KOVALEV v. CITY OF PHILADELPHIA et al

Filing 140

MEMORANDUM AND OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 9/22/17. 9/22/17 ENTERED & E-MAILED. COPY MAILED TO KOVALEV. (fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SERGEIKOVALEV

CIVIL ACTION

v.
No.16-6380
CITY OF PHILADELPHIA., et al.

September 22, 2017

KEARNEY,J.
MEMORANDUM

City agents called the sheriff to remove an allegedly disorderly citizen from a receptionist
area of a city administrative office shortly following his challenge of the city's trash collection
assessment for his property in a nearby public hearing. The citizen now sues the city and state
actors for damages under the First and Fourteenth Amendments and for assault and infliction of
emotional distress. The First Amendment prohibits the city from abridging citizens' freedom of
speech, including restricting public access to locations where the public is invited to address the
public's business. The First Amendment also prohibits the city from retaliating against citizens
for exercising their First Amendment rights by making a false report of disorderly conduct.
A city and its state actor agents must balance a citizen's right of access to its workplaces
with a need to limit disorder in the workplace. The state actors' permissible treatment of citizens
in their workplace depends on the public nature of the workspace. A private office is generally
not public space. Today, we address state actors' removal of a citizen for alleged disorderly
conduct in a receptionist area of a small government office which does not host hearings or
public meetings but is allegedly near the hearing room. No party adduces undisputed evidence
of the activities or public business occurring in this reception area which would allow us today to
review the constitutionality of state actors' removal of the citizen. No one seems to know how to

characterize this receptionist area. There is no clear guidance for the state actors under the First
Amendment. With varying standards depending on the nature of the government office and no
clearly established law guiding the state actors, we must grant them qualified immunity from
liability on the First Amendment access claim.

We also find the citizen failed to adduce

evidence supporting his claims for the city's supervisory liability or for assault or intentional
infliction of emotional distress.
Regardless of the public nature of the receptionist workplace, the state actors are not
immunized from liability if they retaliate against a citizen's exercise of his First Amendment
rights by falsely reporting disorderly conduct to have the sheriff remove the citizen from the
receptionist area of a city office. We today face the classic he-said, she-said dispute with the
citizen claiming he acted properly and the state actors made a false police report to remove him
for retaliation because of his appeal of a trash collection assessment and the state actors claiming
the citizen acted in a disorderly fashion and they did not retaliate in calling the sheriff.
In the accompanying Order, we grant the Defendants' motion for summary judgment as
to all claims other than for First Amendment retaliation against the two state actors who called
the police to remove the citizen from the reception area of a government workplace.

I.

Undisputed facts 1
The City of Philadelphia imposed trash charges on Sergei Kovalev's property in 2013,

2014, and 2015. 2 Mr. Kovalev attended a Philadelphia County Office of Administrative Review
(OAR) hearing in mid-October 2015 seeking exemption from the trash collection charges. 3 Five
days later, the City's hearing master granted Mr. Kovalev an exemption from trash collection
charges for only 2015. 4
In response, Mr. Kovalev wrote to OAR's Executive Director Paula Weiss, criticizing the

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hearing master and demanding a "prompt new hearing . . . unless City will express desire to
settle this matter without many years of appeals and court hearings that would be including State
and Federal Courts." 5

Mr. Kovalev addressed this letter only to Ms. Weiss.6

Ms. Weiss

responded advising him the OAR would schedule a rehearing. 7 The City scheduled the rehearing
for December 10, 2015. 8
Mr. Kovalev attended his December 10, 2015 rehearing before the Tax Review Board,
located in the same City office building as the OAR. 9

The Board told him to provide

supplemental materials, specifically letters from the IRS confirming his property is exempt from
the charges for the years 2013 and 2014. 10 The Board could not take action until he produced
these documents. 11 The Board took the issue under advisement for a period of 90 days to allow
Mr. Kovalev time to gather the documents. 12 During the December 10 hearing, Mr. Kovalev
never said he intended to appeal a later decision his property is not exempt for 2013 and 2014. 13
After the December 10 hearing, Mr. Kovalev walked out of the hearing room to the OAR
reception area, and spoke to the receptionist sitting at the front desk. 14 Mr. Kovalev asked the
receptionist for a list of Board member names. 15

Mr. Kovalev never identified himself. 16

Yolanda Kennedy, an OAR employee, walked over to Ms. Weiss's office and told Ms. Weiss she
intended to call the Sheriffs Office for assistance. 17 Ms. Weiss agreed with Ms. Kennedy's
decision to call the Sheriffs Office. 18 Ms. Kennedy spoke to an unidentified Sheriffs Office
employee. 19 Mr. Kovalev and Ms. Weiss did not witness Ms. Kennedy's phone call to the
Sheriffs Office, and did not hear the substance of the conversation. 20
In response to Ms. Kennedy's call, Sergeant Angeline! Brown, Deputy Sheriff Cody
Sheriff, and Sheriff Andrea Sharamatew arrived at the reception area. 21 The officers' presence
made Mr. Kovalev uncomfortable, and Mr. Kovalev decided to walk into the hallway outside of

3

the OAR. 22 Sgt. Brown followed Mr. Kovalev out of the office, walked firmly towards him, and
escorted him to the elevators. 23 While escorting Mr. Kovalev, Sgt. Brown ordered Mr. Kovalev
to "move on," "continue going," and "continue walking." 24 When Sgt. Brown and Mr. Kovalev
approached the elevator, Sgt. Brown ordered Mr. Kovalev to "get into the elevator and leave."

25

Sgt. Brown did not follow Mr. Kovalev into the elevator. 26 During this first interaction, Sgt.
Brown neither physically touched Mr. Kovalev, nor threatened Mr. Kovalev with violence.

27

Mr. Kovalev never saw Sgt. Brown reach for her weapon, and Sgt. Brown never removed her
weapon from its holster. 28
After taking the elevator down, Mr. Kovalev exited the building, but turned back and reentered the building through a different entrance. 29 Mr. Kovalev took an elevator to the Sheriffs
Office, and walked down the hallway towards the Sheriffs Office. 30 Sgt. Brown, standing at the
entrance of the Sheriffs Office, saw Mr. Kovalev approaching. 31 Sgt. Brown walked towards
Mr. Kovalev. 32 Mr. Kovalev walked back towards the elevator. 33 Sgt. Brown never physically
touched Mr. Kovalev. 34 During this interaction, Sheriff Sheriff and another Sheriffs Office
employee arrived. 35 Mr. Kovalev explained to the officers he wanted "to figure out what's going
on" and he wanted "to get a report." 36 Sheriff Sheriff walked into the Sheriffs Office, and a few
minutes later produced an incident report as Kovalev requested. 37 Sheriff Sheriff wrote the
incident report using information provided by the unidentified Sheriffs Office employee who
answered Ms. Kennedy's phone call. 38
A month later, Mr. Kovalev returned to the OAR to provide supplemental materials in
support of exempting his property. 39 The Board sent their decision to Mr. Kovalev several
months later.

40

Mr. Kovalev appealed to the Court of Common Pleas.41 Mr. Kovalev returned to

the OAR to deliver papers relating to his appeal. 42 Mr. Kovalev has made several phone calls to

4

the OAR to ask questions about providing supplemental materials to the Board, and the status of
his appeal. 43 The OAR provided Mr. Kovalev with the requested information. 44

II.

Analysis
Mr. Kovalev claims Ms. Weiss, Ms. Kennedy, and Sgt. Brown violated his First

Amendment right of access and right to information, Ms. Weiss and Ms. Kennedy retaliated
against him for exercising his First Amendment rights by submitting a false report to the
Sheriffs Office, Sgt. Brown assaulted him while escorting him from the OAR, Ms. Weiss and
Ms. Kennedy's false report violated his substantive due process rights, Ms. Weiss and the City
failed to train employees, and Ms. Weiss and Ms. Kennedy intentionally inflicted emotional
distress upon him. Defendants argue Mr. Kovalev did not engage in protected activity under the
First Amendment and the Defendants actions were reasonable, Sgt. Brown did not engage in
willful misconduct and is immune as a state actor, Mr. Kovalev failed to show deliberate
indifference to establish supervisory liability, and Mr. Kovalev failed to provide competent
medical evidence in support of his emotional distress claim.
Defendants move for summary judgment on all of Mr. Kovalev's claims. 45 We find
issues of material fact preclude summary judgment on Mr. Kovalev' s First Amendment
retaliation claim against Ms. Weiss and Ms. Kennedy, but all other claims must be dismissed.

A. We grant summary judgment dismissing the First Amendment right of
access and to information claim as the state actors are entitled to qualified
immunity from liability on this claim.
Mr. Kovalev claims Ms. Weiss, Ms. Kennedy, and Sgt. Brown violated his First
Amendment right of access and right to information. Mr. Kovalev argues Ms. Weiss and Ms.
Kennedy submitted a report to the Sheriffs Office describing Mr. Kovalev as disorderly, which
resulted in Sgt. Brown escorting him from the OAR and preventing him access to the Sheriffs

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Office. Mr. Kovalev argues the OAR and Sheriffs Office are public spaces he had the right to
access, and his escort from the OAR and blocked entry to the Sheriffs Office violates his First
Amendment rights. Defendants argue the OAR and Sheriffs Offices are non-public fora, and
Ms. Weiss, Ms. Kennedy, and Sgt. Brown's acted reasonably and in a viewpoint neutral manner.
Defendants also argue their actions are subject to qualified immunity. Mr. Kovalev's claim fails
because Ms. Weiss, Ms. Kennedy, and Sgt. Brown are entitled to qualified immunity.
The First and Fourteenth Amendments together prohibit the government from abridging
freedom of speech, which "encompasses the positive right of public access to information and
ideas," and the. right to "some level of access" to public buildings where information is
disseminated. 46 The First Amendment does not require unlimited access. 47 "The existence of a
right of access to public property and the standard by which limitations upon such a right must
be evaluated differ depending on the character of the property at issue. " 48 The three classes of
government property identified by the Supreme Court include: public fora, designated or limited
public fora, and non-public fora. 49 In our February 28, 2017 Memorandum50 , we found the
building where the OAR and Sheriffs Office is located is either a designated/limited public fora
or a non-public fora. 51
Designated or limited public fora "consist[] of 'public property which the state has
opened for use by the public as a place for expressive activity. "'52 Such fora include public
libraries, 53 public university meeting places, 54 school board meetings, 55 municipal theaters, 56 and
similar fora used by the public in a way intended by the government. 57 Once the City opens up
this forum, it "is bound by the same limitations as exist in the traditional public forum context."58
Content neutral time, place, and manner regulations must be narrowly tailored to serve a
significant government interest. 59

Content based regulations must be necessary to serve a

6

compelling government interest, and the regulation must be narrowly tailored to achieve that
end. 60
Nonpublic fora "are not 'by tradition or designation fora for public communication ...
"

61

"In addition to time, place, and manner regulations, the state may reserve the forum for its

intended purposes, communicative or otherwise, as long as the regulation on speech is
reasonable and not an effort to suppress expression merely because public officials oppose the
speaker's view."62 "The State, no less than a private owner of property, has power to preserve
the property under its control for the use to which it is lawfully dedicated."63
In determining the type of forum Mr. Kovalev encountered, we observe: (1) the City's
intent to open a non-traditional forum for expressive activity; (2) the extent to which the forum is
used by the public; and (3) the nature of the forum along with its compatibility with expressive
activity. 64
There is a genuine issue of material fact whether the OAR office and Sheriffs Office are
designated/limited public fora or non-public fora. Mr. Kovalev entered the building and the
OAR reception area on multiple occasions. 65 Mr. Kovalev entered to get information about his
case and the decision making process of the Board, and to provide supplemental materials in
relation to his case. 66 Mr. Kovalev has never been cited for trespassing for entering the building,
or told the public could not access the building, the OAR office, or the Sheriffs Office. The
incident report completed by the Sheriffs Office cited to Mr. Kovalev's disorderly behavior as
the reason for escorting him out of the OAR. 67 This suggests it may be permissible for members
of the public to access the OAR and Sheriffs Office, if acting in an orderly manner. These
circumstances also suggest the City's intent to open the forum for purposes of Board review and
appeals administration. Defendants argue as a general proposition government workplaces are

7

non-public fora. The cases relied on by Defendants conduct factual analyses to categorize the
workplace forum at issue, and do not stand for the proposition all government workplaces are
non-public fora. 68 Viewing these circumstances in light most favorable to Mr. Kovalev, there is
a genuine issue of material fact whether the fora at issue are designated/limited public fora or
non-public fora.
There is also a genuine issue of material fact whether Mr. Kovalev acted in an orderly or
disorderly manner while in the OAR. Mr. Kovalev asserts he calmly entered the office and
asked for the names of the Board members. 69

Ms. Weiss and Ms. Kennedy describe Mr.

Kovalev as loud, angry, agitated, and disruptive while in the reception area, and Ms. Weiss
claim's Mr. Kovalev refused to leave. 70 Ms. Kennedy asserts Mr. Kovalev's behavior warranted
a call to the Sheriffs Office for assistance, and Ms. Weiss agreed. 71 Sgt. Brown escorted Mr.
Kovalev from the OAR and the Sheriffs Office in response to Ms. Kennedy's call. 72 No party
adduced evidence of Mr. Kovalev's conduct beyond their own descriptions of events, creating a
he-said-she-said scenario and raising an issue of fact regarding the appropriateness of Ms. Weiss,
Ms. Kennedy, and Sgt. Brown's conduct under a First Amendment forum analysis.
Defendants argue Ms. Weiss, Ms. Kennedy, and Sgt. Brown are entitled to qualified
immunity because the law did not put them on notice their conduct would be clearly unlawful. A
government official is entitled to qualified immunity if his "conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known." 73
"When a qualified immunity defense is asserted, a court must determine (1) whether the facts
alleged by the plaintiff make out a violation of a constitutional right, and (2) whether that right
was clearly established at the time of the injury."74 "The qualified immunity standard 'gives
ample room for mistaken judgments' by protecting 'all but the plainly incompetent or those who

8

knowingly violate the law. "' 75
Ms. Weiss and Ms. Kennedy are entitled to qualified immunity from Mr. Kovalev's First
Amendment right of access and right to information claim.

We are aware of no clearly

established statutory or constitutional right to access the OAR reception area. After extensive
discovery, we cannot determine whether the OAR reception area is either a designated/limited
public fora or a non-public fora. Neither party cites evidence confirming the nature of this space.
The standards are different depending on the nature of the fora. If we are unable to discern the
First Amendment access rights and obligations in this unique office space, we cannot expect
state actors to be aware of clearly established law governing the space.
Sgt. Brown is similarly entitled to qualified immunity from Mr. Kovalev's First
Amendment right of access and right to information claim.

We are aware of no clearly

established statutory or constitutional right to access the OAR reception area and Sheriffs
Office. 76
Mr. Kovalev's First Amendment right of access and right to information claim must be
dismissed as the state actors enjoy qualified immunity.

B. Issues of fact preclude summary judgment on the First Amendment
retaliation claim against Ms. Weiss and Ms. Kennedy.
Mr. Kovalev argues Ms. Weiss and Ms. Kennedy retaliated against him by falsely
reporting he acted disorderly to the Sheriffs Office. Defendants argue Mr. Kovalev did not
engage in protected activity, Ms. Weiss and Ms. Kennedy's conduct did not deter Mr. Kovalev,
and Mr. Kovalev failed to demonstrate a causal connection between a protected activity and the
false report.
In a First Amendment retaliation claim, Mr. Kovalev must show: "[he] engaged in a
protected activity, (2) ... defendants' retaliatory action was sufficient to deter a person of
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ordinary firmness from exercising his . . . rights, and (3) . . . there was a causal connection
between the protected activity and the retaliatory action." 77 Filing a false report could deter a
person of ordinary firmness from exercising his or her First Amendment rights. 78
There is a genuine issue of material fact whether Mr. Kovalev engaged in protected
activity. As described above, Mr. Kovalev argues he acted calmly in the OAR office, and Ms.
Weiss and Ms. Kennedy argues Mr. Kovalev acted disorderly by being loud, agitated, and
disruptive. If Mr. Kovalev calmly entered the reception area of the office to ask for information
regarding the Board and review process, a reasonable jury could find he e':lgaged in protected
activity. If Mr. Kovalev acted disorderly, a reasonable jury could find he did not engage in
protected activity. The only evidence we have regarding Mr. Kovalev's conduct is conflicting
self-serving descriptions from the parties. We must allow the jury to determine credibility at
trial.
There is a genuine issue of material fact whether Ms. Kennedy and Ms. Weiss falsely
reported Mr. Kovalev's behavior to the Sheriffs Office. Mr. Kovalev's conduct is in dispute,
and the truth of Ms. Kennedy's report is in dispute.
There is also a genuine issue of material fact whether a causal connection exists between
Mr. Kovalev's conduct and the retaliatory conduct. Mr. Kovalev argues Ms. Kennedy and Ms.
Weiss retaliated against him for criticizing the hearing master in his letter, expressing his intent
to appeal an adverse decision by the Board, and requesting Board member names. 79 Before Ms.
Kennedy's call to the Sheriffs Office, Ms. Weiss knew the City rescheduled Mr. Kovalev's
hearing, and knew Mr. Kovalev complained about the hearing master's behavior and outcome of
his initial hearing. 80 Ms. Weiss also knew Kovalev requested names of Board members. 81 Ms.
Weiss claims she did not know Mr. Kovalev to be the person who sent the letter, and did not

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know the outcome of Mr. Kovalev's hearing. 82 Ms. Weiss claims she attempted to calm Mr.
Kovalev by explaining he had the right to appeal an adverse decision by the Board. 83 This
admission may demonstrate Ms. Weiss may have known Mr. Kovalev felt dissatisfied with the
December 10 hearing outcome. 84 Ms. Kennedy asserts she did not know Mr. Kovalev's identity
and did not know the outcome of Mr. Kovalev's hearing. 85 Both Ms. Weiss and Ms. Kennedy
assert they agreed to call to the Sheriffs Office because Mr. Kovalev acted disorderly, not to
retaliate against Mr. Kovalev's intent to appeal, criticism of the hearing master, or request for
Board member names. 86 All parties rely on their own self-serving statements in support of their
argument regarding intent to retaliate.

This he-said-she-said scenario must be resolved on

credibility at trial.
Ms. Kennedy and Ms. Weiss are not entitled to qualified immunity from Mr. Kovalev's
First Amendment retaliation claim. It is clearly established filing a false report accusing another
of violating the law is unlawful. 87 In Thomas v. Independence Township 88 , our court of appeals
held the plaintiff stated a claim for First Amendment retaliation where the defendant wrongfully
accused the plaintiff of violating the law. 89 At least as early as 2006, when the court of appeals
decided Thomas, the law was clearly established a government official could not falsely accuse a
citizen of violating the law.
Kovalev's First Amendment retaliation claim against Ms. Weiss and Ms. Kennedy
survives summary judgment.
C. We grant summary judgment dismissing the assault claim for failing to
adduce evidence of an assault.
Mr. Kovalev's claim for assault against Sgt. Brown fails.

Mr. Kovalev claims Sgt.

Brown assaulted him when Sgt. Brown escorted him from the OAR office, and prevented his
access to the Sheriffs Office. Defendants argue Sgt. Brown's conduct is immunized, as a state
11

actor, because there is no evidence he engaged in willful misconduct. 90 We do not reach the
issue of willful misconduct because Mr. Kovalev has not adduced evidence for a reasonable jury
to find an assault.
Assault "occurs when an actor intends to cause an imminent apprehension of a harmful or
offensive bodily contact."91 Mr. Kovalev's apprehension must be reasonable. 92
Mr. Kovalev bases his claim on the two encounters with Sgt. Brown. These encounters
are insufficient to establish an assault even with all factual inferences in Mr. Kovalev's favor.
There is no evidence Sgt. Brown intended to cause imminent apprehension of contact. Sgt.
Brown responded to a call from Ms. Kennedy describing Mr. Kovalev as disorderly. 93

In

response, Sgt. Brown directed Mr. Kovalev to leave the City office and escorted him to the
elevators. 94 Sgt. Brown did not follow Mr. Kovalev into the elevator. 95 Upon Mr. Kovalev's
immediate re-entry into the City building, Sgt. Brown walked towards Mr. Kovalev to escort him
out again. 96 Sgt. Brown stopped when Mr. Kovalev asked for an incident report, and Mr.
Kovalev remained in the hallway for a few minutes until he received the report. 97 Sgt. Brown
never threatened Mr. Kovalev, never reached for Mr. Kovalev, and never touched Mr. Kovalev. 98
A reasonable jury could not conclude Sgt. Brown intended to cause apprehension of imminent
contact simply by walking towards Mr. Kovalev to escort him from the building.
Based on his admissions, Mr. Kovalev did not reasonably apprehend imminent contact.
Mr. Kovalev claims he feared Sgt. Brown would walk into him, if he stopped walking away from
Sgt. Brown.

99

Mr. Kovalev's description of Sgt. Brown's conduct contradicts the basis of his

apprehension, and calls his claimed apprehension into question. In Mr. Kovalev's description of
the first encounter, Sgt. Brown followed the pace Mr. Kovalev set, and stopped walking when
Mr. Kovalev stopped walking. 100 In the second encounter, Sgt. Brown stopped escorting Mr.

12

Kovalev to the elevators once Mr. Kovalev requested an incident report, and Mr. Kovalev
remained in the hallway for several minutes until he received the report. 101
In light of all the surrounding circumstances, a reasonable jury could not find Mr.
Kovalev reasonably apprehended imminent contact. 102

D. We grant summary judgment dismissing the substantive due process claim
for failing to adduce evidence of conduct shocking the conscience and as
duplicative of his First Amendment retaliation claim.
Mr. Kovalev's substantive due process claim against Ms. Kennedy and Ms. Weiss fails.
Mr. Kovalev bases this claim on Ms. Kennedy and Ms. Weiss falsely reporting his behavior to
the Sheriffs Office with the intent to retaliate against him, leading to Mr. Kovalev's escort from
the building. Mr. Kovalev failed to adduce evidence to establish Ms. Kennedy and Ms. Weiss's
conduct "shocks the conscience," and the claim is duplicative of his First Amendment retaliation
claim proceeding to the jury.
"[T]o prove a violation of substantive due process in cases involving executive action, the
plaintiff must show that the state acted in a manner that 'shocks the conscience."' 103 "[C]onduct
intended to injure in some way unjustifiable by any government interest is the sort of official
action most likely to rise to the conscience-shocking level."
Relying on Santiago v. Steinhart104 in our February 28, 2017 Memorandum 105 , we
explained filing a false report against another could "shock the conscience. " 106 Santiago, similar
to other substantive due process claims based on false reports, is distinguishable from the present
case. Substantive due process claims based on false reports which survive dismissal are based on
circumstances resulting in great harm to the plaintiff. In Santiago, the plaintiff possessed a
recording of the defendant which directly contradicted the defendant's written report. 107 The
plaintiffs employer used the false report to assess the plaintiffs fitness to continue working, and

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to place the plaintiff on involuntary leave. 108 In Smith v. Phila. Dep 't of Human Servs. 109 , the
plaintiff brought a substantive due process claim based on a false report claiming the plaintiff
sexually abused her son.11° The false report resulted in the plaintiff losing custody for her
child. 111
Mr. Kovalev's claim does not rise to the threshold level sufficient for a reasonable jury to
conclude Ms. Weiss and Ms. Kennedy's conduct "shocks the conscience." As a result of Ms.
Kennedy's call to the Sheriffs Office, Sgt. Brown escorted Mr. Kovalev to the elevators and told
him to leave the building, but Mr. Kovalev returned to the same building and OAR office on
several occasions without issue. 112 Mr. Kovalev re-entered the building immediately to obtain an
incident report from the Sheriffs Office. 113 Mr. Kovalev also made several phone calls to the
OAR to obtain more information regarding his case, and the appeals process. 114 Mr. Kovalev did
not experience a harm equivalent to the plaintiffs in Santiago and Smith. Based on the adduced
evidence, a reasonable jury could not conclude Ms. Weiss's and Ms. Kennedy's conduct "shocks
the conscience."
Alternatively, Mr. Kovalev's substantive due process claim against Ms. Weiss and Ms.
Kennedy is duplicative of his First Amendment retaliation claim, and is barred by the "more
specific provision rule." 115 Under the more specific provision rule, "if a constitutional claim is
covered by a specific constitutional provision ... , the claim must be analyzed under the standard
appropriate to that specific provision, not under the rubric of substantive due process." 116 The
United States Supreme Court created the more specific provision rule due to the Court's
reluctance to expand the concept of substantive due process. 117 Mr. Kovalev's First Amendment
retaliation claim against Ms. Weiss and Ms. Kennedy is identical to his Fourteenth Amendment
substantive due process claim. Both are based on Ms. Weiss and Ms. Kennedy's conduct in

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falsifying a report to the Sheriffs Office with the intent to retaliate against Mr. Kovalev for
engaging in protected activity. Mr. Kovalev's claim for retaliation is covered by a specific
constitutional provision - the First Amendment - and Mr. Kovalev' s claim must be analyzed
under the "more specific provision."

E. We grant summary judgment dismissing the supervisory liability claim
under § 1983 for failing to adduce evidence demonstrating Ms. Weiss and the
City acted with "deliberate indifference."
Mr. Kovalev's claim for supervisory liability under 42 U.S.C. § 1983 fails. Mr. Kovalev
bases his claim on Ms. Weiss' and the City's failure to supervise and provide adequate training
on dealing with the public and civil rights violations. Ms. Weiss and the City argue Mr. Kovalev
failed to adduce evidence the failure to train constituted "deliberate indifference" to Mr.
Kovalev's constitutional rights. Ms. Weiss and the City are correct. Mr. Kovalev failed to
adduce evidence for a reasonable jury to conclude the failure to train constituted "deliberate
indifference."
In Monell v. Dep 't of Soc. Servs. of City ofNY 118 , the Supreme Court held a municipality
may be liable under § 1983 when it causes the constitutional violation at issue. 119

"A

municipality is liable under § 1983 when a plaintiff can demonstrate that the municipality itself,
through the implementation of a municipal policy or custom, causes a constitutional

° Failure to train may be a basis for Monell liability if the failure to train "reflects

violation."12

deliberate indifference to constitutional rights." 121 "Establishing municipal liability on a failure
to train claim under § 1983 is difficult. A plaintiff pressing a § 1983 claim must identify a
failure to provide specific training that has a causal nexus with their injuries." 122 "Mere proof
that an injury could have been avoided if the municipal officer or employee 'had better or more
training is not enough to show municipal liability' under a 'failure to train' Monell claim." 123

15

A "pattern of similar constitutional violations by untrained employees" is typically
necessary to show "deliberate indifference" because a decisionmaker, without notice a training
program is deficient, "can hardly be said to have deliberately chosen a training program that will
cause violations of constitutional rights." 124

"A pattern of violations puts municipal

decisionmakers on notice that a new program is necessary, and '[t]heir continued adherence to an
approach that they know or should know has failed to prevent tortious conduct by employees
may establish the conscious disregard for the consequences of their action-the 'deliberate
indifference'-necessary to trigger municipal liability. "' 125 Absent a pattern of violations, a
failure to train claim may proceed where the constitutional violation is an "obvious"
consequence of failing to provide certain training. 126 For a municipality's failure to train or
supervise to constitute deliberate indifference, a plaintiff must show: "(l) municipal
policymakers know that employees will confront a particular situation; (2) the situation involves
a difficult choice or a history of employees mishandling; and (3) the wrong choice by an
employee will frequently cause deprivation of constitutional rights." 127
In denying a motion to dismiss, we earlier allowed Mr. Kovalev's § 1983 claim to
discover whether the City and Ms. Weiss made a practice of condoning employees' wrongful
exclusion of litigants from the OAR. 128 Mr. Kovalev shows Ms. Weiss, Ms. Kennedy, and Sgt.
Brown lack training on§ 1983.

129

But he does not show a history of employee mishandling or

practice of condoning employees' wrongful exclusion of litigants from the OAR necessary to
show "deliberate indifference." Ms. Kennedy and Ms. Weiss have not been subject to civil
rights complaints before this case. 130 Since Ms. Kennedy began employment with the OAR in
1986, she has received only one corrective action for speaking too loudly on the phone. 131 Ms.
Weiss has never faced disciplinary action while employed by the City .132

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Sgt. Brown has not been subject to a civil rights complaint while employed at the
Sheriffs Office for eleven years. 133

Mr. Kovalev cites a 2001 incident, while Sgt. Brown

worked as a prison security guard, and the prison disciplined her with a warning for failing to
exhaust all options to calm an inmate before the inmate attacked another guard. 134 This isolated
incident nearly sixteen years ago, before Sgt. Brown joined the Sheriffs Office, coupled with
Ms. Kennedy's corrective action for speaking loudly on the telephone are insufficient to establish
a history of employee mishandling or practice of condoning the wrongful exclusion of litigants
from the OAR. 135
Without evidence Ms. Weiss and the City were on notice of deficiencies in their training
program, a reasonable jury could not find Ms. Weiss and the City acted with deliberate
indifference.

F. We grant summary judgment dismissing the intentional infliction of
emotional distress claim for failing to adduce competent medical evidence.
Mr. Kovalev's claim for intentional infliction of emotional distress fails. "A plaintiff
seeking to establish intentional infliction of emotional distress must also support his claim with
'competent medical evidence,' because 'it is unwise and unnecessary to permit recovery to be
predicated on an inference based on the defendant's 'outrageousness' without expert medical
confirmation that the plaintiff actually suffered emotional distress. "' 136 Mr. Kovalev failed to
adduce competent medical evidence of experiencing emotional distress, therefore, his claim
fails. 137

III. Conclusion
In the accompanying Order, we deny Ms. Weiss' and Ms. Kennedy's motion for
summary judgment on the First Amendment retaliation claim arising from an alleged false report
to the Sheriffs Office and grant all Defendants' motion as to the remaining claims. Genuine
17

issues of material fact preclude summary judgment on Mr. Kovalev's First Amendment
retaliation claim against Ms. Weiss and Ms. Kennedy.

We grant Defendants' motion for

summary judgment dismissing Mr. Kovalev's claims under the First Amendment right of access
and right to information, assault, substantive due process, supervisory liability, and intentional
infliction of emotional distress claims.

1

Our Policies require a Statement of Undisputed Material Facts be filed in support of a Rule 56
motion, as well as an appendix of exhibits. Defendants filed a Statement of Undisputed Material
Facts at ECF Doc. No. 120-1 ("Defendants SUMF'') and appendix at ECF Doc. No. 120-2
through 120-5. Defendants' SUMF is supported by citations to the appendix. Sergei Kovalev
submitted a Statement of Undisputed Facts at ECF Doc. No. 126-3 ("Kovalev SUMF") and
appendix at ECF Doc. No. 126-5 through 126-6. The Kovalev SUMF both objects to and
provides additional facts not included in Defendants' SUMF. Of the one hundred and forty-eight
purported facts and objections included in the Kovalev SUMF, only sixteen include citations to
the record. References to the appendices shall be referred to by ECF number.
All parties submitted self-serving statements in support of their undisputed facts, and
legal arguments. "As a general proposition, 'conclusory, self-serving affidavits are insufficient
to withstand a motion for summary judgment."' Gonzalez v. Sec'y of Dept. of Homeland Sec.,
678 F.3d 254, 263 (3d Cir. 2012) (quoting Kirleis v. Dickie, McCamey & Chilcote, P.C., 560
F.3d 156, 161 (3d Cir. 2009)). "This rule has been extended to self-serving deposition
testimony." Johnson v. MetLife Bank, NA., 883 F. Supp. 2d 542, 549 (E.D. Pa. 2012) (citing
Irving v. Chester Water Auth., 439 F. App'x 125, 127 (3d Cir. 2011)). "However, the issue is not
whether [the plaintiff] has relied solely on his own testimony to challenge the [m]otion[], but
whether [the plaintiffs] testimony, when juxtaposed with the other evidence, is sufficient for a
rational factfinder to credit [the plaintiffs] testimony, despite its self-serving nature." Id. (citing
Gonzalez, 678 F.3d at 263).
2

Id.

3

ECF Doc. No. 120-1 at~ 2.

4

Id. at~~ 1, 3.

5

Id. at~~ 2, 4, 5.

6

Id. at~ 6.

18

7

Id. at~~ 8-9.

8

Id. at~ 10.

9

Id. at~ 13.

10

Id. at~~ 14-15.

11

Id. at~ 14.

12

Id. at~ 15.

13

Id. at~ 16.

14

Id. at~~ 17-18.

15

ECF Doc. No. 120-4 p. 53; ECF Doc. No. 120-3 p. 29.

16

Id. at ~ 20.

17

Id. at~ 22.

18 Iid . at~

23.

19

Id. at~~ 26-27.

20

Id. at ~~ 30, 45, 46.

21

Id. at~ 47.

22

Id. at~ 48.

23

Id. at~~ 49-51.

24

Id. at ~ 51.

25

Id. at ~ 52.

26

Id. at~ 53.

27 Iid .

at ~~54, 55.

28

Id. at~ 56.

29

Id. at ~57.

19

30

Id. at~ 58.

31

Id. at~ 59.

32

Id.

33

Id. at ~~59-60.

34

Id. at~ 61.

35

Id. at~ 62.

36

Id. at~ 63.

37

Id. at ~ 64.

38

Id. at~ 66.

39

Id. at~~ 68, 75.

40

Id. at~ 73.

41

Id. at~ 74.

42

Id. at~ 75.

43

Id. at ~ 76.

44

Id.

45

Summary judgment is proper when "the movant shows that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(a). A dispute as to a material fact is genuine if "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). On a motion for summary judgment, "we view the underlying
facts and all reasonable inferences therefrom in the light most favorable to the party opposing the
motion." Mancini v. Northampton Cnty., 836 F.3d 308, 313 (3d Cir. 2016) (quoting Blunt v.
Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014)). "The party seeking summary
judgment 'has the burden of demonstrating that the evidentiary record presents no genuine issue
of material fact."' Parkell v. Danberg, 833 F.3d 313, 323 (3d Cir. 2016) (quoting Willis v.
UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015)). If the movant carries
its burden, "the nonmoving party must identify facts in the record that would enable them to
make a sufficient showing on essential elements of their care for which they have the burden of
proof." Willis, 808 F.3d at 643 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "If,
20

after adequate time for discovery, the nonmoving party has not met its burden, pursuant to
Federal Rule of Civil Procedure 56, the court must enter summary judgment against the
nonmoving party." Id.
46

Delaware Coal. For Open Gov't, Inc. v. Strine, 733 F.3d 510, 513 (3d Cir. 2013) (quoting
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575 (1980)); Kreimer v. Bureau of Police
for Town of Morristown, 958 F.2d 1242, 1255 (3d Cir. 1992).
47

Kreimer, 958 F.2d at 1255.

48

Perry Educ. Ass'n. v. Perry Local Educators' Ass'n, 460 U.S. 37, 44 (1983).

49

Kreimer, 958 F.2d at 1255 (quoting Perry Educ. Ass 'n, 460 U.S. at 45).

50

ECF Doc. No. 9.

51

-'Td . at p .8
-'
.

52

Kreimer, 958 F.2d at 1255 (quoting Perry Educ. Ass 'n, 460 U.S. at 45).

53

Id. at 1261-62.

54

Widmar v. Vincent, 454 U.S. 263, 267-68 (1981).

55

City of Madison, Joint Sch. Dist. No. 8 v. Wisconsin Employment Relations Comm 'n, 429 U.S.
167, 175-76 (1976).

56

Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 555 (1975).

57

Kreimer, 958 F.2d at 1259.

58

Id. at 1256.

59

Perry Educ. Ass 'n, 460 U.S. at 45 (citing U. S. Postal Serv. v. Council of Greenburgh Civic
Associations, 453 U.S. 114, 132 (1981)).
60

Id. (citing Carey v. Brown, 447 U.S. 455, 561 (1980)).

61

Kreimer, 958 F.2d at 1256 (quoting Perry Educ. Ass 'n, 460 U.S. at 45) (brackets omitted).

62

Perry Educ. Ass 'n, 460 U.S. at 46 (citing U. S. Postal Serv., 453 U.S. at 131 n. 7).

63

Id. (quoting U.S. Postal Serv., 453 U.S. at 129).

64

Kreimer, 958 F.2d at 1259-60.
21

65

ECF Doc. No. 120-1at111117, 75.

66

Id. at 1175.

67

ECF Doc. No. 120-4 at p. 18.

68

Cornelius v. NAACP Legal Def & Educ. Fund, 473 U.S. 788, 804-806 (1985) (identifying
relevant forum as charity drive, not the federal workplace, and conducting factual analysis of
intent to designate as public forum, history of use, and nature of the forum); Mead v. Gordon,
583 F. Supp. 2d 1231, 1239 (D. Or. 2008) (analyzing forum's use to determine categorization of
forum); Mainstream Loudoun v. Bd. of Trs. of Loudoun Cnty. Library, 24 F. Supp. 2d 552, 56263 (E.D. Va. 1998) (analyzing government intent, extent of use, and nature of the forum).
69

ECF Doc. No. 120-4 at p. 12, 14, 29.

70

ECF Doc. No. 120-4 at p. 53-54; ECF Doc. No. 120-5 at p. 5.

71

ECF Doc. No. 120-4 at p. 53; ECF Doc. No. 120-5 at p. 5.

72

ECF Doc. No. 120-4 at p. 12-13, 18.

73

Mann v. Palmerton Area School District,_ F.3d _, 2017 WL 4172055, at *2 (3d Cir. 2017)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); Berg v. City of Allegheny, 219 F.3d
261, 272 (3d Cir. 2000) (quoting Harlow, 457 U.S. at 818).

74

Mann, 2017 WL 4172055, at *2 (citing Yarris v. Cnty. of Del., 465 F.3d 129, 140-41 (3d Cir.
2006)).

75

Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)); Mann, 2017 WL 4172055, at *6 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743
(2011)).

76

Even assuming Sgt. Brown did violate Mr. Kovalev's constitutional rights, it would not be
clear to a reasonable officer Sgt. Brown acted unlawfully. Gilles v. Davis, 427 F.3d 197, 203 (3d
Cir. 2005) (citations omitted). In Gilles, an officer arrested a "campus evangelist" after the
officer received a report of the speaker nearly creating a riot at a university campus. Id. at 202.
The officer did not observe a riot, but the officer spoke to witnesses and arrested the speaker. Id.
at 206. The speaker claimed the arrest violated his First Amendment rights. Id. at 203. Our
court of appeals concluded qualified immunity barred the claim because the court found no
reason why the officer's reliance on the witness accounts was unreasonable, and "[t]aking
account of the entire episode and the information [the officer] possessed at the time, ... it would
not have been clear to a reasonable officer that [the speaker] did not engage in disorderly
conduct." Id. at 207.
Similar to the officer in Gilles, Sgt. Brown and the other officers did not observe Mr.
22

Kovalev acting disorderly. ECF Doc. No. 120-4 at p. 18; ECF Doc. No. 120-3 at p. 13-14. Sgt.
Brown relied on Ms. Kennedy's call seeking assistance, and Mr. Kovalev claims Sgt. Brown
spoke to an OAR employee. ECF Doc. No. 120-4 at p. 12-13, 18; ECF Doc. No. 120-3 at p. 11.
With this information, Sgt. Brown decided to escort Mr. Kovalev from the OAR reception area.
ECF Doc. No. 120-4 at p. 13. We find no reason to conclude Sgt. Brown acted unreasonably by
relying on the information presented. Given the situation and information presented, it would
not be clear to a reasonable officer Mr. Kovalev did not act disorderly before Sgt. Brown's
arrival. Gilles, 427 F.3d at 206. Therefore, it would not be clear to a reasonable officer the
decision to escort Mr. Kovalev violated his constitutional rights.
77

Lauren W ex rel. Jean W v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (citing Thomas v.
Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006)).
78

See R.K. v. YA.L.E. Sch., Inc., 621 F. Supp. 2d 188, 197 (D.N.J. 2008) (retaliatory conduct
consisted of "filing a fraudulent truancy complaint against Plaintiffs with the Medford Township
Police Department").
79

ECF Doc. No. 120-3 at p. 29-30; ECF Doc. No. 126-6 at p. 47.

80

ECF Doc. No. 120-2 at p. 14-16, 44.

81

ECF Doc. No. 120-4 at p. 53.

82

ECF Doc. No. 120-2 at p. 5.

83

ECF Doc. No. 120-4 at p. 53.

84

Id.

85

ECF Doc. No. 120-2 at p. 18-19.

86

ECF Doc. No. 120-4 at p. 53-54; ECF Doc. No. 120-5 at p. 5.

87

Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006).

88

463 F.3d 285 (3d Cir. 2006)

89

Id. at 296.

90

42 Pa.C.S. § 8550.

91

Sides v. Cleland, 648 A.2d 793, 796 (Pa. Super. Ct. 1994) (citing RESTATEMENT (SECOND) OF
TORTS§ 21).
92

See D'Errico v. DeFazio, 763 A.2d 424, 431 (Pa. Super. Ct. 2000) (citing Cuciontti v.

23

Ortmann, 159 A.2d 216, 217 (Pa. 1960)).
93

ECF Doc. No. 120-4 at p. 12-13, 18.

94

ECF Doc. No. 120-1 at~~ 49-53.

95 J,d• at~

53.

96

Id. at~ 59.

97

Id. at ~~ 63-64.

98

Id. at~~ 47-67.

99

Id. at~~ 50, 60.

100

101
102

ECF Doc. No. 120-3, at p. 16.
EcF Doc. No. 120-3, at p. 43-44.
See D 'Errico, 763 A.2d at 431 (citing Cuciontti, 159 A.2d at 217).

103

Schieber v. City of Phila., 320 F.3d 409, 417 (3d Cir. 2003) (quoting Cty. of Sacramento v.
Lewis, 523 U.S. 833, 845-46 (1998)).
104

No. 89-2069, 1993 WL 410402 ( S.D.N.Y. Oct. 13, 1993).

105

ECF Doc. No. 9

106

/,d . at p. 13.

107

Santiago, 1993 WL 410402, at *2.

108

Id.

109

No. 04-1940, 2005 WL 525403, at *6 (E.D. Pa. 2005).

110

Id.

111

Id.

112

ECF Doc. No. 120-1at~75.

113

Id. at~~ 57-67

24

114

Id. at~ 76.

115

Koelsch v. Cnty. of Lancaster, No. 11-5681, 2012 WL 4459799, at *6 (E.D. Pa. 2012)
(quoting United States v. Lanier, 520 U.S. 259, 272 n.7 (1997)); Traylor v. Lanigan, No. 167691, 2017 WL 2364189, at *7 n.8 (D.N.J. 2017) (dismissing substantive due process claim
based on same conduct underlying the plaintiffs First Amendment compelled speech claim).
116

Koelsch, 2012 WL4459799, at *6 (quotingLanier, 520 U.S. at 272 n.7).

117

Traylor, 2017 WL 2364189, at *7 n.8 (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833,
843-44 (1998)).
118

436 U.S. 658 (1978).

119

Id. at 694; see also City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989).

120

Mann, 2017 WL4172055 at *7.

121

Wood v. Williams, 568 F. App'x 100, 105 (3d Cir. 2014) (quoting City of Canton, 489 U.S. at
388, 392).
122

Reitz v. Cty. of Bucks, 125 F.3d 139, 145 (3d Cir. 1997) (citing Colburn v. Upper Darby
Township, 946 F.2d 1017, 1030 (3d Cir. 1991)).
123

White v. Brommer, 747 F. Supp. 2d 447, 463 n.42 (E.D. Pa. 2010) (quoting Kline ex rel. Arndt
v. Mansfield, 255 F. App'x 624, 629 (3d Cir. 2007)); see also City of Canton, 489 U.S. at 391
("Neither will it suffice to prove that an injury or accident could have been avoided if an officer
had had better or more training, sufficient to equip him to avoid the particular injury-causing
conduct.").
124

Mann, 2017 WL 4172055, at *7 (quoting Connick v. Thompson, 563 U.S. 51, 62 (2011));
Thomas v. Cumberland Cty., 749 F.3d 217, 223 (3d Cir. 2014) (quoting Connick, 563 U.S. at
62).
125

Thomas, 749 F.3d at 223 (quoting Bd of Cnty. Comm 'rs of Bryan Cnty. v. Brown, 520 U.S.
397, 410 (1997)).
126

Connick, 563 U.S. at 63.

127

Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999) (footnote omitted).

128

EcF Doc. No. 9, p. 22.

129

EcF Doc. No. 120-4 at p. 52; ECF Doc. No. 120-5 at p. 4, 16.

25

130

ECF Doc. No. 120-4 at p. 54; ECF Doc. No. 120-5 at p. 5.

EcF Doc. No. 120-5 at p. 5-6. In the Kovalev SUMP, Mr. Kovalev asserts Ms. Kennedy has
been criticized in her employment evaluations in 1996, 2010, and 2012 for lacking
professionalism. ECF Doc. No. 126-3, at ,-r,-r 124-126. Mr. Kovalev does not adduce evidentiary
support for these statements.
131

132

ECF Doc. No. 120-4 at p. 44.

133

ECF Doc. No. 120-5 at p. 17-18.

134

ECF Doc. No. 126-6 at p. 41.

135

Kovalev cites to Sgt. Brown's driving history containing one reckless driving charge in 2004,
and one speeding violation in 1994. ECF Doc. No. 126-3, at _,-r,-r 115-16. We do not see
relevance in these driving violations from thirteen and twenty-three years ago to the theory Ms.
Weiss and the City showed deliberate indifference to Mr. Kovalev's constitutional rights.
136

Lawson v. Pa. SPCA, 124 F. Supp. 3d 394, 409 (E.D. Pa. 2015) (quoting Bock v. CVS
Pharmacy, Inc., No. 07-412, 2008 WL 3834266, at *2 (E.D. Pa. 2008)) (granting summary
judgment for failure to provide supporting competent medical evidence).
137

Id.

26