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Kovalev v. City of Philadelphia

April 29, 2009


The opinion of the court was delivered by: Robert F. Kelly, Sr. J.


Presently before the Court is a Motion for Summary Judgment filed by Defendants, the City of Philadelphia ("the City"), and several City officials and employees*fn1 against Plaintiff, Sergei Kovalev ("Kovalev"). For the reasons set forth below, the Motion will be granted with regard to all causes of actions.


On November 28, 2007, Kovalev filed a pro se Complaint against the City and several City officials in their official capacities, alleging that these City employees intentionally violated his constitutional and federal statutory rights pursuant to 42 U.S.C. §§ 1981-85, and committed numerous tortious acts upon him. Kovalev filed an Amended Complaint on December 3, 2007, and added City employee, Stacey Jones-Culbreth ("Jones-Culbreth").

Kovalev lives at 5305 Oxford Avenue in Philadelphia, Pennsylvania. On April 29, 2005, Kovalev organized the Centurion Gateway Corporation under the laws of the Commonwealth of Pennsylvania. Kovalev claims that the corporation was formed for the sole purpose of holding Kovalev's property at this address. It conducts no business activity, has no shareholders, and has no assets.*fn2 On October 6, 2006, Jones-Culbreth issued a notice of violation against Kovalev's property on the grounds that she could not gain admittance to the property to conduct an inspection, as required by the City Code of Ordinances. Kovalev contends that his property is not subject to inspection by the Business Compliance Unit because he conducts no business on the premises. As such, he asserts that the Business Compliance Unit, in attempting to inspect his property, attempted an illegal search of his residence, in violation of the Fourth Amendment. He further contends that the City attempted these inspections because his property is located twenty feet from State Senator Christine Tartaglione's office. Kovalev asserts that Senator Tartaglione sought to use the City, through her familial relation to several City employees, to find out what was occurring inside Kovalev's residence,*fn3 and to ultimately reduce the value of his property. Kovalev states that he appealed this violation to the Board of Licenses and Review ("the Board") on February 12, 2007, and that they simply "rubber-stamped" the violation decision. He added that they ignored his arguments and refused to listen to him. Kovalev claims that the Board discriminated against him and refused to consider his arguments because he is a foreign-born United States citizen of Eastern European origin.*fn4 (Compl. ¶ 86-88.)

On June 1, 2007, the DL & I issued a second notice of violation against the property for Kovalev's failure to obtain a building permit prior to erecting a 162 square-foot structure in the rear of his home. Kovalev maintains that the structure did not require a permit pursuant to the City Code, and he was preparing his building for his own charitable church activities. After receipt of the violation, Kovalev met with Terrence Dillon ("Dillon"), a supervisor at DL & I, and was told that the structure was an "addition" and required a permit. Kovalev avers that he was willing to obtain the required permits for this structure, and he prepared plans and applied for the permits on June 8, 2007. After approximately two months, Kovalev learned from Joseph Flanagan ("Flanagan"), a Construction Compliance Supervisor with the DL & I, that Flanagan was unable to understand the plans and did not understand what Kovalev had built. On August 13, 2007, Flanagan informed Kovalev that he had looked at the application but would likely not be able to issue any permits because the plans were so confusing. Flanagan then requested that Kovalev submit drawings prepared by a licensed professional so that he could process the application. Kovalev avers that there was nothing confusing about the plans, and that Flanagan intentionally required additional plans and delayed the issuance of his permits for the sole purpose of harassing Kovalev and inflicting emotional distress upon him.*fn5 He additionally claims that the City continually denied his application with no reasonable justification so that it could collect the violation costs for its own financial gain.

On November 5, 2007, Kovalev wrote letters to the former mayor of Philadelphia, John Street, and to the Commissioner of the DL & I, Robert Solvible, describing the alleged abuses he endured in trying to obtain the permits. Kovalev stated that four days after the submission of the letters, the City, through its attorney, Angel L. Franqui, Jr., Esq., filed two Complaints in Philadelphia Municipal Court claiming that Kovalev's corporation failed to file and pay the City's business privilege tax from 1997 through April 16, 2005. Kovalev argues that the allegations in these Complaints were completely false, and that the action was filed in retaliation for the letters he sent to the mayor and commissioner disclosing the City's violations and abuses. These actions were later dismissed, but Kovalev claims that they are clear evidence of a conspiracy against him for revealing corruption and violations in the City departments. (Pl.'s Resp. Mot. Summ. J. at 19.)

Kovalev also states that, on February 14, 2008, almost eight months after he filed an application for permits, he received a letter from Flanagan denying his application. Kovalev claims all the refusal reasons given by Flanagan in the denial were "false and completely fabricated by him in an attempt to cover up his illegal activities in the capacity as one of the supervisors for the City." (Pl.'s Resp. Mot. Summ. J. at 19.)

On February 15, 2008, the City filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) asserting that Kovalev had failed to state a claim under § 1983, and that his tort claims were barred by Pennsylvania's Political Subdivision Tort Claims Act. In a Memorandum and Order dated March 25, 2008, this Court granted the Motion in part and denied it in part. Kovalev v. City of Philadelphia, No. 07- 4875, 2008 WL 783564, at *2-3 (E.D. Pa. Mar. 25, 2008). The Motion to Dismiss was granted with respect to Kovalev's claims for harassment, intentional infliction of emotional distress, and abuse of process, and denied with respect to his claim pursuant to § 1983. It was also ordered that Kovalev's Motion for Allowance and Joinder of Defendants was denied as his claims against City officials in their official capacities were duplicative of his claims against the City itself.

On April 28, 2008, this Court entered a Scheduling Order, setting a discovery deadline of July 31, 2008, and a Motions' deadline of August 18, 2008. Kovalev filed a total of six Motions in May, June, and July 2008.*fn6 The City, however, only timely responded to Kovalev's Motion to Compel Defendants to Produce Requested Documents (Second Set) on August 18, 2008. Instead of filing timely responses to Kovalev's five outstanding Motions, the City ignored these Motions and filed a Motion for Summary Judgment on August 19, 2008.*fn7 We contacted the attorney handling this case for the City and inquired whether the City intended to file answers to the outstanding motions. We were informed that the City would promptly file such. However, responses were not filed, and we scheduled oral argument on the Motions on October 21, 2008. At this hearing, the City was ordered to file responses to all of the outstanding Motions. The City, subsequently, did file such responses.

Several of these Motions were granted in part and denied in part. Kovalev was permitted to conduct some additional discovery, and to amend his Complaint to add causes of action under the Religious Land Use and Institutionalized Persons Act (42 U.S.C. §§ 2000cc-1, et seq.), and the First Amendment. He was also permitted to add Dillon, Flanagan, Franqui, and John Doe/Jane Doe in their individual capacities. Kovalev subsequently filed a Second Amended Complaint reasserting his claims under 42 U.S.C. §§ 1981, 1983, and 1985, and added a cause of action under the First Amendment.*fn8 Defendants assert that summary judgment should be entered in favor of them on all causes of action.


Federal Rule of Civil Procedure 56(c) states that summary judgment is proper "if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." See Hines v. Consol. Rail Corp., 926 F.2d 262, 267 (3d Cir. 1991). The Court asks "whether the evidence presents a sufficient disagreement to require submission to the jury or whether . . . one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The moving party has the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A fact is material if it could affect the outcome of the suit after applying the substantive law. Further, a dispute over a material fact must be 'genuine,' i.e., the evidence must be such 'that a reasonable jury could return a verdict in favor of the non-moving party.'" Compton v. Nat'l League of Prof'l Baseball Clubs, 995 F. Supp. 554, 561 n.14 (E.D. Pa. 1998).

Summary judgment must be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Once the moving party has produced evidence in support of summary judgment, the non-moving party must go beyond the allegations set forth in its pleadings and counter with evidence that presents "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see Big Apple BMW, Inc. v. BMW of N. Am. Inc., 974 F.2d 1358, 1362-63 (3d Cir. 1992). "More than a mere scintilla of evidence in its favor" must be presented by the non-moving party in order to overcome a summary judgment motion. Tziatzios v. United States, 164 F.R.D. 410, 411-12 (E.D. Pa. 1996). If the court determines that there are no genuine issues of material fact, then summary judgment will be granted. Celotex, 477 U.S. at 322.


A. Municipal Liability

We will first address Kovalev's causes of action against the City itself. As outlined above, Kovalev's Complaint asserts claims against the City pursuant to 42 U.S.C. § 1983. Section 1983 reads as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proceeding for redress.

42 U.S.C. § 1983. In evaluating a § 1983 claim, a court must first "identify the exact contours of the underlying right said to have been violated . . . to determine whether the plaintiff has alleged a deprivation of a constitutional right at all." County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998). "A municipality cannot be held liable solely because it employs a tortfeasor." Monell v. New York City Dept. of Soc. Serv., 436 U.S. 658, 691 (1978). Instead, the plaintiff must assert that an actual policy or custom of the municipality was the cause of the constitutional deprivation. Id. In order to sufficiently allege "custom" for Monell purposes, a plaintiff must allege that the "practices of state officials could well be so permanent and well settled as to constitute a 'custom or usage' with the force of law." Id. An official-capacity suit is essentially a suit against the municipality itself. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). "To prevail in an official-capacity suit, a plaintiff must demonstrate that the entity was the 'moving force' behind the officer's actions. In general, this is accomplished through demonstration of the entity's policy or custom." Klump v. Nazareth Area Sch. Dist., 425 F. Supp. 2d 622, 644 (E.D. Pa. 2006).

A government policy or custom can be established in two ways. Policy is made when a "decisionmaker possess[ing] final authority to establish municipal policy with respect to the action" issues an official proclamation, policy, or edict. Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). A course of conduct is considered to be a "custom" when, though not authorized by law, "such practices of state officials [are] so permanent and well settled" as to virtually ...

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