ALD-354                                                                                              NOT PRECEDENTIAL

                                                     UNITED STATES COURT OF APPEALS
                                                          FOR THE THIRD CIRCUIT
                                                               ___________

                                                                            No. 16-1544
                                                                            ___________

                                                                     MOURAD ELLAKKANY,
                                                                                 Appellant

                                                                                  v.

                   THE COMMON PLEAS COURT OF MONTGOMERY COUNTY;
                 THE DISTRICT ATTORNEY OFFICE OF MONTGOMERY COUNTY;
                    MAURINO J. ROSSANESE, JR.; PATRICIA E. COONAHAN;
                   WILLIAM J. FURBER, JR.; JOHN DOES; MICHAEL D. MARINO
                            ____________________________________

                                              On Appeal from the United States District Court
                                                   for the Middle District of Pennsylvania
                                                        (D.C. Civil No. 1-14-cv-00983)
                                              District Judge: Honorable Christopher C. Conner
                                                ____________________________________

                                        Submitted for Possible Summary Action
                                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                                     July 21, 2016
                             Before: AMBRO, SHWARTZ, and NYGAARD, Circuit Judges

                                                                    (Opinion filed: July 27, 2016)
                                                                             _________

                                                                             OPINION*
                                                                             _________

PER CURIAM


                                                                 
*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Appellant Mourad Ellakkany appeals from the district court’s order denying his

motion for a temporary restraining order and preliminary injunction. Because we

conclude that this appeal presents no substantial question, we will grant the Appellees’

Motions to summarily affirm the order. See 3d Cir. LAR 27.4; I.O.P. 10.6.

                                             I.

       Ellakkany, a pro se prisoner, initiated this action by filing a Complaint alleging

that multiple defendants affiliated with the Court of Common Pleas of Montgomery

County violated various provisions of the Racketeer Influenced and Corrupt

Organizations Act (“RICO”) by engaging in a conspiracy that caused Ellakkany to be

subjected to peonage and imprisonment. Ellakkany named the following parties in the

Complaint: (1) the Court of Common Pleas of Montgomery County; (2) the District

Attorney’s Office of Montgomery County; (3) Judge Maurino J. Rossanese, Jr.; (4)

Michael D. Marino, former Montgomery County District Attorney; (5) President Judge

William J. Furber, Jr.; and (6) Patricia E. Coonahan, former Montgomery County

Assistant District Attorney and current Judge.

       Ellakkany’s Complaint involves three charges that he alleges were to be nolle

prossed. Ellakkany maintains that Marino and Judge Rossanese arbitrarily entered a

guilty plea and an additional consecutive 7.5-15 years sentence based on those charges

without a trial and without notification to Ellakkany. Ellakkany alleges that originally he

was sentenced to 7.5 to 15 years on three other charges and that, at some subsequent


                                             2 
 
point, Judge Rossanese and Marino “cancelled and expunged” the sentences and

convictions associated with those other charges. Ellakkany further alleges that, at this

point, Judge Rossanese and Marino improperly substituted the nolle prossed charges to

fill the void left by the other expunged charges. Ellakkany alleges that when he sought to

remedy this, Coonahan and Judge Rossanese violated provisions of RICO by using the

U.S. Postal Service to send to him, and to various courts, fraudulent documentation.

               On March 6, 2008, a hearing was conducted in front of Judge Rossanese.

Allegedly, despite an acknowledgement by Coonahan and Judge Rossanese that the three

charges had indeed been nolle prossed and were eligible for expungement, Judge

Rossanese issued an order “conceal[ing] the actual facts” of the case and denying

expungement. This order was mailed to Ellakkany. According to Ellakkany, he appealed

this denial to the Superior Court and, in May 2009, Coonahan used the U.S. Postal

Service to send a brief to the Superior Court denying that the charges had ever been nolle

prossed. The appeal was denied. Accordingly, Ellakkany filed the instant Complaint,

alleging that he had been wrongfully imprisoned and subjected to peonage.1

               The District Court denied Ellakkany’s “Motion for Temporary Restraining Order

and Preliminary Injunction Without Written Notice and Hearing – RICO and Peonage”

(“Motion”) because he could not meet the requirements for injunctive relief. Ellakkany


                                                                 
1
 Ellakkany alleged five counts in his complaint as follows: (1) RICO violations; (2)
conspiracy to violate RICO; (3) involuntary servitude Thirteenth Amendment violations;
(4) human trafficking violations; and (5) uncompensated labor violations. Ellakkany
sought injunctive, declaratory, and monetary relief, including immediate release from
prison.
                                                                    3 
 
appeals and has filed a Motion to Expedite his appeal. The Appellees have filed Motions

for Summary Affirmance.

                                                                    II.

               We have jurisdiction under 28 U.S.C. § 1292(a)(1). “In reviewing [a] district

court’s order denying [a] motion for a preliminary injunction,2 ‘[w]e review [its]

conclusions of law in plenary fashion, its findings of fact under a clearly erroneous

standard, and its decision to grant or deny the injunction for an abuse of discretion.’”3

N.J. Hosp. Ass’n v. Waldman, 73 F.3d 509, 512 (3d Cir. 1995) (quoting AT&T v.

Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994)). Those

standards are employed in judging the following factors: “(1) the likelihood that the

plaintiff will prevail on the merits at the final hearing; (2) the extent to which the plaintiff

is being irreparably harmed by the conduct complained of; (3) the extent to which the

defendant will suffer irreparable harm if the preliminary injunction is issued; and (4) the
                                                                 
2
  The denial of a temporary restraining order is generally not an appealable order,
Richardson v. Kennedy, 418 F.2d 235, 235 (3d Cir. 1969), unless the TRO “decides the
merits of the case or is equivalent to a dismissal of the claim,” Page v. Bartels, 248 F.3d
175, 185-86 (3d Cir. 2001), which is not the case here. Therefore, to the extent
Ellakkany’s Motion seeks a TRO, we do not consider that claim on appeal. We do find it
to be a fair reading of the Complaint, Motion and Notice of Appeal that Ellakkany is
appealing the denial of the preliminary injunction, and we have the jurisdiction to review
the denial of such.
3
  Our review of the district court’s decision is limited. We must affirm unless, in denying
the motion, “‘there has been an abuse of discretion, an error of law, or a clear mistake in
the consideration of the proof.’” Frank’s GMC Truck Ctr., Inc. v. Gen. Motors Corp.,
847 F.2d 100, 101 (3d Cir. 1988) (quoting Moteles v. Univ. of Pa., 730 F.2d 913, 918 (3d
Cir. 1984)). The scope of our review is narrow because “‘the grant or denial of a
preliminary injunction is almost always based on an abbreviated set of facts, requiring a
delicate balancing [that] is the responsibility of the district judge.’” Frank’s GMC Truck
Ctr., 847 F.2d at 101–02 (alteration in original) (quoting U.S. Steel Corp. v. Fraternal
Ass’n of Steelhaulers, 431 F.2d 1046, 1048 (3d Cir. 1970)).
                                                                    4 
 
public interest.” AT&T, 42 F.3d at 1427. An injunction is an “extraordinary remedy”

that should be granted only in “limited circumstances.” Id. at 1426-27 (internal

quotations omitted).

       Here, the District Court properly concluded that Ellakkany does not have a

likelihood of success on the merits of his claims. The Eleventh Amendment bars suit

against the Montgomery County Court of Common Pleas because it is a state entity. See

Laskaris v. Thornburgh, 661 F.2d 23, 25-26 (3d Cir. 1981); Pa. Const. art. 5, § 1 (1992)

(creating unified state judicial system); Callahan v. City of Philadelphia, 207 F.3d 668,

672 (3d Cir. 2000) (“All courts and agencies of the unified judicial system . . . are part of

‘Commonwealth government’ and thus are state rather than local agencies.”). The

District Attorney’s Office of Montgomery County is unlikely to survive as a defendant

because the department would not be considered separate from the municipality itself

(which is not named as a party to this lawsuit). See, e.g., Reitz v. County of Bucks, 125

F.3d 139, 144-45 (3d Cir. 1997). Next, as the District Court aptly concluded, prosecutors

Marino and Coonahan are likely absolutely immune from suit. See, e.g., Imbler v.

Pachtman, 424 U.S. 409, 430 (1976).

       Finally, the District Court properly determined that judicial immunity bars

Ellakkany’s claims against Judges Rossanese and Furber. A judicial officer in the

performance of his duties has absolute immunity from suit and will not be liable for his

judicial acts. Mireles v. Waco, 502 U.S. 9, 12 (1991). “A judge will not be deprived of

immunity because the action he took was in error, was done maliciously, or was in excess

of his authority; rather, he will be subject to liability only when he has acted in the clear

                                               5 
 
absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 356–57 (1978) (citation

omitted). All of the allegations in Ellakkany’s Complaint and Motion, and the injunctive

relief sought therein, relate to actions taken by Judges Rossanese and Furber in their

capacity as judges. Ellakkany has not set forth any facts that would show that the judges’

actions were taken in clear absence of their jurisdiction. See also Azubuko v. Royal, 443

F.3d 302, 303 (3d Cir. 2006) (per curiam).4

               Because we believe that the District Court did not abuse its discretion in holding

that Ellakkany had failed to show a likelihood of success on the merits, our analysis ends

and we need not consider Ellakkany’s likelihood of prevailing on the remaining elements

required for a preliminary injunction to issue. Accordingly, we grant the Appellees’

Motions for Summary Affirmance and will affirm the District Court’s order. See 3d Cir.

LAR 27.4; 3d Cir. I.O.P. 10.6. Due to the disposition of this appeal, Ellakkany’s Motion

to Expedite is denied. 




                                                                 
4
  The Appellees correctly contend that Ellakkany’s request for immediate release from
prison is cognizable only in an action for habeas corpus. See Preiser v. Rodriguez, 411
U.S. 475, 500 (1973) (“[W]hen a state prisoner is challenging the very fact or duration of
his physical imprisonment, and the relief he seeks is a determination that he is entitled to
immediate release or a speedier release from that imprisonment, his sole federal remedy
is a writ of habeas corpus.”); Brown v. Fauver, 819 F.2d 395, 397 (3d Cir. 1987) (same).
To the extent that such is the basis of Ellakkanny’s request for injunctive relief, we also
reject it on that ground. As Ellakkany indicates, however, his Complaint contains other
claims not dependent upon the duration of his imprisonment.
                                                                    6 
 
