# ELLERBE v. JUDICIAL COUNCIL FOR THE THIRD CIRCUIT

> District Court, E.D. Pennsylvania · February 22, 2023

URL: https://www.frixlaw.com/law-library/cases/10404820

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** February 22, 2023
- **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/10404820

## How later opinions describe it (automated extraction)

- 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”
- holding that conclusory allegations do not suffice to allege a plausible claim

## Opinion text

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”)).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10404820. Public record. Not legal advice.