ELLERBE v. JUDICIAL COUNCIL FOR THE THIRD CIRCUIT

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DERRICK J. ELLERBE, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 23-CV-0407

:

JUDICIAL COUNCIL FOR THE :

THIRD CIRCUIT, et al., :

Defendants. :

MEMORANDUM

BAYLSON, J. FEBRUARY 22, 2023

Derrick J. Ellerbe, a frequent pro se litigator in this Court who is subject to a filing

restrictions, has filed this action asserting claims against the Judicial Council for the Third

Circuit and “the Circuit Executive.” Ellerbe also seeks leave to proceed in forma pauperis. For

the following reasons, the Court will grant Ellerbe leave to proceed in forma pauperis and

dismiss the Complaint.

I. FACTUAL ALLEGATIONS1

Ellerbe alleges constitutional violations and seeks an investigation as well as declaratory,

injunctive, and mandamus relief against the named Defendants asserting that his filings “are

rejected” and he is being “denied access to the Judicial Council of the Third Circuit, which

means that they are not exercising supervisory authority or they are a part of a conspiracy.”

(Compl. at 4.) He asserts his filings in the United States Court of Appeals for the Third Circuit

are “disregarded and treated as jokes” and that “constitutional rights, fraud and misrepresentation

is an everyday thing in this Courthouse.” (Id.) He believes that court personnel he encounters

1 The factual allegations are taken from Ellerbe’s Complaint (ECF No. 2.) The Court

adopts the pagination supplied by the CM/ECF docketing system.

“do not understand Federal nor State Law or rules of procedure, and they probably do no work

for the Courthouse, their [sic] brought in to perpetrate fraud and misrepresentation.” (Id.) He

complains that “they refuse to follow court rules in the District Court nor the Third Circuit, they

have fraudulent orders printed-up to try and get me to believe that I am not allowed to file

because of Court Orders that actually don’t exist.” (Id.)

Material to these allegations is the fact that Ellerbe is subject to filing restrictions in this

Court that do exist. Those restrictions are a consequence of his repeatedly filing civil actions

concerning vast governmental conspiracies to kidnap and harass him. See Ellerbe v. The U.S.

Government, No. 21-3806 (E.D. Pa.) (imposing prefiling injunction); Ellerbe v. The President of

the U.S., No. 20-211 (E.D. Pa.) (imposing prefiling injunction); see also Ellerbe v. United States

Department of Justice, No. 22-4514, 2022 WL 17177645, at*4 (E.D. Pa. Nov. 23, 2022) (“Like

his numerous other claims, the basis for Ellerbe’s claims . . . again arise from his delusional

assertion that the was kidnapped by government agents.”). Ellerbe has been enjoined from filing

any new proceeding or action raising any claims previously made that he was followed, harassed,

kidnapped, or held captive by governmental agents. Ellerbe, No. 20-211, ECF No. 6. Further,

the Clerk of Court has been directed to refuse to accept any such a pleading from Ellerbe.

Ellerbe, No 21-3806, ECF No. 4. Following the entry of the injunction, the Clerk of Court

repeatedly returned filings to Ellerbe that fell within the scope of the injunction order.

The Court also notes that Ellerbe’s attempts to obtain mandamus and other relief from the

United States Court of Appeals for the Third Circuit have recently been dismissed. See In re

Ellerbe, No. 22-3102, 2023 WL 355687, at *1 (3d Cir. Jan. 23, 2023) (denying writ of

mandamus to compel this Court to proceed on “several actions” that the Clerk of Court returned

to him unfiled and to prevent this Court from frustrating Ellerbe’s ability to obtain appellate

jurisdiction); In re Ellerbe, No. 23-1102 (3d Cir. Feb. 3, 2023) (denying petition for writ of

mandamus against local television station); In re Ellerbe, No. 22-3467 (3d Cir. Feb. 6, 2023)

(dismissing petition for writ of mandamus to compel this Court to proceed on “several actions”).

It is unclear whether these appellate dismissals are the basis for Ellerbe’s claim that the Third

Circuit treats his filings “as jokes.” (Compl. at 4.)

II. STANDARD OF REVIEW

The Court grants Ellerbe leave to proceed in forma pauperis. Accordingly, 28 U.S.C. §

1915(e)(2)(B)(ii) requires the Court to dismiss the Complaint if it fails to state a claim. Whether

a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard

applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher

v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to determine whether

the complaint contains “sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted); Talley v.

Wetzel, 15 F.4th 275, 286 n.7 (3d Cir. 2021). “At this early stage of the litigation,’ ‘[the Court

will] accept the facts alleged in [the pro se] complaint as true,’ ‘draw[] all reasonable inferences

in [the plaintiff’s] favor,’ and ‘ask only whether [that] complaint, liberally construed, . . .

contains facts sufficient to state a plausible [] claim.’” Shorter v. United States, 12 F.4th 366,

374 (3d Cir. 2021) (quoting Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015)).

Conclusory allegations do not suffice. Iqbal, 556 U.S. at 678. As Ellerbe is proceeding pro se,

the Court construes his allegations liberally. Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021)

(citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)).

III. DISCUSSION

Ellerbe names as Defendants the Judicial Council for the Third Circuit and the Circuit

Executive. While Ellerbe names “the Circuit Executive” as a Defendant, he fails to allege any

facts concerning that individual.2 Ellerbe also names the Third Circuit Judicial Council. Again,

he fails to allege any facts concerning an action of the Judicial Council. Ellerbe does not allege

how the Judicial Council or its constituent members violated his constitutional rights.3 He only

alleges in conclusory terms that unknown others denied him access to the Council.4 The claims

2 The Court notes that “the Third Circuit Office of the Circuit Executive provides

administrative support to the Judicial Council of the Third Circuit and its various committees. It

also provides direct services, such as technical support and space and facilities assistance, to all

the judicial court units in the Circuit.” See https://www.ca3.uscourts.gov/circuit-executives-

office (last visited Feb. 10, 2023). Nothing in Ellerbe’s Complaint involves the Circuit

Executive’s role in providing administrative or technical support to the Judicial Council.

3 Notably, “the statute creating the Council requires that all members be federal judges,

and that the judges, in their capacity as Council members, pass judgment on various complaints.”

Overton v. Torruella, 183 F. Supp. 2d 295, 300 (D. Mass. 2001) (holding that the circuit Judicial

Council was empowered to decide complaints of judicial misconduct, which was a form of

adjudication and fell within scope of functions protected by absolute immunity) (citing 28 U.S.C.

§§ 332(a)(1) & 372(c)(6)); see also https://www.ca3.uscourts.gov/judicial-council-third-circuit

(last visited Feb. 10, 2023). Even if Ellerbe had alleged that the Judicial Council’s actions

violated his constitutional rights, acts taken by the Judicial Council are judicial in nature and its

members would be entitled to absolute judicial immunity. Accord Overton, 183 F. Supp. 2d at

305 (“These actions are thus within the ambit of acts taken in a judge’s judicial capacity.”).

Also, as an instrumentality of the United States, the Third Circuit Judicial Council is itself

entitled to sovereign immunity. See Pino v. Vanaskie, No. 05-1516, 2005 WL 2035843, at *3

(M.D. Pa. Aug. 24, 2005) (holding that “the judicial councils of the various circuit courts are

established and governed by 28 U.S.C. § 332, which contains no express waiver of

the judicial councils’ sovereign immunity. As Congress has not authorized suits against the

Third Circuit Judicial Conference or the United States Judicial Conference, Plaintiff’s action

against these entities must be also dismissed.”).

4 Ellerbe’s conclusory allegation that unknown others denied him access to the Judicial

Council fails to state a plausible claim. Iqbal, 556 U.S. at 678 (holding that conclusory

allegations do not suffice to allege a plausible claim). While this allegation may be directed to

other employees of the Third Circuit Clerk’s Office, as the Court has informed Ellerbe in the

past, clerks of court and clerk’s office employees enjoy absolute immunity and quasi-judicial

immunity when performing duties required by statute or at the direction of judicial authority.

against the Circuit Executive and the Judicial Council are subject to dismissal for this reason.5

See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (“A defendant in a civil rights

action must have personal involvement in the alleged wrongs” to be liable.); Dooley v. Wetzel,

957 F.3d 366, 374 (3d Cir. 2020) (“Personal involvement requires particular ‘allegations of

personal direction or of actual knowledge and acquiescence.’” (quoting Rode, 845 F.2d at

1207)). See Iqbal, 556 U.S. at 676 (explaining that “[b]ecause vicarious liability is inapplicable

to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the

official’s own individual actions, has violated the Constitution”).

An appropriate Order follows dismissing this case with prejudice.

BY THE COURT:

/s/ MICHAEL M. BAYLSON

MICHAEL M. BAYLSON, J.

Ellerbe v. U.S. Dist. Ct. for E. Dist. of Pennsylvania, No. 22-4250, 2022 WL 17177481, at *3

(E.D. Pa. Nov. 23, 2022) (holding that, since Ellerbe is the subject of prefiling injunction orders,

the Clerk of Court’s action returning Ellerbe’s pleading was an action pursuant to court directive

for which the Clerk enjoys absolute immunity (citations omitted).)

5 To the extent Ellerbe seeks mandamus relief, that claim must be dismissed for an

additional reason. For a district court to have subject matter jurisdiction to compel the action of

an individual pursuant to the mandamus statute, 28 U.S.C. § 1361, the defendant must be “an

officer or employee of the United States or any agency thereof.” See Semper v. Gomez, 747 F.3d

229, 250-51 (3d Cir. 2014). The United States Court of Appeals for the Third Circuit has

concluded, “in determining whether an individual qualifies as an officer or employee of the

United States or any agency thereof, . . . that Congress, in enacting § 1361 was thinking solely in

terms of the executive branch.” Mendez v. Plaskett, 764 F. App’x 201, 202 (3d Cir. 2019)

(internal citations and quotations omitted). Consequently, courts have held that § 1361 does not

confer subject matter jurisdiction on federal district courts to compel the actions of judges and

judicial employees. See Semper, 747 F.3d at 250-51 (citing Trackwell v. United States

Government, 472 F.3d 1242, 1246 (10th Cir. 2007) (noting that “[f]or a district court to issue a

writ of mandamus against an equal or higher court would be remarkable” and holding that the

Supreme Court is not an “‘agency’ within the meaning of § 1361”)).