Rittenhouse Entertainment, Inc. et al v. City of Wilkes-Barre et al

Filing 31

MEMORANDUM (Order to follow).Signed by Honorable A. Richard Caputo on 3/19/2012. (bg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RITTENHOUSE ENTERTAINMENT, INC.;
THE MINES, INC.; G NET COMM. CO.;
PHOENIX ESTATES; and THOMAS J.
GRECO;

CIVIL ACTION NO. 3:11-CV-617

(JUDGE CAPUTO)

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.

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
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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 email 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.

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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
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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
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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
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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
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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
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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 against Mr. Frati in Count IV. Therefore,
the complaint fails to allege the personal involvement of Mr. Murphy or Mr. Frati in any of
the claims brought against them. These claims will be dismissed, but Plaintiffs will have
leave to amend Count IV to include Mr. Frati.

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B. Count I
The Defendants move to dismiss Count I of the complaint. Count I claims, pursuant
to 42 U.S.C. §§ 1983 and 1985, that all Defendants “act[ed] in concert to subject plaintiffs
and their businesses to far harsher law enforcement action than other businesses similarly
situated (other than in the race of their clientele) in violation of said plaintiffs’ rights to equal
protection of the laws under the Fourteenth Amendment to the United States.” Compl. ¶ 80.
1. Section 1983
Section 1983 states, “Every person who, under color of any statute, ordinance,
regulation, custom, or usage . . . subjects, or causes to be subjected, any citizen . . . or any
other person . . . to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured.” Section 1983 “is not itself a
source of substantive rights, but a method for vindicating federal rights elsewhere conferred
by those parts of the United States Constitution and federal statutes that it describes.” City
of Monterey v. Del Monte Dunes, 526 U.S. 687, 749 n.9 (1999) (quoting Baker v. McCollan,
443 U.S. 137, 144 n.3 (1979)). To prevail in an action under § 1983, a plaintiff must
demonstrate: (1) a violation of a right secured by the Constitution or laws of the United
States, and (2) that the alleged deprivation was committed by a person acting under color
of state law. Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000); Moore v. Tartler, 986 F.2d
682, 685 (3d Cir. 1993).
a. Municipal Liability
The City Defendants move to dismiss the § 1983 claims in Count I (as well as Counts
II through V) on the grounds that Plaintiffs failed to establish municipal liability under
Monell.1 Local governing bodies are deemed to be “persons” within the meaning of Section
1

The County does not challenge Plaintiffs’ claim of municipal liability, but the
analysis applies equally to either municipality.
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1983 and can be sued directly under the act for monetary, declaratory, or injunctive relief.
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). To establish municipal liability, a
plaintiff must: 1) demonstrate the existence of an unlawful policy or custom, and 2) prove
that the municipal practice was the proximate cause of the injury. Bielevicz v. Dubinon, 915
F.2d 845, 850 (3d Cir. 1990). Municipalities cannot be held liable under § 1983 based
solely upon a theory of respondeat superior; rather, the plaintiff must identify a municipal
policy or custom that caused his injury. Langford v. City of Atlantic City, 235 F.3d 845, 847
(3d Cir. 2000). To establish causation, a plaintiff must allege a “plausible nexus” or
“affirmative link” between the violation and the municipality’s custom or practice. Bielevicz,
915 F.2d at 850. Causation exists where the connection between the policy and injury is
so strong that it would be a plainly obvious consequence. Bd. of County Comm'rs of Bryan
Cnty., Okl. v. Brown, 520 U.S. 397, 411 (1997).
The City Defendants’ motion to dismiss the § 1983 claims against the City will be
denied. The City Defendants argue that the complaint fails to demonstrate a plausible nexus
or affirmative link between the municipality’s policy and the constitutional deprivation at
issue, arguing that the City never shut down The Mines.2 But a total shutdown of the bar is
not necessary to establish a plausible nexus between the alleged policy and alleged injury.
Plaintiffs allege that the City had a policy to discourage businesses from serving Blacks and
Latinos, and an obvious consequence of this policy would be that a business that serves
Blacks and Latinos would suffer economic harm. Based on these allegations, Plaintiffs have
alleged causation sufficient to state a claim for municipal liability.
b. Violation of the Equal Protection Clause
The College and County Defendants argue that the Plaintiffs failed to state a claim

2

The City Defendants do not argue that Plaintiffs fail to allege a policy or custom.
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for a violation of the Equal Protection Clause.3 The Equal Protection Clause of the
Fourteenth Amendment directs that no state shall “deny to any person within its jurisdiction
the equal protection of the laws.” U.S. Const. amend. XIV, § 1. “To prevail on an equal
protection claim, a plaintiff must present evidence that s/he has been treated differently
from persons who are similarly situated.” Renchenski v. Williams, 622 F.3d 315, 337 (3d Cir.
2010) (quoting Williams v. Morton, 343 F.3d 212, 221 (3d Cir. 2003)).
The Mines’ equal protection claim will not be dismissed. The County Defendants
argue that The Mines cannot claim an equal protection violation because it is a corporation
without a racial identity, and thus it does not belong to a class protected by the Equal
Protection Clause. The Supreme Court has determined, however, that plaintiffs may
proceed with equal protection claims under a “class of one” theory, “where the plaintiff
alleges that she has been intentionally treated differently from others similarly situated and
there is no rational basis for the difference in treatment.” Vill. of Willobrook v. Olech, 528
U.S. 562, 564 (2000). Here, The Mines alleges that City and County law enforcement
officers intentionally treated it differently than similarly situated nightclubs in the area.
Although the County Defendants argue that there was a rational basis for any different
treatment, that is an issue of fact not appropriate for the motion-to-dismiss stage. Viewing
the facts in the complaint in the light most favorable to the Plaintiffs, they have alleged an
equal protection violation, and thus The Mines’ claims under Count I will not be dismissed
on the basis of failure to state a claim.
The Count I claims by Plaintiffs Mr. Greco and Rittenhouse, however, will be
dismissed for failure to state a claim. The complaint alleges that The Mines was treated
differently than other nightclubs, but does not allege that Mr. Greco or Rittenhouse were
3

The City Defendants do not claim that Count I fails to state a claim, so the
sufficiency of Plaintiffs’ claims against them will not be analyzed.
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treated differently than similarly situated corporate officers or leaseholders. In fact, the
complaint does not allege any action specifically directed at Mr. Greco or Rittenhouse as
opposed to The Mines. Because of the longstanding principle that “one cannot sue for the
deprivation of another’s civil rights,” O’Malley v. Brierley, 477 F.2d 785, 789 (3d Cir. 1973),
the County Defendants’ motion to dismiss Mr. Greco’s and Rittenhouse’s claims in Count
I will be granted.
c. Under Color of State Law
The College Defendants also seek dismissal of Count I on the grounds that they did
not act under color of state law. Generally, “[a]ction under color of state law ‘requires that
one liable under § 1983 have exercised power possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority of state law.” Harvey v.
Plains Twp. Police Dep’t, 635 F.3d 606, 609 (3d Cir. 2011) (quoting Abbott v. Latshaw, 164
F.3d 141, 146 (3d Cir. 1998)). The College Defendants are private parties, and thus were
not clothed with the authority of state law. But private citizens who conspire with a state
actor are also acting under color of law for the purposes of § 1983. Dennis v. Sparks, 449
U.S. 24, 27-28 (1980). Plaintiffs argue that because the College Defendants acted in
concert with the City Defendants, they acted under color of state law.
Plaintiffs’ § 1983 claim against the College Defendants must be dismissed because
Plaintiffs fail to establish a conspiracy that would transform the Defendants into state actors.
In order to state a claim for a conspiracy, a plaintiff must present “‘enough factual matter
(taken as true) to suggest that an agreement was made,’ in other words, ‘plausible grounds
to infer an agreement.’” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d
159, 178 (3d Cir. 2010) (quoting Twombly, 550 U.S. at 556)). Further, the plaintiff “must set
forth allegations that address the period of the conspiracy, the object of the conspiracy, and

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the certain actions of the alleged conspirators taken to achieve that purpose.” Id. at 179
(quoting Shearin v. E.F. Hutton Grp., Inc., 885 F.2d 1162, 1166 (3d Cir. 1989), abrogated
on other grounds by Beck v. Prupis, 529 U.S. 494 (2000)). Here, with the exception of the
conclusory statement that the parties “acted in concert,” Plaintiffs have only alleged that
Father O’Hara met with Mayor Leighton and Chief Dessoye. But one meeting does not
create a plausible inference of agreement–and the complaint does not even allege any
meeting or communication between the City Defendants and Mr. McGonigle, Mr.
McAndrew, or Mr. Lindenmuth. Further, the complaint does not allege any actions in
furtherance of the conspiracy on the part of the College Defendants (as the e-mails and
statements made by College Defendants all occurred prior to the meeting where the
conspiracy allegedly began). Thus, without sufficient facts to plead a conspiracy, the
complaint has failed to allege that the College Defendants acted under color of state law.
The claims in Count I against the College Defendants will be dismissed.
2. Section 1985
42 U.S.C. § 1985 has three subsections: § 1985(1) deals with preventing an officer
from performing duties; § 1985(2) addresses obstruction of justice or intimidating a party,
witness, or juror; and § 1985(3) focuses on the deprivation of rights or privileges. Plaintiffs’
complaint does not identify a particular subsection of § 1985, but I will assume based on
the facts that its claim falls under § 1985(3). To state a claim under § 1985(3), a plaintiff
must allege:
(1) a conspiracy; (2) motivated by a racial or class based discriminatory
animus designed to deprive, directly or indirectly, any person or class of
persons to the equal protection of the laws; (3) an act in furtherance of the
conspiracy; and (4) an injury to person or property or the deprivation of any
right or privilege of a citizen of the United States.
Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997); see also Griffin v. Breckenridge, 403 U.S.

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88, 102-03 (1971).
The § 1985 claims of Mr. Greco and Rittenhouse and the § 1985 claims against the
College Defendants and County Defendants will be dismissed. The reasoning applied in my
analysis of the § 1983 claim applies here as well: Mr. Greco and Rittenhouse cannot assert
a civil rights claim based on the alleged deprivation of The Mines’ equal protection rights,
and the complaint does not allege sufficient facts to establish a conspiracy on the part of
the College Defendants. As far as the County Defendants, the complaint’s sole factual
allegation is that Sheriff Savokinas was a part of the law enforcement presence outside of
the The Mines on one occasion. The presence of the sheriff alone is insufficient to state a
claim for a conspiracy. Therefore, the College and County Defendants’ motion to dismiss
the § 1985 claim will be granted.
C. Count II
All Defendants move to dismiss Count II. In Count II, Mr. Greco and the
Entertainment Corporations bring claims pursuant to 42 U.S.C. §§ 1981, 1982, 1983, and
1985, alleging that Defendants acted “in retaliation against plaintiffs for welcoming Black
and Latino persons as patrons at their establishment and . . . as part of a custom and policy
designed to drive such persons out of Wilkes-Barre and the neighboring communities.”
Compl. ¶ 2.
1. Sections 1981 and 1982
42 U.S.C. §§ 1981 and 1982 were passed as part of the “immediately post-Civil War
legislative effort to guarantee the then newly freed slaves the same legal rights that other
citizens enjoy.” CBOCS v. Humphries, 553 U.S. 442, 448 (2008). Section 1981 provides
that “[a]ll persons within the jurisdiction of the United States shall have the same right . . .
to make and enforce contracts . . . as is enjoyed by white citizens.” Section 1982 provides,

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among other things, that “[a]ll citizens of the United States shall have the same right . . . as
is enjoyed by white citizens . . . to inherit, purchase, lease, sell, hold, and convey real and
personal property.” Both statutes are construed similarly based on their “common language,
origin, and purposes.” Humphries, 553 U.S. at 448.

Defendants initially argue that the

statutes are both inapplicable to this case because the actions allegedly taken by the
Defendants are not related to the making or enforcement of contracts or to the purchase
or sale of real and personal property. Plaintiffs allege, however, that the police harassment
deterred individuals from patronizing The Mines and thus entering into contracts for the sale
of goods and services such as beverages and entertainment. Purchases of goods implicate
“the purchase of . . . personal property” under § 1982, see Calderon v. Sw. Bell Mobile Sys.,
LLC, No. 02 C 9134, 2004 WL 2931321, at *3 (N.D. Ill. Dec. 13, 2004) (cellphones), and
they also constitute contracts for the purposes of § 1981, see, e.g., Christian v. Wal-Mart
Stores, Inc., 252 F.3d 862, 874 (6th Cir. 2001) (toys). Thus, both statutes are applicable to
the instant case.
Plaintiffs’ claim in Count II is for retaliation pursuant to §§ 1981 and 1982. The
Supreme Court determined in Humphries that both §§ 1981 and 1982 encompass “the
claim of an individual (black or white) who suffers retaliation because he has tried to help
a different individual, suffering direct racial discrimination, secure his § 1981 [or § 1982]
rights.’” 553 U.S. 442, 445 (2008). The Third Circuit has not yet addressed the elements of
a § 1982 claim, and has only examined § 1981 retaliation claims within the context of
employment. The Second Circuit, however, has held that “[t]o establish retaliation [under
§ 1981], plaintiffs must show that the plaintiffs were (1) engaged in an activity protected
under the anti-discrimination statutes, (2) the defendants were aware of plaintiff’s
participation in the protected activity, (3) the defendants took adverse action against

16

plaintiffs based upon their activity, and (4) a causal connection existed between the
plaintiffs’ protected activity and the adverse action taken by defendants.” Lizardo v. Denny’s,
Inc., 270 F.3d 94, 105 (2d Cir. 2001). Because the statutes are construed similarly, this test
should be applied to § 1982 as well.
Mr. Greco and The Mines have properly stated a retaliation claim under 42 U.S.C.
§§ 1981 and 1982 against Mayor Leighton, Chief Dessoye, and the City of Wilkes-Barre.
The complaint alleges that The Mines engaged in the protected activity of entering into
contracts and sales of personal property to minorities, and Mr. Greco engaged in the
protected activity of complaining about civil rights violations and threatening to file a lawsuit
against the two Defendants for allegedly interfering with black and Latino individuals’ right
to purchase goods and services from The Mines. The complaint also alleges that
Defendants were aware of the protected activity and instigated the police harassment of
nightclub patrons in response to the protected activity and as part of a city policy. Thus, all
elements of a prima facie § 1981 retaliation case are satisfied. Defendants argue that Mr.
Greco and The Mines did not really engage in protected activity because they were
motivated by self-interest in attracting customers. But there is no requirement that a plaintiff
asserting a retaliation claim must have engaged in protected activity with a strictly altruistic
motive. To the contrary, the Humphries Court based its holding on Sullivan v. Little Hunting
Park, Inc., 396 U.S. 229 (1969), where the Supreme Court determined that a white landlord
had standing to bring a § 1982 claim against a corporation that discriminated against his
black tenant. The landlord had attempted to assign shares of the corporation to his tenant,
but the corporation refused to approve the assignment based on the tenant’s race, and then
expelled the landlord when he protested. Id. Like Mr. Greco and The Mines in this case
have a financial interest in attracting black and Latino customers, the landlord in Sullivan

17

had a financial interest in maintaining his lease with the black tenant. Financial self-interest
did not preclude the landlord from asserting his claim, nor does it preclude Plaintiffs from
asserting theirs.
Rittenhouse, however, has failed to state a § 1981 or § 1982 retaliation claim. The
complaint does not allege any protected activity on the part of Rittenhouse, as investing in
a corporation that serves minorities is not a protected interest under either statute.
Rittenhouse’s claims will thus be dismissed.
Further, Plaintiffs have failed to state a § 1981 or § 1982 retaliation claim against the
County or College Defendants, or the City Council members. The complaint does not allege
that Plaintiffs complained to or threatened to sue any of these Defendants, nor does it
allege that these Defendants knew that the Plaintiffs had spoken out against the alleged
discriminatory actions. Without knowledge of protected activity and then adverse action in
response, there is no retaliation claim under the statutes. Therefore, the claim against these
Defendants will be dismissed.
2. Section 1983
Plaintiffs’ retaliation claim under § 1983 will be dismissed for failure to state a claim.
“In general, constitutional retaliation claims are analyzed under a three-part test. Plaintiff
must prove (1) that he engaged in constitutionally protected activity; (2) that the government
responded with retaliation; and (3) that the protected activity caused the retaliation.”
Eichenlaub v. Twp. of Ind., 385 F.3d 274, 282 (3d Cir. 2004). It is unclear what specific
constitutionally protected activity is alleged in this § 1983 claim as opposed to the § 1981
and § 1982 claims already addressed. Because Count II states that Defendants retaliated
against Plaintiffs “for welcoming Black and Latino persons as patrons at their
establishment,” the § 1983 claim will be construed as involving retaliation based on

18

Plaintiffs’ exercise of their freedom of association under the First Amendment. Freedom of
association claims may involve protected relationships or expressive association, see
Borden v. Sch. Dist. of Twp. of E. Brunswick, 523 F.3d 153, 173 (3d Cir. 2008), but Plaintiffs
fail to sufficiently allege either.
First, the relationship between a nightclub and its patrons is not a protected
association. The Supreme Court has held that the First Amendment protects certain
relationships, including “marriage, the begetting and bearing of children, child rearing and
education, and cohabitation with relatives.” Bd. of Dirs. of Rotary Int’l v. Rotary Club, 481
U.S. 537, 545 (1987). Protection is extended to relationships that involve “not only a special
community of thoughts, experiences, and beliefs but also distinctively personal aspects of
one’s life.” Roberts v. U.S. Jaycees, 468 U.S. 609, 619-20 (1984). In Borden v. School
District of the Township of East Brunswick, the Third Circuit held that a football coach did
not have a free association claim against a school district that prohibited him from saying
prayers with his team. The Borden court noted that the relationship between a football
coach and his players was not close enough to implicate freedom of association
protections. Because a relationship between a nightclub and its patrons is less close and
personal than that of a football coach and his players, there cannot be a protected
association here. See Desi’s Pizza, Inc. v. City of Wilkes-Barre, No. Civ. A. 3:CV-01-0480,
2006 WL 2460881, at *26 (M.D. Pa. Aug. 23, 2006) (rejecting First Amendment retaliation
claim because relationship between bar and customers “is not an association based on
intimate human relationships”). Thus, Plaintiffs cannot assert a retaliation claim based on
that relationship.
Second, Plaintiffs fail to state a claim for retaliation based on expressive association.
Expressive association claims involve groups that “engage in some form of expression,

19

whether it be public or private.” Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000). The
Third Circuit has held that there is no expressive association between a tavern owner and
his clientele. Smith v. City of Lebanon, No. 09-4647, 2010 WL 2813279, at *2, 387 Fed.
App’x 186, 188 (3d Cir. Jul. 19, 2010); see also Desi’s Pizza, 2006 WL 2460881 at *26
(rejecting First Amendment retaliation claim because relationship between bar and
customers was “purely a commercial transaction . . . not formed to engage in any protected
First Amendment activities”). Therefore, Plaintiffs cannot assert an expressive association
retaliation claim. Defendants’ motion to dismiss the § 1983 retaliation claims in Count II will
be dismissed.
3. Section 1985
Plaintiffs’ § 1985 claims in Count II4 will be dealt with in a similar fashion as those
asserted in Count I: the claims by Rittenhouse will be dismissed and the claims against the
County and College Defendants will be dismissed.5 As noted above, no facts demonstrate
that Rittenhouse engaged in any protected activity, and it cannot file suit based on the
deprivations of Mr. Greco and The Mines. Further, there are insufficient facts to
demonstrate a conspiracy on the part of the College or County Amendments. Thus, those
Defendants’ motion to dismiss the § 1985 claims in Count II will be granted.
D. Count III
All Defendants move to dismiss Count III of the Plaintiffs’ complaint. Count III alleges
violations of the Due Process Clause of the Fifth and Fourteenth Amendment of the United
States Constitution, based on the Defendants’ alleged abuse of police power to destroy

4

As with the § 1985 claim in Count I, it will be assumed that Plaintiffs’ claim in
Count II is under 42 U.S.C. § 1985(3).
5

The City Defendants did not address Count II’s § 1985 claims in their motion to
dismiss, so those claims will stand.
20

Plaintiffs’ business, harassment and stigmatization of Plaintiffs, and deprivation of Plaintiffs’
right to use property and pursue an occupation.
As an initial matter, the College Defendants’ motion to dismiss Count III must be
granted. Count III is based on the alleged abuse of police power, and as I held above, there
are insufficient facts linking the College Defendants to a conspiracy involving police
harassment. Thus, Plaintiffs’ due process claim against the College Defendants will be
dismissed.
1. Fifth Amendment
Plaintiffs’ claim under the Fifth Amendment will be dismissed. The Due Process
Clause of the Fifth Amendment applies to actions of the federal government, while the Due
Process Clause of the Fourteenth Amendment applies to state actors. See U.S. Const.
amend. V; U.S. Const. amend. XIV, § 1; see also B&G Const. Co., Inc. v. Dir. Office of
Workers’ Comp. Programs, 662 F.3d 233, 246 n.14 (3d Cir. 2011). Because Plaintiffs do
not allege any actions on the part of the federal government, they cannot assert claims
under the Fifth Amendment.
2. Fourteenth Amendment
Count III’s claim under the Due Process Clause of the Fourteenth Amendment will
not be dismissed. The Due Process Clause of the Fourteenth Amendment prohibits states
from depriving “any person of life, liberty, or property without due process of the law.” U.S.
Const. amend. XIV. Due process under the Fourteenth Amendment “has both substantive
and procedural components.” Evans v. Sec’y Pa. Dep’t of Corr., 645 F.3d 650, 658 (3d Cir.
2011). Although the complaint is unclear as to the nature of the claim, Plaintiffs’ briefs
indicate that Count III is a substantive due process claim. The substantive component of
the Due Process clause “bars certain arbitrary, wrongful government actions ‘regardless of

21

the fairness of the procedures used to implement them.’” Newman v. Beard, 617 F.3d 775,
782 (3d Cir. 2010) (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)). To establish a
substantive due process violation, a plaintiff must prove: (1) the deprivation of an interest
protected by the substantive due process clause; and (2) that the government’s deprivation
of that protected interest shocks the conscience. Chambers ex rel. Chambers v. Sch. Dist.
of Phila. Bd. of Educ., 587 F.3d 176, 190 (3d Cir. 2009) (citing Chainey v. Street, 523 F.3d
200, 219 (3d Cir. 2008)). Defendants argue that Plaintiffs have failed to establish either.
a. Deprivation of a Protected Interest
Plaintiffs have established the deprivation of a protected right. Ownership and use
of real property is an interest protected by substantive due process. DeBlasio v. Zoning Bd.
of Adjustment for Twp. of West Amwell, 53 F.3d 592, 601 (3d Cir. 1995), abrogated on other
grounds by United Artists Theatre Circuit, Inc. v. Twp. of Warrington, Pa., 316 F.3d 392 (3d
Cir. 2003). Here, Plaintiffs assert that they were deprived of a property right by virtue of not
being able to realize the benefit of their $900,000 investment in the property owned by Mr.
Greco. Defendants argue that there was no deprivation because neither the City nor the
County actually shut down The Mines. But Plaintiffs allege that the Defendants’ harassment
made it financially impossible for them to operate the nightclub more than sporadically. This
allegation sufficiently states a claim that Plaintiffs were deprived of their right to use and
enjoy their property. Further, the complaint states that Mr. Greco was deprived of his liberty
right in pursuing his occupation. Although the Third Circuit Court of Appeals has not dealt
with a similar case, other courts of appeals have held that government harassment that
prevents a bar owner from operating his business creates a proper substantive due process
claim. See, e.g., Benigni v. City of Hemet, 879 F.2d 473, 479 (9th Cir. 1988). Therefore,
Plaintiffs’ complaint properly states a claim for a deprivation of a protected interest.

22

b. Conscience Shocking
Plaintiffs have also successfully alleged a deprivation that is shocking to the
conscience. The standard of what is conscience shocking is subjective and depends on
context, but “it is governmental conduct intended to injure that is most likely to rise to the
conscience-shocking level.” Evans v. Sec’y of Pa. Dep’t of Corr., 645 F.3d 650, 660 (3d Cir.
2011) (internal quotations omitted) (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847
(1998)). “[A]llegations of corruption, self-dealing, [or] bias against an ethnic group” suggest
conscience-shocking behavior. Chainey, 523 F.3d at 220 (3d Cir. 2008). Plaintiffs allege
that the City and County purposely targeted The Mines for harassment because of the race
of the patrons. If this allegation of intentionally injurious conduct motivated by racial bias
were true, it would shock the conscience. Therefore, Plaintiffs have stated a claim for a
substantive due process violation, and the City and County Defendants’ motion to dismiss
will be denied.
E. Count IV
The City Defendants move to dismiss Count IV of the complaint. In Count IV, Mr.
Greco and the Development Corporations allege pursuant to § 1983 that the City, Mayor
Leighton, and the City Council members (Mr. Thomas, Jr., Mr. Barrett, Ms. Kane, Mr.
Cronauer, and Mr. Merritt) violated their constitutional rights. Specifically, the complaint
alleges that by preventing the KOZ development project, these Defendants violated the
Plaintiffs’ rights to equal protection and substantive due process under the Fifth and
Fourteenth Amendments.
1. Fifth Amendment
Plaintiffs’ claim under the Fifth Amendment will be dismissed. As noted above, there
is no federal action in this case, and thus the Fifth Amendment is inapplicable.

23

2. Fourteenth Amendment
The City Defendants argue that the Fourteenth Amendment claim in Count IV must
be dismissed for two reasons. First, they argue that they are immune from suit based on the
doctrine of legislative immunity. Alternatively, they argue that the complaint fails to state a
proper claim for an equal protection or substantive due process violation.
a. Legislative Immunity
Local legislators are absolutely immune from suit in their individual capacities under
§ 1983 for “all actions taken ‘in the sphere of legitimate legislative activity.’” Bogan v. ScottHarris, 523 U.S. 44, 54 (1998) (quoting Tenney v. Brandhove, 341 U.S. 367, 376 (1951)).
Legislative immunity applies to acts within the “legislative sphere” even where the conduct,
“if performed in other than legislative contexts, would in itself be unconstitutional or
otherwise contrary to criminal or civil statutes.” Doe v. McMillan, 412 U.S. 306, 312-13
(1973). This immunity is based on the Speech or Debate Clause of the United States
Constitution. Id. at 49 (quoting Tenney, 341 U.S. at 372-75); see also U.S. Const. Art. I, §
6, cl. 1.
An act is legislative, and thus covered by absolute immunity, if it is “both
substantively and procedurally legislative in nature.” In re Montgomery Cnty., 215 F.3d 367,
376 (3d Cir. 2000) (citing Carver v. Foerster, 102 F.3d 96, 100 (3d Cir. 1996)). “An act is
substantively legislative if it involves ‘policy-making of a general purpose’ or ‘line-drawing’”
and “[i]t is procedurally legislative if it is undertaken ‘by means of established legislative
procedures.’” Id. The motive or intent of an individual performing an act is irrelevant to
whether it is legislative. Bogan, 523 U.S. at 55. The Third Circuit Court of Appeals “has
repeatedly stated that decisions affecting a single individual or a small number of people
do not implicate legislative power and, thus, such actions are administrative in nature,

24

whereas decisions affecting the community at large are likely legislative.” Fowler-Nash v.
Democratic Caucus of Pa. House of Representatives, 469 F.3d 328, 338 (3d Cir. 2006).
Because the actions alleged in Plaintiffs’ complaint were administrative and not
legislative, Defendants do not have immunity from suit.6 Plaintiffs’ complaint alleges that
Mayor Leighton and the City Council members specifically and intentionally denied them an
extension that was granted to other properties. The City Defendants claim that their decision
was “a policy decision regarding tax collections for the City,” but the denial of a benefit to
a specific individual or group is not “a policy-making decision of a general scope,” id. at 338
n.2. The City Defendants do not claim that other properties were also denied the extension,
nor do they identify a neutral, general policy that dictated the decision to deny the extension.
Therefore, Defendants fail to demonstrate that their actions were legislative and thus
protected by absolute immunity.
a. Equal Protection
Although Defendants are not immune from suit, Plaintiffs have failed to state a claim
for an equal protection violation. As noted above, “[t]o prevail on an equal protection claim,
a plaintiff must present evidence that s/he has been treated differently from persons who
are similarly situated.” Renchenski v. Williams, 622 F.3d 315, 337 (3d Cir. 2010) (quoting
Williams v. Morton, 343 F.3d 212, 221 (3d Cir. 2003)). Here, Plaintiffs argue that other
properties were granted the extension necessary to receive the KOZ benefits. But, as the
City Defendants point out, their alleged obstruction of the KOZ benefits occurred after they
learned of Mr. Greco’s felony charges. Plaintiffs have not argued that the other properties
who received the extension also were owned and operated by individuals facing felony
6

It should further be noted that even if the actions were legislative in nature, the City
could not assert legislative immunity. “[U]nlike various government officials, municipalities
do not enjoy immunity from suit–either absolute or qualified–under § 1983.” Leatherman v.
Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166 (1993).
25

charges. Thus, the other properties are not similarly situated to the Plaintiffs. Because
Plaintiffs have failed to state a claim that they were treated differently from similarly situated
individuals, Defendants’ motion to dismiss the equal protection claim in Count IV will be
granted.
b. Substantive Due Process
Plaintiffs have, however, successfully stated a claim for a substantive due process
violation. The City Defendants argue that this claim must be dismissed because it fails to
establish that any of the Defendants’ actions were shocking to the conscience. But like the
Plaintiffs’ other substantive due process claim, the claim in Count IV alleges that the
Defendants deprived Plaintiffs of a right in order to retaliate against them for serving patrons
of color and making civil rights complaints. If these allegations were true, this corrupt and
racially biased conduct would shock the conscience. Therefore, the City Defendants’ motion
to dismiss will be denied.
F. Count V
All Defendants move to dismiss Count V. In Count V, Plaintiffs bring three state tort
claims against the Defendants: tortious interference with business relationships, trade
disparagement, and defamation.7 Defendants’ motions to dismiss raise three issues:
immunity, the statute of limitations, and failure to state a claim.
1. Immunity
Count V will be dismissed against the City and the County because they are immune
7

The Defendants’ briefs indicate that they interpret Count V as also asserting a
claim for the tort of abuse of process. But the complaint does not list “abuse of process”
after the colon in Count V signaling the beginning of the list of state law claims. Compl.
¶ 88 (“Plaintiffs state the following state law claims against all defendants acting in concert
for abuse of process: tortuous [sic] interference with business relationships, trade
disparagement, defamation.”) Further, the Plaintiffs do not mention the tort of abuse of
process in any of their briefs. Therefore, the complaint will not be construed as containing a
claim for abuse of process.
26

from suit under the Pennsylvania Political Subdivision Tort Claims Act (“PPSTCA”), 42 Pa.
Cons. Stat. Ann. § 8541 et seq. The PPSTCA makes local agencies immune from state law
tort claims (with a few exceptions not applicable here).8 42 Pa. Cons. Stat. Ann. §§ 8541-42.
The City of Wilkes-Barre and Luzerne County both qualify as local agencies under the
PPSTCA. See id. § 8501. Therefore, they have immunity under the statute.
The individual City and County employees, however, are not protected by immunity.
The PPSTCA grants municipal employees the same immunity as agencies, id. § 8545,
except that employees may be liable for their conduct if it amounted to “actual malice” or
“willful misconduct,” id. § 8550. The Pennsylvania Supreme Court has generally held that
“the term ‘willful misconduct’ is synonymous with the term ‘intentional tort.’” Sanford v.
Stiles, 456 F.3d 298, 315 (3d Cir. 2006) (quoting Renk v. City of Pittsburgh, 641 A.2d 289,
293 (Pa. 1994)). Here, Count V alleges intentional torts on the part of the employees, and
this constitutes willful misconduct under the PPSTCA. Therefore, the City and County
employees are not immune from suit.
2. Statute of Limitations
Plaintiffs’ claims for trade disparagement and defamation must be dismissed
because the statute of limitations has lapsed. Pennsylvania tort claims for trade
disparagement and defamation are governed by a one-year statute of limitations under 42
Pa. Cons. Stat. Ann. § 5523. See Pro Golf Mfg., Inc. v. Tribune Review Newspaper Co.,
809 A.2d 243, 246 (Pa. 2002); Spain v. Vicente, 315 Pa. Super. 135, 142, 461 A.2d 833,

8

The PPSTCA’s exceptions allow liability against agencies for: (1) the operation of a
motor vehicle in the possession or control of a local agency; (2) the care, custody or control
of personal property in the possession or control of a local agency; (3) the care, custody or
control of real property; (4) a dangerous condition created by trees, traffic controls, or
street lights; (5) a dangerous condition of utility service facilities; (6) a dangerous condition
of streets; (7) a dangerous condition of sidewalks; (8) the care, custody or control of
animals in possession or control of a local agency. 42 Pa. Cons. Stat. Ann. § 8542.
27

837 (1983). Plaintiffs filed their complaint in April 2011. However, the allegations in the
complaint refer back to 2009, thus exceeding the one-year statute of limitations. Therefore,
Defendants’ motions to dismiss the claims for defamation and trade disparagement will be
granted.
3. Failure to State a Claim
As to the remaining state tort claim of interference with a business relationship,
Plaintiffs have properly pleaded the claim against some, but not all, Defendants. To state
a claim for the tort of interference with a business relationship, a plaintiff must allege the
following: “(1) a prospective contractual relation; (2) the purpose or intent to harm the
plaintiff by preventing the relation from occurring; (3) the absence of privilege or justification
on the part of the defendant; and, (4) the occasioning of actual damage resulting from the
defendants conduct.” Vintage Homes, Inc. v. Levin, 554 A.2d 989, 994 (Pa. Super. Ct.
1989). Although courts are hesitant to define “prospective contractual relation,” a plaintiff
must demonstrate “reasonable likelihood or probability [of a contractual relation] . . .
something more than a mere hope or innate optimism.” InfoSAGE, Inc. v. Mellon Ventures,
L.P., 896 A.2d 616, 627 (Pa. Super. Ct. 2006) (quoting Glenn v. Point Park Coll., 272 A.2d
895, 898-99 (Pa. 1971)). Defendants argue that Plaintiffs have failed to prove a prospective
contract, but because Plaintiffs allege that they had a prospective contractual relationship
with customers at The Mines who might have purchased food or drinks, they have
successfully pleaded the first element of the claim. Defendants also argue that Plaintiffs
have not demonstrated the second element of intent to harm the plaintiff by preventing the
relation. As noted above, the complaint alleges that the City Defendants engaged in a
conspiracy to interfere with the nightclub’s business, but fails to state sufficient facts to
include Sheriff Savokinas or any of the College Defendants in the conspiracy. However, the

28

complaint also alleges that the individual College Defendants took various actions against
the nightclub on their own: Mr. McGonigle and Mr. McAndrews circulated an e-mail
discussing problems with The Mines and started a forum for discussions on filing complaints
against the nightclub, Mr. Lindenumuth spread falsehoods about the nightclub, and Father
O’Hara met with City officials to discuss shutting down the nightclub. The allegations against
the City Defendants and the College Defendants all satisfy the second element of showing
intent to harm by interfering with a contractual relation. Therefore, the tortious interference
with a business relationship claim will be dismissed as to Sheriff Savokinas and King’s
College, but not the individual City and College Defendants.
G. Count VI
Count VI’s claim under the Pennsylvania Fair Educational Opportunities Act, 24 Pa.
Cons. Stat. § 5004, will be dismissed. Plaintiffs concurred in the College Defendants’ motion
to dismiss the claim.
H. Count VII
Mayor Leighton and Chief Dessoye move to dismiss Count VII of the complaint. In
Count VII, Mr. Greco alleges a violation of his Fifth and Fourth Amendment rights pursuant
to 42 U.S.C. §§ 1981, 1982, 1983, and 1985.
The City Defendants argue that the claims in Count VII are barred by Heck v.
Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that if the success of a
plaintiff’s § 1983 damages suit “would necessarily imply the invalidity of his conviction or
sentence,” the plaintiff may only bring the claim where the conviction or sentence has been
reversed, expunged, or invalidated in some form. 512 U.S. 477, 484 (1994). In Count VII
here, Mr. Greco argues that in order to retaliate against him for speaking out about his civil
rights, Mayor Leighton and Chief Dessoye induced an FBI agent “to manipulate Mr. Greco

29

into becoming vulnerable to the charge of misprision.” Compl. ¶¶ 92-93. According to the
City Defendants, if Mr. Greco succeeded on this claim, it would necessarily imply that his
misprision conviction was invalid. Because Mr. Greco’s conviction has not been reversed
or otherwise invalidated, the City Defendants argue he cannot bring his claims.
Because Mr. Greco’s conviction will not be invalidated by success in his civil rights
claims, the City Defendant’s motion to dismiss will be denied. Mr. Greco does not claim that
his conviction for misprision was invalid–he in fact pled guilty to the charge. Instead, Mr.
Greco clarifies that his claim is based on a theory of selective prosecution. The Third Circuit
Court of Appeals has noted that “selective prosecution may constitute illegal discrimination
even if the prosecution is otherwise warranted.” Desi’s Pizza, Inc. v. City of Wilkes-Barre,
321 F.3d 411, 425 (3d Cir. 2003) (citing Wayte v. United States, 470 U.S. 598, 608 (1985);
United States v. Schoolcraft, 879 F.2d 64, 68 (3d Cir. 1989); United States v. Berrigan, 482
F.2d 171, 174 (3d Cir. 1973)). Thus, Mr. Greco is not Heck-barred from proceeding on the
theory that he was validly convicted for misprision, but the Defendants conspired to target
him for prosecution as a form of retaliation.

I. Count VIII
The City and College Defendants’ motions to dismiss Count VIII of the complaint will
be granted. Count VIII is a claim for attorneys fees pursuant to 42 U.S.C. § 1988. However,
§ 1988 is not itself a cause of action; rather, it is “intended to complement the various acts
which do create federal causes of action for the violation of federal rights” by setting
regulations as to choice of laws, attorneys fees, and experts fees in a federal civil rights suit.
Moor v. Alameda Cnty., 411 U.S. 693, 702 (1973). Because a plaintiff may not sue directly
under § 1988, Plaintiffs’ claim under the statute is dismissed. Nevertheless, Plaintiffs may

30

still seek attorneys fees–and their request for that relief is asserted elsewhere in the
complaint.
J. Punitive Damages
The City Defendants’ motion to dismiss any punitive damages claims will be denied.
Under § 1983, a jury may assess punitive damages “when the defendant’s conduct is
shown to be motivated by evil motive or intent, or when it involves reckless or callous
indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56
(1983). In the context of punitive damages in civil rights cases, the term “‘reckless
indifference’ refer[s] not to the egregiousness of the [defendant’s] conduct, but rather to the
[defendant’s] knowledge that it may be acting in violation of federal law.” Alexander v. Riga,
208 F.3d 419, 430 (3d Cir. 2000) (quoting Kolstad v. Amer. Dental Ass’n, 572 U.S. 526, 535
(1999)). Here, the complaint alleges that Defendants acted out of a desire to discourage
minorities from patronizing local businesses and to punish Plaintiffs for welcoming
minorities. Taken as true, these allegations demonstrate an evil motive and likely reckless
indifference as well. Therefore, Plaintiffs may properly seek punitive damages.
K. Supplemental Jurisdiction
The College Defendants argue that because all federal claims against them will be
dismissed, the Court should decline to exercise supplemental jurisdiction over the remaining
state law tort claims against them. Where a plaintiff brings both federal and state law claims
that are related to one another and arise out of a common nucleus of operative fact, a
district court has supplemental jurisdiction over the state claims. 28 U.S.C. § 1367(a);
United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966). If a district court dismisses all the
federal claims, it may decline to exercise supplemental jurisdiction over the remaining state
law claims. § 1367(c)(3). Generally, where all federal claims have been dismissed, a district

31

court should “decline to decide the pendent state claims unless considerations of judicial
economy, convenience, and fairness to the parties provide an affirmative justification for
doing so.” Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995).
The College Defendants’ motion to dismiss for lack of supplemental jurisdiction will
be denied. There are still viable federal claims against other Defendants in the case that
create original jurisdiction, and the state law tort claims against the College Defendants are
related to the federal claims and arise out of the same set of facts. Thus, the Court has
supplemental jurisdiction under § 1367(a).
L. Leave to Amend
Plaintiffs will be granted leave to amend several of their claims in order to make more
specific allegations. See Darr v. Wolfe, 767 F.2d 79, 81 (3d Cir. 1995) (“[W]hen an
individual has filed a complaint under § 1983 which is dismissable for lack of factual
specificity, he should be given a reasonable opportunity to cure the defect, if he can.”). In
particular, Plaintiffs can cure the deficiencies in their complaint by amending: the allegations
regarding the personal involvement of Mr. Murphy and Mr. Frati; the allegations regarding
the County and College Defendants’ involvement in the alleged conspiracy; the allegations
regarding Count I’s §§ 1983 and 1985 claims by Mr. Greco and Rittenhouse; allegations
regarding Rittenhouse’s §§ 1985 claims in Count II; and allegations regarding Count II’s
§§ 1981 and 1982 claims against the City Council members.

32

IV. Conclusion
For the reasons stated above, the Defendants’ motions to dismiss will be granted in
part and denied in part. Plaintiffs will be granted leave to amend their complaint. An
appropriate order follows.

March 16, 2012
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

33