COLE v. ENCAPERA et al
MEMORANDUM OPINION re 133 MOTION for Summary Judgment filed by CASEY DURDINES, TERRY CHILDS, RICK ENCAPERA, CALIFORNIA BOROUGH, and 136 MOTION for Summary Judgment filed by JUSTIN SHULTZ granting in part and denying in part said motions. An appropriate order follows. Signed by Magistrate Judge Cynthia Reed Eddy on 8/16/2017. (ajt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RICK ENCAPERA, TERRY CHILDS,
JUSTIN SHULTZ, CALIFORNIA
BOROUGH, CASEY DURDINES,
CYNTHIA REED EDDY, United States Magistrate Judge.
Presently before the court for disposition are the following:
1. Defendants California Borough (“Borough”), Terry Childs (“Officer Childs”), Casey
Durdines (“Mayor Durdines”) and Rick Encapera’s (“Chief Encapera”) motion for
summary judgment [ECF No. 133]; and
2. Defendant Justin Shultz’s (“Officer Shultz”) motion for summary judgment [ECF No.
The motions are fully briefed and ripe for disposition. For the reasons that follow, the
motions are granted in part and denied in part.
Plaintiff Jason Cole (“Plaintiff”) initiated the present civil rights action alleging that the
defendants’ conduct violated his civil rights and various state laws in connection with a bar he
owns in California Borough, Pennsylvania.
All parties have consented to jurisdiction before a United States Magistrate Judge;
therefore the Court has the authority to decide dispositive motions, and to eventually enter final
judgment. See 28 U.S.C. § 636, et seq.
Many of the allegations contained in the parties’ respective concise statements of material
facts are void of specific dates of events that are alleged to have occurred and that are crucial to
the subject matter of this complaint. Moreover, the court notes that the factual allegations of
Plaintiff’s complaint are largely supported by circumstantial evidence and his own deposition
testimony and at times, Plaintiff fails to remember when some of the material allegations
transpired. Moreover, Plaintiff’s responsive concise statement of material facts submitted to
defend against the motions for summary judgment does not give specific dates detailing when
some material events occurred. What is more, that out of thousands of pages of deposition
transcripts, police reports, and other documentary evidence, Plaintiff’s recollection of the
chronology of the events that occurred come from a two-page document handwritten by him
purportedly contemporaneously with the events as they transpired. See Pl.’s Resp. to Def. Shultz’s
Concise Statement of Material Fact (“SMF”) [ECF No. 171-11 at 2-3]. When asked to verify these
dates and meetings with the named individuals in the handwritten document in his deposition,
Plaintiff’s recollection was far from complete. However, Plaintiff’s failure to remember the
chronology and specific dates on which events occurred are significant only to his credibility,
which this Court cannot and will not make a determination of. Additionally, the parties have
included many immaterial and irrelevant facts in their concise statements in support of their
respective briefing, none of which will be considered by the Court in determining the present
motion. The Court has constructed the factual background of this opinion, to the extent necessary,
from the entire record and will draw all reasonable inferences in Plaintiff’s favor as the nonmoving
party in determining Defendants’ motions for summary judgment.
Plaintiff has owned and operated a bar called J. Cole’s Inn located in California,
Pennsylvania since 1997. The bar is near California University of Pennsylvania and is mostly
frequented by local college students, but also has patrons who are alumnae and members of the
community. While the bar is incorporated as a limited liability company under Pennsylvania law,
Plaintiff claims that he has operated J. Cole’s Inn as a sole proprietorship and has claimed all
revenue from J. Cole’s Inn on his personal tax returns. There are approximately four other bars in
the California, Pennsylvania area that also have the reputation as being “college bars” –
McMonagles, Wood Street, Lagerheards and Signatures, which are all located in the same vicinity
as J. Cole’s Inn. According to witnesses, J. Cole’s Inn was a popular college bar and Plaintiff
claims it was consistently profitable through 2011.
Sometime in 2012, the Borough hired two new police officers, Officers Childs and Shultz.
These officers worked detail in the vicinity of J. Cole’s Inn.
August 2012/September 2012 Loan to Officer Shultz
In late August or early September 2012, Officer Shultz asked Plaintiff for a monetary loan
and Plaintiff loaned Officer Shultz an amount between $1,500 and $2,000. Plaintiff complained
to Chief Encapera that it was inappropriate for Officer Shultz to ask a local business owner for a
loan, but it is unclear from the record when Plaintiff voiced his complaints to Chief Encapera or
the frequency of his complaints.
Plaintiff’s Complaints to Borough in 2012
On or about October 15, 2012, Plaintiff went to the Borough Police department to speak
with Chief Encapera and Officer Shultz about the loan he issued Officer Shultz, but did not meet
with either individual.2
To this end, Plaintiff testified:
4:05 p.m., Monday October 15, 2012, went to police to talk to Rick about Schultz
[sic] and money. Did you actually meet with Chief Encapera that date?
On or about October 26, 2012, Plaintiff went to the Borough police department with the
intention of complaining to Chief Encapera about an incident which occurred six months prior in
which a patron was arrested outside of J.Cole’s Inn and the arresting officer, Officer Childs, shoved
the patron into a soda vending machine, causing damage to the machine which Plaintiff paid, or
had to pay to be fixed. Shultz J.A. [ECF No. 139-3 at 59]. Plaintiff did not speak with Chief
Encapera, but spoke with the Borough Secretary. It is unclear what conversation, if any, transpired
between Plaintiff and the Borough Secretary.
Plaintiff again traveled to the Borough police department on or about November 15, 2012
with the intention of complaining to Chief Encapera about the vending machine, but did not meet
with the chief that day.
On or about December 10, 2012, Plaintiff again traveled to the Borough police department,
but the offices were closed. It is unclear whether Plaintiff intended to complain about the vending
machine, or another issue.
On or about January 22, 2013, Plaintiff contacted the Borough District Attorney Gene
Vittone. While Plaintiff indicates he contacted Mr. Vittone to “voice his concerns,” Pl.’s Resp. to
It says chief not in.
I’m asking you questions now.
I said no.
So you didn’t meet with him? That’s not what it says. It says at 3:30 – sir, I’m
reading your own notes.
Yeah, he wasn’t in.
Hang on. October 15, 2012, went to police to talk to Rich about Schultz [sic] and
the money; right?
And you’re saying that didn’t happen?
11/4/2016 Deposition of Jason Cole [ECF No. 139-3] at 228.
Defs.’ SMF [ECF No. 141] at ¶ 54, he does not elaborate on what “concerns” he intended to voice,
or the dates that he ever complained of any officer misconduct to Mr. Vittone. Plaintiff alleges
that Mr. Vittone did not answer and that he left a message for Mr. Vittone but it was never returned.
Plaintiff testified that he never met with Gene Vittone, but testified that he spoke with Gene Vittone
about his claims that Borough police officers mistreated him, but could not provide an exact time
frame as to when this conversation transpired, or the specific officer misconduct he allegedly
communicated. Shultz J.A. [ECF No. 139-3 at 61 p. 238].
Search of Michael Steve’s Apartment
Plaintiff rented out apartments above J. Cole’s Inn. On or about January 26, 2013, the
police, and specifically, Officer Childs conducted a warrantless search of one of Plaintiff’s tenants,
Michael Steve’s apartment after receiving a call reporting a disturbance involving a firearm.
Michael Steve was also Plaintiff’s employee at the time. The officers caused unspecified property
damage to the apartment after kicking in the door to the apartment to gain entrance.
Sexual Harassment Allegations
Plaintiff maintains that Officers Shultz and Childs sexually harassed his female bartenders
both in person at the bar while the bartenders were working shifts and Officers Childs and Shultz
were working detail at the bar, and via text message between these individuals. This conduct
allegedly occurred from the time Officers Shultz and Childs began to work for the Borough in
On or about February 13, 2013, Plaintiff learned that a frequent patron of J. Cole’s Inn,
Autumn Pawelec, was not of the legal age to consume alcohol. This caused Plaintiff to become
concerned about possible Liquor Control Enforcement (“LCE”) violations in connection with
serving alcohol to a minor. Plaintiff also learned that this woman was allegedly engaging in sexual
relations with Officer Shultz, and Plaintiff suspected that Officer Shultz and/or Childs knew that
she was underage while she consumed alcohol in J. Cole’s Inn and various other local bars, but
that the officers did nothing about this conduct because of Shultz’s alleged sexual relationship with
her. Officer Shultz denies that he knew that Autumn Pawelec was underage.
Once Plaintiff learned of this, he asked his head bartender, Melissa Tedrow, to dig up
“ammo” (i.e., damaging information or “dirt”) on Officers Shultz and Childs. Defendants allege
that Plaintiff did so to use this damaging information as a defense against any potential Liquor
Control Board investigations in connection with serving alcohol to an underage person. Plaintiff
alleges that he did so to request proof that Officer Shultz knew she was not of the legal drinking
age. Nonetheless, Plaintiff asked Tedrow to send him screenshots of any text message ever sent
to her by Childs or Shultz that she felt was inappropriate and Tedrow complied.3 At this point,
Tedrow also informed Plaintiff that in October 2012 when she was working a shift at J. Cole’s Inn,
Officer Childs took her phone off of the bar and deleted allegedly inappropriate text messages that
he sent to her.
It is unclear from the record exactly when Plaintiff became privy to the Officers’ allegedly
sexually inappropriate conduct against his employees. Regardless of how or when Plaintiff learned
of the Officers’ inappropriate sexual comments made to his female employees, Plaintiff’s motives
in compiling this information is immaterial for purposes of this motion. In defending the motions
for summary judgment, Plaintiff pays too much attention to trying to prove the officers’ alleged
salacious misconduct. What is material for purposes of these motions are when he complained
about the misconduct and to whom, the subject matter of those complaints, and the alleged
retaliation he suffered after he made these complaints. Plaintiff instead attempts to convince the
court that the officers’ sexual harassment of his employees indeed occurred. As previously
explained, it is not for the court to pass judgment on whether the officers acted inappropriately
with bar patrons or Plaintiff’s employees; those individuals are not parties to this lawsuit, and
Plaintiff does not allege that the Officers ever directed sexual comments towards him. Rather, it
is the Court’s responsibility to determine whether Plaintiff has adequately adduced evidence of the
elements of the claims he brings against these defendants. Whether the officers indeed acted
inappropriately with Plaintiff’s employees and other members of the community is not an element
to any of the claims brought by Plaintiff, and therefore need not be discussed further.
Tedrow also rented an apartment located above J. Cole’s Inn.
On February 14, 2013,
Officers Shultz and Childs, who were in uniform and carrying service weapons, blocked Tedrow’s
path as she attempted to leave J. Cole’s Inn to return to her apartment and questioned her about
any pictures she may have on her phone that would make the officers look bad.
From the entirety of the submissions by the parties, it is unclear whether Plaintiff knew of
the sexually inappropriate remarks that Officers Childs and Shultz made to his employees prior to
February 2013. Tedrow testified that Plaintiff could have been in earshot of conversations that she
had with other bartenders about these officers inappropriate conduct in 2012, but what is clear
from the record is that the first time that Plaintiff complained of the officers’ alleged sexual
harassment of his employees was on February 15, 2013.4 On that day, Plaintiff confronted Officers
Shultz and Childs about their conduct toward his employees and specifically towards Tedrow
telling them to cease the harassing conduct. Another Borough officer, Officer Colin Rockwell was
present for this interaction.
Police Presence at J. Cole’s Inn
Plaintiff claims that after he confronted Officers Shultz and Childs in February 2013, the
officers “maintained a constant presence outside J. Cole’s Inn” by stationing their police cars in
While Plaintiff would have this court find that he complained about the officers’ sexual
harassment of his employees at a time prior to this, Plaintiff does so by referencing general
complaints about officer misconduct related to other events which occurred. Plaintiff does not
specifically allege that he complained about the officers’ sexual harassment at any time prior to
his interaction with the officers on February 15, 2013. Because the non-moving party at summary
judgment must present more than just bare assertions and conclusory allegations to show the
existence of a genuine issue of material fact, for purposes of this motion, the court will reject
Plaintiff’s bare assertions that he complained of general misconduct to bootstrap his allegations
that he complained specifically of sexual harassment being suffered by his employees. Plaintiff’s
theory of liability rests solely upon his allegation that he was retaliated against by the Defendants
for complaining of the Officers’ sexual harassment of his employees and he does not allege that
he was retaliated against for any other complaints he purportedly made.
the alley across the street from J. Cole’s Inn, standing outside of the bar, following individuals
who left the bar, taking photographs of the customers waiting in line to enter the bar, and using
threatening and intimidating language to J. Cole’s Inn’s patrons as they entered or exited J. Cole’s
Inn. Pl.’s Am. Resp. to Defs’ SMF [ECF No. 176 at ¶ 66-73]. Plaintiff does not provide any
specific information including the timing or frequency regarding this police presence, although
former employees of J. Cole’s Inn testified that police cars were stationed outside of J. Cole’s Inn
beginning in the Fall of 2012 through Spring 2013. Plaintiff claims that because of this constant
police presence, his establishment gained a negative reputation as being a dangerous place for
college students to visit. Plaintiff alleges that because of this constant police presence, his revenues
dropped, as college students were afraid to patron his establishment. It is unclear from the record
whether Plaintiff lodged any complaints about police presence between February 2013 and May
Closure of J. Cole’s Inn on May 3, 2013 – May 4, 2013
The evening of May 3, 2013 through the early morning of May 4, 2013, a California
Borough Police Officer Kristie Salzman was on duty and patrolling the Borough. Officers Childs
and Shultz were also on duty and at some point during their shift, Officers Childs and Shultz
delivered an undercover vehicle to a location outside of the Borough while Officer Salzman
remained on duty in the Borough. Officer Salzman became aware of numerous disturbances in
the Borough involving drunk, violent and disorderly persons. Officer Salzman was compelled to
call for assistance from other law enforcement agencies while Officers Childs and Shultz were
temporarily located outside of the Borough, as the disturbance became extremely disorderly. Five
other law enforcement agencies responded to the Borough to assist in clearing large groups of
persons from the streets and bars located within the Borough limits. Sometime after this, Officer
Childs responded to the scene. In the early morning hours of May 4, 2013, Officer Childs made
the decision to close four bars in the Borough, Wood Street, McMonagles, J. Cole’s Inn and
Peggy’s Bar. Officer Shultz had no involvement in the early closure of the bars on the morning of
May 4, 2013.
On May 4, 2013, Plaintiff sent a text message to Chief Encapera complaining about the
alleged police misconduct. Plaintiff does not specify what misconduct he attempted to complain
about. Chief Encapera responded that Plaintiff should provide his complaint to the Chief’s
secretary or to contact the Chief directly and that the Chief would need the information before the
Council meeting on May 9, 2013.
On May 7, 2013, Chief Encapera wrote a letter to Plaintiff stating: “On Saturday, May 4,
2013, during a phone conversation you leveled some horrific accusations against a couple of
officers from the California Borough Police Force. I asked you to come into my office on May 6,
2013, so we could document these accusations. At the time of this letter, you have not done this.
I need your co-operation so I can address what you have accused these officers doing. I am in my
office Monday – Friday from 7 AM 0 [sic] 3PM.” Defs’ SMF [ECF No. 135-13]. Plaintiff did not
complain about officer misconduct at the May 9, 2013 Borough Council Meeting.
On May 7, 2013, Shultz and Childs were suspended from their positions as police officers
as a result of misconduct unrelated to Plaintiff or J. Cole’s Inn. Plaintiff admits that he has no
evidence to support a claim that Officer Shultz took any action against him or J. Cole’s Inn after
May 4, 2013. See Shultz SMF [ECF No. 137 at ¶ 29]; Pl.’s Resp. to Shultz SMF [ECF No. 143 at
June 2013 Borough Council Meeting
On or about June 13, 2013, Plaintiff attended a Borough Council meeting and complained
about police misconduct. Prior to the meeting, Plaintiff provided the Borough Council with several
boxes of documents which contained witnesses’ statements, cell phone text logs and call logs,
petitions and formal complaints. It is unclear from the record exactly what misconduct Plaintiff
complained about at the Borough Council meeting. However, it is undisputed that Plaintiff
attended the June 13, 2013 Borough Council meeting and complained about police misconduct.
Following the Borough Council meeting, on June 19, 2013, Chief Encapera emailed
Officer Shultz informing him that several complaints were registered against him and an
investigation was ongoing as to those complaints. Chief Encapera indicated in his email that he
“had concern that [Officer Shultz] may retaliate” against those who levied the complaints and
cautioned Officer Shultz that any such retaliation would be handled “both criminally and civilly
with immediate suspension and dismissal.” Pl.’s Am. Resp. to Defs’ SMF [ECF No. 176-28].
Officer Shultz was terminated from the Borough in November 2013 due to an unrelated
matter. Officer Childs resigned from the Borough in December 2013.
The Borough retained an independent investigator in July 2013 who issued a report
regarding a number of problems with the police department including issues with supervision, a
lack of a system in place to void arrests, no policy regarding stop and frisk, no policy concerning
civilian complaints, and no policy delineating establishments where off-duty police officers should
not be permitted.
August 12, 2013 Email from Chief Encapera to Mayor Durdines
On August 12, 2013, Chief Encapera wrote an email to Mayor Durdines which stated:
FYI – this morning I received information that Jason Cole approached Ptl Robatin
at the KwikFill last week and told him that I threw all of my officers under the bus
by hiring a New York Detective to investigate the police department – Nobody in
my department, to my knowledge, had any first hand [sic] knowledge of an
investigator other than the DA until this incident . . . I just wanted this documented
for future use because something need to be done to this medaling [sic] trouble
Pl.’s Am. Resp. to Defs’ SMF [ECF No. 176-33 at 2].
The following enforcement actions were taken against the Plaintiff by the Pennsylvania
Bureau of Liquor Control Enforcement (“LCE”) for the entirety of the time that Plaintiff has owned
(1) In July 2001, Plaintiff’s liquor license was suspended for three days on the grounds
that Plaintiff served an underage person alcohol;
(2) In February 2003, Plaintiff was directed to pay a fine of $1,000 and Plaintiff’s
liquor license was suspended for two days on the grounds that he served an
underage person alcohol;
(3) In April 2004, Plaintiff was ordered to pay a fine of $300 on the grounds that he
served patrons alcohol after 2:30 a.m.;
(4) In May 2004, Plaintiff was ordered to pay a fine of $150 on the grounds that he
issued a check in payment for purchases of malt or brewed beverages which was
dishonored by Plaintiff’s bank due to insufficient funds;
(5) In November 2006, Plaintiff received a warning from the LCE for furnishing
alcohol to a minor;
(6) In May 2012, Plaintiff received a warning from the LCE that his employees
furnished more than one free drink per person;
(7) In March 2013, the LCE informed Plaintiff he served alcohol to an underage
(8) In April 2013, the LCE informed Plaintiff he served alcohol to an underage person;
(9) In May 2013, Plaintiff was cited for serving alcohol to an underage person;
In June 2013, Plaintiff’s liquor license was suspended for four days on the
grounds that he served an underage person alcohol;
In September 2013, the LCE issued a warning to Plaintiff for having four to
five adulterated and/or contaminated liquor;
In May 2015, the LCE issued a warning to Plaintiff for having four to five
adulterated and/or contaminated liquor.
Plaintiff asserts that Chief Encapera influenced these investigations in retaliation for his
complaints of police misconduct by contacting the LCE to have his bar classified as a nuisance
bar. Plaintiff further alleges that he has a long history of cooperating with the Borough police to
prohibit underage drinking in his bar and he employed a retired LCE agent to assist in monitoring
On January 23, 2015, Plaintiff filed his original complaint against numerous Defendants,
some of which have been dismissed. Plaintiff thereafter amended his complaint a total of three
times, and the operative complaint, the Fourth Amended Complaint5 was filed on April 18, 2016.
The Fourth Amended Complaint asserts the following claims against the Borough, Mayor
Durdines, Chief Encapera, Officer Shultz and Officer Childs:
1. Fourteenth Amendment substantive due process claim against all of the
2. A civil conspiracy claim pursuant to 42 U.S.C. § 1983 against all of the
3. First Amendment retaliation claim against all of the Defendants;
4. A municipal liability claim pursuant to 42 U.S.C. § 1983 against the Borough
and Mayor Durdines;
5. Fourteenth Amendment Equal Protection claim against all of the Defendants;
6. A state law claim for trespass against Officers Shultz and Childs;
While Plaintiff filed his operative complaint as the “Fourth Amended Complaint,” in
actuality, this would be considered his third amended complaint. See Compl. [ECF No. 1];
Amended Complaint [ECF No. 13]; Second Amended Complaint [ECF No. 30]; Fourth Amended
Complaint [ECF No. 74]. Regardless, the court will refer to his operative pleading as the “Fourth
7. A state law claim for tortious interference with business relations against Officers
Childs and Shultz and Chief Encapera.
Discovery in this matter ended on November 21, 2016 and the moving Defendants filed
their respective motions for summary judgment on February 13, 2017. See [ECF Nos. 133, 136].
Because of Plaintiff’s failure to follow various rules of civil procedure in responding to the motions
for summary judgment submitted by the parties, the litigation has been needlessly protracted in
making this motion ripe for disposition.
At this time, after numerous submissions and
resubmissions to this court, the matter is finally ripe for disposition.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted if
the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” The moving party has the initial burden of proving to the district
court the absence of evidence supporting the non-moving party’s claims. Celotex Corp. v. Catrett,
477 U.S. 317, 330 (1986); Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007); UPMC Health
System v. Metropolitan Live Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004).
The burden then shifts to the non-movant to come forward with specific facts showing a
genuine issue for trial. Fed. R. Civ. P. 56(e); Williams v. Borough of West Chester, Pa., 891 F.2d
458, 460-61 (3d Cir. 1989) (the non-movant must present affirmative evidence - more than a
scintilla but less than a preponderance - which supports each element of his claim to defeat a
properly presented motion for summary judgment). The non-moving party must go beyond the
pleadings and show specific facts by affidavit or by information contained in the filed documents
(i.e. depositions, answers to interrogatories and admissions) to meet his burden of proving
elements essential to his claim. Celotex, 477 U.S. at 322. See also Saldana v. Kmart Corp., 260
F.3d 228, 232 (3d Cir. 2001). The non-moving party “must present more than just bare assertions,
conclusory allegations or suspicions to show the existence of a genuine issue.” Garcia v. Kimmell,
381 F. App’x 211, 213 (3d Cir. 2010) (quoting Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594
(3d Cir. 2005)).
When considering a motion for summary judgment, the court is not permitted to weigh the
evidence or to make credibility determinations, but is limited to deciding whether there are any
disputed issues and, if there are, whether they are both genuine and material. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). The Court must consider the evidence, and all reasonable
inferences which may be drawn from it, in the light most favorable to the non-moving party.
Batsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). See also El v. SEPTA,
479 F.3d 232, 238 (3d Cir. 2007).
Plaintiff alleges multiple constitutional and state law violations against each Defendant.
Each claim will be addressed seriatim.
a. 42 U.S.C. § 1983
Plaintiff’s constitutional claims are made pursuant to 42 U.S.C. § 1983 (“section 1983”)
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law. . . .
To state a claim under section 1983, a plaintiff is required to show that an individual acting
under color of state law violated the plaintiff's constitutional rights or statutory rights. West v.
Atkins, 487 U.S. 42, 48 (1988). 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)).
In order for a plaintiff to adequately state a claim under section 1983, he must establish
that the defendant deprived him of a right secured by the United States Constitution acting under
color of state law. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). A plaintiff
alleging a constitutional violation “must portray specific conduct by [ ] officials which violates
some constitutional right.” Chavarriaga v. New Jersey Dep't of Corr., 806 F.3d 210, 222 (3d Cir.
2015). By doing so, a plaintiff must demonstrate a defendant's “personal involvement” in the
alleged constitutional violation by adequately alleging either (1) the defendant's personal
involvement in the alleged violation; or (2) his actual knowledge and acquiescence in the wrongful
conduct. Id. (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). “Although a court
can infer that a defendant had contemporaneous knowledge of wrongful conduct from the
circumstances surrounding a case, the knowledge must be actual, not constructive.” Id. (citations
b. Municipal Liability pursuant to Monell v. Department of Social Services of
City of New York, 436 U.S. 658 (1978)
i. Casey Durdines6
Confusingly, Plaintiff has levied a municipal liability claim against Mayor Durdines. It is
apparent by its own terms that a claim for municipal liability pursuant to Monell only applies to
In Plaintiff’s response, he argues that both Chief Encapera and Mayor Durdines “are liable
under Monell,” Pl.’s Op. Br. [ECF No. 173 at 20], however, he only asserts a claim for municipal
liability against the Borough and Mayor Durdines in his Fourth Amended Complaint. See Fourth
Am. Compl. [ECF No. 74] at pg. 17. Even if Plaintiff were to properly assert this claim against
Chief Encapera, he would be entitled to judgment in his favor for the same reasons as Mayor
municipalities and not to individuals. Lepre v. Lukus, 602 Fed. Appx. 864, 869 (3d Cir. 2015)
(Monell “sets forth the test to determine if municipalities, not individuals, can be held liable under
[Section] 1983.”) (citing Monell, 436 U.S. at 694)). Even if Mayor Durdines was named as a
defendant to this count in his official capacity, such a claim against him would be duplicative of
the claim against the Borough, and moreover, Plaintiff was previously denied permission to amend
his complaint to include any official capacity claims against Mayor Durdines. See Memo. Op. and
Order [ECF No. 72] at 4-5 (“Because an action pursuant to 42 U.S.C. § 1983 ‘against a state
official in his or her official capacity is not a suit against the official but rather is a suit against the
official’s office[,]’ and ‘no different from a suit against the State itself[,]” Will v. Michigan Dep’t
of State Police, 491 U.S. 58, 71 . . . (1989) (citations omitted), Plaintiff’s motion to add the
Borough Mayors in their official capacities is denied as futile as California Borough, the Borough
Mayors’ ‘office,’ is a defendant in this action.”). Therefore, Mayor Durdines is entitled to
judgment in his favor as to Plaintiff’s municipal liability claim.
ii. California Borough
Plaintiff’s claim against the Borough under Monell is that the Borough had a “custom and
practice of retaliating against those individuals and business owners who make good faith reports
of police officer misconduct.” Fourth Am. Compl. [ECF No. 74] at ¶ 75. Further, Plaintiff alleges
that the Borough “retaliated against other bar owners in a similar fashion for reporting misconduct
and for criticizing the police department for misconduct and corruption.” Id. at ¶ 80.
Municipalities and other local governmental units “can be sued directly under [section]
1983 for monetary, declaratory, or injunctive relief.” Monell, 436 U.S. at 690. “But, under
[section] 1983, local governments are responsible only for ‘their own illegal acts,’” and, like
supervisors, “are not vicariously liable under [section] 1983 for their employees' actions.” Connick
v. Thompson, 563 U.S. 51, 60 (2011) (citations omitted). To state a plausible section 1983 claim
against a municipality, the complaint must contain factual allegations showing that a municipal
custom or policy caused the constitutional violation. Monell, 436 U.S. at 694; McTernan v. City of
York, Pa., 564 F.3d 636, 658 (3d Cir. 2009) (the plaintiff must “identify a custom or policy, and
specify what that custom or policy was”). “Where the policy concerns a failure to train or supervise
municipal employees, liability under section 1983 requires a showing that the failure amounts to
deliberate indifference to the rights of persons with whom the employees will come into contact.”
Thomas v. Cumberland Cty., 749 F.3d 217, 222 (3d Cir. 2014) (citations and internal marks
omitted). “Once a [section] 1983 plaintiff identifies a municipal policy or custom, he must
‘demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind
the injury alleged.’” Berg v. Cty. of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000) (quoting Bd. of
Cty. Com'rs of Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997)). Where the policy or custom does
not facially violate federal law, causation can be established only by demonstrating that the
municipal action was taken with deliberate indifference as to its known or obvious consequences.
The Borough argues that Plaintiff’s municipal liability claim must be dismissed as there is
no viable constitutional claim against any individually named defendant. This argument is
summarily rejected, as the court has found that there is enough evidence for Plaintiff to survive
summary judgment on his First Amendment Retaliation claim against Officers Childs and Shultz,
as explained infra. The Borough also argues that Plaintiff has failed to establish how the
Borough’s actions or omissions caused Plaintiff’s alleged harm. In response, Plaintiff argues that
the Borough failed to “train, supervise and discipline [its police officers which] amounted to a
policy that contributed to the deprivation of Plaintiff’s rights.” Pl.’s Op. Br. [ECF No. 173 at 23].
Plaintiff does not respond by pointing to any evidence that the Borough maintained a custom and
practice of retaliating against those individuals and business owners who make good faith reports
of police officer misconduct as set forth in his Fourth Amended Complaint. Plaintiff now seeks to
hold the Borough liable under Monell on a theory of a failure to train, supervise and/or discipline.
As a preliminary matter, the Borough is entitled to summary judgment on Plaintiff’s claim
that it maintained a custom and practice of retaliating against those who complain of police
misconduct, as Plaintiff has pointed to no evidence of any such claim, nor does he respond to the
Borough’s argument in this regard and is deemed to have abandoned this theory of liability.
Next, while a municipality may be liable for the failure to train its employees in limited
circumstances, City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989), at no point in Plaintiff’s
Fourth Amended Complaint did he plead a failure to train, supervise or discipline claim against
any defendant. To the extent that Plaintiff is now attempting to claim that the Borough’s actions
constituted a failure to train, supervise and/or discipline its employees, Plaintiff cannot amend his
complaint, which failed to include any such claim, in his response to the Borough’s summary
judgment motion and the court need not consider Plaintiff’s argument further. See Grayson v.
Mayview State Hosp., 293 F.3d 103, 109 n.9 (3d Cir. 2002) (a plaintiff cannot “amend a complaint
through any document short of an amended pleading.”). Accordingly, the Borough is entitled to
summary judgment on this claim.
c. Fourteenth Amendment Substantive Due Process Claim
The Due Process Clause of the Fourteenth Amendment provides that no “state . . . deprive
any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.
There is a multiple-part analysis that a court must conduct in determining whether a
plaintiff has sufficient evidence of his due process claim. First, a plaintiff must identify a valid
liberty or property interest that is protected by the due process clause. See Chainey v. Street, 523
F.3d 200, 219 (3d Cir. 2008). If the plaintiff identifies such a protected interest, the plaintiff must
then show that the government has deprived him of that interest in such a way that “shocks the
conscience.” Evans v. Secretary Pennsylvania Dept. of Corrections, 645 F.3d 650, 660 (3d. Cir.
2011). See also Desi's Pizza Inc. v. City of Wilkes–Barre, 321 F.3d 411, 426–27 (3d Cir.2003).
Primarily, Plaintiff identifies no evidence that the Borough had any municipal custom or
policy that caused his alleged Fourteenth Amendment violation, and because local governments
are not “vicariously liable” under Section 1983 for their employees’ actions, and only responsible
for their “own illegal actions[,]” the Borough is entitled to summary judgment in its favor on
Plaintiff’s Fourteenth Amendment due process claim. Connick, 563 U.S. at 60. The court will
therefore discuss Plaintiff’s Fourteenth Amendment due process claim as he asserts it against the
individual defendants, Mayor Durdines, Chief Encapera, and Officers Shultz and Childs.
Of course, these individuals must have been personally involved in the deprivation of
Plaintiff’s constitutional rights. To prevail “on a [Section] 1983 claim against multiple defendants,
a plaintiff must show that each individual defendant violated his constitutional rights.” Estate of
Smith v. Marasco, 430 F.3d 140, 151 (3d Cir. 2005). “A defendant in a civil rights action must
have personal involvement in the alleged wrongs; liability cannot be predicated solely on the
operation of respondeat superior.” Rode, 845 F.2d at 1207. A plaintiff must demonstrate a
defendant's “personal involvement” in the alleged constitutional violation by adequately alleging
either (1) the defendant's personal involvement in the alleged violation; or (2) his actual knowledge
and acquiescence in the wrongful conduct. Chavarriaga, 806 F.3d at 222. “Although a court can
infer that a defendant had contemporaneous knowledge of wrongful conduct from the
circumstances surrounding a case, the knowledge must be actual, not constructive.” Id. (citations
omitted). Therefore, “[t]he mere fact that a defendant is in a supervisory position is insufficient to
establish liability under Section 1983.” Mearin v. Swartz, 951 F.Supp.2d 776, 782 (W.D. Pa.
2013). Under section 1983, a supervisor can be liable for constitutional violations if he or she
“participated in violating the plaintiff’s rights, directed others to violate them, or, as the person in
charge, had knowledge of and acquiesced in the subordinate’s unconstitutional conduct.” Barkes
v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014) (citations omitted), rev'd sub nom on
other grounds by Taylor v. Barkes, 135 S.Ct. 2042 (2015).
Plaintiff identifies two substantive due process rights at issue: his liberty and property right
to hold specific private employment and to pursue a calling or occupation free from unreasonable
government interference and his property right of the use and enjoyment of his property to operate
J. Cole’s Inn. Defendants argue that Plaintiff lacks protected interests because he must establish
“more than a loss of unspecified business where the business still has the ability to carry out its
fundamental business operation.” Defs’ Br. in Supp. [ECF No. 134 at 7].
Each interest will be addressed separately.
Identifying a Protected Property Interest
The Defendants argue that Plaintiff lacks a protected property interest because he must
establish “more than a loss of unspecified business where the business still has the ability to carry
out its fundamental business operation.” Id. Defendants argue that Plaintiff has failed to show that
he has been prevented from operating his business, and the one hour shut down of his bar on May
4, 2013 during the uproar in town does not trigger Fourteenth Amendment protection. Id. at 8.
Further, Defendants argue that there is no evidence that a Borough official conducted any
“investigations” into Plaintiff’s bar, and Plaintiff’s claim that Liquor Control Enforcement
investigations were influenced by Chief Encapera are mere speculation.7 Id.
In response, Plaintiff alleges that there is adequate evidence that Plaintiff “lost customers
who were afraid of becoming the victims of the illegitimate actions of the officers in the Borough.
Specifically, customers avoided the bar because they did not want to be harassed and intimidated
as they walked by, or followed home when they left.” Pl.’s Op. Br. [ECF No. 173 at 12]. Further,
Plaintiff asserts that Officers “Shultz and Childs deliberately attempted to silence and punish
Plaintiff by using their police power to harm his business.” Id. Additionally, Plaintiff maintains
that he has been forced to significantly reduce his operating hours and opens only once every
fifteen days which is the legal minimum to maintain his liquor license, and has attached an
accounting that shows he has suffered significant monetary losses. Id. at 13.
First, it must be mentioned that Defendants improperly conflate the requirement of
identifying a protected property interest which invokes the Fourteenth Amendment, with the
requirement of showing that the interest has been deprived by government conduct in a way that
shocks the conscience. Accordingly, this court finds that Plaintiff has adequately alleged that his
property interest in the use and enjoyment of his land is invoked and will move to discussing
Plaintiff points to an altercating between himself and Shannon Kratzer, the Borough’s
Zoning Officer which occurred on August 30, 2014 in which Kratzer tried to conduct an inspection
at 11:30 p.m. on a Friday night and told Plaintiff that he had been told by Chief Encapera to conduct
extra inspections of J. Cole’s Inn. Allegedly, Kratzer told Plaintiff during this “inspection,” “I
should kick your fucking ass,” “Jason, you need to stop making trouble for the Borough,” and
“Fuck you I own this town.” First, none of these allegations are included in Plaintiff’s Fourth
Amended Complaint filed in April 2016. The only mention of Shannon Kratzer in Plaintiff’s
Fourth Amended Complaint is that Kratzer told Plaintiff that Chief Encapera kept a file on
Plaintiff’s bar to classify it as a nuisance bar. “A court is not required to assume that a plaintiff
can prove facts not alleged.” Evancho v. Fisher, 423 F.3d 347, 354 (3d Cir. 2005). Moreover,
Kratzer is not and has never been a defendant in this action and there is no claim that the Borough’s
zoning board conducted unnecessary inspections of Plaintiff’s property. Thus, the exchange
between Plaintiff and Kratzer is irrelevant and immaterial for purposes of the present motions, and
the court will not consider this set of facts.
whether Plaintiff has adequately alleged that his property interests were deprived by government
conduct in a way that shocks the conscience. See DeBlasio v. Zoning Bd. of Adjustment for Tp. of
West Amwell, 53 F.3d 592, 601 (3d Cir. 1995) abrogated on other grounds by United Artists
Theatre Circuit, Inc. v. Township of Warrington, PA, 316 F.3d 392, 394 (3d Cir. 2003)
(recognizing that the ownership and use of real property is an interest protected by the due process
clause of the Fourteenth Amendment); Button v. Snelson, 679 Fed.Appx. 150, 154 (3d Cir. 2017)
(recognizing a fundamental property interest in a plaintiff operating its business).
Deprivation of a Property Interest
Plaintiff alleges that the defendants have prevented him from operating J. Cole’s Inn
through their alleged harassing and intimidating conduct to Plaintiff’s patrons in retaliation for
Plaintiff complaining of police misconduct and that this direct adverse government action caused
his business significant monetary losses and violates his property interests in violation of the
Defendants argue that Plaintiff needs to show that he was completely prevented from
operating his business to state a valid Fourteenth Amendment substantive due process claim.
Defendants rely on Phantom of Eastern Pennsylvania v. New Jersey State Police, 2008 WL
2039461 (E.D.Pa. 2008) and Tower Properties LLC v. Village of Highland Falls, 2015 WL
4124499 (S.D.N.Y. 2015) for this proposition. The court summarily rejects Defendants’ argument
under this case law, as it is persuasive authority, and authority from the Court of Appeals for the
Third Circuit exists on this point. See Thomas v. Independence Tp., 463 F.3d 285, 297 (3d Cir.
While Plaintiff points to the Third Circuit’s opinion in Thomas in his opposition brief, the
Defendants fail to distinguish it. Further, neither Phantom, nor Tower Properties LLC, both
decided post-Thomas, used this authority to make their respective determinations, and are further
A plaintiff does not need to be completely prevented from operating his business to state a
valid Fourteenth Amendment substantive due process claim, as the Court of Appeals for the Third
Circuit has found differently. In Thomas, a plaintiff business owner alleged that certain township
officials including local police officers engaged in a campaign of defamation, harassment and
intimidation which deprived the plaintiff of his liberty and property rights in violation of the
Fourteenth Amendment. Id. The Court of Appeals found that the plaintiff could state a valid
Fourteenth Amendment claim for the deprivation of his liberty and property interests if he could
“show that the alleged harassment removed or significantly altered plaintiffs’ liberty and
property interest in their business.” Id. at 297 (citing San Jacinto Savings & Loan v. Kacal, 928
F.2d 697, 704 (5th Cir. 1991) (internal quotation marks and alterations of text omitted) (emphasis
Plaintiff has sufficiently alleged that the alleged harassment he suffered significantly
altered his liberty and property interests in his business as the officers stationed police cars outside
of the bar, followed patrons who left the bar, took photographs of customers waiting in line to
enter the bar and/or used threatening and intimidating language to customers as they entered or
exited the bar. In response, customers chose to not go to Plaintiff’s bar because of the police
presence, which ultimately led to the decline in Plaintiff’s business. Thus, Plaintiff has adequately
adduced evidence that the harassment he suffered by the officers significantly altered his property
interest in his business.
Identification and Deprivation of a Liberty Interest
For the same reasons mentioned supra, Plaintiff has identified a liberty interest protected
by the Fourteenth Amendment Due Process Clause, i.e., his right to hold specific private
rejected for this reason.
employment and to follow a chosen profession free from unreasonable government interference.
See Thomas, 463 F.3d at 297 (“the liberty to pursue a calling or occupation . . . is secured by the
Fourteenth Amendment.”) (citations omitted); Piecknick v. Com. of Pa., 36 F.3d 1250, 1259 (3d
Cir. 1994) (“The right to hold specific private employment and to follow a chosen profession free
from unreasonable governmental interference comes within both the ‘liberty’ and ‘property’
concepts of the Fifth and Fourteenth Amendments.”).
However, “[i]t is the liberty to pursue a calling or occupation, and not the right to a specific
job, that is secured by the Fourteenth Amendment.” Piecknick, 36 F.3d at 1259 (citations and
internal quotation marks omitted). More specifically, “the Constitution only protects this liberty
from state actions that threaten to deprive persons of the right to pursue their chosen occupation.
State actions that exclude a person from one particular job are not actionable in suits . . . brought
directly under the due process clause.” Id. (citations omitted). The right to engage in the common
occupations of life is “fairly narrow,” and state action does not violate that liberty “absent a
complete revocation or a substantial interference with one’s chosen occupation.” Runco Transp.,
Inc. v. Mid Valley School Dist., 2015 WL 672260, at *10 (M.D.Pa. 2015) (citations omitted).
Here, for the same reasons mentioned supra, Plaintiff has alleged enough evidence that the
government action substantially interfered with his chosen occupation, as, according to him,
because of the constant police presence surrounding his bar, customers did not want to visit J.
Cole’s Inn and he incurred substantial monetary losses and only opens his bar once every fifteen
days to maintain his liquor license. Therefore, Plaintiff has adequately alleged sufficient evidence
to show that he was deprived of a property and liberty interest protected by the Fourteenth
Amendment, and the court will next determine whether the government conduct Plaintiff alleges
“shocks the conscience.”
“Shocks the Conscience”
What constitutes conscience shocking is subjective and contextual, however it is
“government conduct intended to injure that is most likely to rise to the conscience-shocking
level.” Evans, 645 F.3d at 660. “[A]llegations of corruption, self-dealing [or] bias against an ethnic
group” may shock the conscience. Chainey, 523 F.3d at 220. When alleging self-dealing or
corruption, the plaintiff must “set forth facts that raise the allegations beyond the realm of mere
improper motives.” Potter v. City of Chester, 2012 WL 5464970, at *5 (E.D.Pa.2012) (citing
Locust Valley Golf Club, Inc. V. Upper Saucon Twp., 391 Fed. App'x 195 (3d Cir.2010)).
Defendants argue that Plaintiff has offered no evidence that any of the Defendants’ conduct
was conscience shocking. In response, Plaintiff alleges that Childs and Shultz tried to silence
Plaintiff from making their “sexual harassment and indiscretions” public by intimidating and
harassing his clientele at J. Cole’s Inn. Pl.’s Op. Br. [ECF No. 173 at 15]. Plaintiff further proffers
evidence that Chief Encapera authored an email to Mayor Durdines and Borough Council that
stated: “something needs to be done about this medaling [sic] troublemaker.”9 Id.
Plaintiff does not put forth any evidence in his opposition brief that Chief Encapera’s
conduct “shocked the conscience” in any other way but by emailing Mayor Durdines that
“something needed to be done” about Plaintiff. The court will not address facts that Plaintiff has
failed to raise in support of his contentions that Chief Encapera’s conduct was conscience shocking
– namely, that he took steps to have Plaintiff’s bar classified as a nuisance bar. Plaintiff entire
response to the Defendants’ contention that he has asserted no evidence of conscience shocking
conduct is as follows:
“In the instant matter, Defendants intended to silence Plaintiff from making their
sexual harassment and indiscretions public, and to punish him for lodging
complaints that brought their inappropriate relationships to light. They used their
police power to intimidate and harass individuals who patronized J. Cole’s Inn.
Encapera went so far as to write an email to Durdines and Borough Council, stating
that “something needs to be done about this meddaling[sp] [sic] troublemaker.”
Defendants attempt to deny that Plaintiff made complaints prior to May 4, 2013,
Plaintiff’s record show that he began to complain in October of 2012.”
First, no reasonable juror could find that a single email sent by Chief Encapera to Mayor
Durdines and the Borough Council calling Plaintiff a “meddling troublemaker” shocks the
conscience. Accordingly, Chief Encapera is entitled to summary judgment in his favor on
Plaintiff’s Fourteenth Amendment substantive due process claim alleging the deprivation of a
property interest. Moreover, Plaintiff does not point to any conduct on behalf of Mayor Durdines,
besides the receipt of this email from Chief Encapera. Because supervisory liability in a section
1983 claim cannot be based on respondeat superior, Mayor Durdines is also entitled to summary
judgment on Plaintiff’s Fourteenth Amendment substantive due process claim.
The court now turns to Officers Childs and Shultz as to whether their conduct “shocks the
conscience.” Because government conduct intended to injure that is most likely to rise to the
conscience-shocking level, the court finds that there is enough evidence of record such that a
reasonable jury could conclude that Officers Childs and Shultz deprived Plaintiff of his property
and liberty interests in violation of the Fourteenth Amendment. The evidence of record, however
tenuous, that Officers Childs and Shultz may have prevented Plaintiff from the use and enjoyment
of his property by retaliating against him for complaining to them directly of their misconduct in
February 2013 by stationing police cars outside of his bar, unnecessarily following patrons who
left the bar, taking photographs of customers waiting in line to get into the bar, and/or using
threatening and intimidating language to customers as they entered or exited the bar is sufficiently
Pl.’s Op. Br. [ECF No. 173 at 15]. It must be emphasized that it is not the responsibility of the
district court to “comb the record in search of disputed facts,” New Jersey Carpenters Pension
Fund v. Housing Auth. and Urban Development Agency of the City of Atlantic City, 68 F.Supp.3d
545, 549 (D.N.J.2014), and the court has made every practicable effort in considering Plaintiff’s
version of events. However, if the Plaintiff fails to set forth a set of disputed facts in response to
Defendants’ motion which would preclude summary judgment, the court will not set forth those
facts for Plaintiff. “Judges are not like pigs, hunting for truffles buried in the record.” Doeblers'
Pennsylvania Hybrids, Inc. v. Doebler, 442 F.3d 812, 820 n. 8 (3d Cir.2006). It is incumbent upon
Plaintiff to show the existence of facts which support his causes of action.
While Defendants rely on Potter v. City of Chester, 2012 WL 5464970 for the proposition
that this evidence does not rise to the level conscience shocking, that case is distinguishable. The
Potter court found that the plaintiff had not alleged that the defendants personally benefitted or
benefitted from harassing the plaintiff and therefore could not state a valid Fourteenth Amendment
substantive due process claim. Here, it is plausible to infer that the only reason that Officers Shultz
and Childs took the action that they did against J. Cole’s Inn was a direct response to Plaintiff
complaining of their misconduct and to further quell his speech, or retaliate against him from
complaining about their indiscretions. Such conduct benefits no one but Officers Shultz and
Childs. Accordingly, because a reasonable jury could find that Officers Shultz and Childs’ conduct
rose to the level to shock the conscience, the court finds that Officers Shultz and Childs are not
entitled to summary judgment on Plaintiff’s Fourteenth Amendment substantive due process claim
and their respective motions will be denied.
d. First Amendment Retaliation
Plaintiff alleges that the Defendants retaliated against him in violation of the First
Amendment after he reported instances of police misconduct, the Defendants “retaliated against
[him] by obstructing and damaging [his] business operations” and that his speech complaining of
police corruption is protected under the First Amendment. Fourth Am. Compl. [ECF No. 74 at ¶
The First Amendment guarantees “the right of the people . . . to petition the Government
for a redress of grievances.” U.S. Const. amend. I. A government may not retaliate against a
citizen for exercising his rights guaranteed under the First Amendment. Hartman v. Moore, 547
U.S. 250, 256 (2006). The right to petition protected by the First Amendment “extends to all
departments of the Government, including administrative agencies . . . and encompasses formal
and informal complaints . . . about matters of public and private concern.” Arneault v. O'Toole,
513 Fed.Appx. 195, 198 (3d Cir. 2013). To state a valid First Amendment Retaliation claim, a
plaintiff must show the following: (1) “that he engaged in constitutionally-protected activity”; (2)
“that the government responded with retaliation”; and (3) “that the protected activity caused the
retaliation.” Miller v. Mitchell, 598 F.3d 139, 147 (3d Cir. 2010) (citations omitted). The “key
question” determining whether an individual has been retaliated against for exercising his First
Amendment rights is whether the government conduct “was sufficient to deter a person of ordinary
firmness from exercising his First Amendment rights.” Thomas, 463 F.3d at 296.
First, the Borough is entitled to summary judgment on this claim, as explained supra, as
Plaintiff has pointed to no evidence that the Borough maintained a custom or practice of retaliating
against those who complaint of police misconduct, and a municipality cannot be vicariously liable
under section 1983 for their employees’ actions. The court will therefore discuss Plaintiff’s First
Amendment retaliation claim as he asserts it against the individual Defendants – Mayor Durdines,
Chief Encapera and Officers Shultz and Childs.
The individual Defendants argue that Plaintiff has failed to adduce any evidence that
Plaintiff was retaliated against for engaging in constitutionally protected speech. They argue that
because Plaintiff first complained about police misconduct to Chief Encapera on May 4, 2014, and
because it is undisputed that no officer engaged in retaliation after May 4, 2014, Plaintiff has no
evidence of retaliation.
While Defendants are correct that there is no allegation of retaliation after May 4, 2014,
this argument ignores other material facts of record. Specifically, Plaintiff complained directly to
Officers Childs and Shultz in February 2013 of their alleged sexual harassment of Plaintiff’s
employees. There is evidence of record, however tenuous, that Officers Shultz and Childs may
have engaged in retaliation following the February 2013 complaints by stationing police cars
outside of the bar, following patrons who left the bar, taking photographs of customers waiting in
line to get into the bar, and/or using threatening and intimidating language to customers as they
entered or exited the bar. The extent this conduct occurred, and whether it was retaliatory, must
be determined by a jury. Therefore, Officers Shultz and Childs’ respective motions for summary
judgment as to Plaintiff’s First Amendment retaliation claim is denied.
While Plaintiff has adduced evidence of a First Amendment retaliation claim against
Officers Shultz and Childs, Plaintiff has not pointed to any specific evidence of personal
involvement by Chief Encapera or Mayor Durdines in retaliating against Plaintiff for complaining
about police misconduct and summary judgment will be granted in their favor. Speculation and
conjecture will not suffice to surpass summary judgment, and Plaintiff only speculates that these
Defendants had knowledge of Officers Shultz and Childs’ retaliation and acquiesced to such
conduct. Constructive knowledge of the officers’ alleged retaliation will not suffice. Accordingly,
Mayor Durdines and Chief Encapera are entitled to summary judgment in their favor for Plaintiff’s
First Amendment retaliation claim.
e. Fourteenth Amendment Equal Protection
Plaintiff alleges that each of the Defendants violated his Fourteenth Amendment equal
protection rights because similarly situated business owners in the Borough were not forced to
endure “constant police harassment, including unwarranted surveillance.” Fourth Am. Compl.
[ECF No. 74 at ¶¶83-84].10 The Equal Protection Clause of the Fourteenth Amendment provides
To be clear, Plaintiff does not levy a selective enforcement claim against any of the
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) (citations omitted). There are two traditional theories
under which a plaintiff can state an equal protection claim. The first, traditional theory protects a
plaintiff from discriminatory treatment based upon his membership in a protected class, such as
race or gender. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). The
second theory is the “class of one” theory which allows a plaintiff to advance an equal protection
claim without being a member of a protected class. Under the “class of one” theory, a plaintiff
must allege that (1) the defendants treated him differently from others similarly situated, (2) the
defendant did so intentionally, and (3) there was no rational basis for the difference in treatment.
Hill v. Borough of Kutztown, 455 F.3d 225 (3d Cir.2006).
Defendants argue that Plaintiff has failed to offer any evidence that J. Cole’s Inn was
treated any differently than other bars in the Borough. Defs’ Br. in Supp. [ECF No. 134 at 18]. In
response, Plaintiff alleges that J. Cole’s Inn received a disproportionate level of police scrutiny
from Officers Shultz and Childs. Pl.’s Op. Br. [ECF No. 173 at 24].
Primarily, Plaintiff offers no evidence, nor does he argue that the Borough, Chief Encapera,
or Mayor Durdines somehow violated his equal protection rights. A moving party is entitled to
summary judgment where the nonmoving party fails to make a sufficient showing on an essential
element of its case with respect to which it has the burden of proof. Celotex Corp., 477 U.S. at 323
(“One of the principal purposes of the summary judgment rule is to isolate and dispose of factually
unsupported claims or defenses, and we think it should be interpreted in a way that allows it to
accomplish this purpose.”). Accordingly, summary judgment will be granted in favor of the
Borough, Chief Encapera and Mayor Durdines for Plaintiff’s Fourteenth Amendment Equal
Protection claim. See also Campbell v. Jefferson University Physicians, 22 F.Supp.3d 478, 487
(E.D.Pa. 2014) (“when a plaintiff responds to a defendant’s summary judgment motion but fails
to address the substance of any challenge to particular claims, that failure “constitutes an
abandonment of those causes of action and essentially acts as a waiver of those issues.”).
As for Officers Shultz and Childs, they attempt to argue that there is no evidence that they
treated Plaintiff’s bar differently from other bars in the Borough, because on the particular occasion
when Plaintiff’s bar was shut down, all of the bars in the same vicinity as J. Cole’s Inn were also
shut down. This argument is rejected, as it ignores Plaintiff’s contentions that Officers Shultz and
Childs would unnecessarily surveil Plaintiff’s bar and harassed and threatened Plaintiff’s patrons
and did not do this to other bars in the area. Accordingly, Officers Shultz and Childs are not
entitled to summary judgment on Plaintiff’s Equal Protection claim and their motions will be
denied in that respect.
f. Civil Conspiracy
Plaintiff alleges a claim for civil conspiracy in violation of his First Amendment rights
pursuant to section 1983. Specifically, Plaintiff alleges that the “Defendants conspired to retaliate
against Plaintiff for reporting police misconduct, to suppress his protected speech critical of police
policies and practices, to harass him and to impair his ability to conduct his business and earn a
living. The purpose of the conspiracy was to retaliate against [Plaintiff] for engaging in speech
that was critical of the police and reported, in good faith, police corruption to the governing body,
all protected speech under the First Amendment and the Defendants conspired to retaliated against
[Plaintiff] for exercising his First Amendment rights.” Fourth Am. Compl. [ECF No. 74] at ¶¶ 6566.
To state a claim for civil conspiracy under section 1983, a plaintiff must put forward
sufficient facts to demonstrate that (1) an actual agreement among the co-conspirators or a
“meeting of the minds” and (2) concerted action. See Startzell v. City of Philadelphia,
Pennsylvania, 533 F.3d 183, 205 (3d Cir. 2008). Of course, to state a cause of action for civil
conspiracy under section 1983, plaintiff must plead both the elements of the cause of action under
section 1983 and the elements to state a conspiracy. See Cunningham v. North Versailles Tp., 2010
WL 391380, at *5 (W.D.Pa.,2010) (collecting cases). See also Goldschmidt v. Patchett, 686 F.2d
582, 585 (7th Cir. 1982) (“Section 1983 does not, however, punish conspiracy; an actual denial of
a civil right is necessary before a cause of action arises.”).
Plaintiff only alleges that the Defendants conspired to deprive him of his First Amendment
rights, and because that claim only survives as it applies to Officers Shultz and Childs, only those
Defendants will be addressed here. The remaining Defendants – the Borough, Mayor Durdines
and Chief Encapera – are entitled to summary judgment as to Plaintiff’s claim of civil conspiracy,
as no predicate First Amendment claim remains.
Officer Shultz argues that Plaintiff’s allegations that Officer Shultz retaliated against
Plaintiff by harassing and intimidating him are factually unsupported, as Officer Shultz was placed
on administrative duty in May 2013 and it is undisputed that he had no further involvement with
Plaintiff. This argument is rejected for the same reason that it was rejected supra, i.e., that it
ignores that Plaintiff complained directly to Officers Shultz and Childs in February 2013 and
further alleges that after this occurred, he was retaliated against. Officer Shultz further argues that
Plaintiff has failed to come forward with any evidence from which a “conspiratorial agreement”
or “meeting of the minds” could be inferred.11 Officer Childs’ entire argument for summary
Officer Shultz also argues in a footnote that he is “immune” and cites to Bennett v. Murphy,
judgment to be granted in his favor on this claim is: “Plaintiff has proffered no evidence that the
individual defendants acted collectively to violate his rights.” Defs’ Br. in Supp. [ECF No. 134 at
The court disagrees with Officer Childs and Shultz’s arguments. There is enough record
evidence to infer that a conspiratorial agreement occurred between Officers Childs and Shultz to
retaliate against Plaintiff for complaining to them about their misconduct. If there is so much as a
possibility that “a jury could infer from the circumstances that the co-conspirators had a meeting
of the minds and reached an understanding to achieve their objectives, the question of whether an
agreement exists is for a jury to decide.” Jackson-Gilmore v. Dixon, 2005 WL 3110991, at *12
(E.D.Pa. 2005) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 153 (1970). A reasonable jury
could find that after Plaintiff complained to them in February 2013 to stop harassing his employees
that Officers Shultz and Childs decided to retaliate against Plaintiff by making their presence
constant in or around his bar, which in turn, gave his bar a bad reputation and caused him to lose
profits. Therefore, Officers Childs and Shultz’s motion for summary judgment is denied in this
g. Qualified Immunity
Officer Childs argues that he is entitled to qualified immunity for Plaintiff’s constitutional
claims.12 “[G]overnment officials performing discretionary functions generally are shielded from
274 F.3d 133, 136 (3d Cir. 2002) without further explanation. Bennett outlines qualified
immunity, however this court will not address such unsupported arguments relegated to a footnote
and will make no determination as to Officer Shultz’s entitlement to qualified immunity, as it has
not been developed sufficiently to warrant granting summary judgment in his favor.
Likewise, Mayor Durdines and Chief Encapera argue that they are entitled to qualified
immunity for Plaintiff’s constitutional claims. Because the court has found that they are entitled
to summary judgment for all of Plaintiff’s constitutional claims, the issue of qualified immunity
need not be addressed as to those Defendants.
liability for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 817-18 (1982). The entirety of Officer Childs argument is as follows: “Here, no
constitutional violation has been established. Even assuming that plaintiff established a genuine
issue of material fact as to the liability of [Officer] Childs . . . [he] is immune from suit on the
ground [he] acted reasonably under the circumstances.” Defs.’ Br. in Supp. [ECF No. 134 at 20].
The court has found that there is enough evidence that a reasonable jury could find that Officer
Childs violated Plaintiff’s constitutional rights, therefore Officer Childs’ argument is rejected.
Whether Officer Childs acted reasonably under the circumstances is an issue of fact for the jury to
determine. See Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (when conducting a qualified
immunity analysis, a court may not resolve genuine disputes of fact in favor of the party seeking
summary judgment); Giles v. Kearney, 571 F.3d 318, 327 (3d Cir. 2009) (a genuine issue of
material fact will preclude summary judgment on qualified immunity). Accordingly, Officer
Childs is not entitled to qualified immunity for Plaintiff’s constitutional claims.
h. Trespass Claim pursuant to Pennsylvania Law against Officers Shultz and
The Court next turns to Plaintiff’s trespass claim against Officers Shultz and Childs.
Plaintiff alleges that Officers Shultz and Childs trespassed on Plaintiff’s property when they
conducted the warrantless search of Michael Steve’s apartment on January 26, 2013 in responding
to a complaint against Michael Steve. Plaintiff argues that the officers trespassed on the “common
areas” or hallways leading to Michael Steve and caused unspecified damages to the common areas
and hallway. Plaintiff’s claim is not predicated on any intrusion into Michael Steve’s apartment.
It is also undisputed that Plaintiff was present during this search.
Under Pennsylvania law, a person is subject to liability for trespass on land, irrespective of
whether the alleged trespasser causes damages to the property, if the person intentionally “enters
or remains upon land in possession of another without a privilege to do so created by the
possessor’s consent or otherwise.” Rossino v. Kovacs, 718 A.2d 755 (Pa. 1998) (citing Restatement
(Second) of Torts § 329 (1965)).
To maintain an action in trespass, the Plaintiff must have had
the exclusive use and possession of the property at issue. Northeast Women's Center, Inc. v.
McMonagle, 670 F.Supp. 1300, 1311 (E.D.Pa. 1987) (applying Pennsylvania law). Further, a
“right of entry constitutes an absolute defense to an action in trespass.” Gavin v. Loeffelbein, 161
A.3d 340, at *11 (Pa.Super. 2017) (citing Gedekoh v. Peoples Nat. Gas Co., 133 A.2d 283, 28485 (Pa. Super. 1957)).
The entirety of Officer Childs’ argument in support of granting summary judgment on
Plaintiff’s trespass claim is that “Plaintiff’s state law claim for trespass fails because Plaintiff has
proffered no evidence that Officer Childs entered his property without privilege to do so.” Defs’
Br. in Supp. [ECF No. 134 at 18]. Officer Childs does not develop his argument further and
provides no legal authority or factual assertions to support his position that his entrance was
privileged by virtue of consent or otherwise. Without more, Officer Childs has not met his initial
burden under Federal Rule of Civil Procedure 56 of proving the absence of evidence supporting
Plaintiff’s claim of trespass. Accordingly, Officer Childs’ motion for summary judgment is denied
in this respect.
Officer Shultz’s argument for judgment in his favor is slightly more developed. He argues
that Plaintiff’s claim for trespass fails because Plaintiff did not have the exclusive use and
possession of the property at issue, as it was leased to Michael Steve when the officers conducted
the warrantless search. Plaintiff admits that he only claims that the officers trespassed into the
common areas and the hallways of the apartment building and does not allege that the officers
committed a trespass by entering into Steve’s apartment. Thus, Officer Shultz’s argument to this
point is moot. In his reply, Officer Shultz argues that Plaintiff’s complaint cannot be fairly read
to include a claim for trespass as to the common areas, as his complaint specifically alleges that
the officers trespassed upon one of Plaintiff’s “apartments” with no mention of the common areas.
See Shultz Reply [ECF No. 147 at 5]. The court disagrees with Officer Shultz, as the complaint
can fairly be read as including a claim for trespass of the common areas and the parties cannot
otherwise show prejudice in deeming Plaintiff’s “common areas” theory pleaded under Plaintiff’s
trespass claim.13 See Fed. R. Civ. P. 15(b).
Officer Shultz also argues that it is undisputed that Plaintiff “was present” during the
search, observed the officers approach Steve’s apartment through the common areas and there is
no evidence that Plaintiff objected to the officers’ presence in the common areas.14 Plaintiff
responds that a landlord can sue “for trespass damages if the common area of [his] building is
being used in an unauthorized manner” and relies on 202 Marketplace v. Evans Products Co., 824
F.2d 1363, 1367 (3d Cir. 1987) for this proposition. See Pl.’s Op. Br. [ECF No. 173 at 27]. First,
Plaintiff’s reliance on 202 Marketplace is misplaced, as it simply mentions that a landlord can
bring a trespass claim against a tenant who is making unauthorized use of a common area. It does
not stand for the proposition that a non-tenant police officer acting in his official duties can be
liable to a landlord for entrance on his property. Plaintiff does not address Officer Shultz’s
To this end, Plaintiff’s Fourth Amended Complaint states that “while executing their illegal
search, Defendants trespassed upon the private property of Plaintiff and caused damage to the
premises.” [ECF No. 74 at ¶ 103].
Officer Shultz also argues that Plaintiff has failed to produce evidence of damage to the
common area, however, it is axiomatic that damages are not an element of a trespass claim. See
e.g., Boring v. Google Inc., 362 Fed. Appx. 273, 281 (3d Cir. 2010) (“There is no requirement in
Pennsylvania law that damages be pled [for a trespass claim], either nominal or consequential.”).
Rather, if Plaintiff fails to prove at trial that he suffered any consequential damages from the
alleged trespass, and he succeeds on this claim, he will simply be entitled to nominal damages.
contention that the entrance upon Plaintiff’s property was privileged.
While Officer Shultz argues that Plaintiff “did not object” to his presence in the hallway,
he does not go as far as to argue that he had Plaintiff’s consent – implied or otherwise – to enter
the common areas. Accordingly, whether the officers had consent to enter the common areas will
be treated as an affirmative defense to Plaintiff’s trespass claim. See 75 Am.Jur.2d. Trespass § 73
(2009) (“Consent . . . may be implied from custom, usage, or conduct. Consent . . . will only be
applied if the owner has actual knowledge that people have been entering the [property] and fails
to take reasonable steps to prevent or discourage them.”); Restatement (Second) of Torts § 158
comment d (1965) (“Conduct which would otherwise constitute a trespass is not a trespass if it is
privileged. Such a privilege may be derived from the consent of the possessor . . . or may be given
by law because of the purpose for which the actor acts or refrains from acting[.]”)). Accordingly,
Officer Shultz’s motion for summary judgment as to Plaintiff’s trespass claim is denied.
i. Tortious Interference with Business Relations pursuant to Pennsylvania Law
against Mayor Encapera and Officers Shultz and Childs
Plaintiff brings a tortious interference with business relations under Pennsylvania law
against Chief Encapera and Officers Shultz and Childs alleging that the Officer’s conduct and
Chief Encapera’s failure to supervise and/or train his officers caused Plaintiff’s business lost
profits because customers did not want to patron J. Cole’s Inn because of police presence.
To state a claim under Pennsylvania law for tortious interference with business relations, a
plaintiff must allege “(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 defendant’s
conduct.” Vintage Homes, Inc. v. Levin, 554 A.2d 989, 994 (Pa.Super. 1989). While courts are
cautious to define the terms “prospective contractual relation,” the plaintiff must show that there
is a “reasonable likelihood or probability” of the contractual relation which is “something more
than a mere hope or innate optimism of the salesman.” InfoSAGE, Inc. v. Mellon Ventures, L.P.,
896 A.2d 616, 627 (Pa.Super. 2006) (citations omitted)). See also Rittenhouse Entm't, Inc. v. City
of Wilkes-Barre, 2012 WL 3562030, at *17 (M.D. Pa. 2012) (same).
Chief Encapera and Officer Childs’ entire argument in support of their motion for summary
judgment on this claim is that “Plaintiff has proffered no evidence to support such a claim against
any moving Defendant.” Defs’ Br. in Supp. [ECF No. 134 at 18]. Such a threadbare argument
does not sustain Defendants’ initial burden of proving the absence of evidence supporting
Plaintiff’s claim for tortious interference with business relations and Chief Encapera and Officer
Childs’ motion for summary judgment is denied in this respect.
Next, Officer Shultz argues that there is no evidence that he intentionally interfered with
prospective contractual relationships with Plaintiff’s customers at the bar because Plaintiff’s
bartender Tedrow could not provide the name of any person who would not patronize the bar
because of Officer Shultz’s conduct, and further argues that Shultz never “did anything personally”
to Plaintiff to cause harm to his business. Shultz Br. in Supp. [ECF No. 138 at 18]. Again, Officer
Shultz’s argument ignores other material facts of record that tend to show that he intentionally
interfered with Plaintiff’s prospective contractual relationships by stationing his police car outside
of the bar, following patrons who left the bar, taking photographs of customers waiting in line to
get into the bar, and/or using threatening and intimidating language to customers as they entered
or exited the bar. The fact that Tedrow could not provide the name of any person who told her
that they would not visit the bar because of police presence is immaterial; she, and other bar
employees testified that numerous individuals informed them that they would not patron the bar
because of constant police presence. Whether they remember the names of those individuals does
not prove that they witnessed these events, but rather goes to their credibility, which is not for this
court to determine. Likewise, Officer Shultz seemingly argues that he was justified in any action
he took against the bar because of his discretionary authority to “enforce the law, investigate
individuals and abate criminal nuisances.” Id. at 18. A determination of whether Officer Shultz
was acting within his discretionary authority in allegedly surveilling J. Cole’s Inn and its patrons
during the applicable time frame is an issue of fact for the jury to determine. Accordingly, Officer
Shultz’s motion for summary judgment is denied in this respect.
j. J. Cole Inn’s Damages
Finally, the Defendants argue that Plaintiff may not seek damages allegedly incurred by J.
Cole’s Inn, as he lacks standing to do so. Plaintiff responds that all income from J. Cole’s Inn has
been reported on Plaintiff’s personal tax returns since 1997 and he has standing to pursue damages
on behalf of J. Cole’s Inn. Plaintiff offers no legal authority for his proposition. This issue is not
yet ripe, and the court will defer ruling on this issue until such time where damages may be
To recapitulate, the following claims remain against the following Defendants: (1) a
Fourteenth Amendment due process claim against Officers Shultz and Childs only; (2) a First
Amendment retaliation claim against Officers Shultz and Childs only; (3) a Fourteenth
Amendment equal protection claim against Officers Shultz and Childs only; (4) a section 1983
civil conspiracy claim against Officers Shultz and Childs only; (5) a state law trespass claim
against Offices Shultz and Childs only; (6) a state law tortious interference with business
relationships claim against Chief Encapera, and Officers Shultz and Childs. The remaining
Defendants are entitled to summary judgment in their favor for the remaining claims.
An appropriate Order follows.
Dated: August 16, 2017
By the Court,
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge
all counsel of record via CM/ECF electronic filing
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