Brandon Fake v. Commonwealth of Pennsylvania ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-3912
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BRANDON L. FAKE, father of C. Fake, minor and B. Fake, minor;
C. F., minor; B. F., minor
v.
COMMONWEALTH OF PENNSYLVANIA; PHILADELPHIA COUNTY
COURT OF COMMON PLEAS; DIANE R. THOMPSON, Judge;
ROBERT A. GRACI, Judicial Conduct Board; JUDGE MARGARET T. MURPHY
Brandon L. Fake,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 1-17-cv-02242)
District Judge: Honorable Yvette Kane
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Submitted Pursuant to Third Circuit LAR 34.1(a)
October 1, 2020
Before: AMBRO, GREENAWAY, JR., and PORTER, Circuit Judges
(Opinion filed: December 9, 2020)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Brandon Fake filed a pro se complaint in the United States District Court for the
Middle District of Pennsylvania against the Commonwealth of Pennsylvania, the
Philadelphia Court of Common Pleas, Judge Diane R. Thompson, Judge Margaret T.
Murphy, and Robert A. Graci (the Chief Counsel of the Judicial Conduct Board of
Pennsylvania). He claimed that the defendants conspired to deprive him of his
constitutional rights during child-custody proceedings in the Philadelphia Court of
Common Pleas. The defendants moved to dismiss the complaint pursuant to Rules
12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure. The District Court granted
the motion and dismissed the complaint.1 This Court affirmed. Fake v. Pennsylvania,
758 F. App’x 307, 310 (3d Cir. 2018) (per curiam) (not precedential).
Fake then filed in the District Court a motion for relief from judgment pursuant to
Rules 60(b)(1), (2), (3) and (6) and 60(d)(1) and (3) of the Federal Rules of Civil
Procedure. In essence, Fake argued that the defendants’ attorney, Martha Gale,
committed perjury and fraud in the motion-to-dismiss proceedings in order to “cover up”
and “conceal the ongoing [f]ederal crimes of the [d]efendants in their operation of the
human trafficking enterprise for profit at the expense of the United States Government
and its [c]itizens.” Mot. at 4-5, ECF No. 20. Fake submitted an affidavit and various
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The District Court also denied Fake’s motions for a preliminary injunction, a temporary
restraining order, appointment of counsel, and his motion to strike the defendants’ motion
to dismiss.
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state-court filings in support of the motion. The District Court denied relief. Fake
appeals.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District
Court’s denial of relief under Rules 60(b) and (d) for abuse of discretion. Budget Blinds,
Inc. v. White, 536 F.3d 244, 251 & n.5 (3d Cir. 2008).
We will affirm for substantially the same reasons stated by the District Court. As
the District Court noted, Fake was not entitled to relief under Rule 60(b) because he
could have raised his allegations on appeal. See United States v. Fiorelli, 337 F.3d 282,
288 (3d Cir. 2003). In addition, Fake’s unsupported allegations of fraud were insufficient
to justify an independent action under Rule 60(d)(1), see Jackson v. Danberg, 656 F.3d
157, 166 (3d Cir. 2011) (explaining that the court may relieve a party from a judgment
under Rule 60(d)(1) in order to “prevent a grave miscarriage of justice”), or reopening
under Rule 60(d)(3), see Booker v. Dugger, 825 F.2d 281, 283 (11th Cir. 1987) (stating
that a party seeking relief under Rule 60(d)(3) must establish fraud upon the court “by
clear and convincing evidence”). Lastly, given that Fake failed to provide any basis to
warrant reopening, the District Court acted within its discretion in denying Fake’s request
for appointment of counsel.
We have reviewed Fake’s brief on appeal and conclude that his objections to the
District Court’s order are meritless. Accordingly, we will affirm.
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