a second amended complaint in which he attempts
to assert various constitutional claims under 42 U.S.C. § 1983 against the office prosecuting his
disciplinary action, disciplinary counsel, the state disciplinary board, and members of the board.
He seeks injunctive relief (for which he has filed a motion for a preliminary injunction), declaratory
relief, and monetary damages.
The defendants have moved to dismiss the second amended complaint, essentially arguing
that, inter alia, (1) this court should abstain from resolving the claims in this case based upon
Younger v. Harris, 401 U.S. 37 (1971), (2) the Eleventh Amendment bars any claims (a) against
the office of disciplinary counsel and the disciplinary board, (b) for declaratory relief, and (c) for
monetary damages against the individual defendants in their official capacities, (3) absolute
prosecutorial immunity, quasi-judicial immunity, and judicial immunity bar any individual

capacity claims for damages against the individual defendants, (4) the plaintiff has failed to assert
a plausible claim for a violation of his rights under the First, Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution, and (5) the defendants are absolutely immune from
any potential state law claims.
The court previously determined that abstention is necessary here under Younger when the
plaintiff previously moved for a preliminary injunction, and nothing that the plaintiff asserts in his
second amended complaint or in his brief in opposition to the motion to dismiss changes this
determination. Thus, the court must abstain from resolving the plaintiff’s claims for injunctive and
declaratory relief. In addition to abstaining from these claims, the Eleventh Amendment bars the
plaintiff’s federal causes of action against the office of disciplinary counsel and the disciplinary
board as well as any federal claims for monetary damages against the individual defendants in
their official capacities. The court also finds that the doctrines of absolute prosecutorial immunity
bars most of the claims against the individual disciplinary counsel defendants and quasi-judicial

immunity bars the claims against the individual defendants. Further, the plaintiff has failed to state
a plausible claim for relief for any constitutional violation.
While the court does not agree with all the defendants’ arguments in support of dismissal,
the court grants portions of the motion which result in the ultimate dismissal of all causes of action
in the second amended complaint. The court will not provide the plaintiff with leave to file another
amended complaint because doing so is futile. The court will also deny the plaintiff’s motion for
temporary and preliminary injunctive relief.
I. ALLEGATIONS AND PROCEDURAL HISTORY
The pro se plaintiff, Robert J. Murphy, Esquire (“Murphy”), on his own behalf and
purportedly on behalf of all others similarly situated, originally commenced this action by filing a

complaint on March 20, 2017. Doc. No. 1. The original defendants named in the complaint
included: (1) Paul J. Killian, Esquire (“Killion”),1 Chief Disciplinary Counsel of the Office of
Disciplinary Counsel, in his official capacity; (2) Michael Gottsch, Esquire (“Gottsch”), in his
official capacity; (3) the Disciplinary Board of the Supreme Court of Pennsylvania (the “Board”);
(4) Jane G. Penny, Esquire (“Penny”), Chairperson of the Disciplinary Board of the Supreme Court
of Pennsylvania, in her official capacity; and (5) Julia Frankston-Morris, Esquire (“Frankston-
Morris”), Secretary of the Disciplinary Board of the Supreme Court of Pennsylvania. See Compl.

1 Murphy has misspelled this defendant’s last name, see https://www.padisciplinaryboard.org/about/leadership
(showing name as “Paul J. Killion, Esquire”). The court will use the correct spelling in this opinion.
at 1–2, Doc. No. 1. Murphy’s claims in the complaint arise out of his attorney disciplinary
proceedings that were ongoing in the Commonwealth of Pennsylvania. See generally id. at 14–26.
The named defendants filed a motion to dismiss the complaint and a motion to file the
motion to dismiss under seal on April 4, 2017. Doc. Nos. 3, 4. Through a stipulation by the parties,

Murphy filed a “corrected” amended complaint on April 27, 2017. Doc. Nos. 7-8. In the amended
complaint, Murphy named as defendants: (1) The Office of Disciplinary Counsel (“ODC”); (2)
Killion, in his official and individual capacities; (3) Gottsch, in his official and individual
capacities; (4) the Board; (5) Penny, in her official and individual capacities; and (6) Frankston-
Morris, in her official and individual capacities.2 Corrected Am. Compl. at 1–2, Doc. No. 8.

2 In the introductory sentence of the amended complaint, Murphy, an attorney who has been licensed to practice law
in Pennsylvania for approximately 46 years, generally described his claims in a single run-on sentence as follows:

[T]he above named plaintiff, Robert J. Murphy, Esq., (hereinafter plaintiff) is a citizen of the United
States and hereby files the following amended complaint in [sic] his behalf and for all others
similarly situated against defendants and each of them in their individual and official capacities
acting under color of state law seeking legal and equitable relief including but not limited to
declaratory and prospective relief, nominal, compensatory and punitive damages, equitable,
permanent, prospective and preliminary injunctive relief and/or a temporary restraining order
including involving defendants’ continuous and ongoing unlawful, wrongful and deliberate
violations and deprivation of the clearly established and well settled fundamental rights of plaintiff
and all others similarly situated guaranteed by the United States Constitution Amendment 1, 5, 6,
14, The Declaratory Judgment Act 28 U.S.C.A. Section 2201 et. seq., Civil Rights Act, 42 Pa. C.S.A.
1983 et seq., and applicable law, inter alia, to prevent continuing actual and immediate irreparable
prejudice to plaintiff and all others similarly situated caused by defendants’ unconstitutional, bad
faith, frivolous, willful, flagrant, wholesale, wrongful and intentional misconduct, policies, plans,
customs, practices, actions or omissions involving defendants’ unconstitutional Disciplinary
Enforcement and Board Rules, investigation, disposition and discipline proceedings against plaintiff
and all others similarly situated constituting facial and/or as applied violation and deprivation of
their clearly protected fundamental constitutional and legal, equitable and civil rights to life, liberty,
or property, and their rights, privileges and immunities without due process of law including but not
limited to free speech, right of association, redress of grievances, reputation, right to confidentiality,
substantive and procedural due process and equal protection of the law, and a speedy fair and
impartial trial and judicial review including evidentiary hearing by a competent judicial tribunal
guaranteed under the 1st, 5th 6th and 14th Amendments to the United States Constitution and
applicable federal law and decisions including but not limited to 28 U.S.C.A. [§] 2201, 42 U.S.C.A.
[§] 1983 directly and proximately causing irreparable and immediate injury and damages to plaintiff
and all others similar situated.

Corrected Am. Compl. at 2–3.
On May 9, 2017, the named defendants filed a motion to dismiss the amended complaint.3
Doc. No. 11. Murphy filed a response in opposition to the motion to dismiss on June 5, 2017. Doc.
No. 16.
On November 1, 2017, Murphy filed a motion for an emergency temporary restraining

order or a preliminary injunction. Doc. No. 17. The court held a telephonic hearing on this motion
for injunctive relief on November 3, 2017, after which the court denied the motion. Doc. Nos. 19,
20. Murphy filed a notice of appeal from the court’s denial of his motion for injunctive relief to
the Third Circuit Court of Appeals on December 1, 2017. Doc. No. 21. This court filed a written
amplification of a prior written or oral recorded ruling or opinion as provided by Third Circuit
Local Appellate Rule 3.1 on January 2, 2018.4 Doc. No. 24.
While the case was on appeal with the Third Circuit, Murphy filed a motion titled:
PLAINTIFF’S EMERGENCY MOTION TO RECONSIDER AND VACATE,
AND ALTER, AND AMEND COURT’S ORDERS INCLUDING ORDER TO
PLACE THE CAPTIONED MATTER IN CIVIL SUSPENSE AND STAY THE
CAPTIONED MATTER, AND ORDER DENYING PLAINTIFF’S MOTION
FOR TEMPORARY RESTRAINING ORDER AND IMMEDIATELY
SCHEDULE AN EMERGENCY EVIDENTIARY PRELIMINARY
INJUNCTION HEARING, AND GRANT A TEMPORARY RESTRAINING
ORDER, AND GRANT A PRELIMINARY INJUNCTION, AND GRANT A
PERMANENT INJUNCTION, AND/OR ADVISE THE APPELLATE COURT
THAT THIS COURT WOULD GRANT THE WITHIN MOTION OR THAT THE
WITHIN MOTION RAISES A SUBSTANTIAL ISSUE, AND ENTER SUCH
OTHER ORDERS AS ARE WARRANTED IN THE INTEREST OF JUSTICE
TO PREVENT CONTINUING SERIOUS AND IRREPARABLE PREJUDICE

3 The defendants argued that the court should dismiss the amended complaint with prejudice because (1) Younger
abstention precluded Murphy’s claims about his on-going disciplinary case, (2) the Eleventh Amendment precluded
Murphy’s claims for non-prospective relief and all claims against the ODC and the Disciplinary Board, (3) the
amended complaint failed to state a claim for (a) a procedural or substantive due process violation, (b) violations of
the First, Fifth or Sixth Amendments, (c) violations of Murphy’s privileges and immunities or equal protection, (4)
the amended complaint fails to state a claim against the individual defendants, Killian, Gottsch, Penny, and Frankston-
Morris, (5) the individual defendants have various judicial and quasi-judicial immunities, and (6) the defendants have
immunity under 1 Pa. C.S. § 2310 to the extent that Murphy is asserting state law claims. Br. in Supp. of Defs.’ Mot.
to Dismiss the Am. Compl. at 7–29, Doc. No. 11.
4 This Rule provides that “[n]o later than 30 days after the docketing of a notice of appeal, the trial judge may file and
transmit to the parties a written opinion or written amplification of a prior written or oral recorded ruling or opinion.”
3d Cir. R. 3.1.
TO THE PLAINTIFF AND ALL OTHER SIMILARLY SITUATED
PENNSYLVANIA ATTORNEYS PURSUANT TO F.R.A.P. 8(A) (C), 12.1,
F.R.C.P. 62(c) (g) (1), 62.1 AND APPLICABLE LAW AND JUSTICE.

Doc. No. 28. On July 13, 2018, the court entered an order denying this motion. Doc. No. 29.
Murphy then filed a notice of appeal from this order on August 9, 2018. Doc. No. 30.
In October 2018, Murphy voluntarily dismissed his appeals under Rule 42(b) of the Federal
Rules of Appellate Procedure. Doc. No. 32. This court then held a telephone conference with the
parties on October 16, 2018, after which the court entered an order which, inter alia, gave Murphy
30 days to file a second amended complaint. Doc. Nos. 34, 35. Murphy timely filed a second
amended complaint on November 15, 2018. Doc. No. 36. In the second amended complaint,
Murphy once again asserts claims against the ODC, Disciplinary Board, Killion, Gottsch, and
Penny, but he now also asserts claims against Richard Hernandez, Esquire (“Hernandez”), Antony
Sodroski, Esquire (“Sodroski”), Mark Gilson, Esquire (“Gilson”), Stewart L. Cohen, Esquire
(“Cohen”), Dion Rassias, Esquire (“Rassias”), Jerry LeHocky, Esquire (“LeHocky”), David
Fitzsimons, Esquire (“Fitzsimons”), and Brian Cali, Esquire (“Cali”).5 Pl.’s 2d Am. Compl.
Pursuant to the Court’s Oct. 16, 2018 Order (“2d Am. Compl.”) at 1–3, Doc. No. 36.
The defendants filed a motion to dismiss the second amended complaint on November 30,
2018. Doc. Nos. 38, 39. Murphy filed a response in opposition to the motion on December 21,
2018. Doc. No. 40. Murphy then filed a motion for a temporary restraining order and a preliminary
injunction on February 1, 2019, which the defendants responded to on February 13, 2019. Doc.
Nos. 42, 43.

5 Murphy appears to have dropped Frankston-Morris as a defendant.
II. DISCUSSION
A. Background
1. The ODC, Disciplinary Board, and General Procedures for Disciplinary
Proceedings

The Pennsylvania Supreme Court and the Disciplinary Board have exclusive jurisdiction
over attorney disciplinary issues involving, among others, “[a]ny attorney admitted to practice law
in th[e] Commonwealth of Pennsylvania.” Pa. R.D.E. 201(a)(1); see Bauer v. Pa. State Bd. of
Auctioneer Examiners, 154 A.3d 899, 904 (Pa. Commw. 2017) (citing to Pa. Const. art. V, § 10(c),
which states: “The Supreme Court shall have the power to prescribe general rules . . . for admission
to the bar and to practice law, and the administration of all courts and supervision of all officers of
the Judicial Branch.”). The ODC is responsible for, inter alia, “investigat[ing] all matters involving
alleged misconduct called to their attention whether by complaint or otherwise.” Pa. R.D.E.
207(b)(1); Pa. Disciplinary Bd. R. 93.63(a)(1). The ODC may also “prosecute all disciplinary
proceedings before hearing committees, special masters, the Board and the Supreme Court.” Pa.
Disciplinary Bd. R. 93.63(a)(3).
After the filing of a complaint of misconduct against an attorney, ODC will investigate the
allegations in the complaint. See Pa. Disciplinary Bd. R. 87.5(“[A]ll investigations, whether upon
complaint or otherwise, shall be initiated and conducted by Disciplinary Counsel.”); Pa. R.D.E.
208(a)(1) (same). ODC will then notify the attorney identified in the complaint (via Form DB-7),
who then can respond by submitting a “statement of position.”6 Pa. Disciplinary Bd. R. 87.7(b).

6 A DB-7 Form, a “Request for Statement of Respondent’s Position,” advises the attorney of:

(1) the nature of the grievance and if the investigation has not been initiated by the Office of
Disciplinary Counsel pursuant to § 87.1(b) (relating to initiation of investigations), the name and
address of the complainant; and

(2) the requirement that the respondent-attorney respond to the allegations against the respondent-
attorney by filing with the district office a statement of position. Unless a shorter time is fixed by
ODC can then either dismiss the complaint, recommend an informal proceeding (such as an
admonishment or reprimand, or decide to proceed with formal charges against the attorney before
a hearing committee or special master.7 See Pa. Disciplinary Bd. R. 87.8 (setting forth ODC’s
options after concluding investigation into allegations of complaint); Pa. R.D.E. 208(a)(2) (same).

An attorney dissatisfied with an informal resolution (such as an informal admonition, a private
reprimand, or a public reprimand), can demand a formal proceeding. See Pa. Disciplinary Bd. R.
87.54(a) (“[I]n cases where no formal proceeding has been conducted, a respondent-attorney . . .
may demand as of right that a formal proceeding be instituted against such attorney[.]”); Pa. R.D.E.
208(a)(6) (same).
ODC institutes formal disciplinary proceedings by filing a “petition setting forth with
specificity the charges of misconduct” with the Disciplinary Board. Pa. Disciplinary Bd. R. 89.51,
89.52; Pa. D.R.E. 208(b)(1). After the attorney answers the petition, the Board assigns the matter
to a “hearing committee or a special master.” Pa. Disciplinary Bd. R. 89.56(a); Pa. R.D.E.
208(b)(4). The special master or hearing committee then holds a hearing where “[t]he respondent-

attorney and staff counsel shall have the right of presentation of evidence, cross-examination,
objection, motion and argument.” Pa. Disciplinary Bd. R. 89.93(a). After the hearing, the attorney
and ODC may file briefs and present oral argument. Pa. Disciplinary Bd. R. 89.161, 89.162. The
special master or hearing committee then “submit[s] a report to the Board containing the findings
and recommendations of the committee or special master.” Pa. Disciplinary Bd. R. 89.171; Pa.
R.D.E. 208(c).

the Chief Disciplinary Counsel in such notice, the respondent-attorney shall have 30 days from the
date of such notice within which to file a statement of position in the district office.

Pa. Disciplinary Bd. R. 87.7(b).
7 Unless the ODC dismisses a complaint as frivolous, a “member of a hearing committee in the appropriate disciplinary
district” must review ODC’s recommended disposition of the complaint. Pa. Disciplinary Bd. R. 87.32(a); Pa. D.R.E.
208(a)(3).
The Disciplinary Board conducts a de novo review of the report by the hearing committee
or special master, and the parties can submit briefs and make oral argument before the Disciplinary
Board. Pa. Disciplinary Bd. R. 89.201; Pa. R.D.E. 208(d)(1). The Disciplinary Board can then (1)
dismiss the proceeding, (2) impose informal admonition, private reprimand, or public reprimand,

or (3) impose other discipline such as probation, censure, suspension, or disbarment. Pa.
Disciplinary Bd. R. 89.203–205; Pa. R.D.E. 208(d). An attorney can then appeal from the Board’s
decision to the Pennsylvania Supreme Court, which then conducts a de novo review of the matter.
Pa. Disciplinary Bd. R. 89.207; Pa. R.D.E. 208(e); see Office of Disciplinary Counsel v. Christie,
639 A.2d 782, 783 (Pa. 1994) (“In attorney discipline cases, our review is de novo; we are not
bound by the findings of the hearing committee or the board.” (citation omitted)). Although the
Court conducts a de novo review, the Court “give[s] substantial deference to the findings and
recommendations of the board.” Christie, 639 A.2d at 783 (citations omitted).
2. Murphy’s Disciplinary Proceedings8
In 2011, the ODC received two ethical complaints against Murphy seemingly arising from

Murphy’s accusations of administrative misconduct against two Pennsylvania Workers’
Compensation Judges. See Corrected Am. Compl. at ¶ 34; see also Pl.’s Br. Sur Pl.’s Resp. and
Exs. in Opp. To Defs.’ Mot. to Dismiss Pl.’s Second Am. Compl. Pursuant to F.R.C.P. 12(b)(1)(6)
and Court’s Order (“Pl.’s Br.”), Doc. No. 40 at 5–8 (discussing Murphy’s issues with Workers’

8 Unfortunately, despite the parties’ references to the procedural history of the underlying disciplinary proceedings in
various prior submissions in this action (some of which include Murphy’s issues with various aspects of those
proceedings), the second amended complaint is relatively thin on facts and full of legal assertions and conclusions. To
provide some sort of context for Murphy’s allegations, the court has added this section about the case background.
Except as otherwise referenced in the court’s summary of Murphy’s allegations in the second amended complaint, the
court has not considered this information in resolving the motion to dismiss because the information is not found in
the complaint, any exhibit attached to the complaint, or a matter of public record. See Pension Benefit Guar. Corp. v.
White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (“To decide a motion to dismiss, courts generally
consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public
record.”).
Compensation Judges Bachman and Hagan). In August 2012, ODC sent Murphy a DB-7 notice of
the two complaints. See Corrected Am. Compl. at ¶ 35.
On August 28, 2012, Murphy submitted a response to the DB-7 notice in which he objected
to

the Disciplinary Board’s proceedings including its alleged jurisdiction regarding
the inaccurate allegations in the so-called DB-7 letter involving related and/or
identical matters which are presently pending on the merits in various related and/or
identical administrative, trial and appellate tribunals involving voluminous
proceedings and records extending over twenty-five years including the Workers’
Compensation Appeal Board A11-0879, A12-0122, Montgomery County Court of
Common Pleas 2009-11886, 2009-36677, 2010-30744, 2010-35625, 2010-33088,
2012-19984, Commonwealth Court 385 MD 2010, 935 MD 2010, 661 CD 2011,
855 CD 2011, Supreme Court 70 MAP 2010, 51 EAP 2011, inter alia, over which
this court clearly lacks jurisdiction and creates an actual and/or potential conflict
involving the foregoing matters which are the subject of the DB-7 Request for
Statement.

Br. in Supp. of Defs.’ Mot. to Dismiss the Am. Compl. (“Defs.’ Br. in Supp. of Mot. to Dismiss
Am. Compl.”), Ex. A (“DB-7 Resp.”) at 1, Doc. No. 11. In this response, Murphy also “at a
minimum, . . . request[ed] that the alleged DB-7 request/investigation be abated, suspended, and/or
deferred pursuant to applicable law including Rule of Disciplinary Enforcement 211(a) and
Disciplinary Board Rule 87.72 to prevent continuing irreparable prejudice to the parties, the
litigants, the public and the undersigned.” DB-7 Resp. at 2.
Murphy filed a supplemental DB-7 response via a letter dated September 27, 2012. Defs.’
Br. in Supp. of Mot. to Dismiss Am. Compl., Ex. B. In this response, Murphy
reiterate[d] our request that the captioned proceedings/investigation be abated,
suspended, and/or deferred pursuant to applicable law including Rule of
Disciplinary Enforcement 211(a) and Disciplinary Board Rule 87.72 to prevent
continuing irreparable prejudice to the parties, the litigants, the public and the
undersigned because all the inaccurate and outrageous allegations, proceedings and
matters which are the subject of alleged violations upon which the original and
amended DB-7 request for statements specifically involve pending proceedings
within the exclusive jurisdiction of the appropriate administrative trial and appellate
tribunals and over which this Board clearly lacks power, authority or jurisdiction
and which creates actual and potential conflicts including final adjudications of all
the pending proceedings and the so-called DB-7 and amended DB-7 request for
statement of respondent’s positions contrary to applicable law and the foregoing
Disciplinary Enforcement Rule and Board rule, inter alia.

Id. at 1–2.9 Murphy also requested that the ODC abate the matter because “the identical matters
are proceeding on the merits before the administrative trial and appellate tribunals which have
exclusive jurisdiction thereof.”10 Id. at 3.
In May 2013, the ODC filed a petition to defer the disciplinary proceedings pending the
final judgment in the corresponding workers’ compensation proceedings. See Corrected Am.
Compl. at ¶¶ 38–40; Pl.’s Br. at 11. On August 1, 2013, the Disciplinary Board granted the petition
to defer the proceedings over Murphy’s objections and request for oral argument. See Corrected
Am. Compl. at ¶¶ 39, 40 & Ex. 1, Order; Pl.’s Br. at 11. The Disciplinary Board indicated that
good cause existed to defer the disciplinary proceedings “because the material allegations of the
disciplinary complaint against [Murphy] substantially overlap with the facts and issues involved
in a matter currently pending before the Workers’ Compensation Appeal Board, the outcome of
which may be useful to the parties herein.” Corrected Am. Compl., Ex. 1, Order. The order also
stated that the Disciplinary Board would defer the proceedings
pending the decision of the Workers’ Compensation Appeal Board in the matter
captioned Wilson v. Honeywell, Inc. (formerly Allied Signal), Travelers Insurance
Company, Commonwealth of Pennsylvania Department of Labor and Industry,
Bureau Claim No. 3240923, Case No. A11-0879, and the deferment shall continue
to the conclusion of any subsequent appeal of that decision to an appellate court of
this Commonwealth.

Id.

9 It appears that the DB-7 Form and its amendment are attached to Murphy’s response to the current motion to dismiss.
See Pl.’s Br., Ex. 2.
10 Rule 211 of the Pennsylvania Rules of Disciplinary Enforcement allows for a deferment of the processing of
complaints relating to alleged violations of the Pennsylvania Rules of Professional Conduct if the complaint
“involv[es] material allegations which are substantially similar to the material allegations of pending criminal or civil
litigation” and good cause is shown. Pa. R.D.E. 211(a); see also Pa. Disciplinary Bd. R. 87.72(a).
In July 2016, the ODC moved to rescind the August 2013 deferral order. See Corrected
Am. Compl. at ¶¶ 42–43 & Ex. 2, Order; Pl.’s Br. at 11. On August 16, 2016, Penny signed an
order on behalf of the Disciplinary Board, which granted the motion to rescind over Murphy’s
objections and request for oral argument. See Corrected Am. Comp. at ¶¶ 43-44 & Ex. 2; Pl.’s Br.

at 11. The ODC eventually brought formal charges of professional misconduct against Murphy in
December 2016.11 Corrected Am. Compl. at ¶ 47; Defs.’ Br. in Supp. of Mot. to Dismiss Am.
Compl., Ex. C, Pet. for Discipline; Pl.’s Br. at 12. The formal petition generally asserts that Murphy
made false allegations of improper, ex parte communications against two workers’ compensation
judges and counsel for an opposing party. See Pet. for Discipline at 2; Pl.’s Br. at 12–13.
Murphy’s disciplinary hearing proceeded before a hearing committee in November 2017.
Pl.’s Emergency Mot. to Recons., Ex. 5, Determination of the Hr’g Comm. with Respect to
Resp’t’s Mot. in Limine to Vacate, Strike and Dismiss the Proceedings, Records, Testimony,
Exhibits, Evidence Purported Original and Am. Disciplinary Pets. and/or Stay and/or Transfer
Proceedings to Another Panel (“Hr’g Comm. Decision”) at 8, Doc. No. 28-6. The hearing

continued into January 2018, when an issue arose over an ODC document that was not provided
to Murphy and a motion in limine that Murphy had filed pertaining to that document. Hr’g Comm.
Decision at 9–11. In April 2018, a majority of the hearing committee recommended that
based on concerns of prejudice to [Murphy], the fact that the statement goes to the
core of the charges against [Murphy], potential of bias, the status of the hearing and
the continued representations by ODC that no other statements existed, . . . a
mistrial be granted and the hearing proceedings, including the exchange of any and
all discoverable statements, begin again with a new Hearing Committee.

Id. at 16.

11 Gottsch signed the petition on behalf of the ODC. See Pet. for Discipline at 15. It is unclear what happened to
Murphy informally, if anything.
In July 2018, the Disciplinary Board concluded that a new hearing was warranted and
appointed Cohen as master to hold the hearing. See 2d Am. Compl. at ¶¶ 14, 52. According to the
defendants, Cohen held hearings over multiple dates in October 2018, and the parties were
anticipating submitting briefs and making oral argument before Cohen. See Br. in Supp. of Defs.’

Mot. to Dismiss the Second Am. Compl. (“Defs.’ 2d Br.”) at 4, Doc. No. 38. In addition, the
defendants represent that Cohen filed his report in April 2019, Murphy filed exceptions to the
report, and the parties argued the matter before a three-member Disciplinary Board Panel on July
12, 2019. See July 22, 2019 Ltr., Doc. No. 45. “The full Board will adjudicate the matter and file
a report and recommendation with the Supreme Court of Pennsylvania within 60 days of the
adjudication date.”12 Id.
B. The Allegations in the Second Amended Complaint
As with the original and “corrected” amended complaint, Murphy appears to summarize
all his claims early (in a single, run-on sentence) in the second amended complaint:
[P]laintiff hereby files the following second amended complaint in [sic] his behalf
and for all similarly situated persons including all Pennsylvania attorneys against
defendants and each of them in their individual and official capacities acting under
color of state law seeking legal and equitable relief including but not limited to
declaratory and prospective relief, nominal, compensatory and punitive damages,
equitable, permanent, prospective and preliminary injunctive relief and/or a
temporary restraining order involving defendants’ continuous and ongoing,
unlawful, bad faith, egregious, wrongful and intentional violations and deprivation
of the clearly established and well settled fundamental rights of plaintiff and all
other similarly situated persons including all Pennsylvania attorneys guaranteed by
the United States Constitution Amendment 1, 5, 6, 14, the Declaratory Judgment
Act 28 U.S.C.A. Section 2201 et. [sic] seq., Civil Rights Act, 42 Pa. C.S.A. [sic]
Section 1983 et. [sic] seq., and applicable law, inter alia, to prevent continuing
great, actual, immediate and irreparable prejudice to plaintiff and all other similarly
situated persons involving defendants’ continuing unconstitutional, bad faith,
egregious, willful, flagrant, wholesale, wrongful and intentional misconduct,
policies, plans, customs, practices, actions, protocols and omissions including

12 The court recognizes that Murphy objected to this letter, with his objections pertaining to his complaints about the
disciplinary proceedings in general and not the accuracy of the information provided in the letter. See July 25, 2019
Ltr., Doc. No. 46.
involving wholesale, flagrantly and patently unconstitutional Disciplinary
Enforcement Board Rules, purported investigation, determinations, orders,
disposition and discipline proceedings against plaintiff and all other similarly
situated persons for which there is no adequate legal remedy constituting facial
and/or as applied violation and deprivation of their clearly protected foregoing
fundamental constitutional, legal, equitable and civil rights to life, liberty, or
property, and their rights, privileges and immunities without power, authority or
jurisdiction including but not limited to: free speech; right of association; redress
of grievances; timely, proper, constitutional precise and specific notice of the nature
of plaintiffs [sic] alleged ethical violations; completely unconstitutional stale
alleged notices, proceedings and pleadings; continual, intentional, egregious, bad
faith, systematic subversion of plaintiff’s and all similarly situated persons’
foregoing constitutional rights; reputation; right to confidentiality; substantive and
procedural due process; equal protection of the law; double jeopardy; constitutional
right to a determination by the original hearing committee panel; presentation of
evidence; compulsory process; confrontation and cross examination of witnesses
and evidence; constitutional right to search, learn, identity [sic] and produce all
favorable evidence including all oral and written statements, notes, reports and
memos thereof as soon as possible (hereinafter favorable evidence); mandatory
appeal rights, speedy, fair and impartial non-judicial evidentiary merits hearing;
and speedy, fair and impartial trial by a competent judicial tribunal based on a full,
true, complete, accurate certified original record untainted by continuing,
intentional, bad faith, egregious, unconstitutional and unlawful ex-parte
proceedings including right to appeal therefrom; and judicial review including fair
and impartial evidentiary hearing by a competent judicial tribunal based on a full,
true, complete and accurate original untainted record guaranteed under the 1st, 5th,
6[th] and 14[th] Amendments to the United States Constitution and applicable
federal law and decisions including but not limited to 28 U.S.C.A. Section 2201,
42 U.S.C.A. Section 1983 directly and proximately causing continuing irreparable,
great, actual, immediate injury and damages to plaintiff and all other similarly
situated persons including but not limited to all Pennsylvania attorneys involving
alleged ethical violations including all investigative and disciplinary petition
proceedings against plaintiff and other similarly situated Pennsylvania attorneys
throughout the Commonwealth of Pennsylvania.

Id. at 4–6.13

13 Identifying Murphy’s specific claims and factual allegations in the second amended complaint is much more
difficult than necessary due to paragraphs such as this paragraph and his inability to allege facts without inserting
various legal conclusions. He also fails to organize his causes of action into counts or tie in his factual allegations to
any particular cause of action. No court should have to engage in this type of search for facts and claims in documents
submitted by licensed counsel.
Murphy alleges that he has practiced law in state and federal trial and appellate courts in
the Commonwealth of Pennsylvania for the past approximately 46 years. Id. at ¶¶ 4, 6. He further
alleges that the ODC is
An independent, non-judicial, auto and sui generis quasi-criminal punitive
administrative agency appointed by the Disciplinary Board of the Supreme Court
of Pennsylvania . . . performing autonomous, non-judicial quasi-criminal informal
and formal administrative punitive functions and recommendations acting in its
official capacity under color of state law[.]

Id. at ¶ 7. The Disciplinary Board is
an independent, non-judicial, autonomous punitive administrative agency
performing non-judicial, punitive informal and formal administrative agency non-
judicial punitive functions and recommendations created by the Pennsylvania
Supreme Court performing punitive administrative functions involving legislative
and disciplinary proceedings . . . . [It] shall be composed of 11 members of the Bar
of the Commonwealth of Pennsylvania and two non-law electors one of whom shall
be designated by the Court as officers of the Board as Chair and the other as Vice
Chair acting in their official and individual capacity under color of state law[.]

Id. at ¶ 13.
Regarding the individual defendants, Cohen is “an independent autonomous administrative
agency and Master created and appointed by the Board performing administrative, non-judicial
functions and recommendation involving disciplinary proceedings.” Id. at ¶ 14. Rassias,
Fitzsimons, Cali, and LeHocky are members of the Disciplinary Board. Id. at ¶¶ 15, 17, 23. Penny
is a former member of the Disciplinary Board. Id. at ¶ 16. Killion is the Chief Disciplinary Counsel
of the ODC. Id. at 1. It appears that Gottsch, Hernandez, Sodroski, and Gilson are members of the
ODC. Id. at ¶¶ 9–12.
Despite Murphy alleging that his attorney disciplinary proceedings have been proceeding
over the past seven years, see, e.g. id. at ¶ 20, he provides very few factual details (particularly
with specific dates) relating to his proceedings, despite the parties having previously provided
documents and allegations referencing this history. Instead, his second amended complaint mostly
reads as a list of issues combined with conclusory legal statements. These issues include, inter
alia:
• The defendants’ failure to prepare specific findings of fact, conclusions of law, opinions,
orders, and reports and recommendations, as they were “constitutionally mandated” to do.
Id. at ¶¶ 19, 20, 23, 24, 25.

• The defendants’ failure to “review, through a designated panel of three members, and
approve or modify a determination by a reviewing hearing committee member that a
grievance/matter should be concluded by the institution of formal charges before a hearing
committee prior to institution of formal proceedings pursuant to a disciplinary petition.”
Id. at ¶ 21.

• The defendants failed to serve him with original process in his disciplinary proceeding, No.
206 DB 2016. Id. at ¶¶ 5, 41.

• The defendants, including Killion, Gottsch, Gilson, Hernandez, and Sodroski, failed to
perform their “mandatory constitutional duties to timely and properly complete any alleged
informal investigative proceeding.” Id. at ¶¶ 26, 27.

• The defendants failed to “perform their foregoing mandatory constitutional duties for
approximately 7 years to provide timely, proper, specific and precise constitutional notice
to [Murphy] of the alleged specific, stale, ethical violations by [Murphy].” Id. at ¶¶ 28,
29.14

• The defendants’ denied Murphy’s rights to
compulsory process including to summon witnesses and produce records before a
hearing committee or master including to present evidence, confront evidence and
cross examine witnesses including to identify, learn, search and obtain all favorable
evidence as soon as possible as constitutionally defined including pursuant to
defendants’ continuing fundamental constitutional duty to search, learn, identify
and provide all favorable evidence as constitutionally defined as soon as possible
including all ODC witness statements including all notes, memos and reports
thereof to which [Murphy] and all similarly situated attorneys are constitutionally
entitled[.]

Id. at ¶¶ 30, 31.

14 Murphy alleges the defendants must “immediately, timely, properly and specifically provide constitutional precise
notice to all respondent-attorneys of the specific nature of the alleged grievance/alleged ethical violations and the
name and address of the complainant if the investigation has not been initiated by the [ODC.]” Id. at ¶ 28.
• The defendants, including Cali and Cohen, throughout the proceedings, including on
October 5, 2018,

intentionally and in bad faith recommended and affirmed their purported
recommended determinations without any findings of fact, conclusions of law and
reports denying and depriving [Murphy] of all his foregoing fundamental
constitutional rights including compulsory process, confrontation and cross
examination of witnesses including ODC witnesses including granting untimely
and improper alleged motions to quash subpoenas and for protective orders
involving all so-called evidentiary validity challenge hearings challenging duly
issued and served subpoenas duces tecum on the following witnesses including to
compel their testimony, record production and appearance at evidentiary validity
challenge and evidentiary merits hearings scheduled on or about October 22, 2018
including prohibiting [Murphy] from raising any and all federal constitutional
violations, challenges, and issues[.]

Id. at ¶ 32.

• The defendants (1) refused to timely notify him of the “specific nature of the alleged
grievances;” (2) provide all of Murphy’s subpoenaed records, information, and
complaint to him; (3) identify the complainant and the complainant’s address; (4)
timely initiate and complete their investigation into the complainant’s allegations
of possible misconduct; and (5) provide to Murphy “all the extensive critical,
complete, accurate, original, certified records and evidence” the defendants
subpoenaed. Id. at ¶ 34. Due to, inter alia, these issues, Murphy asserts that the
defendants denied him the opportunity to timely investigate and prepare an answer
or otherwise defend against the DB-7 notice, a complaint, and a petition, because
of the “delay, loss, destruction, missing and unavailability of all the critical and
material information, records, evidence and witnesses including but not limited to
the death of Ann Wilson, Andrew Touchstone and/or other deceased or missing
critical and material records, evidence and witnesses including [those] yet
unknown.” Id.15

• The Disciplinary Enforcement Rules and Disciplinary Board Rules
imposed [up]on [Murphy] including but not limited to Chapter 87 and 89 including
but not limited to Pa. D. B. R. 89.1(b) and 9.2 and 91.3 clearly, expressly and
specifically bar and deprive and deny [Murphy] and all other similarly situated of
their foregoing clearly protected fundamental constitutional and legal, equitable
and civil rights to life, liberty, or property and their rights, privileges and
immunities, and delay, deny and deprive [Murphy] and all similarly situated
persons a speedy fair and impartial evidentiary validity challenge hearings and

15 While Murphy does not specify how the defendants failed to inform him of the nature of the complaints against him
in the second amended complaint, it appears that he provides more information about this in his response to the motion
to dismiss. Pl.’s Br. at 9–10.
evidentiary merits hearing and mandatory judicial review including evidentiary
hearing by a competent judicial tribunal. Id. at ¶ 36.

• The defendants wrongly prohibited Murphy from raising “any federal constitutional
claims, issues, challenges whatsoever to the informal and formal disciplinary proceedings
against [him].” Id. at ¶ 38.

• The disciplinary proceedings are not “subject to any review whatsoever or any adequate,
timely, fair, just and speedy fair and impartial trial and judicial review including
evidentiary hearing by a competent judicial tribunal[.]” Id. at ¶ 39. This deprived Murphy
and others similarly situated of “all their foregoing fundamental constitutional equitable
and civil rights to life, liberty, or property, and their rights, privileges and immunities and
a speedy fair and impartial administrative proceedings and judicial reviewing including
evidentiary hearing by a competent judicial tribunal.” Id.

• The defendants failed to investigate and produce various records, “including all oral and
written statements from ODC’s witnesses including WCJ Bachman, WCJ Hagan, Mr.
Dombrowski, Mr. Howell and Ms. Meehan,” and “all notes, memos and reports . . .
involving [Murphy’s] alleged ethical misconduct.” Id. at ¶ 42.

The one series of events Murphy describes in some detail appears to involve ODC’s failure
to provide him with certain witness statements. In this regard, Murphy asserts that, in bad faith,
the ODC, Killion, and Gottsch filed a motion for protective orders and to quash Murphy’s
subpoenas on July 26, 2017. Id. at ¶ 43. In doing so, they intentionally misrepresented, inter alia,
that (1) they had produced to Murphy all witness statements in the ODC’s possession, (2) Murphy
was not entitled to the other records he was seeking, and (3) the identified records were the only
records to which Murphy was entitled. Id. at ¶ 43. In addition, at a “validity determination hearing”
on September 18, 2017, ODC indicated to the panel chairperson that it had provided additional
witness statements to Murphy in August 2017 (although Murphy claims that the ODC produced
the statements to him on September 6, 2017). Id. at ¶ 44. Apparently, the chairperson quashed
Murphy’s subpoena duces tecum and entered a protective order, and the Disciplinary Board
affirmed this action. Id.
On September 22, 2017 and September 26, 2017, the ODC, Killion, and Gottsch filed
“post-submission” statements again misrepresenting that the ODC provided all witness statements
and exculpatory information to Murphy. Id. at ¶¶ 45, 46. Apparently, Gottsch informed the
chairperson at the merits hearing on November 7, 2017, that the ODC did not have any additional

witness statements to provide to Murphy. Id. at ¶ 47.
At some point during a hearing, ODC, Killion, Sodroski, Gilson, and Gottsch presented
testimony from “Ms. Meehan” (and presented her sworn statement), and she testified that she
“provided oral statements to defendants/ODC approximately six years prior to the 11/7/2017
hearing.” Id. at ¶ 48. Murphy alleges that the defendants failed to provide him with Ms. Meehan’s
statement(s), as well as the statements from Thomas Howell, Esquire, “WCJ Bachman,” “WCJ
Hagan,” and “Mr. Dombrowski.” Id. at ¶¶ 48–50. These witness statements formed the basis for
the defendants filing the DB-7 document accusing Murphy of ethical violations in August 2012.
Id. at ¶ 50.
On April 6, 2018, the hearing panel sua sponte recommended a mistrial due to the

“suppression of all favorable evidence including ODC witness statements.” Id. at ¶ 51. The
defendants, including Rassias, LeHocky, and Fitzsimons, dismissed the hearing panel and
remanded the disciplinary matter for a new hearing before a former Disciplinary Board member,
Cohen, on July 27, 2018. Id. at ¶ 52. Cohen was to serve as a master to hear testimony and then
submit a report and recommendation to the Disciplinary Board.16 Id.
Cohen, Sodroski, Gottsch, and Gilson “continually, intentionally and in bad faith
conducted continuing extensive unconstitutional, improper, inequitable, ex-parte [sic] contacts,
communications, letters, emails, review and proceedings involving . . . ODC’s alleged entire

16 Murphy asserts that Cohen needed to issue findings of fact and conclusions of law, and he needed a quorum to issue
a decision. 2d Am. Compl. at ¶ 52.
original, at a minimum, 10 boxes of alleged ODC records” relating to Murphy’s alleged ethical
violations. Id. at ¶ 53. These defendants also created an “alleged privilege log” without Murphy or
his counsel being present. Id. The defendants created this privilege log despite not having asserted
any privileges pertaining to ODC’s files at any prior point in the proceedings. Id.

For his requests for relief in the second amended complaint, Murphy seeks
[j]udgment against the defendants’ acting in their official and individual capacities
under color of state law and each of them including nominal, compensatory and
punitive damages including declaratory relief and/or temporary restraining order
and/or preliminary and/or permanent injunctive relief to prevent defendants’
continuous ongoing deprivation of the foregoing fundamental constitutional rights
to life, liberty or property, rights and immunities guaranteed to plaintiff and all
others [sic] similarly situated persons pursuant to the First, Fifth, Sixth and
Fourteenth Amendments to the United States Constitution, 42 U.S.C.A. 1983, et.
[sic] seq., 28 U.S.C.A. 2201et. [sic] seq. and applicable law and foregoing decisions
to prevent continuing imminent irreparable actual injury and damages to plaintiff
and all other persons similarly situated directly and proximately caused by
defendants’ continuing facially and as applied unconstitutional Disciplinary
Enforcement Rules and Board Rules, non-judicial, non-prosecutorial, punitive,
independent, unappealable, administrative informal and formal purported
disciplinary proceedings involving plaintiff and non-judicial administrative formal
disciplinary petitions and proceedings involving plaintiff and all others similarly
situated persons causing continuing irreparable injury, damages and prejudice to
plaintiff and all others similarly situated persons resulting from defendants’ facial
and/or as applied violation of all their foregoing fundamental constitutional, legal
and equitable rights to life, liberty or property, rights, privileges and immunities
guaranteed under the United States Constitution 1st, 5th, 6th, 14th Amendments
and applicable law and foregoing decisions. Plaintiff further demands judgment
against defendants including declaratory and temporary restraining order,
preliminary injunctive relief against defendants’ including but not limited that
defendants’ foregoing mandatory Disciplinary Enforcement Rules and Disciplinary
Board Rules are clearly, facially and as applied constitute an ongoing violation of
plaintiff and all other similarly situated persons’ foregoing fundamental
constitutional rights to life, liberty or property, privileges and immunities
guaranteed under the First, Fifth, Sixth and Fourteenth Amendments to the United
States Constitution, 42 U.S.C.A. 1983, et. [sic] seq., 28 U.S.C.A. 2201et. [sic] seq.
directly and proximately causing irreparable injury and damages to plaintiff and all
others similarly situated persons and/or enter such other orders that are warranted
in the interest of justice.

Id. at 38–39.
C. Analysis of the Motion to Dismiss
In the motion to dismiss, the defendants contend (1) Younger abstention precludes this
court from exercising jurisdiction over Murphy’s claims about his on-going disciplinary case, (2)
the Eleventh Amendment precludes Murphy’s claims for non-prospective relief against the

individual defendants and all claims against the ODC and the Disciplinary Board, (3) Murphy has
failed to state a claim for (a) procedural or substantive due process violations, (b) violations of the
First, Fifth, and Sixth Amendments to the United States Constitution, (c) violations of his
privileges and immunities or rights to equal protection, (4) the individual defendants have various
judicial and quasi-judicial immunities, and (5) the defendants have immunity under 1 Pa. C.S. §
2310 to the extent that Murphy is asserting state law claims against them. See Defs.’ Mot. to
Dismiss the Second Am. Compl. at 1–2, Doc. No. 38.
The court first discusses the applicable standard of review to the defendants claims for
dismissal under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure and then
addresses each of the defendants’ arguments in favor of dismissal.

1. Standard of Review
a. Motion to Dismiss Under Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of a
complaint or a portion of a complaint for failure to state a claim upon which relief can be granted.
Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests “the sufficiency of the
allegations contained in the complaint.” Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993)
(citation omitted). As the moving party, “[t]he defendant bears the burden of showing that no claim
has been presented.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citation omitted).
In general, a complaint is legally sufficient if it contains “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “The touchstone of
[this] pleading standard is plausibility.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
Although Rule 8(a)(2) does “not require heightened fact pleading of specifics,” it does require the
recitation of “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). In
other words, “[t]he plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Id. (quotation omitted). “In
ruling on a 12(b)(6) motion, courts can and should reject legal conclusions, unsupported
conclusions, unwarranted references, unwarranted deductions, footless conclusions of law, and
sweeping legal conclusions in the form of actual allegations.” Bright v. Westmoreland Cty., 380
F.3d 729, 735 (3d Cir. 2004) (citation and internal quotation marks omitted). Ultimately, a
complaint must contain facts sufficient to nudge any claim “across the line from conceivable to
plausible.” Twombly, 550 U.S. at 570.

In addressing whether a pro se plaintiff’s complaint fails to state a claim, the court must
liberally construe the allegations set forth in the complaint. See Higgs v. Att’y Gen., 655 F.3d 333,
339–40 (3d Cir. 2011) (explaining that “when presented with a pro se litigant, we have a special
obligation to construe his complaint liberally” (citation and internal quotation marks omitted)).
Also, “[t]he defendant bears the burden of showing that no claim has been presented.” Hedges,
404 F.3d at 750 (citation omitted).
b. Motions to Dismiss under Rule 12(b)(1)
Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to move to dismiss for
lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). There are two types of Rule 12(b)(1)
motions: facial attacks and factual attacks. “[A] facial attack contests the sufficiency of the
pleadings, whereas a factual attack concerns the actual failure of a [plaintiff’s] claims to comport
[factually] with the jurisdictional prerequisites.” Const. Party of Pa. v. Aichele, 757 F.3d 347, 358
(3d Cir. 2014) (internal citations and quotation marks omitted) (all but first alteration in original).

For a facial attack, “the court must only consider the allegations of the complaint and documents
referenced therein and attached thereto, in the light most favorable to the plaintiff.” Gould Elecs.
Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (internal citations omitted). Here, the motion
to dismiss constitutes a facial attack, because the motion only requires the court to consider the
facts set forth in the second amended complaint and any attached exhibits. In considering that
attack, the court “appl[ies] the same standard of review it would use in considering a motion to
dismiss under Rule 12(b)(6), i.e., construing the alleged facts in favor of the nonmoving party.”
Aichele, 757 F.3d at 358; see also Mortensen v. First Fed. Sav. and Loan Ass’n, 549 F.2d 884, 891
(3d Cir. 1977) (“The facial attack does offer similar safeguards to the plaintiff [as Federal Rule of
Civil Procedure 12(b)(6)]: the court must consider the allegations of the complaint as true.”). The

party asserting that the court has jurisdiction has the burden of demonstrating that jurisdiction
exists. See McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 182 (1936) (“It is
incumbent upon the plaintiff properly to allege the jurisdictional facts, according to the nature of
the case.” (citations and quotation marks omitted)); see also Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (“It is to be presumed that a cause lies outside th[e federal courts’]
limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting
jurisdiction[.]” (citations omitted)).
2. Younger Abstention
The defendants’ first argument is that Younger abstention prevents this court from
exercising jurisdiction over Murphy’s claims because he is essentially asking the court to interfere
with his on-going disciplinary case. Defs.’ 2d Br. at 9–15. While unclear, it appears that Murphy

asserts that the court should not abstain under Younger because the defendants have not shown
that all requirements set forth in Middlesex County Ethics Commission v. Garden State Bar Ass’n,
457 U.S. 423 (1982) are met here. Pl.’s Br. at 38, 40–43.17 In particular, Murphy seemingly
contends that the defendants have harassed him and otherwise acted in bad faith. Id. at 40. He also
appears to claim that exceptional circumstances are not present here. Id. at 38. He further argues
that Younger abstention is inappropriate because the state disciplinary proceedings are limited to
determining whether he (and others similarly situated) violated Pennsylvania’s ethical rules for
attorneys and Murphy is unable to raise any constitutional claims there. Id. at 41.
In Younger, the Supreme Court announced the principle that federal courts are required to
abstain from enjoining parallel pending state criminal proceedings “when the moving party has an

adequate remedy at law and will not suffer irreparable injury if denied equitable relief.” 401 U.S.
at 43–44. The doctrine is narrow; if a federal court has jurisdiction over a case, its “‘obligation’ to
hear and decide a case is ‘virtually unflagging.’” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 76
(2013) (citing Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817
(1976)). Accordingly, the Supreme Court has extended Younger to only two other types of
“exceptional” circumstances: civil enforcement proceedings, and “civil proceedings involving

17 The court must again note that Murphy’s brief in opposition to the motion to dismiss, instead of addressing the
defendants’ arguments in separate sections, mixes his arguments about Younger abstention, subject-matter
jurisdiction, and the merits of his claims, often to the point where it is impossible for this court to ascertain to which
of the defendants’ arguments Murphy is responding at a given time.
certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial
functions.” Sprint, 571 U.S. at 73 (internal quotation marks and citation omitted).18
For a federal court to abstain under Younger,
(1) there [must be] ongoing state proceedings that are judicial in nature; (2) the state
proceedings [must] implicate important state interests; and (3) the state proceedings
[must] afford an adequate opportunity to raise federal claims. Even if the necessary
three predicates exist, however, Younger abstention is not appropriate if the federal
plaintiff can establish that (1) the state proceedings are being undertaken in bad
faith or for purposes of harassment or (2) some other extraordinary circumstances
exist ... such that deference to the state proceeding will present a significant and
immediate potential for irreparable harm to the federal interests asserted.

Schall v. Joyce, 885 F.2d 101, 106 (3d Cir. 1989) (citing Middlesex Cty. Ethics Comm. v. Garden
State Bar Ass’n, 457 U.S. 423, 432 (1982)).
All three requirements for Younger abstention are satisfied in this case, as (1) there are
ongoing state proceedings which are judicial in nature that were purportedly going to proceed to
an ultimate decision and then possibly an appeal to the Pennsylvania Supreme Court;19 (2) the
proceedings implicate important state interests, including the Disciplinary Board’s authority to
discipline members of the Bar of the Commonwealth of Pennsylvania; and (3) although Murphy

18 The Supreme Court has concluded that state attorney disciplinary proceedings are “exactly the type of proceedings
envisioned by Younger since they affect ‘vital state interests’ and ‘bear a close relationship to proceedings criminal in
nature.’” Koresko v. Office of Disciplinary Counsel of the Disciplinary Bd. of the Sup. Ct. of Pa. ex rel. Killion, No.
CIV. A. 14-1154, 2015 WL 1312269, at *3 (E.D. Pa. Mar. 24, 2015) (quoting Middlesex Cty. Ethics Comm., 457 U.S.
at 432 and citing Sprint Comm’ns, Inc., 134 S.Ct. at 587).
19 In his opposition brief, Murphy points out that the ODC and the Disciplinary Board are not courts. See Pl.’s Br. at
59 (citing First Amendment Coalition v. Judicial Inquiry and Review Bd., 460 A.2d 722 (Pa. 1983)). While the
Pennsylvania Supreme Court explained in First Amendment Coalition that the Judicial Inquiry and Review Board was
an agency and not a court, 460 A.2d at 724 (“Clearly, the Board, defined by section 725 of the Judicial Code as an
‘agency,’ is not a court.”), this does not mean that the disciplinary proceedings are not judicial in nature. See, e.g.,
Haagensen v. Supreme Court of Pa., 651 F. Supp. 2d 422, 433 (W.D. Pa. 2009) (“The [Supreme] Court has also
recognized that ‘[a] disciplinary proceeding is judicial in nature[.]” (quoting Middlesex Cty. Ethics Comm., 457 U.S.
at 433)). In addition, considering the Disciplinary Board’s decision is appealable to the Supreme Court “for judicial
review[,] an undeniably judicial forum,” this court would still treat the disciplinary proceedings as a unitary process
that is judicial in nature. See L.P. Grp. 2, Inc. v. City of Philadelphia, Civ. A. No. 13-7484, 2015 WL 3822203, at *6
(E.D. Pa. June 19, 2015) (“Consistent with Third Circuit and Supreme Court precedent, the fact that the Board [of
Labor Standard]’s decision was appealable, and indeed was appealed, to the Court of Common Pleas for judicial
review—an undeniably judicial forum—the court will consider these to be a unitary process that is judicial in nature.”
(citations omitted)).
attempts to question the fairness of the proceedings and asserts that they are being asserted in bad
faith and with the purpose to harass him, there are only conclusory allegations suggesting that
Murphy will not be given the opportunity to raise his constitutional claims during the disciplinary
proceedings, including on a possible appeal to Pennsylvania Supreme Court.20 See Middlesex Cty.

Ethic Comm., 457 U.S. at 432–36; Koresko, 2015 WL 1312269, at *3–5; see also Feingold v.
Office of Disciplinary Counsel, Civ. A. No. 09-4421, 2009 WL 4857380, at *4–5 (E.D. Pa. Dec.
14, 2009) (determining that Younger abstention barred plaintiff from proceeding with claims in
federal court where (1) there was an ongoing state proceeding relating to plaintiff’s petition for
writ of mandamus to require prothonotary to accept his court filings despite him being disbarred,
(2) “this proceeding implicate[d] important state interests because it involve[d] a challenge to a

20 Regarding Murphy’s ability to raise constitutional claims, Murphy references no case law, statute, rule or allegation
of fact indicating that he cannot raise constitutional claims as part of the disciplinary proceedings. “In determining
whether a federal plaintiff has an adequate opportunity to raise his constitutional claims during state-court judicial
review of the administrative decision, we ask whether ‘state law clearly bars the interposition of the constitutional
claims.’” Gonzalez v. Waterfront Comm’n of N.Y. Harbor, 755 F.3d 176, 184 (3d Cir. 2014) (quoting Moore v. Sims,
442 U.S. 415, 425–26 (1979)). “The ‘burden on this point rests on the federal plaintiff to show that state procedural
law barred presentation of its claims.’” Lazaridis v. Wehmer, 591 F.3d 666, 670–71 (3d Cir. 2010) (quoting Pennzoil
Co. v. Texaco, Inc., 481 U.S. 1, 14–15 (1987)).
Here, Pennsylvania’s disciplinary process “regularly involves constitutional objections, which the state
Supreme Court in turn adjudicates.” Koresko, 2015 WL 1312269, at *5. Pennsylvania case law also reveals numerous
cases involving attorney discipline where the Pennsylvania Supreme Court addresses constitutional issues. See, e.g.,
Office of Disciplinary Counsel v. Kiesewetter, 889 A.2d 47, 54 (Pa. 2005) (addressing attorney’s argument concerning
violation of constitutional right to confront witnesses); Office of Disciplinary Counsel v. Marcone, 855 A.2d 654,
663–68 (Pa. 2004) (addressing attorney’s arguments implicating Supremacy Clause, Commerce Clause, and First
Amendment); Office of Disciplinary Counsel v. Surrick, 749 A.2d 441, 444 (Pa. 2000) (addressing attorney’s due
process claim involving retroactive application of standard to his case); Office of Disciplinary Counsel v. Zdrok, 645
A.2d 830, 834–35 (Pa. 1994) (addressing attorney’s arguments that, inter alia, (1) punishment violated constitutional
prohibition against ex post facto laws, and (2) ODC “violated his due process rights by introducing evidence of
unrelated misconduct and aggravating factors which occurred after the criminal conduct at issue, when such
misconduct was not alleged in the Petition for Discipline”); In re Oxman, 437 A.2d 1169, 1172–74 (Pa. 1981)
(addressing attorneys’ speedy trial, double jeopardy, and equal protection claims). All Murphy does in his second
amended complaint is make conclusory statements that certain aspects of his disciplinary proceedings (such as those
relating to subpoenas) are not subject to judicial review. These conclusory statements are not entitled to an assumption
of truth, see Iqbal, 556 U.S. at 679 (“[B]ecause [the allegations] are no more than conclusions, [they] are not entitled
to the assumption of truth.”), and they are belied by the extensive case law showing that the Disciplinary Board
decisions are ultimately appealable to and reviewable by (de novo) the Pennsylvania Supreme Court, with the Court
being able to address any claim properly preserved and raised by the attorney. Moreover, Murphy has not plausibly
alleged or shown that Pennsylvania’s disciplinary rules clearly prevent him from raising his federal constitutional
claims in his disciplinary proceedings.
state’s chosen means to regulate the professional conduct of an attorney,” (3) “the state has a strong
interest in a challenge to the process by which it has chosen to compel compliance with its decision
to enjoy a disbarred attorney from the continued practice of law[, and it] has a similarly strong and
important interest in regulating the conduct of such an attorney,” and (4) “the state appellate

process presents an adequate opportunity for the plaintiff to raise his constitutional claim”), aff’d,
415 F. App’x 429 (3d Cir. 2011).
Even with the court determining that the requirements for Younger abstention are met in
this case, the court should not abstain if Murphy can plausibly establish that “(1) the state
proceedings are being undertaken in bad faith or for purposes of harassment or (2) some other
extraordinary circumstances exist . . . .” Schall v. Joyce, 885 F.2d 101, 106 (3d Cir. 1989).
Regarding the former exception, “[t]his exception to Younger is only appropriate . . . if the plaintiff
can demonstrate bad-faith or harassment by specific evidence.” Koresko, 2015 WL 1312269, at *4
(citations omitted). As for the latter exception, “such circumstances must be ‘extraordinary’ in the
sense of creating an extraordinarily pressing need for immediate federal equitable relief, not

merely in the sense of presenting a highly unusual factual situation.” Schall, 885 F.2d at 125. The
state court or agency must be “incapable of fairly and fully adjudicating the federal issues before
it” for this exception to apply. Id. at 124.
Murphy has failed to include any plausible, non-conclusory allegation that demonstrates
bad faith or harassment by the defendants. The court notes again here that Murphy has failed to
include numerous allegations relating to what has occurred (as evidenced by other filings in this
matter) during the state disciplinary proceedings.21 Nonetheless, none of his claims of bad faith or

21 For example, Murphy makes repeated references to the fact that his disciplinary proceedings have lasted for seven
years. Despite the evidence previously presented to the court that he initially requested a deferment of the proceedings,
and even objected to the ODC’s motion to rescind the deferment, he does not allege any facts relating to this activity
and then complains of the delay and makes conclusory allegations of bad faith and harassment.
harassment, seemingly all of which are conclusory in nature, merely indicate his disagreement
with how certain aspects of the disciplinary proceedings have transpired. Even his seemingly main
allegation of error, involving ODC’s failure to turn over certain evidence (despite their repeated
assurances that all such evidence was disclosed), including a recorded statement which ultimately

resulted in a mistrial (and the appointment of Cohen as a master to preside over the proceedings),
contains only conclusory allegations of bad faith and harassment. “A prosecution or proceeding is
conducted in ‘bad faith’ for abstention purposes when it is brought ‘without hope’ of success.”
Getson v. New Jersey, 352 F. App’x 749, 753 (3d Cir. 2009) (citations omitted); see Kugler v.
Helfant, 421 U.S. 117, 126 n.6 (1975) (explaining that “‘bad faith’ in this context generally means
that a prosecution has been brought without a reasonable expectation of obtaining a valid
conviction.” (citation omitted)). Simply because the ODC (through certain individual defendants)
misrepresented the disclosure of all exculpatory evidence when a document had not been disclosed
does not mean that they are prosecuting the disciplinary charges in bad faith. At bottom here, there
are no plausible allegations that these proceedings are moving forward without hope of success,

and even with the defendants incorrectly representing their disclosure of all evidence that Murphy
was entitled to, his allegations related to any purported bad faith or harassment are only conclusory
and will not carry the day.
As for the exceptional circumstances’ exception, Murphy has not alleged sufficient
plausible facts demonstrating a highly unusual factual situation. Moreover, there is no indication
that the ODC, Disciplinary Board, or the Pennsylvania Supreme Court are “incapable of fairly and
fully adjudicating the federal issues before it” for this exception to apply. Schall, 885 F.2d at 124.
Accordingly, pursuant to Younger, this court will abstain from presiding over Murphy’s claims for
injunctive and declaratory relief.22 See Howard v. N.J. Div. of Youth and Family Servs., 398 F.
App’x 807, 811 (3d Cir. 2010) (“Younger operates to bar suits for injunctive and declaratory
relief.” (citation omitted)).
Unfortunately, the court’s resolution of Younger abstention does not end conclude this

matter, as “a district court, when abstaining from adjudicating a claim for injunctive relief, should
stay and not dismiss accompanying claims for damages and attorney fees when such relief is not
available from the ongoing state proceedings.” Williams v. Hepting, 844 F.2d 138, 144–45 (3d Cir.
1988) (internal quotation marks and citation omitted). Therefore, the court must address the
defendants’ other arguments in support of the motion to dismiss to determine whether any claims
survive dismissal and should be stayed.
3. Eleventh Amendment Immunity
The defendants argue that the Eleventh Amendment bars Murphy’s claims against the ODC
and the Disciplinary Board and his official capacity claims against the individual defendants.
Defs.’ 2d Br. at 15–17. Murphy contests that the Eleventh Amendment applies because the

defendants are not “arm[s] of the state,” and argues that it does not bar any of his claims
(particularly those for prospective injunctive relief). Pl.’s Br. at 62–64.
The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not
be construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. amend. XI. This Amendment
has been interpreted to render states—and, by extension, state agencies and
departments and officials when the state is the real party in interest—generally

22 “[T]he traditional power of the state courts to establish standards for members of their bars and to discipline them .
. . suggests that incursions by federal courts into ongoing disciplinary proceedings would be peculiarly disruptive to
notions of comity.” Gipson v. N.J. Supreme Ct., 558 F.2d 701, 704 (3d Cir. 1977).
immune from suit by private parties in federal court. Indeed, it has been recognized
for over two hundred years that a state’s immunity from suit in federal court is a
fundamental principle of our constitutional structure that preserves, as intended by
the Framers, the respect and dignity of the states and protects the ability of the states
“to govern in accordance with the will of their citizens.”

Pa. Fed’n of Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002) (quoting Alden v.
Maine, 527 U.S. 706, 751 (1999)). The Eleventh Amendment serves as “a jurisdictional bar which
deprives federal courts of subject matter jurisdiction.” Blanciak v. Allegheny Ludlum Corp., 77
F.3d 690, 694 n.2 (3d Cir. 1996).
Contrary to Murphy’s unsubstantiated arguments that the Eleventh Amendment does not
even apply to the named defendants, the Eleventh Amendment bars his non-injunctive claims for
relief against the individual defendants (as all allegations against them pertain to their work in their
roles for the ODC or the Disciplinary Board) in their official capacities and the claims against the
ODC and the Disciplinary Board.23 See Kentucky v. Graham, 473 U.S. 159, 166 (1985)
(concluding that Eleventh Amendment immunity bars suit for monetary damages against state
official acting in official’s official capacity); Callahan v. City of Philadelphia, 207 F.3d 668, 672
(3d Cir. 2000) (concluding that “[a]ll courts and agencies of the unified judicial system . . . are part

23 The court recognizes that “Eleventh Amendment immunity is, however, subject to three primary exceptions: (1)
congressional abrogation, (2) waiver by the state, and (3) suits against individual state officers for prospective
injunctive and declaratory relief to end an ongoing violation of federal law.” Hess, 297 F.3d at 323 (citation omitted).
As for the first exception to Eleventh Amendment immunity, Congress did not intend to abrogate Eleventh
Amendment immunity by enacting 42 U.S.C. § 1983. See Quern v. Jordan, 440 U.S. 332, 344–45 (1979) (stating that
Ҥ 1983 does not explicitly and by clear language indicate on its face an intent to sweep away the immunity of the
States; nor does it have a history which focuses directly on the question of state liability and which shows that Congress
considered and firmly decided to abrogate the Eleventh Amendment immunity of the States”). Concerning the second
exception, the Commonwealth of Pennsylvania has enacted 42 Pa. C.S. § 8521(b), which expressly indicates that the
Commonwealth has not waived its Eleventh Amendment immunity from suit in federal courts. See 42 Pa. C.S. §
8521(b) (“Nothing contained in this subchapter shall be construed to waive the immunity of the Commonwealth from
suit in Federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States.”); see also
Lavia v. Pa., Dep’t of Corr., 224 F.3d 190, 195 (3d Cir. 2000) (explaining that Pennsylvania has not waived Eleventh
Amendment immunity). For the final exception, the defendants concede that the Eleventh Amendment would not bar
Murphy’s claims for prospective injunctive relief against the individual defendants (this would not apply to his claims
against the ODC and the Disciplinary Board). See Defs.’ 2d Br. at 17 (“The only possible relief that could get around
the Eleventh Amendment here is prospective, injunctive relief under Ex Parte Young[, 209 U.S. 123 (1908)] to stop a
continuing violation of federal law. This exception does not apply to the ODC or [Disciplinary] Board as entities,
though.” (citations omitted)).
of ‘Commonwealth government’ and thus are state rather than local agencies”); Ostrowski v.
Killion, No. CIV. A. 14-1727, 2015 WL 5286622, at *3 (M.D. Pa. Sept. 10, 2015) (dismissing
official capacity claims against, inter alia, Killian/Killion, as Chief Counsel for the Disciplinary
Board based on Eleventh Amendment); Democracy Rising PA v. Celluci, 603 F. Supp. 2d 780,

795 (M.D. Pa. 2009) (“[T]he Disciplinary Board of the Supreme Court of Pennsylvania—of which
the Office of Disciplinary Counsel is a part—is encompassed within the unified judicial system.
Both agencies, as well as officials thereof, are thus immune from suit under the Eleventh
Amendment[.]”); Law Offices of Christopher S. Lucas and Assocs. v. Disciplinary Bd. of the
Supreme Ct. of Pa., 320 F. Supp. 2d 291, 295 (M.D. Pa. 2004) (“[W]e hold that the Eleventh
Amendment is a bar to Plaintiff’s suit against the Disciplinary Board.”); Mattas v. Supreme Court
of Pa., 576 F. Supp. 1178, 1182 (W.D. Pa. 1983) (“[T]he Office of the Disciplinary Counsel, as
an entity, [is an] arm of the state and therefore cannot be sued.”).24 Accordingly, the court lacks
jurisdiction over Murphy’s claims against the ODC and the Disciplinary Board as well as his
claims against the individual defendants in their official capacities, to the extent he is seeking

anything other than prospective injunctive relief.
4. The Individual Defendants’ Possible Prosecutorial, Quasi-Judicial and Judicial
Immunities

At this point in the court’s analysis, Murphy’s only remaining claims are those claims for
monetary relief against the individual defendants in their individual capacities. Regarding these

24 In addition, neither the ODC nor the Disciplinary Board is a “person” amenable to suit under section 1983. See Law
Offices of Christopher S. Lucas and Assocs., 320 F. Supp. 2d at 296 (“[W]e hold that the Disciplinary Board is not a
‘person’ who can be sued within the meaning of § 1983.”); Mattas, 576 F. Supp. at 1182 (concluding that neither ODC
nor Disciplinary Board are “‘persons’ within the meaning of 42 U.S.C. § 1983, and therefore, cannot be sued under
the Civil Rights Act”); see also Funk v. Disciplinary Bd. of Com. of Pa., Civ. A. No. 87-6833, 1990 WL 82120, at *4,
n.13 (E.D. Pa. June 12, 1990) (“A court in this district has previously held that the Disciplinary Board is not a ‘person’
for the purposes of § 1983[.]”). Moreover, the individual defendants sued in their official capacities are not “persons”
amenable to suit under section 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (“We hold that
neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983.”).
claims, the defendants move to have the court dismiss Murphy’s federal constitutional claims
against them based upon absolute prosecutorial immunity, quasi-judicial immunity, and judicial
immunity. Defs.’ 2d Br. at 22–25. They also assert that Murphy has otherwise failed to state a
plausible claim for any constitutional violation. Id. at 17–21. The court will first address whether

the defendants are entitled to quasi-judicial immunity.
Judges are immune from liability for all actions taken within their judicial capacities. See
Mireles v. Waco, 502 U.S. 9, 11 (1991) (“Like other forms of official immunity, judicial immunity
is an immunity from suit, not just from ultimate assessment of damages.”); Martinez v. Eagle
Disposal, -- F. App’x --, 2019 WL 3731429, at *3 (3d Cir. Aug. 8, 2019) (“[A] judge has absolute
immunity for actions performed in a judicial capacity.” (citations omitted)). The Third Circuit has
described quasi-judicial immunity as follows:
Quasi-judicial immunity, as one might guess, evolved out of its well-known
namesake, judicial immunity. “Few doctrines were more solidly established at
common law than the immunity of judges from liability for damages for acts
committed within their judicial jurisdiction[.]” Pierson v. Ray, 386 U.S. 547, 553–
54, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). That immunity secures a “general
principle of the highest importance to the proper administration of justice”:
ensuring that a “judicial officer, in exercising the authority vested in him, shall be
free to act upon his own convictions, without apprehension of personal
consequences to himself,” Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347, 20 L.Ed.
646 (1871), and “without harassment or intimidation” in those “controversies
sufficiently intense to erupt in litigation,” Butz v Economou, 438 U.S. 478, 512, 98
S.Ct. 2894, 57 L.Ed.2d 895 (1978). Judicial immunity is thus essential to judges’
ability to exercise “independent and impartial ... judgment.” Antoine v. Byers &
Anderson, Inc., 508 U.S. 429, 435, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993).

The fair administration of justice depends not only on judges, however, and
these same concerns apply to “certain others who perform functions closely
associated with the judicial process.” Cleavinger v. Saxner, 474 U.S. 193, 200, 106
S.Ct. 496, 88 L.Ed.2d 507 (1985). For that reason, so-called “quasi-judicial”
immunity has been extended over time to protect a range of judicial actors,
including (1) those who make discretionary judgments “functional[ly]
comparab[le]” to judges, such as prosecutors and grand jurors, Imbler v. Pachtman,
424 U.S. 409, 423 n.20, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); (2) those who
“perform a somewhat different function in the trial process but whose participation
... is equally indispensable,” such as witnesses, Briscoe v. LaHue, 460 U.S. 325,
345–46, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983); and (3) those who serve as “‘arms
of the court,’ ... fulfill[ing] a quasi-judicial role at the court’s request,” such as
guardians ad litem or court-appointed doctors, Hughes v. Long, 242 F.3d 121, 126
(3d Cir. 2001). In this case, we focus on the last category.

In determining whether a government actor was fulfill[ing] a quasi-judicial
role at the court’s request, we take a “‘functional’ approach to immunity,” Forrester
v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). That is, “we
examine the nature of the functions with which a particular official or class of
officials has been lawfully entrusted, and we seek to evaluate the effect that
exposure to particular forms of liability would likely have on the appropriate
exercise of those functions.” Id. Merely being “part of the judicial function,” even
an “extremely important” part, will not automatically entitle one to quasi-judicial
immunity. Antoine, 508 U.S. at 435–36, 113 S.Ct. 2167 (refusing to extend such
immunity to court reporters). Even a judge will not enjoy immunity for “nonjudicial
actions, i.e., actions not taken in [her] judicial capacity,” or for judicial actions
“taken in the complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9,
11–12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991) (per curiam). Absolute immunity, we
have been told time and again, is “strong medicine,” Forrester, 484 U.S. at 230,
108 S.Ct. 538 (citation omitted), and the “presumption is that qualified rather than
absolute immunity is sufficient to protect government officials in the exercise *248
of their duties,” Burns v. Reed, 500 U.S. 478, 486–87, 111 S.Ct. 1934, 114 L.Ed.2d
547 (1991). Accordingly, an “official seeking absolute immunity bears the burden
of showing that such immunity is justified for the function in question.” Id. at 486,
111 S.Ct. 1934.

Russell v. Richardson, 905 F.3d 239, 247–48 (3d Cir. 2018).
Numerous federal courts in this Commonwealth have concluded that Disciplinary Board
members and ODC members are protected by quasi-judicial immunity. See Ostrowski, 2015 WL
5286622, at *4 (explaining that “[t]he Third Circuit has held that disciplinary counsel and hearing
committee members perform ‘discretionary acts’ when they prosecute, consider, or rule on
disciplinary actions and, therefore, are immune from civil suit under the quasi-judicial immunity
doctrine” and concluding that pro se plaintiff attorney’s conclusory allegations that ODC officials
acted outside their quasi-judicial and prosecutorial capacity were insufficient to overcome absolute
immunity); Nguyen Vu v. City of Philadelphia, Civ. A. No. 10-953, 2012 WL 1222628, at *8 (E.D.
Pa. Apr. 11, 2012) (concluding that disciplinary counsel were entitled to quasi-judicial immunity
from claims against them relating to “quasi-judicial functions they performed as prosecuting
attorneys for the Disciplinary Board of the Pennsylvania Supreme Court”); Haagensen, 651 F.
Supp. 2d at 433 (explaining that “quasi-judicial immunity bar[s] claims against state bar
disciplinary members” and concluding that “the Disciplinary Board Members . . . who issued a

report and sat as a hearing committee for the Board, are entitled to quasi-judicial immunity and
Plaintiff’s suit against them cannot proceed”); Frankel v. Disciplinary Bd. of Supreme Ct. of Pa.,
No. Civ. A. 05-CV-1450, 2005 WL 2994354, at *2 (E.D. Pa. Nov. 8, 2005) (“[Q]uasi-judicial
immunity bars Plaintiff’s claims for damages against the members of the Disciplinary Board.”);
see also Capogrosso v. The Supreme Ct. of N.J., 588 F.3d 180, 185 (3d Cir. 2009) (concluding that
“[t]o the extent that [the pro se attorney plaintiff’s] complaint can be read to include claims against
[the Director of the New Jersey Advisory Committee on Judicial Conduct] and [Disciplinary
Counsel for the New Jersey Advisory Committee on Judicial Conduct] in their individual
capacities, they are entitled to quasi-judicial immunity and thus not subject to suit for injunctive
relief”); Kwasnik v. LeBlon, 228 F. App’x 238, 244 (3d Cir. 2007) (concluding that New Jersey

Advisory Committee members, in considering complaints against judge, “enjoy quasi-judicial
immunity from suit” and “[t]o the extent their actions are prosecutorial in nature, the Committee
members are protected by prosecutorial immunity”).
Here, to the extent that the court 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. Not finding quasi-judicial
immunity in this type of case would open disciplinary counsel and board members to suit every
time that an attorney asserts that he was wrongfully charged. Any arguments from Murphy that
the prosecution against him exceeds the ODC’s or the Disciplinary Board’s jurisdiction or that the
acts against him are not judicial acts are implausible. In addition, despite Murphy asserting
individual liability claims against the individual defendants here, his alleged issues relate to the
defendants’ conduct during the course of their official duties for the ODC and the Disciplinary
Board. Accordingly, the court will dismiss Murphy’s claims for damages against the individual
defendants in their individual capacities because quasi-judicial immunity bars those claims.25

The court will also address the defendants’ arguments that absolute prosecutorial immunity
protects the individual ODC defendants (i.e. Killion, Gottsch, Hernandez, Sodroski, and Gilson).
This doctrine generally protects state prosecutors “from liability under § 1983 for actions
performed in a quasi-judicial role.” Yarris v. County of Delaware, 465 F.3d 129, 135 (3d Cir. 2006)
(citing Imbler v. Pachtman, 424 U.S. 409, 431 (1976)). Under this doctrine, a prosecutor acting
within the scope of his duties in initiating and pursuing a criminal prosecution is absolutely
immune from civil suit for damages under section 1983 for alleged deprivations of the accused’s
constitutional rights. See Imbler, 424 U.S. at 427 (“We conclude that the considerations outlined
above dictate the same absolute immunity under § 1983 that the prosecutor enjoys at common

law.”). This “immunity attaches to actions ‘intimately associated with the judicial phases of
litigation,’ but not to administrative or investigatory actions unrelated to initiating and conducting
judicial proceedings.” Odd v. Malone, 538 F.3d 202, 208 (3d Cir. 2008) (citations omitted). “[T]he
official seeking absolute immunity bears the burden of showing that such immunity is justified for
the function in question.” Burns v. Reed, 500 U.S. 478, 486 (1991) (citations omitted).
Additionally, “a person is not immune from suit for every wrong he commits just because
he happens to be employed as a prosecutor: the inquiry focuses on the nature of the function

25 Because of the court’s resolution of this issue, the court will not address the defendants’ contention that judicial
immunity applies to Murphy’s individual liability claims against Cohen, Rassias, Fitzsimons, Cali, LeHocky, and
Penny.
performed, not the identity of the actor who performed it.” Schneyder v. Smith, 653 F.3d 313, 332
(3d Cir. 2011) (internal quotation marks and citation omitted). Courts take a two-step approach to
determining whether a prosecutor’s acts are protected by absolute immunity. Id. First, “[t]he court
must ascertain just what conduct forms the basis for the plaintiff’s cause of action[.]” Id. (citation

omitted). “Th[is] first stage focuses on the unique facts of each case and requires careful dissection
of the prosecutor’s actions.” Id. (citation omitted). Second, the court must “determine what
function (prosecutorial, administrative, investigative, or something else entirely) that act served.”
Id. (citation omitted).
Here, the defendants contend that the individual ODC defendants—Killion, Gottsch,
Hernandez, Sodroski, and Gilson—are entitled to absolute prosecutorial immunity for their
conduct in investigating and prosecuting the disciplinary violations asserted against Murphy.
Defs.’ 2d Br. at 22–23. They assert that Murphy’s allegations against them relate to their
prosecutorial functions, and “[t]his Circuit’s case law holds that disciplinary officials and counsel
have prosecutorial immunity for how they perform their duties.” Id. at 22 (citations omitted). They

further argue that their prosecutorial immunity extends to Murphy’s claims that they withheld
exculpatory evidence and to any investigations as well. Id. at 22–23.
In response to these arguments, Murphy asserts that the disciplinary proceedings are
administrative and not judicial in nature. Pl.’s Br. at 7. He claims that the allegations here are
similar to other instances where courts have determined that defendants were not entitled to
absolute prosecutorial immunity, such as Forrester v. White, 484 U.S. 219 (1988) (concluding
state court judge was not absolutely immune from equal-protection-violation claim by former
probation officer that judge demoted and discharged because of her sex; judge was acting in
administrative capacity when demotion and dismissal occurred). Id. at 70–71. Murphy also
contends that absolute immunity cannot bar his claims for prospective injunctive relief. Id. at 71
(citing Pulliam v. Allen, 466 U.S. 522 (1970)). He further argues that the ODC defendants “never
acted in any prosecutorial or judicial capacity whatsoever but at most were involved in an
administrative capacity which is not intimately connected with a prosecutorial or judicial

function.” Id.
As a preliminary note, Murphy appears to rely on the incorrect definition of
“administrative,” when arguing against the applicability of absolute prosecutorial immunity. The
term “administrative” does not reference an allegedly administrative process by an agency or
officers of an agency (as he argues that the disciplinary proceedings are “administrative” and not
judicial in nature), but instead pertains to something “relating to, or involving the work of
managing a company or organization.” Administrative, Black’s Law Dictionary (11th ed. 2019).
Thus, the Supreme Court has excluded from the protection of absolute judicial immunity acts by
a judge in demoting or dismissing a probation officers as those acts “involve[] . . . supervising
court employees and overseeing the efficient operation of a court.” Forrester, 484 U.S. at 229. In

addition, “judicial immunity has not been extended to judges acting to promulgate a code of
conduct for attorneys.” Id. at 228 (citing Supreme Ct. of Va. v. Consumers Union of United States,
Inc., 446 U.S. 719 (1980)).
Murphy does not articulate how the allegedly wrongful acts here are administrative in
nature and not related to the investigation and prosecution of the allegations of ethical misconduct
against him. All allegations relate to events that occurred after the Disciplinary Board (or the ODC)
received complaints of misconduct against him. None of his claims involve the types of
administrative acts that courts have concluded fall outside the scope of absolute prosecutorial
immunity. As such, the court rejects Murphy’s assertion that the ODC defendants are not entitled
to absolute prosecutorial immunity because they were acting in an administrative capacity.
The acts Murphy complains of relative to the individual ODC defendants involve their
investigation and prosecution of the disciplinary complaints against him. Unfortunately, despite

seemingly having the ability to specifically identify each ODC defendant and the role that
defendant played in the investigation and prosecution of the disciplinary charges, Murphy often
groups all of the defendants together (and even does so with the individual Disciplinary Board
defendants, who do not appear to have played any role in the investigation or actual prosecution
of the disciplinary charges). Murphy has done this despite having two prior attempts to plead a
proper complaint under Rule 8(a), Twombly, and Iqbal. Thus, as already explained, identifying all
of Murphy’s claims against the proper defendants is impossible from reading the second amended
complaint.
Despite these pleading issues, the court can still address the ODC defendants’ claim for
absolute prosecutorial immunity. Some courts have concluded that “[h]earing officers and counsel

are deemed to be performing functions analogous to those of a prosecutor when they consider and
prosecute disciplinary complaints and, therefore, are entitled to prosecutorial immunity.”
Ostrowski, 2015 WL 5286622, at *4 (citing Kwasnik, 228 F. App’x at 243–44); see also
Haagensen, 651 F. Supp. 2d at 434 (“Plaintiff’s allegations against [ODC Chief Counsel] Killion,
[ODC] Deputy Chief Burgoyne, and [ODC] Counsel Napoli arise out of their actions as
prosecutors for the state before the Disciplinary Board; thus they are no different from those
alleged in Imbler. . . . Therefore, Defendants Killion, Burgoyne and Napoli are entitled to absolute
prosecutorial immunity from actions they took in the disciplinary proceedings[.]”); Frankel, 2005
WL 2994354, at *3 (concluding that absolute prosecutorial immunity barred claims against two
ODC members who prosecuted disciplinary action against plaintiff, where plaintiff alleged that
they “knowingly and intentionally misstated and misrepresented evidence, referenced information
that was not in evidence, and took actions that were designed to malign and otherwise cause harm
to Plaintiff”). None of those cases, however, seemingly dealt with circumstances like those

presented here where the plaintiff is seemingly complaining about the entire process of the
disciplinary proceeding, including complaining that he was never served with original process (the
court cannot tell whether Murphy is referring to the DB-7 or when formal proceedings started
against him) and the delay in the investigation. In addition, there are undeniably aspects of the
ODC’s responsibilities that are investigative in nature. See, e.g., Pa. Disciplinary Bd. R. 87.6
(“Subject to the policy supervision and control of the Chief Disciplinary Counsel, the investigative
staff of the district office shall make such investigation of the complaint and report thereon as may
be appropriate.”).
This court has not located any decision explaining where, in the context of a disciplinary
proceeding, the investigative / prosecutorial divide occurs. In the criminal context, “[a] rule of

thumb for defining the investigative / prosecutorial divide is the filing of a complaint.” Spiess v.
Pocono Mountain Reg’l Police Dep’t, No. 3:10cv287, 2013 WL 1249007, at *15 (W.D. Pa. Mar.
26, 2013) (citing Kulwicki v. Dawson, 969 F.2d 1454 (3d Cir. 1992)). “[T]he mere fact that a
prosecution is formally initiated does not mean that all investigatory acts preceding the filing of
charges are entitled to immunity.” Id. (citing Buckley v. Fitzsimmons, 509 U.S. 259, 276 (1993)).
In this regard,
[t]here is a difference between the advocate’s role in evaluating evidence and
interviewing witnesses as he prepares for trial, on the one hand, and the detective’s
role in searching for the clues and corroboration that might give him probable cause
to recommend that a suspect be arrested, on the other hand. When a prosecutor
performs the investigative functions normally performed by a detective or police
officer, it is neither appropriate nor justifiable that, for the same act, immunity
should protect the one and not the other.

Buckley, 509 U.S. at 273 (citation and internal quotation marks omitted).
Here, most of Murphy’s allegations against the individual ODC defendants, particularly
those relating to the proceedings after the initiation of formal disciplinary proceedings in
December 2016, are prosecutorial in nature as they relate to various aspects of the proceedings and
the ODC defendants’ conduct related to and during those proceedings. As noted by the defendants,
Murphy’s claims about the withholding of exculpatory evidence are also barred by absolute
prosecutorial immunity as the second amended complaint indicates that this occurred after
December 2016 and while they were prosecuting the disciplinary charges. See Yarris, 465 F.3d at
137 (“It is well settled that prosecutors are entitled to absolute immunity from claims based on
their failure to disclose exculpatory evidence, so long as they did so while functioning in their
prosecutorial capacity.”).
The court is nonetheless concerned that the actions taken by the individual ODC defendants
prior to the initiation of formal disciplinary proceedings against Murphy in December 2016, are
potentially purely investigative in nature. The ODC defendants appear to have received complaints
about alleged ethical misconduct, sent a DB-7 statement to Murphy purportedly explaining the
facts and alleged misconduct, and then requested and received from Murphy a response (and a
supplemental response) to the DB-7 statement. These acts appear to be investigative in nature

because they were taken to gain information that could lead them to pursue discipline against
Murphy. This is similar to detectives obtaining information to possibly give the detectives probable
cause to recommend that a suspect be arrested. The Third Circuit has explained “that a limited
factual inquiry may in some cases be necessary to determine in what role the challenged function
was exercised.” Forsyth v. Kleindienst, 599 F.2d 1203, 1215 (3d Cir. 1979). In this case, the
allegations in the second amended complaint do not provide enough information about the context
about Murphy’s complaints about the ODC’s investigative process. Therefore, the court cannot
conclude that absolute prosecutorial immunity prevents all of Murphy’s claims asserted in the
second amended complaint to the extent any claims related to the earlier portion of the ODC’s

investigation into the complaints of potential misconduct.
5. Whether Murphy Has Stated a Plausible Claim for Relief for Any Constitutional
Violation

a. Procedural Due Process
Pursuant to the Fourteenth Amendment, “[n]o state shall . . . deprive any person of life,
liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Due process
protections extend to both substantive and procedural violations of the Fourteenth Amendment.
See Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 846–87 (1992) (“[I]t is settled that
the due process clause of the Fourteenth Amendment applies to matters of substantive law as well
as to matters of procedure.” (citation and internal quotation marks omitted)). “[T]he substantive
component of the Clause . . . protects individual liberty against ‘certain government actions
regardless of the fairness of the procedures used to implement them.’” Collins v. City of Harker
Heights, Tex., 503 U.S. 115, 125 (1992) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).
Whereas the procedural component “provide[s] a guarantee of fair procedure in connection with
any deprivation of life, liberty, or property by a State.” Id.
“Procedural due process imposes constraints on governmental decisions which deprive
individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the
Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Due process
“is a flexible concept that varies with the particular situation.” Zinermon v. Burch, 494 U.S. 113,
127 (1990). Generally, “the Constitution requires some kind of a hearing before the State deprives
a person of liberty or property.” Id. (citations omitted). “To state a claim under § 1983 for
deprivation of procedural due process rights, a plaintiff must allege that (1) he was deprived of an
individual interest that is encompassed within the Fourteenth Amendment’s protection of ‘life,
liberty, or property,’ and (2) the procedures available to him did not provide ‘due process of law.’”

Hill v. Borough of Kutztown, 455 F.3d 225, 233–34 (3d Cir. 2006) (quoting Alvin v. Suzuki, 227
F.3d 107, 116 (3d Cir. 2000)).
Murphy’s “license to practice law constitutes a property interest that deserves procedural
due process protection” Casella v. Pa. Interest on Lawyers Trust Account Bd., 47 F. App’x 193,
195 (3d Cir. 2002). Nonetheless, Murphy’s procedural due process claim here fails because he has
failed to allege that he has been deprived of this interest insofar as he has not alleged that he has
lost his license to practice law or that his license has been otherwise impaired. Id. at 195–96. In
addition, “to state a claim for failure to provide [procedural] due process, a plaintiff must have
taken advantage of the processes that are available to him or her, unless those processes are
unavailable or patently inadequate.” Alvin, 227 F.3d at 116.26 As already explained, Murphy has

not taken advantage of all of the processes available to him as he is awaiting Master Cohen’s
decision and, should that decision be adverse to him, he has the ability to challenge it before the
Pennsylvania Supreme Court. In addition, to the extent that any of Murphy’s allegations relate to
any potential inadequacy of those processes (such as an appeal to the Pennsylvania Supreme
Court), he has not pleaded any plausible facts in support of his contention and there is nothing in
the record to indicate that those processes are patently inadequate.27

26 The court notes that “when a state affords a full judicial mechanism with which to challenge the administrative
decision in question, the state provides adequate procedural due process.” Pioneer Aggregates, Inc. v. Pa. Dep’t of
Envt’l Protection, 540 F. App’x 118, 126 (3d Cir. 2013) (internal quotation marks omitted) (quoting DeBlasio v.
Zoning Bd. of Adjustment for Twp. of W. Amwell, 53 F.3d 592, 597 (3d Cir. 1995)).
27 Murphy has not identified, and this court has not located any case concluding that the processes available to attorneys
involved in disciplinary proceedings in the Commonwealth of Pennsylvania are patently inadequate.
b. Substantive Due Process
“To state a substantive due process claim, the plaintiff must allege that he was deprived of
a fundamental right, and that the government conduct at issue was so egregious, so outrageous,
that it may fairly be said to shock the contemporary conscience.” Collura v. Disciplinary Bd. of

Supreme Ct. of Pa., Civ. A. No. 11-5637, 2013 WL 4479141, at *7 (E.D. Pa. Aug. 22, 2013)
(citations and internal quotation marks omitted), aff’d, 569 F. App’x 114 (3d Cir. 2014). As with
Murphy’s procedural due process claim, he has not stated a plausible substantive due process claim
insofar as he has not yet been deprived of a fundamental right. In addition, despite Murphy’s
allegations that, inter alia, he never received notice of the complaints against him (which is belied
by his own statements in his brief in opposition to the motion to dismiss) and certain exculpatory
evidence was wrongfully withheld despite repeated representations that all such evidence was
provided to him, none of these allegations “shock the contemporary conscience.” Id. Accordingly,
Murphy has failed to allege a plausible substantive due process claim.
c. Fifth Amendment Claim

It is unclear which type of claim Murphy is seeking to raise under the Fifth Amendment in
the second amended complaint.28 To the extent that Murphy is attempting to assert a due process
claim, he may not do so against the defendants because none of them are federal employees or

28 The Fifth Amendment states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public danger; nor shall any person be subject to the same
offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be
a witness against himself, nor be deprived of life liberty, or property, without due process of law;
nor shall private property be taken for public use, without just compensation.

U.S. Const. amend. V. It does not appear that Murphy is asserting any double jeopardy claim, violation of his right
against self-incrimination, or a takings violation; however, the court notes that the phrase “double jeopardy” is
mentioned in the second amended complaint. To the extent Murphy is claiming a double jeopardy violation, “since
disciplinary proceedings are not criminal in nature, courts consistently have rejected double jeopardy defenses asserted
therein.” In re Oxman, 437 A.2d 1169, 1173 (Pa. 1981) (citations omitted).
entities. See B&G Constr. Co., Inc. v. Director, Office of Workers’ Compensation Prog., 662 F.3d
233, 246 n.14 (3d Cir. 2011) (explaining differences between due process claims under Fifth and
Fourteenth Amendments and stating that “the Fifth Amendment applies to actions of the federal
government”).

d. Sixth Amendment Claim
Regarding the Sixth Amendment, the court notes that “although attorney disciplinary
proceedings ‘ha[ve] consequences which remove [them] from the ordinary run of civil case[s],’
they are ‘not criminal in nature.’” In re Surrick, 338 F.3d 224, 233 (3d Cir. 2003) (quoting Matter
of Abrams, 521 F.2d 1094, 1099 (3d Cir. 1975)). “It therefore follows that the protections normally
afforded criminal defendants are not required here.” Id. (citations omitted). To the extent that
Murphy is claiming that the defendants somehow violated his Sixth Amendment speedy trial
rights, this right “has been held to be inapplicable in disciplinary proceedings.” In re Oxman, 437
A.2d at 1172. The court notes that Murphy makes passing references to his right to compulsory
process and to confront the witnesses against him, but he does not plausibly allege how the

defendants violated those rights in the second amended complaint and, to the extent that he has
attempted to do so, he has not done so in a manner in which the court can understand the precise
nature of his claims.29
In addition to the foregoing, the court recognizes that Murphy alleges that he lacked notice
of information relating to the complainant and the nature of the complaints against him.30 These
allegations are simply implausible based on the information the court has already reviewed in this

29 The court was unable to locate any case in this circuit concluding that the right to confront witnesses apply to
attorney disciplinary proceedings. Other circuits appear to be divided on this issue. See In re Harper, 725 F.3d 1253,
1260 (10th Cir. 2013) (discussing circuit divide over “the applicability of the right to confrontation in attorney
disciplinary proceedings”).
30 See In re Ruffalo, 390 U.S. 544 (1968) (concluding that attorney subject to potential discipline must receive notice
of nature of charges).
case in addressing Murphy’s prior motion for temporary and preliminary injunctive relief and even
Murphy’s opposition brief where he goes into great detail (albeit in a confusing manner) about the
underlying workers’ compensation proceedings which ultimately led to the complaints of
misconduct against him. He also acknowledges in his second amended complaint that he received

the DB-7 notice. Accordingly, Murphy has failed to state a plausible claim for any violation of his
Sixth Amendment rights, to the extent such rights are even applicable to the underlying
disciplinary proceedings.
e. Equal Protection Claim
The Fourteenth Amendment prohibits a state from “deny[ing] to any person within its
jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. A plaintiff must
identify a similarly situated individual whom the state treated differently to establish an equal
protection claim, and the failure to do so warrants dismissal of the claim. See, e.g., Karns v.
Shanahan, 879 F.3d 504, 521 (3d Cir. 2018) (holding equal protection claim lacked merit, in part,
because plaintiffs “point[ed] to no evidence that [the officers] treated similarly situated individuals

differently. They d[id] not even identify other individuals who might be similarly situated”
(footnote omitted)); Mann v. Brenner, 375 F. App’x 232, 238 (3d Cir. 2010) (affirming dismissal
of equal protection claim because plaintiff failed to plausibly plead that he was treated differently
than other similarly situated people); Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir.
2006) (“[Plaintiff’s] claim must fail because he does not allege the existence of similarly situated
individuals—i.e., Borough Managers—who[m the former mayor of Kutztown] treated differently
than he treated [plaintiff].” (citation omitted)). “[G]eneral accusations and the invocation of the
Equal Protection Clause are not enough.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 245 (3d Cir.
2008).
Here, the defendants correctly point out that Murphy has failed to include any allegations
that he is in a protected class. Defs.’ 2d Br. at 21. This failure alone is fatal to his equal protection
claim. See, e.g., Mobley v. Lantz, Civ. No. 1:13-cv-1804, 2014 WL 3810119, at *17 (M.D. Pa. July
31, 2014) (“We agree that Mobley does not successfully state a traditional equal protection claim

as he has not alleged that he is a member of a protected class.”). Nonetheless, Murphy’s equal
protection claim also fails because even though he makes sweeping conclusory allegations of
purported equal protection violations, he does not allege or otherwise identify a similarly situated
individual that the defendants treated differently. Hill, 455 F.3d at 239.
It is possible that Murphy is invoking the “‘class of one’ theory,” which provides that a
plaintiff “states a claim for violation of the Equal Protection Clause when he ‘alleges that he has
been intentionally treated differently from others similarly situated and that there is no rational
basis for the difference in treatment.’” Hill, 455 F.3d at 239 (3d Cir. 2006) (quoting Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). To the extent that Murphy is asserting a “class
of one” claim, he must include sufficient allegations showing that “(1) the defendant treated him

differently from others similarly situated, (2) the defendant did so intentionally, and (3) there was
no rational basis for the difference in treatment.” Id. Nowhere in the second amended complaint
does Murphy set forth facts plausibly suggesting that the defendants treated him differently from
similarly situated individuals.31 Again, his only equal protection allegations are conclusory in
nature. Accordingly, Murphy has failed to state a plausible claim for an equal protection violation.
f. Privileges and Immunities Clause of the Fourteenth Amendment
The Privileges and Immunities Clause of the Fourteenth Amendment provides that “[n]o
State shall make or enforce any law which shall abridge the privileges and immunities of citizens

31 Murphy asserts that he is bringing his action on behalf of all Pennsylvania attorneys, 2d Am. Compl. at 4; therefore,
he appears to be alleging that he is in the same situation as all other Pennsylvania attorneys.
of the United States.” U.S. Const. amend XIV § 1, cl. 2. As correctly pointed out by the defendants,
Defs.’ 2d Br. at 21,
the Privileges and Immunities Clause of the Fourteenth Amendment “has remained
essentially moribund” since the Supreme Court’s decision in The Slaughter-House
Cases, 83 U.S. (16 Wall.) 36, 21 L.Ed. 394 (1872), and the Supreme Court has
subsequently relied almost exclusively on the Due Process Clause as the source of
unenumerated rights.

In re Sacred Heart Hosp. of Norristown, 133 F.3d 237, 244 (3d Cir. 1998); see Gamble v. United
States, 139 S. Ct. 1960, 1989 (2019) (Thomas, J., concurring) (“Likewise, the Court refuses to
reexamine its jurisprudence about the Privileges and Immunities Clause, thereby regulating a
clause in the [C]onstitution to be without effect.” (citations and internal quotation marks omitted)).
Regardless, Murphy fails to plausibly allege or argue how the Privileges and Immunities Clause
applies to this case and, as such, the court will dismiss this claim as well for the failure to state a
claim.
g. The First Amendment
The defendants argue that “[t]he Complaint contains general, unspecific assertions – buried
in the list of rights Plaintiff maintains have been violated – that the Disciplinary Rules infringe on
free speech and the First Amendment.” Defs.’ 2d Br. at 27. The defendants go on to assert that
Murphy has failed to identify the specific Rules or how those Rules violate his First Amendment
rights. Id. They also claim that Murphy does not even identify the First Amendment theory is he
asserting. Id.
In response to the defendants’ arguments, Murphy appears to try to clarify his First
Amendment claims. See Pl.’s Br. at 69–70.32 The court has reviewed Murphy’s arguments and
cannot discern the claims he is attempting to assert. It appears that he is arguing that because the

32 For reasons unknown, Murphy’s submission is missing pages 65 through 68.
Commonwealth Court determined that his allegations about the two Workers Compensation
Judges were not false or frivolous, the disciplinary proceedings “violate[] [his] and all other
similarly situated persons’ fundamental right to free speech within context [sic] of administrative
proceedings as well as the fundamental right to redress grievances within administrative

proceedings[.]” Id. at 69. He appears to also reference the First Amendment’s freedom of
association, and asserts that “defendants’ informal Chapter 87 and formal proceedings which
cannot be the subject of any judicial review manifestly violate [his] and all other similarly situated
persons’ freedom of association[.]” Id. at 70.
To put it plainly, this court cannot discern the type of First Amendment claim Murphy is
attempting to assert here. It is impossible for one to review the allegations in the second amended
complaint and ascertain how the defendants purportedly violated the First Amendment. Murphy’s
brief adds no clarity to the scope of his claims and the facts supporting those claims. This court
does not have the information relating to what occurred before the Commonwealth Court
pertaining to Murphy’s allegations of judicial misconduct against the two Workers Compensation

Judges. Regardless, the court cannot conceive of how the filing of the disciplinary charges against
Murphy, when considered in context of whatever happened before the Commonwealth Court,
violates his rights to freedom of speech.33 The court can also not discern how the disciplinary
proceedings have affected his right to petition a court for redress of grievances or impaired his
freedom to associate. As such, the court is not going to engage in the continued exercise of
attempting to guess the precise claims or facts supporting said claims in a matter involving licensed
counsel who alleges that he has been practicing law for more than 46 years. Based on the

33 The “freedom of speech [is] not absolute.” Terminello v. Chicago, 337 U.S. 1, 5 (1949).
allegations in the second amended complaint, Murphy has not asserted a plausible First
Amendment claim.
6. Sovereign Immunity Under 1 Pa. C.S. § 2310
The defendants also move to dismiss any state law claims because they are entitled to

sovereign immunity under Pennsylvania law. Defs.’ 2d Br. at 25–26. Although the defendants
persuasively argue that they are entitled to sovereign immunity under 1 Pa. C.S. § 2310 because
they were “acting within the scope of their duties” and this immunity covers individual and official
capacity claims, the court need not address this argument because it does not appear that Murphy
is asserting any state law claims. In this regard, despite Murphy’s laundry list of alleged violations,
he does not appear to mention a state law cause of action. Although Murphy is proceeding pro se,
he is a licensed attorney, and the court should not have to speculate whether he is asserting a
particular state law cause of action. Even in his lengthy response to the motion to dismiss, he does
not specifically mention a state law cause of action that he is attempting to assert in this case.
Accordingly, the court will not address the defendants’ arguments relating to state law immunity.

D. Leave to Amend
While recognizing that Murphy is not the typical pro se plaintiff, a district court should
generally provide a pro se plaintiff with leave to amend unless amending would be inequitable or
futile. See Grayson v. Mayview St. Hosp., 293 F.3d 103, 114 (3d Cir. 2002) (stating general rule).
Also, “in civil rights cases district courts must offer amendment—irrespective of whether it is
requested—when dismissing a case for failure to state a claim unless doing so would be inequitable
or futile.” Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir.
2007). Here, the instant second amended complaint is Murphy’s third bite at the proverbial apple
in his attempt to assert some plausible claim that he can maintain in this court. His amendments to
his original complaint have not improved the form or substance of his pleading. Based on the
construction of these documents, Murphy’s seeming inability to allege facts without clouding them
in rambling conclusions of law, his inability to articulate his claims and the facts supporting those
claims in a cogent manner, his seeming willingness to omit numerous facts that the court has

already observed in the record despite their relevance to this litigation and, most importantly, the
court’s resolution of the motion to dismiss as set forth in this opinion and separately filed order,
the court will not allow Murphy yet another chance to file an amended complaint because doing
so would be futile.
E. Motion for a Preliminary Injunction
As indicated above, for the reasons set forth in this opinion, including this court abstaining
from addressing any claims for prospective injunctive or declaratory relief under Younger, and the
dismissal of the second amended complaint without leave to amend, there are no grounds upon
which the court would grant Murphy’s request for injunctive relief. The court’s analysis in this
case shows, at a minimum, that Murphy lacks a reasonable likelihood of success on the merits.

Accordingly, the court must deny Murphy’s request for a preliminary injunction.
III. CONCLUSION
For the reasons set forth above, the court will grant the motion to dismiss to the extent that
the defendants argue that (1) the court should abstain from presiding over Murphy’s claims for
declaratory and injunctive relief, (2) the Eleventh Amendment deprives the court of subject-matter
jurisdiction over Murphy’s federal claims against the ODC, Disciplinary Board, and the individual
defendants in their official capacities to the extent he seeks monetary damages, (3) absolute
prosecutorial immunity prevents Murphy from asserting claims against Killion, Gottsch,
Hernandez, Sodroski, and Gilson at least for the period from the commencement of formal
proceedings in December 2016, (4) quasi-judicial immunity prevents Murphy from asserting
claims against the individual defendants, particularly the members of the Disciplinary Board, i.e.
Cohen, Rassias, Fitzsimons, Cali, LeHocky, and Penny, and (5) Murphy has failed to state a
plausible claim for relief for a violation of his rights under the First, Fifth, Sixth, and Fourteenth

Amendments. The court’s disposition of these arguments results in the dismissal of a

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10397703. Public record. Not legal advice.