The opinion of the court was delivered by: James Knoll Gardner, United States District Judge
This matter is before the court on the Motion for Summary Judgment of Officer Robert Keuch, Officer Jeffrey J. Ingemie, Officer Shannon N. Miller, Officer Claude Simpkins, and The City of Coatesville, Pennsylvania filed November 26, 2012. *fn1
On January 3, 2013, Plaintiffs' Brief in Opposition to Defendants['] Motion for Summary Judgment was filed. *fn2
For the reasons expressed below, I grant the Motion for Summary Judgment and enter judgment in favor of defendants Officer Robert Keuch, Officer Jeffrey J. Ingemie, Officer Shannon N. Miller, Officer Claude Simpkins, and The City of Coatesville (together, the "moving defendants"), and against plaintiffs Bongai Mhloyi and Jeremiah Mhloyi (together, the "Mhloyis" or "Mhloyi plaintiffs") .
Specifically, I grant the Motion for Summary Judgment and enter judgment in favor of defendants Officer Robert Keuch, Officer Jeffrey J. Ingemie, Officer Shannon N. Miller, and Officer Claude Simpkins (together, the "Officer defendants") because the Mhlohi plaintiffs fail to provide sufficient record evidence to allow a reasonable factfinder to conclude that any of the Officer defendants treated the Mhloyis, or JB's Web, differently than others similarly situated, and that the Officer defendants did so because the Mhloyis, and the patrons of JB's Web, are African-American.
Additionally, I grant the Motion for Summary Judgment and enter judgment in favor of defendant The City of Coatesville (the "City") and against the Mhloyi plaintiffs because the Mhloyis have not produced record evidence which would permit a rational factfinder to conclude either that the City had an official policy of selective enforcement toward the Mhloyis, or JB's Web, or that a municipal decisionmaker or policymaker had knowledge of, and acquiesced to, a common practice of selective enforcement toward the Mhloyis, or JB's Web.
As the result of this ruling, the only parties remaining in this lawsuit are plaintiff Ronnie Suber and defendant Jon Guinta.
Jurisdiction in this case is based upon federal question jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3)-(4).
Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to plaintiffs' claims allegedly occurred in the City of Coatesville, Chester County, Pennsylvania, which is located within this judicial district.
Plaintiffs Ronnie Suber, Bongai Mhloyi and Jeremiah Mhloyi initiated this action on June 30, 2010 by filing a two-count Complaint against defendant Officers James A. Pinto, III, Ryan L. Wright, Robert Keuch, Jeffrey J. Ingemie, Shannon N. Miller and Claude Simpkins; defendant The City of Coatesville; and one defendant John Doe.
Defendant Officers Pinto, Wright, Keuch, Ingemie, Miller, Simpkins and The City of Coatesville filed a motion to dismiss plaintiffs' Complaint on August 26, 2010. In response, plaintiffs filed an Amended Complaint on September 17, 2010, which omitted defendant John Doe and replaced him with defendant Jon Guinta.
Defendant Officers Pinto, Wright, Keuch, Ingemie, Miller, and Simpkins, and The City of Coatesville, filed a motion to dismiss the Amended Complaint or, alternatively, for a more definite statement concerning Count II of the Amended Complaint on September 23, 2010.
By Order dated August 8, 2011 and filed August 9, 2011, I granted the alternative motion for a more definite statement. Plaintiffs filed their Second Amended Complaint on October 3, 2010, and re-filed the same document on October 12, 2011. Offi- cer Pinto was not named as a defendant in the Second Amended Complaint and was, therefore, terminated from this action.
On October 17, 2011 defendant Officers Wright, Keuch, Ingemie, Miller, Simpkins, Pinto (despite having been omitted from the Second Amended Complaint), and The City of Coatesville filed a motion to dismiss plaintiffs' Second Amended Complaint. Plaintiffs filed their response in opposition to that motion on November 2, 2011.
By Order and accompanying Opinion dated and filed September 28, 2012, I granted in part, and denied in part, the motion to dismiss the Second Amended Complaint.
As a result of my September 28, 2012 Order and accompanying Opinion, the only claims remaining in the Second Amended Complaint are the claims of plaintiff Ronnie Suber in Count I against defendant Jon Guinta for violation of plaintiff Suber's First, Fourth, and Fourteenth Amendment rights, brought pursuant to 42 U.S.C. §§ 1983 and 1985; and the claims of plaintiffs Bongai Mhloyi and Jeremiah Mhloyi against defendant Officers Keuch, Ingemie, Miller, and Simpkins, and defendant The City of Coatesville for violation of the Mhloyi plaintiffs' Fourteenth Amendment rights to equal protection of the law, brought pursuant to 42 U.S.C. § 1983. The Mhloyis' equal protection claims are the subject of the Motion for Summary Judgment now before the court.
On November 26, 2012, the Motion for Summary Judgment of Officer Robert Keuch, Officer Jeffrey J. Ingemie, Officer Shannon N. Miller, Officer Claude Simpkins, and The City of Coatesville was filed. On January 3, 2013, Plaintiffs' Brief in Opposition to Defendants['] Motion for Summary Judgment was filed. Oral argument on the within motion was held before me on February 13, 2013. At the conclusion of oral argument, I took the motion under advisement. Hence this Opinion.
Rule 56(a) of the Federal Rules of Civil Procedure permits a party to seek summary judgment with respect to a claim of defense, or part of a claim of defense. Rule 56(a) provides, in pertinent part, that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); National Association for the Advancement of Colored People "NAACP" v. North Hudson Regional Fire & Rescue, 665 F.3d 464, 475 (3d Cir. 2012).
For a fact to be considered material, it "must have the potential to alter the outcome of the case." Id. (citing Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006)). Disputes concerning facts which are irrelevant or unnecessary do not preclude the district court from granting summary judgment. Id.
Where a party asserts that a particular fact is, or cannot be, genuinely disputed, the party must provide support for its assertion. Fed.R.Civ.P. 56(c)(1). Rule 56(c)(1) provides that party may support its factual assertions by
(A) citing particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
When considering a motion for summary judgment, the district court must view the facts and record evidence presented "in the light most favorable to the non[-]moving party." North Hudson, 665 F.3d at 475 (quoting Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)).
If the moving party shows that there is no genuine issue of fact for trial, "the non-moving party then bears the burden of identifying evidence that creates a genuine dispute regarding material facts." Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
Where a defendant seeks summary judgment, the plaintiff cannot avert summary judgment with speculation, or by resting on the allegations in his pleadings, but rather he must present competent evidence from which a jury could reasonably find in his favor. Ridgewood Board of Education v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir 1999); Woods v. Bentsen, 889 F.Supp. 179, 184 (E.D.Pa. 1995)(Reed, J.).
"Ultimately, [w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Id. (quoting Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)) (internal quotations omitted and alteration in original).
Upon consideration of the pleadings, record papers, exhibits, and depositions, and drawing all reasonable inferences in favor of plaintiffs as required by the forgoing standard of review, the pertinent facts are as follows.
Plaintiffs Bongai Mhloyi and Jeremiah Mhloyi are married and own a bar, called JB's Web. *fn3 JB's Web is located on East Lincoln Highway, the "main drag" in Coatesville, Chester County, Pennsylvania. *fn4
The Mhloyis purchased JB's Web, which was previously called West Side Tavern, in 2005. *fn5 Prior to the Mhloyis' acquisition of the bar, it had a Caucasian owner and a predominantly Caucasian clientele. *fn6 The Mhloyis are African-American. The patrons of JB's Web are predominantly African-American. *fn7
Coatesville's Polish Club is located across the road from JB's Web. The membership of the Polish Club is predominantly Caucasian and includes officers, and the chief, of the City's police department. *fn8
JB's Web is open to the public at large, whereas the the Polish Club is a private club not open to the public. *fn9
Coatesville police officers abide by an informal practice of permitting private clubs -- such as the Polish Club, the VFW, and the Motorcycle Club -- to handle their own internal security. *fn10 In other words, Coatesville police officers conduct periodic "bar checks" of public bars, during which an officer walks through the establishment. By contrast, Coatesville police officers do not conduct walk-through bar checks of private clubs.
"Citations" are documents which can be issued against an establishment, such as JB's Web, for alleged violations of a local ordinance, such as a noise ordinance. If a citation is issued to an establishment, that establishment can contest the citation in court. By contrast, "Incident Investigation Reports" are documents prepared by Coatesville police officers to record investigative actions taken by the police, regardless of whether a citation is issued or an arrest is made. *fn11
Pennsylvania Nuisance Bar Program
According to the Pennsylvania Liquor Control Board ("LCB"), the LCB established the state's Nuisance Bar Program in January, 1990. *fn12 Under the Nuisance Bar Program, the operational record of a licensed establishment, such as JB's Web, is reviewed by the LCB to determine whether, or not, to renew the establishment's license. According to the LCB, [t]he program [seeks] response from the community and various enforcement and government jurisdictions to report any adverse activity which [occurred] via the licensed establishment. These reported licensees' records [are] reviewed to determine whether the Board [will] issue a renewal of the license for the new term.
The licensee must continue to meet all statutory requirements, and the Bureau of Licensing must determine if the licensee, by its record, has abused the license privilege. The Board, in fulfilling its mandate to protect the health and welfare of the community, established the Nuisance Bar Program.
The Nuisance Bar Program is successful in that it has established coalitions among a variety of police and government agencies to bring to bear all legal leverage to abate the nuisance and offer timely relief to the community. The program has been able to deny licensed authority to the establishments at times when the various police or government powers have been unable to do so. *fn13
The Pennsylvania State Police Bureau of Liquor Control Enforcement ("BLCE") conducts "Nuisance Bar Investigations", which the BLCE describes as "[i]nvestigations of a licensed establishment that is operated...in such a manner that a disregard for the sensibilities of a surrounding area is manifested." *fn14 BLCE nuisance bar investigations seek to determine whether a licensed establishment's "operation continually endangers the life and health of patrons and residents, offends the senses, violates the laws of decency, and obstructs the reasonable and comfortable use of property in its vicinity." *fn15
Pursuant to Pennsylvania's Liquor Code, *fn16
the LCB may refuse a properly-filed license renewal
application "due to the manner in which this...licensed premises was
operated while the licensee, its shareholders, directors, officers,
association members, servants, agents or employees were involved with
that license." 47 P.S. § 4-470(a.1)(4). Moreover, the Liquor Code
[w]hen considering the manner in which this or another licensed premises was being operated, the board may consider activity that occurred on or about the licensed premises or in areas under the licensee's control if the activity occurred when the premises was open for operation and if there was a relationship between the activity outside the premises and the manner in which the licensed premises was operated.
The Mhloyis' business has been negatively affected by both citations and Incident Investigation Reports because the LCB has received copies of both citations (even where the citation was dismissed when challenged in court) and Incident Investi- gation Reports (where no citation was issued to JB's Web) from the Coatesville police department. *fn17
JB's Web plays music, which is common among the bars and private clubs in Coatesville. The noise level of the music at JB's Web is not any higher than other establishments in Coatesville. *fn18
The Polish Club across the road from JB's Web produces more noise than JB's Web, but Ronnie Suber, who is the full-time bar manager at JB's Web, has never seen a police officer respond to noise coming from the Polish Club. *fn19
Officer Wright of the Coatesville police department issued a noise-ordinance citation against JB's Web for excessive noise on April 9, 2008.
Officer Claude Simpkins never wrote any noise-ordinance citations against JB's Web. *fn20
All of the unspecified number of noise-ordinance citations issued to JB's Web were "thrown out" when challenged by JB's Web in court. *fn21 The citations issued by Coatesville police officers were sent to the LCB even when those citations had already been dismissed by the local courts: "[the citations] go to the Liquor Control Board and [JB's Web has] to fight [the citations] to explain...that the citations were thrown out one after another, after another, after another." *fn22
Bongai Mhloyi has never been accused of, and JB's Web has never been cited for, "selling liquor to underage kids" or any "drug activity". *fn23
Incident Investigation Reports
If an incident occurs outside on the street, rather than inside JB's Web, the Incident Investigation Report (IIR) is written up in such a way that the incident is attributed to JB's Web rather than the ...