Pilchesky v. Office of the Attorney General of PA et al

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH PILCHESKY,
Plaintiff,
v.
OFFICE OF ATTORNEY
GENERAL OF PA, et al.,
Defendants.
: 	NO. 1:24-CV-02258
:
: 	(SAPORITO, D.J.)
:
: 	(CAMONI, M.J.)
:
:
:
REPORT AND RECOMMENDATION
Pending before the Court are Defendants Office of the Attorney
General 	of 	Pennsylvania 	(OAG), 	Attorney 	General 	Michelle 	Henry,
Deputy Attorney General Philip McCarthy, and Senior Deputy Attorney
General Cari Mahler (OAG Defendants), and Deputy Attorney General
Jacob 	Frasch’s 	motions 	to 	dismiss 	(docs. 	10, 	25) 	Plaintiff 	Joseph
Pilchesky’s Amended Complaint (doc. 9). The undersigned respectfully
recommends that the Court grant the Defendants’ motions to dismiss.
I. 	BACKGROUND 1
The relevant factual allegations are few and far between.
1 In considering this motion to dismiss, the Court accepts all factual
allegations in the Amended Complaint as true. See Phillips v. County of
Allegheny, 515 F.3d 224, 228 (3d Cir. 2008).
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Although 	the 	Amended 	Complaint 	spans 	seventy-seven 	pages,
containing 249 numbered paragraphs plus ten pages of self-aggrandizing
background dating back over twenty years, most of the document is
irrelevant to the Plaintiff’s claims. 2 The undersigned, thus, only briefly
summarizes the salient factual background.
A. 	Factual background
As alleged, beginning in 2013, Pilchesky was charged, convicted,
and sentenced in Pennsylvania state court for the unauthorized practice
of law. Doc. 9 ¶¶ 1, 15, 17. For over a decade, Pilchesky tried to appeal
his 	conviction 	through 	the 	state 	appeals 	and 	post-conviction 	relief
channels. See id. at 6; id. ¶¶ 25, 38. All attempts at appeals have failed.
Id. ¶¶ 25, 38.
Throughout these proceedings, Pilchesky faced the Defendants, the
OAG and its employees, as adversaries. Id. at 6. At the trial court,
McCarthy represented the state. 	Id. 	¶ 47. Mahler took over as the
2 The Amended Complaint is entirely too long, too rambling, and too
disorganized to satisfy pleading standards. Indeed, “the needless factual
detail and the verbose nature of the Plaintiff’s complaint are unfairly
burdensome to [the] Defendants.” Untracht v. Fikri, 368 F. Supp. 2d 409,
414 (W.D. Pa. 2005).
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appellate attorney. Id. ¶¶ 122-23. Finally, Frasch represented the OAG
when Pilchesky brought a prior civil action in federal court against the
OAG Defendants. See id. ¶¶ 179, 182-83. Pilchesky does not allege that
Henry had any personal involvement in his criminal case or appeal. See
id. ¶¶ 154-174.
Pilchesky alleges that: (1) McCarthy filed various legal documents,
id. 	¶¶ 53-54, 	58, 	61; 	(2) 	McCarthy 	communicated 	with 	Pilchesky’s
defense counsel and Mahler, id. ¶¶ 59-62, 97; (3) McCarthy, Mahler, and
Henry could have conceded to Pilchesky’s legal argument but did not,
ignoring opportunities to “right [their] wrongs,” id. ¶¶ 66, 74-75, 94-95,
106, 127-128, 132-135, 168-170; and (4) Frasch filed briefs containing
“false statement [sic] and bogus legal conclusions.” Id. ¶ 188.3
3 	In 	between 	the 	sparse 	factual 	allegations, 	Pilchesky 	peppers 	in
irrelevant statements about the inordinate number of court cases he has
filed in Lackawanna County (doc. 9 at 6), his dissatisfaction with his trial
level defense counsel (id. ¶ 63), a Dell computer that his ex-wife stole (id.
¶ 90), his political activities and the various website domains he owned
(id. ¶¶ 80, 107), and his belief that “no one is licensed to practice law in
Pennsylvania” (id. ¶ 196).
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B. 	Procedural history
On December 30, 2024, Pilchesky filed a complaint against the
defendants. Doc. 1. After the OAG Defendants moved to dismiss (doc. 7),
Pilchesky filed the Amended Complaint as a matter of course. Doc. 9.
In 	the 	Amended 	Complaint, 	Pilchesky 	recites 	seven 	causes 	of
action: (1) First Amendment retaliation; (2) selective prosecution under
the First and Fourteenth Amendments; (3) Fourteenth Amendment due
process; (4) First Amendment invasion of privacy; (5) violation of Equal
Protection; (6) Fourth Amendment unlawful search and seizure; and (7)
conspiracy. Id. ¶¶ 225-248. Pilchesky requests that the Court declare
that 	the 	defendants 	violated 	his 	constitutional 	rights, 	enjoin 	the
defendants from charging or prosecuting him “ever again,” and award
him damages. Id. ¶ 249(a)–(f).
The OAG Defendants and Frasch moved to dismiss. Docs. 10, 25.
All parties have had the opportunity to brief the issues, and the time for
filing briefs has passed, so all motions are ripe for resolution.
II. 	LEGAL STANDARD
The Federal Rules of Civil Procedure require “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed.
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R. Civ. P. 8(a)(2). On a Rule 12(b)(6) motion to dismiss, “a plaintiff’s
obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citation modified).
A 	district 	court 	must 	conduct 	a 	three-step 	analysis 	when
considering the sufficiency of a complaint under Rule 12(b)(6). Malleus v.
George, 641 F.3d 560, 563 (3d Cir. 2011). First, the court must identify
“the elements a plaintiff must plead to state a claim.” Ashcroft v. Iqbal,
556 U.S. 662, 675 (2009). Second, the court must identify all of the
plaintiff’s well-pleaded factual allegations, accept them as true, and
“construe the complaint in the light most favorable to the plaintiff.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The court
can discard bare legal conclusions or factually unsupported accusations
that merely state the defendant unlawfully harmed the plaintiff. Iqbal,
556 U.S. at 678, citing Twombly, 550 U.S. at 555. Third, the court must
determine whether “the facts alleged in the complaint are sufficient to
show that the plaintiff has a ‘plausible claim for relief.’” Fowler, 578 F.3d
at 211, quoting Iqbal, 556 U.S. at 679. A facially plausible claim “allows
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the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. at 210, quoting Iqbal, 556 U.S. at 678. On a
Rule 12(b)(6) motion, the “defendant bears the burden of showing that no
claim has been presented.” Hedges v. United States, 404 F.3d 744, 750
(3d Cir. 2005).
A complaint filed by a pro se litigant is to be liberally construed and
‘“however inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.’” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting 	Estelle v. Gamble, 	429 U.S. 97, 106 (1976)).
Nevertheless, “pro se litigants still must allege sufficient facts in their
complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d
239, 245 (3d Cir. 2013). Thus, a well-pleaded complaint must contain
more than mere legal labels and conclusions. Even a pro se complaint
must recite factual allegations that are enough to raise the Plaintiff’s
claimed right to relief beyond the level of mere speculation.
III. 	ANALYSIS
The defendants’ motions to dismiss should be granted because the
OAG is entitled to sovereign immunity, the individual OAG Defendants
are entitled to prosecutorial immunity, and Pilchesky fails to allege a
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sufficient claim of fraud upon the court against Frasch. The undersigned
begins with the non-merits, immunity issues.
A. 	The OAG Defendants’ Motion to Dismiss
The OAG Defendants argue that: (1) the OAG is a state agency
entitled to sovereign immunity; (2) the individual OAG Defendants are
entitled to prosecutorial immunity; and (3) Henry, as supervisor of the
individual OAG Defendants, was not personally involved in Pilchesky’s
alleged constitutional violations. OAG Defs.’ Br., doc. 11 at 6-7.
1. 	The OAG is entitled to Sovereign Immunity.
It is well-established that state governments and their subsidiary
units 	are 	immune 	from 	suit 	in 	federal 	court 	under 	the 	Eleventh
Amendment. Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 253 (3d
Cir. 2010). Thus, under § 1983, “neither a State nor its officials acting in
their official capacities are ‘persons,’” subject to a lawsuit for damages.
Hafer v. Melo, 502 U.S. 21, 26 (1991), quoting Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989). This is because the “Eleventh Amendment
has long been interpreted to prohibit,” “a suit brought by a citizen against
his own state.” Lavia v. Pa. Dep’t of Corr., 224 F.3d 190, 195 (3d Cir.
2000).
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Here, Pilchesky sues the OAG, which “share[s] in the immunity
conferred to the States by the Eleventh Amendment.” Addlespurger v.
Corbett, 461 F. App’x 82, 86 (3d Cir. 2012) (affirming dismissal of claims
against Pennsylvania Office of Attorney General based on sovereign
immunity). Because the OAG is a state agency, it is entitled to sovereign
immunity and must be dismissed from this action. See Malcomb v. Beaver
County, 616 F. App’x 44, 45 (3d Cir. 2015) (granting the Attorney
General’s Office’s motion to dismiss because they are immune from
§ 1983 claims under the Eleventh Amendment). 4
2. 	The 	individual 	OAG 	Defendants 	are 	entitled 	to
prosecutorial immunity.
The doctrine of prosecutorial immunity 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 	a
4 As the OAG Defendants’ correctly point out, doc. 11 at 5, to the extent
Pilchesky sues McCarthy, Mahler, and Henry in their official capacities,
those claims are equally barred under the Eleventh Amendment. See
Hafer, 502 U.S. at 26.
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prosecution and in presenting the State’s case” is absolutely immune
from civil suit for damages under § 1983. Imbler, 424 U.S. at 427.
To establish prosecutorial immunity, a defendant “must show that
the conduct triggering absolute immunity clearly appears on the face of
the complaint.” Roberts v. Lau, 90 F.4th 618, 631 (3d Cir. 2024). “[T]hat
burden is uniquely heavy” at the motion to dismiss stage “because . . . ‘it
is 	the 	[prosecutor’s] 	conduct 	as 	alleged 	in 	the 	complaint 	that 	is
scrutinized.” Id., quoting Fogle v. Sokol, 957 F.3d 148, 160 (3d Cir. 2020).
As alleged on the face of the Amended Complaint, Pilchesky’s allegations
against McCarthy and Mahler show that their conduct triggers absolute
immunity.
First, Pilchesky alleges that McCarthy filed documents with the
court. See doc. 9 ¶¶ 53-54 (filing an opposition brief); id. ¶ 58 (filing an
appeal); id. ¶ 61 (filing a reply brief). Filing documents with the court as
a prosecutor undoubtedly triggers absolute immunity because it is “a
plainly prosecutorial act like filing a bill of information.” Odd v. Malone,
538 F.3d 202, 212 (3d Cir. 2008) (“[T]he fact that some administrative
acts necessarily accompany nearly all prosecutorial acts should not strip
prosecutors of immunity.”).
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Likewise, 	communications 	with 	attorneys 	involved 	in 	the
prosecution are protected under prosecutorial immunity. Doc. 9 ¶¶ 59-62,
97. McCarthy’s communications with defense counsel and the designated
appellate counsel are considered “participation in court proceedings and
other conduct intimately associated with the judicial phases of litigation”
and are “actions performed in quasi-judicial role.” Light v. Haws, 472
F.3d 74, 77 (3d Cir. 2007), quoting Carter v. City of Philadelphia, 181
F.3d 339, 356 (3d Cir. 1999).
Second, Pilchesky alleges that Mahler appeared at oral argument
and made legal arguments. See doc. 9 ¶ 129. Making an appearance at
oral argument and presenting the state’s case is, again, conduct clearly
within the scope of a prosecutor’s duties. See Buckley v. Fitzsimmons, 509
U.S. 259, 273 (1993) (“[A]cts undertaken by a prosecutor . . . which occur
in the course of his role as an advocate for the State, are entitled to the
protections of absolute immunity.”). Accordingly, the undersigned finds
that McCarthy and Mahler are entitled to prosecutorial immunity and
should be dismissed from this action.
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3. 	Pilchesky fails to allege Henry’s personal involvement
Section 1983 “liability cannot be predicated solely on the operation
of respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir. 1988) (citation omitted). “It is, of course, well established that a
defendant 	in 	a 	civil 	rights 	case 	cannot 	be 	held 	responsible 	for 	a
constitutional violation which he or she neither participated in nor
approved.” C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 201 (3d Cir. 2000).
Here, Pilchesky fails to allege Henry’s personal involvement in any
alleged constitutional violations. Pilchesky’s allegations against Henry
are conclusory, consisting of unsupported grievances about how Henry
failed to follow the OAG’s mission statement or that she failed to properly
train or supervise McCarthy or Mahler. Doc. 9 ¶¶ 154-174. The Court
should discard these bare legal conclusions and factually unsupported
accusations that merely state Henry unlawfully harmed Pilchesky. See
Iqbal, 	556 	U.S. 	at 	678, 	citing 	Twombly, 	550 	U.S. 	at 	555. 	Because
Pilchesky “failed to allege any personal involvement in the purported
violation of his rights,” the Court should dismiss his claims against
former Attorney General Henry in her individual capacity. Addlespurger,
461 F. App’x at 86.
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B. 	Frasch’s Motion to Dismiss
Turning to Frasch’s motion to dismiss, the undersigned finds that
Pilchesky fails to state a plausible fraud on the court claim.
Frasch argues that Pilchesky fails to state a claim because his claim
rests on Frasch making “false statements” and presenting “bogus legal
conclusions” during Pilchesky’s prior federal civil action. Frasch’s Br.,
doc. 26 at 6. Specifically, Frasch contends that these allegations amount
to no more than mere disagreements with the outcome of the prior
proceeding. Id. at 6-7. Frasch is correct.
To state a claim of fraud upon the court, a plaintiff must allege: “(1)
an intentional fraud; (2) by an officer of the court; (3) which is directed at
the court itself; and (4) that in fact deceives the court.” Herring v. United
States, 424 F.3d 384, 390 (3d Cir. 2005). Fraud on the court must
constitute “egregious misconduct . . . such as bribery of a judge or jury or
fabrication of evidence by counsel.” Id. (citation omitted).
Here, the factual allegations are insufficient to raise a plausible
claim of fraud upon the court. Pilchesky merely alleges that Frasch made
false statements in his brief supporting a motion to dismiss. Doc. 9.
¶¶ 189-191. Critically, Pilchesky fails to allege an intentional fraud or
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that Frasch’s statements in fact deceived the court. In reality, Pilchesky
alleges only that the “Rooker-Feldman argument,” a legal argument, not
a factual statement, advanced by Frasch in previous litigation was
“bogus.” Id. ¶¶ 190-191. Pilchesky fails to allege how any part of Frasch’s
filing were indeed false and concedes that two federal judges agreed with
Frasch’s 	“bogus” 	argument. 	Doc. 	31 	at 	3 	(arguing 	Frasch’s 	“bogus”
arguments “persuaded Magistrate Judge Arbuckle to recommend that
Judge Saporito should dismiss Pilchesky’s” complaint, which he did).
Pilchesky’s claims against Frasch are merely an attempt to relitigate his
previous losses in the guise of a new claim. These are arguments that
should have been made before the Court of Appeals, if at all.
Here, 	Pilchesky 	fails 	to 	allege 	Frasch 	made 	any 	false 	factual
statements, but even “proof of perjury is not enough to establish fraud
upon the court.” Herring, 424 F.3d 391. Legal arguments with which the
losing party disagrees, which are all Pilchesky alleges here, are wholly
insufficient. Patra v. Pa. State Sys. of Higher Educ., No. 14-2265, 2017
WL 1021711, at *4 (M.D. Pa. Mar. 16, 2017) (finding assertions that
filings were “not factually correct” and other claimed inconsistences that
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amounted to mistake or inadvertence fall well short of the high standard
for fraud upon the Court).
Accordingly, the undersigned finds that Pilchesky has failed to
state a plausible fraud upon the court claim.
C. 	Injunctive Relief
Pilchesky asks this Court to affirm that the defendants violated his
constitutional rights and enjoin them from charging or prosecuting him
“ever again.” Doc. 9 ¶ 249(b). The Court cannot grant such relief.
“Declaratory judgment is not meant to adjudicate alleged past
unlawful activity.” Wenzig v. Serv. Empls. Int’l Union Local 668, 426 F.
Supp. 3d 88, 100 (M.D. Pa. 2019). Purely speculative violations that are
“not ongoing at the time that [Pilchesky] filed the complaint,” cannot be
granted. See Blankeney v. Marsico, 340 F. App’x 778, 780 (3d Cir. 2009).
Pilchesky alleges no facts to indicate any continuing prosecution or even
a theoretical possibility of one. And a “theoretical possibility . . . is not
enough,” to grant injunctive relief. See Hamilton v. Bromley, 862 F.3d
329, 336 (3d Cir. 2017). As “nothing is alleged to indicate a likelihood that
the prosecutor will predicate a second prosecution upon the matter here
in suit,” Carter v. Chief of Police, 437 F.2d 413, 415 (3d Cir. 1971), the
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Court should not grant injunctive relief. As such, Pilchesky’s requests for
such relief should also be dismissed.
IV. 	LEAVE TO AMEND
The Third Circuit instructs this Court to grant leave to amend when
a pro se plaintiff has filed a complaint subject to dismissal under Rule
12(b)(6), unless amendment would be inequitable or futile. Mullin v.
Balicki, 875 F.3d 140, 151 (3d Cir. 2017); Grayson v. Mayview State
Hosp., 293 F.3d 103, 114 (3d Cir. 2002). Pilchesky is a pro se litigant who
has had numerous opportunities to bring a plausible claim against the
defendants in state and federal courts, 5 and twice in this action. He has
5 Indeed, Pilchesky previously sued Henry and the OAG in case No.
3:24-cv-45-JFS, 	in 	which 	Frasch 	represented 	the 	defendants. 	That
complaint was dismissed, and, according to Pilchesky’s complaint, that
loss led directly to this action. Pilchesky is a self-admittedly prolific pro
se 	litigant, having filed or unsuccessfully attempted to intervene in
nearly a dozen federal cases over the years, and boasts of having filed 270
county suits and 50 appeals. Doc. 9 at 6. Given the frequency with which
Pilchesky wastes the time and resources of this and other Courts and the
unfortunate defendants he targets, and considering that even a criminal
conviction for the unlicensed practice of law has not dissuaded him from
frivolous 	litigation, 	the 	Court 	should 	strongly 	consider 	ordering
Pilchesky to show cause why he should not be enjoined from filing future
lawsuits. “A district court may enter a filing injunction if (1) the litigant
has been continuously abusing ‘the judicial process by filing meritless
and repetitive actions,’ (2) the court provides notice to the litigant, and
(3) the injunction is ‘narrowly tailored to fit the circumstances of the case
before the District Court.’ ” Mina v. United States Dist. Ct., 710 F. App’x
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continued to fail to do so and has unfairly burdened the Defendants with
frivolous allegations. For the reasons explained here, it would be futile to
permit 	Pilchesky 	to 	amend 	once 	more. 	The 	undersigned, 	therefore,
respectfully recommends that the Court dismiss the Amended Complaint
with prejudice.
V. 	RECOMMENDATION
Based on the foregoing, it is respectfully recommended that:
(1) 	The 	OAG 	Defendants’ 	motion 	to 	dismiss, 	doc. 	10, 	be
GRANTED;
(2) 	Frasch’s motion to dismiss, doc. 25, be GRANTED;
(3) 	The Amended Complaint, doc. 9, be dismissed with prejudice;
and
(4) 	The Clerk of Court be directed to close this case.
515, 518 (3d Cir. 2017), citing Brow v. Farrelly, 994 F.2d 1027, 1038 (3d
Cir. 1993). At the very least, Pilchesky should consider himself on notice
that, should he continue to file frivolous and abusive suits, he may be
enjoined from filing without prior approval of the Court, and may be
subject to sanctions under Rule 11. See Allbaugh v. Univ. of Scranton,
No. 24-2237, 2025 U.S. Dist. LEXIS 167299, at *14 (M.D. Pa. Aug. 28,
2025) (“pro se parties may be sanctioned if their actions are objectively
unreasonable;” collecting cases).
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The parties are further placed on notice that pursuant to Local Rule 72.3:
Any 	party 	may 	object 	to 	a 	magistrate 	judge’s 	proposed
findings, recommendations or report addressing a motion or matter
described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation
for the disposition of a prisoner case or a habeas corpus petition
within fourteen (14) days after being served with a copy thereof.
Such party shall file with the clerk of court, and serve on the
magistrate judge and all parties, written objections which shall
specifically 	identify 	the 	portions 	of 	the 	proposed 	findings,
recommendations or report to which objection is made and the basis
for such objections. The briefing requirements set forth in Local
Rule 72.2 shall apply. A judge shall make a de novo determination
of those portions of the report or specified proposed findings or
recommendations to which objection is made and may accept,
reject, 	or 	modify, 	in 	whole 	or 	in 	part, 	the 	findings 	or
recommendations 	made 	by 	the 	magistrate 	judge. 	The 	judge,
however, need conduct a new hearing only in his or her discretion
or where required by law, and may consider the record developed
before the magistrate judge, making his or her own determination
on the basis of that record. The judge may also receive further
evidence, 	recall 	witnesses, 	or 	recommit 	the 	matter 	to 	the
magistrate judge with instructions.
Date: February 12, 2026 	s/Sean A. Camoni
Sean A. Camoni
United States Magistrate Judge
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