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Rittenhouse Entertainment, Inc v. City of Wilkes-Barre; Thomas Leighton

March 16, 2012

RITTENHOUSE ENTERTAINMENT, INC.; THE MINES, INC.; G NET COMM. CO.; PHOENIX ESTATES; AND THOMAS J.
GRECO; PLAINTIFFS,
v.
CITY OF WILKES-BARRE; THOMAS LEIGHTON, INDIVIDUALLY AND AS MAYOR OF WILKES-BARRE; GERALD DESSOYE, INDIVIDUALLY AND AS CHIEF OF POLICE OF WILKES-BARRE; J.J. MURPHY, INDIVIDUALLY AND AS CITY ADMINISTRATOR OF WILKES-BARRE; TONY THOMAS, JR., KATHY KANE, WILLIAM BARRET, RICK CRONAUER, AND MICHAEL MERRITT, INDIVIDUALLY AND AS MEMBERS OF THE WILKES-BARRE CITY COUNCIL; BUTCH FRATI, INDIVIDUALLY AND AS DIRECTOR OF OPERATIONS OF WILKES-BARRE; LUZERNE COUNTY; MICHAEL SAVOKINAS, INDIVIDUALLY AND AS LUZERNE COUNTY SHERIFF; KING'S COLLEGE; AND FATHER THOMAS J. O'HARA, ROBERT MCGONIGLE, PAUL LINDENMUTH, AND JOHN MCANDREW, INDIVIDUALLY AND AS OFFICERS AND EMPLOYEES OF KINGS COLLEGE; DEFENDANTS.



The opinion of the court was delivered by: (judge Caputo)

MEMORANDUM

Plaintiffs bring this suit alleging violations of the Fifth and Fourteenth Amendments and Pennsylvania law, as well as several state tort claims. Three sets of Defendants move to dismiss: the "City Defendants" (the City of Wilkes-Barre, Thomas Leighton, Gerald Dessoye, J.J. Murphy, Tony Thomas Jr., Kathy Kane, William Barrett, Rick Cronauer, Michael Merritt, and Butch Frati); the "College Defendants" (King's College, Father Thomas O'Hara, Robert McGonigle, Paul Lindenmuth, and John McAndrew); and the "County Defendants" (Luzerne County and Michael Savokinas). Because Plaintiffs fail to properly state several claims, Defendants' motions will be granted in part. But because Plaintiffs have properly pleaded other claims, Defendants' motions will be denied in part.

I. Background

The facts as alleged in the Plaintiffs' complaint are as follows:

A. The Mines Nightclub

Plaintiff Thomas Greco is an officer, director, and principal of two of the Plaintiff Corporations: The Mines, Inc. and Rittenhouse Entertainment, Inc. (collectively, the "Entertainment Corporations"). Mr. Greco and the Entertainment Corporations own and operate a nightclub and bar called The Mines, located across the street from Defendant King's College in Wilkes-Barre, Pennsylvania. Mr. Greco owns the real property where The Mines is located. Mr. Greco and the Entertainment Corporations invested over $900,000 in the development of The Mines.

In early 2009, The Mines was open from Thursday through Saturday evenings from 5:00 p.m. until 2:00 a.m. The nightclub's patrons were 30-40% black and Latino, including minority students from King's College. The Mines enforced a strict dress code and identification policy, and it used metal detectors and an identification scanner with digital back-up. It had an extremely limited number of disturbances--fewer than typical for a nightclub.

B. Concern from the City of Wilkes-Barre and King's College

At the beginning of January, 2009, Defendants the City of Wilkes-Barre, its Mayor Thomas Leighton, its Chief of Police Gerald Dessoye, and its City Administrator J.J. Murphy all faced increasing public criticism and scrutiny. There had been an upsurge in violent crimes, and the public was concerned that these Defendants were failing to provide adequate law enforcement.

Mr. Murphy and Chief Dessoye suggested that Mr. Greco speak with Chief Dessoye about The Mines. During that conversation, Chief Dessoye stated that The Mines was not a "good mix" with King's College and that it attracted "the wrong crowd." Mr. Greco advised the Chief that recent criminal incidents near the college did not involve nightclub customers, were near other bars in the area, or occurred on nights when the nightclub was closed.

Defendant Robert McGonigle, the Associate Vice President for Student Affairs at King's College, with the assistance of Defendant John McAndrew, the college's Dean of Students, sent an e-mail to the students at King's College on about April 5, 2009. The e-mail alleged that there were problems with the Mines and invited students to a forum to discuss how to file complaints with the Pennsylvania Liquor Control Board ("PLCB") against the nightclub. On about April 8, 2009, Mr. Greco met with Defendant Father Thomas J. O'Hara, who is President of King's College, and other King's College staff. Father O'Hara advised Mr. Greco that he was under pressure from parents of students at King's College who were threatening to remove their students from the college unless there was action taken against the Mines or it was shut down. Father O'Hara also said that the clientele at The Mines was not a "good mix" with the college and that the nightclub attracted "the wrong crowd." Defendant Paul Lindenmuth, the Chair of the Department of Criminal Justice and Sociology at King's College, falsely told students and staff that there had been drug busts at The Mines and that the nightclub had lost its licenses.

C. The Campaign of Harassment

Starting on about April 16, 2009, the City of Wilkes-Barre and Luzerne County began a campaign of harassment against the black and Latino patrons of The Mines. The College Defendants acted in concert with the City and County in order to shut down The Mines and cause damage to Mr. Greco and the Entertainment Corporations. The City began the harassment by creating and embellishing police reports to make it appear as if criminal incidents were occurring on Mr. Greco's nightclub property. After the harassment began, Father O'Hara told Mr. Greco that King's College would try to shut down The Mines because it had "the wrong crowd." Father O'Hara then met with Mayor Leighton and Chief Dessoye to discuss The Mines.

The following weekend, on about April 23, 2009, six police cruisers and fifteen policemen (including a K-9 drug dog) stationed themselves at the nightclub property for hours. The officers stood in the driveways of the nightclub's parking lots and down the block from the nightclub, harassing and arresting people who attempted to enter The Mines. They conducted breathalizer blood alcohol tests of patrons leaving The Mines and had the drug dog approach people coming or going from the nightclub. In one instance, the police beat up a patron. The police told the nightclub's manager, "We are closing your boss's place down."

The harassment escalated a week later around April 30, 2009. There were thirty law enforcement officers outside The Mines. This included Defendant Luzerne County Sheriff Michael Savokinas, eight Sheriff's deputies from Defendant Luzerne County, four vehicles, three Pennsylvania State Liquor Control Enforcement agents, a Wilkes-Barre SWAT team, eight Wilkes-Barre police vehicles, a motorcycle police officer, and two K-9 dogs. The officers did not arrest anyone or issue any citations. The law enforcement presence was merely for the purposes of targeting and harassing Mr. Greco, the Entertainment Corporations, and prospective patrons of The Mines. Then on about May 15 and 16, 2009, Wilkes-Barre police set up seatbelt check points in front of The Mines for two nights.

Prior to this police harassment, the Mines had never received a citation from the PLCB or had any legal or law enforcement action against it. Other bars in the area whose patrons were 95-99% white had numerous incidents of crime, violence, noise, PLCB citations, and liquor license removals. The City and its police did not undertake similar law enforcement actions against the bars with predominantly white clientele.

All this police activity was pursuant to a custom or policy of the City and the County to discourage businesses in Wilkes-Barre and Luzerne County from serving black and Latino patrons, to use those businesses as scapegoats for the City's and County's law enforcement failures, and to prevent black and Latino people from living in or spending time in the City and the County. The City has previously taken action to close down several other bars and restaurants that served black and Latino clientele.

Because of the police crackdown, there was a decline in business at the Mines. Currently, the nightclub opens approximately once every ten days in order to maintain its liquor license. Mr. Greco and the Entertainment Corporations have lost significant income and income prospects. Mr. Greco has also suffered damage to his reputation.

D. Felony Charges Against Mr. Greco

Mayor Leighton and Chief Dessoye induced FBI Agent Joseph Noone to manipulate Mr. Greco into becoming vulnerable to the charge of misprision. Mayor Leighton and Chief Dessoye were friends of Agent Noone and like him, were alumni of King's College. They acted in retaliation against Mr. Greco for threatening a civil rights lawsuit against the City based on the police harassment at The Mines. As a result of Agent Noone's efforts, Mr. Greco pled guilty to misprision on about November 10, 2010. He was sentenced to two years probation and fifty hours of community service and was fined $10,000.

E. Denial of Tax Benefits

Mr. Greco is also a principal of the two other Plaintiff corporations: G Net Comm. Co. and Phoenix Estates (the "Development Corporations"). G Net and Phoenix own real estate in the City of Wilkes-Barre. The City and Mayor Leighton had been considering providing tax and other benefits to the Development Corporations as part of the Keystone Opportunity Zone ("KOZ") program.

Mr. Greco, G Net, and Phoenix invested over $2,900,000 to develop the companies' properties as an advanced broadband economic development project and community green energy geothermal district heating and cooling authority. They had worked on a Pennsylvania bill creating funding grants for geothermal projects using abandoned mine water as a source for green energy. Local Representative Eddie Day Pashinski and Governor Rendell both supported Mr. Greco and the Development Corporations. Because G Net and Phoenix were prime candidates for funding under the bill, Mr. Greco and the Development Corporations urged the City to apply for the grant.

In November and December of 2009, Mayor Leighton, Chief Dessoye and Defendant Butch Frati, who is the City's Director of Operations, convinced Representative Pashinski that he should not support the geothermal project or return phone calls to Mr. Greco, G Net, and Phoenix. This occurred after those Defendants had learned that Mr. Greco was facing charges for a felony. Further, the Mayor Leighton, Chief Dessoye, and members of the Wilkes-Barre City Council (Defendants Tony Thomas, Jr., Kathy Kane, William Barrett, Rick Cronauer, and Michael Merritt) obstructed the granting of KOZ tax benefits to G Net and Phoenix. Specifically, these Defendants failed to grant a site development work extension to the Development Corporations' property, even though the property qualified for an extension and the Defendants granted it to other properties. These Defendants took this action in retaliation for Mr. Greco's involvement with The Mines and his complaints about civil rights violations. Because of the loss of the tax benefits, Mr. Greco and the Development Corporations have incurred financial damage.

F. Litigation

The Plaintiffs filed the instant action on April 4, 2011. The complaint contains eight counts. In Count I, Mr. Greco and the Entertainment Corporations assert claims under 42 U.S.C. §§ 1983 and 1985 against all Defendants for a violation of the Equal Protection Clause. In Count II, Mr. Greco and the Entertainment Corporations assert claims under 42 U.S.C. §§ 1981, 1982, 1983, and 1985 against all Defendants, alleging retaliation and a conspiracy. In Count III, Mr. Greco and the Entertainment Corporations assert a claim under the Due Process Clause against all Defendants. In Count IV, Mr. Greco and the Development Corporations assert a § 1983 claim against the City, Mayor Leighton, and the City Council member Defendants, alleging a violation of the Equal Protection Clause and substantive Due Process. In Count V, all Plaintiffs assert state tort claims against all Defendants, alleging tortious interference with business relationships, trade disparagement, and defamation. In Count VI, Mr. Greco and the Entertainment Corporations assert a violation of 234 P.S. § 5004(a)(3) against the College Defendants. In Count VII, Mr. Greco asserts claims under §§ 1981, 1982, 1983, and 1985 against Mayor Leighton and Chief Dessoye, alleging retaliation. Finally, in Count VIII, Plaintiffs seek attorneys fees under 42 U.S.C. § 1988.

The City Defendants and the College Defendants each filed motions to dismiss on June 6, 2011. The County Defendants moved to dismiss on June 15, 2011. The motions have been fully briefed and are ripe for disposition.

II. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual allegations "'to raise a reasonable expectation that discovery will reveal evidence of'" each necessary element, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). The pleading standard of Federal Rule of Civil Procedure 8 does not require "detailed factual allegations," but "[a] pleading that offers 'labels and conclusions' or a 'formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1959 (2009) (quoting Twombly, 550 U.S. at 555). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).

Thus, when determining the sufficiency of a complaint, a court must undertake a three-part inquiry. See Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). The inquiry involves: "(1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged." Id.

III. Discussion

A. Defendants Murphy and Frati

As an initial matter, the City Defendants move to dismiss entirely any claims against Mr. Murphy and Mr. Frati.Defendants argue that the complaint lacks any allegations that these two individuals had any personal involvement in any wrongdoing.

The motion to dismiss will be granted. Plaintiffs argue that further facts regarding these two Defendants might come out during discovery, but the facts as alleged fail to "raise a reasonable expectation," Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556), that discovery will provide sufficient evidence to properly state a claim. Turning first to Mr. Murphy, the complaint's sole allegation is that he suggested that Mr. Greco speak with Chief Dessoye about The Mines. This allegation does not involve any wrongdoing per se, and it is insufficient to connect him to the alleged conspiracy. Moving to Mr. Frati, the complaint states that he helped convince Representative Pashinski to ignore Mr. Greco's calls and reject the geothermal project. This allegation does not connect Mr. Frati to any of the allegations regarding The Mines, but it would be sufficient to include him in the Count IV claims related to the Development Corporations. However, in what may have been an oversight, the complaint does not assert any claims ...


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