Opinion
CIV NO. 3:15-CV-960
07-19-2018
ALEXANDER BRUNELLE, et al., Plaintiffs, v. CITY OF SCRANTON, et al., Defendants.
(Judge Mariani)
( ) REPORT AND RECOMMENDATION
I. Statement of Facts and of the Case
A. Procedural History and Factual Background
This case, which comes before us for consideration of a motion for partial summary judgment filed by the defendants, (Doc. 44), presents a longstanding and intractable dispute between Alexander Brunelle, a real estate developer and various licensing and inspection officials in the City of Scranton. The plaintiff in this litigation, Alexander Brunelle, is a real estate contractor and developer who initiated this lawsuit on May 15, 2015, and is now bringing an eleven-count complaint against the City of Scranton, Patrick Hinton, Director of the City of Scranton Department of Licensing and Patricia Jennings-Fowler, a Housing Inspector for the City of Scranton, (hereafter "Scranton defendants"), charging them with a host of illegal and arbitrary actions allegedly taken relative to the plaintiff's business activities and properties in Scranton. (Doc. 28.)
Brunelle's complaint is a detailed, 67 page, 273 paragraph pleading. (Id.) In it, Brunelle provides a lengthy factual recital describing a pattern of allegedly discriminatory conduct by the defendants targeting properties owned by the plaintiff. (Id., ¶¶30-195.) According to Brunelle, the defendants targeted at least eleven properties which he owned, and engaged in a wide array of discriminatory practices. (Id.) Thus, Brunelle alleges that the defendants singled him out for discriminatory non-traffic criminal citations, issuing more than 150 baseless criminal complaints against Brunelle and properties which he owned. (Id., ¶194(e).) Brunelle also alleges that the defendants issued baseless condemnation orders on various properties which he owned, condemning properties even after the properties had been inspected and approved for occupancy. (Id., ¶¶30-195.) Brunelle further avers that Fowler and Hinton issued arbitrary, contradictory and peremptory directives to the plaintiff which stymied efforts to renovate, market and rent these properties. For example, according to Brunelle, with respect to a property owned by the plaintiff on Lavelle Street in Scranton, in April of 2014 defendant Fowler simultaneously served stop work and mandate orders on the property. The stop work order required the plaintiff to cease operations immediately; the mandate order required him to correct deficiencies at the property immediately. By issuing both orders simultaneously, Brunelle asserts that the defendants "put Plaintiff in an absurd situation as Plaintiff was prohibited from working on the property pursuant to the Stop Work Order but simultaneously required to address the alleged trash and sanitation violations immediately." (Id., ¶143.)
The complaint further avers that the defendants have issued demolition orders to arbitrarily frustrate Brunelle's business endeavors. Specifically, Brunelle contends that the defendants issued demolition orders on properties acquired by the plaintiff in December 2014, thus preventing the plaintiff from making any improvements or renovations to the property, but had yet to act upon these demolition orders as of June, 2017. (Id.,¶¶167-77.) In addition, Brunelle asserts that the defendants have arbitrarily denied licenses and permits to the plaintiff's brother, Theodore Brunelle, who served as an independent contractor on many of the plaintiff's renovation projects in order to deter and frustrate those projects. (Id., ¶194(d).)
According to Brunelle, many of these actions have been taken by the defendants without affording Brunelle any notice or opportunity to respond to alleged deficiencies. (Id., ¶¶30-195.) Moreover, Brunelle claims that both Fowler and Hinton have made statements which confirm their discriminatory bias against the plaintiff, including allegedly informing the plaintiff's employees that their actions are designed to send a message to the plaintiff, or deter the plaintiff and his family members from filing lawsuits. (Id., ¶¶190, 194(d).)
Brunelle also specifically alleges that Defendant Fowler has engaged in disparate and discriminatory enforcement targeting his properties, by describing a pattern of disparate code enforcement by Fowler as compared to all other city inspectors. (Id., ¶¶30-40.) Finally, Brunelle alleges that this pattern of unlawful and discriminatory conduct increased after the plaintiff filed his initial complaint in federal court. (Id., ¶¶194(a)-194(i).) Furthermore, according to Brunelle, a city employee informed one of the plaintiff's employees: "that Patrick Hinton had instructed that no permits were to be issued for work by Theodore Brunelle while his brother's Alexander Brunelle's lawsuit was pending in the Federal Court." (Id., ¶194(d).)
Set against the backdrop of these well-pleaded facts, Brunelle brings eleven separate claims against the defendants. Six of these counts allege federal constitutional infractions. Specifically, Brunelle alleges that the conduct of these officials: (1) denied the plaintiff procedural due process (Id., Count 1 ¶¶195-209); (2) constituted a substantive due process violation, (Id., Count 2, ¶¶210-15); (3) violated Brunelle's right to equal protection under the law, (Id., Count 3, ¶¶216-26); (4) was taken in retaliation against Brunelle for exercising his First Amendment Right to petition the courts for redress of grievances, (Id., Count 4, ¶¶227-231); (5) amounted to an unlawful and unconstitutional taking of property without just compensation, (Id., Count 5, ¶¶232-6); (6) entailed unreasonable searches and seizures in violation of the Fourth and Fourteenth Amendments, (Id., Count 6 ¶¶237-45); and (7) constituted malicious prosecution in violation of the plaintiff's constitutional rights. (Id., Count 8, ¶¶253-57.) Brunelle further alleges that the City of Scranton is legally responsible for the actions of its officers and employees because by failing to adequately train and oversee the actions of these employees, the city effectively fostered a custom, policy and practice of illegal discrimination. (Id., Count 7, ¶¶246-52.) Brunelle's complaint then asserts a series of pendant state law tort claims, including state law allegations of malicious prosecution (Id., Count 9, ¶¶258-62); abuse of process, (Id., Count 10, ¶¶263-67); and tortious interference with existing and prospective contractual relationships. (Id., Count 11, ¶¶268-73.)
B. The Defendants' Motion for Partial Summary Judgment
Following a course of discovery conducted by the parties, the defendants have filed a motion for partial summary judgment, (Doc. 44), which reprises on a more fulsome factual record three of the legal defenses raised by the defendants in a motion to dismiss previously filed with this court. (Doc. 30.)
The defendants' motion to dismiss a number of claims set forth in this complaint, (Doc. 30), is the subject of a separate Report and Recommendation which we have filed.(Doc. 73.)
Specifically, the defendants' motion for partial summary judgment seeks judgment in favor of the Scranton defendants on the following three legal claims advanced by Brunelle: First, Brunelle's Fifth Amendment Takings Clause claim, Count V of the complaint; second, Brunelle's class of one equal protection claim, Count III of the complaint; and third, Brunelle's malicious prosecution claims, Counts VIII and IX of the complaint. The arguments advanced by the defendants in support of this motion also closely parallel the assertions previously made in the defendants' motion to dismiss.
For example, with respect to the defendants' motion for partial summary judgment on Brunelle's Fifth Amendment Takings Clause claim, the defendants seek judgment in their favor as a matter of law, arguing that Brunelle is required as a matter of law to exhaust his state remedies for just compensation prior to bringing a Takings Clause claim in federal court. See Cty. Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 164 (3d Cir. 2006) (citing Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 194-96 (1985)). In support of this argument, defendants expressly rely upon a decision of this court which imposed such an exhaustion requirement upon plaintiffs pursuing Fifth Amendment Takings Clause claims, Knick v. Twp., No. 3:14-CV-02223, 2016 WL 4701549, at *5 (M.D. Pa. Sept. 8, 2016). However, as we have previously noted when addressing the parallel argument made by the defendants in their motion to dismiss, there is reason to proceed cautiously in relying upon Knick. The United States Supreme Court has recently accepted a petition for writ of certiorari in Knick which invites the Court to set aside this state court exhaustion and ripeness requirement in Takings Clause cases. See Knick v. Twp., No. 3:14-CV-02223, 2016 WL 4701549, at *5 (M.D. Pa. Sept. 8, 2016), aff'd sub nom. Knick v. Twp. of Scott, 862 F.3d 310 (3d Cir. 2017), cert. granted in part sub nom. Knick v. Twp. of Scott, Pa., 138 S. Ct. 1262, 200 L. Ed. 2d 416 (2018).
Likewise, in this motion for partial summary judgment, the Scranton defendants seek dismissal of Brunelle's class of one equal protection claim. On this score, the defendants' advance two claims, one which invites an extremely literal interpretation of class of one equal protection claims and a second claim which urges us to resolve what appears to be a hotly contested factual issue, namely, whether the defendants in fact singled out Brunelle for disparate treatment. Thus, at the outset, the defendants suggest that Brunelle's class of one equal protection claim fails because it is similar to a claim made by another Scranton area real estate developer, Vsevolod Garanin. Citing the similarities between these two claims, noting that Brunelle and Garanin have reportedly discussed their cases at various times, and adopting a very literal construction of the phrase "class of one" to suggest that only a single person may bring such a claim against particular defendant, we are urged to dismiss this claim. Beyond this legal argument, the defendants advance a factually-based attack upon this equal protection claim insisting that: "summary judgment should be granted in favor of the Defendants as the record does not include sufficient facts to support any allegations that relevant laws, policies and procedure having been applied to Plaintiffs more onerously than to other individuals and entities." (Doc. 55, p. 7.) The sole support for this factual proposition is a brief two page excerpt from Alexander Brunelle's deposition.
Brunelle has responded to this latter argument by amassing evidence which he asserts shows disparate and discriminatory treatment that individually singled him out unfairly. According to Brunelle:
Inspector Fowler issued countless citations and stop work orders to Plaintiffs for the sole purpose of harassing, without any regard for whether these citations had any basis in the law. See Exhibit "A" to Affidavit of Alexander Brunelle. For example, Brunelle informed Fowler that she had placed condemnation signs on apartments that have not been condemned. See January 23, 2018 Deposition of Alexander Brunelle at Page 149, Lines 4 to 19. Fowler responded, "I don't care." Id. Defendant Hinton admitted to Elizabeth Root, an employee of Dunmore Exclusives LLC, that he undertook this action upon various Brunelle-affiliated properties "to send a message to Alex." See February 2, 2017 Deposition of Elizabeth Root at Page 27, Line 24 to Page 28, Line 1. Hinton also instructed City officials to not issue any permits for work by Theodore Brunelle while his brother Alexander Brunelle's lawsuit was pending in the Federal Court See February 1, 2018 Deposition of Alexander Brunelle at Page 256, Lines 4 to 17. City of Scranton mechanical inspector Sheldon Roberts testified that Fowler "used to get very excited when she was going out to do something to [Brunelle's] properties. She got off on it, because she just hated the man so much." See March 22, 2018 Deposition of Sheldon Roberts at Page 96, Lines 1-3. Roberts went on to testify that Fowler told people in the office that "she enjoyed it more than sex" Id. at Page 96, Lines 4-11. Fowler said this out loud, so that other people
in the office could hear her. Id. at Page 96, Lines 14-16. Fowler also referred to Brunelle as her "buddy ... in a sarcastic kind of way. You know, she's going up to one of her buddy's properties to, you know, condemn it or violate them for something." Id. at Page 96, Lines 19-22. Robert's characterized the treatment of Brunelle as "being picked on by Miss Fowler." Id. at Page 104, Lines 11-13. None of the other City of Scranton inspectors made any such comments about Brunelle or his properties. Id. at Page 97, Lines 11-14.
(Doc. 69, pp.8-9.)
Finally, in this motion for partial summary judgment, the Scranton defendants argue that Brunelle's federal constitutional and state common law malicious prosecution claims, Counts VIII and IX, should be dismissed because Brunelle has not adequately shown that litigation of the various citations lodged against resulted in favorable terminations for the plaintiff, a legal prerequisite for such claims.
With respect to this argument, the parties present us with starkly contrasting views regarding how we should define the scope of these enforcement proceedings which allegedly involved more than 100 citations lodged against Brunelle's properties at various times. For their part, the Scranton defendants seem to suggest that in order for Brunelle to demonstrate that he has attained a favorable termination, he must have fully prevailed on all of these citations. Thus, under the defendants' view a single conviction on any citation would prevent a malicious prosecution claim based upon the remaining 99 or more citations, even if the other citations all resulted in acquittals and involved factually distinct episodes. In contrast, Brunelle appears to argue that each citation constitutes a separate proceeding for purposes of the favorable termination rule, even if the citations arose of out identical facts and circumstances. Taken to its logical extreme, under Brunelle's view the plaintiff could pursue a malicious prosecution claim on the basis of a single acquittal on an isolated citation even if he had been convicted of 99 or more related offenses.
Neither of these contrasting views regarding the application of the favorable termination rule to malicious prosecution claims based upon litigation of multiple citations is presented to the court with the benefit of closely reasoned legal analysis. Moreover, these competing arguments are advanced against a murky factual setting, where the outcome and resolution of a number of these citations remains uncertain. However, what is certain from the evidence presently before the court is that these citations have often involved distinct events, which allegedly occurred and different locations, and entailed conduct that took place at widely disparate times. (Doc.69-1.) Moreover, the current, albeit perhaps incomplete, factual record also indicates that Brunelle has gained favorable terminations in literally dozens of these cases lodged against him by the defendants.
For the reasons set forth below, with one exception, it is recommended that this motion for partial summary judgment be denied. The one exception to this recommendation relates to Count V of Brunelle's complaint which brings a claim under the Takings Clause to the Fifth Amendment. While the defendants have moved for summary judgment on this claim arguing that Brunelle is required as a matter of law to exhaust his state remedies for just compensation prior to bringing a Takings Clause claim in federal court; see Cty. Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 164 (3d Cir. 2006) (citing Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 194-96 (1985)), given that the United States Supreme Court has recently accepted a petition for writ of certiorari which invites the Court to set aside this state court exhaustion and ripeness requirement in Takings Clause cases, see Knick v. Twp., No. 3:14-CV-02223, 2016 WL 4701549, at *5 (M.D. Pa. Sept. 8, 2016), aff'd sub nom. Knick v. Twp. of Scott, 862 F.3d 310 (3d Cir. 2017), cert. granted in part sub nom. Knick v. Twp. of Scott, Pa., 138 S. Ct. 1262, 200 L. Ed. 2d 416 (2018), we recommend that this Court should stay further action with respect to the motion for partial summary judgment on this particular claim pending the Supreme Court's decision in Knick v. Twp. of Scott, Pa., 138 S. Ct. 1262, 200 L. Ed. 2d 416 (2018). See Miller v. Trans Union, LLC, No. 3:12-CV-1715, 2015 WL 13649106, at *2 (M.D. Pa. Aug. 3, 2015)(Granting stay pending Supreme Court decision).
II. Discussion
A. Summary Judgment —Standard of Review
The defendants have filed a motion for partial summary judgment, which seeks judgment in their favor on three of Brunelle's legal claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. Rule 56(a) of the Federal Rules of Civil Procedure provides as follows:
A party may move for summary judgment, identifying each claim or defense - or the part of each claim or defense - on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.
Fed. R. Civ. P. 56(a). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In evaluating a motion for summary judgment, a court must determine "whether the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and whether the moving party is therefore entitled to judgment as a matter of law." Macfarlan v. Ivy Hill SNF, LLC., 675 F.3d 266, 271 (3d Cir. 2012) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). A disputed issue is only "genuine" if there is a sufficient evidentiary basis upon which a reasonable factfinder could find for the non-moving party. Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A factual dispute is "material" only if it could affect the outcome of the suit under the governing law. Doe v. Luzerne Cnty., 660 F.3d 169, 175 (3d Cir. 2011) (citing Gray v. York Papers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992)). The Court is not tasked with resolving disputed issues of fact, but only with determining whether there exist any factual issues that must be tried. Anderson, 477 U.S. at 247-49.
In considering a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Macfarlan, 675 F.3d at 271; Bouriez v. Carnegie Mellon Univ., 585 F.3d 765, 770 (3d Cir. 2009). Where there exist factual issues that cannot be resolved without a credibility determination, the court must credit the non-moving party's evidence over that presented by the moving party. Liberty Lobby, 477 U.S. at 255. However, if there is no factual issue presented, and if only one reasonable conclusion could arise from the record with respect to the potential outcome under the governing law, the court must award summary judgment in favor of the moving party. Id. at 250.
The court must review the entire record, but in doing so must take care to "disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 150-51 (2000). The task for the court is to examine "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52. In reaching this determination, the Third Circuit has instructed that:
To raise a genuine issue of material fact . . . the opponent need not match, item for item, each piece of evidence proffered by the movant. In practical terms, if the opponent has exceeded the "mere scintilla" threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent. It thus remains the province of the factfinder to ascertain the believability and weight of the evidence.Id. In contrast, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted); NAACP v. North Hudson Reg'l Fire & Rescue, 665 F.3d 464, 476 (3d Cir. 2011).
B. Consideration of Brunelle's Fifth Amendment Takings Clause Claim Should Be Stayed
At the outset, in Count V of this complaint the plaintiff brings what we construe as a Fifth Amendment Takings Clause claim, alleging that the defendants' on-going interference with his property rights was so pervasive that it, in effect, rose to the level of a confiscatory taking of the property with just compensation, in violation of the Fifth Amendment.
As we have previously noted, among the constitutional protections afforded by the Fifth Amendment is the Takings "Clause of the Fifth Amendment [which] provides: '. . . nor shall private property be taken for public use without just compensation.' It applies to the States as well as the Federal Government. Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 239, 241, 17 S.Ct. 581, 41 L.Ed. 979 (1897); Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980)." Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 307, n.1, 122 S. Ct. 1465, 1470, 152 L. Ed. 2d 517 (2002).
In this case the Scranton defendants have moved for summary judgment on this particular claim, arguing that Brunelle is required as a matter of law to exhaust his state court remedies seeking just compensation prior to bringing a Takings Clause claim in federal court. The defendants were well-justified in asserting this defense at the time that they filed their motion for partial summary judgment since case law had recognized such an exhaustion requirement in Taking Clause cases. See Cty. Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 164 (3d Cir. 2006) (citing Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 194-96 (1985)). In fact, in support of this argument defendants expressly relied upon a decision of this court which imposed such an exhaustion requirement upon plaintiffs, Knick v. Twp., No. 3:14-CV-02223, 2016 WL 4701549, at *5 (M.D. Pa. Sept. 8, 2016). We note, however, that at the time that the parties were briefing this motion the United States Supreme Court accepted a petition for writ of certiorari in Knick which asked the Court to set aside this state court exhaustion and ripeness requirement in Takings Clause cases. See Knick v. Twp., No. 3:14-CV-02223, 2016 WL 4701549, at *5 (M.D. Pa. Sept. 8, 2016), aff'd sub nom. Knick v. Twp. of Scott, 862 F.3d 310 (3d Cir. 2017), cert. granted in part sub nom. Knick v. Twp. of Scott, Pa., 138 S. Ct. 1262, 200 L. Ed. 2d 416 (2018).
This intervening action by the United States Supreme Court cautions against wholesale adoption of any exhaustion rule with respect to this Takings Clause claim at the present time. Instead, given this recent action by the Supreme Court, the more prudent course would be for this court to stay further action on the motion for partial summary with regard to this particular claim pending the Supreme Court's decision in Knick v. Twp. of Scott, Pa., 138 S. Ct. 1262, 200 L. Ed. 2d 416 (2018). See Miller v. Trans Union, LLC, No. 3:12-CV-1715, 2015 WL 13649106, at *2 (M.D. Pa. Aug. 3, 2015)(Granting stay pending Supreme Court decision).
Because this case involves multiple claims, many of which would not be affected by the Supreme Court's decision in Knick, it is submitted that any stay should be only a partial stay and should relate exclusively to the Takings Clause claim. Thus, the parties should be free to litigate their remaining claims, pending clarification from the Supreme Court regarding the exhaustion requirement for Takings Clause claims. --------
C. The Plaintiff's Class of One Equal Protection Claim is Not Subject to Summary Judgment Dismissal.
In addition, in their motion for partial summary judgment the Scranton defendants renew their legal challenge to Brunelle's equal protection claim, Count III of the complaint. As we construe their motion, the defendants are launching twofold assault upon this legal claim. First, adopting a very literal construction of "class of one" equal protection analysis, the defendants argue that this claim fails as a matter of law because: "Plaintiff testified that he had planned the current lawsuits and legal strategy with Vsevolod Garanin, a similarly situated landlord who shared similar concerns and alleged similar conduct in a lawsuit docketed at 3:14-CV-2129 (MEM). Deposition of Alexander Brunelle, Jan. 23, 2018, at 273-275. It is thus clear that no 'class of one' can exist in the current circumstances." (Doc. 55, p.7.) Thus, in the Scranton defendants' view, a class of one equal protection claim cannot exist if two or more persons were allegedly harmed by the defendants' actions. Further, the defendants assert a much more fact-bound attack upon this equal protection claim insisting that: "summary judgment should be granted in favor of the Defendants as the record does not include sufficient facts to support any allegations that relevant laws, policies and procedure having been applied to Plaintiffs more onerously than to other individuals and entities." (Doc. 55, p. 7.)
In our view, both of these arguments fail.
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. As we construe it, Brunelle's equal protection claim in this case is essentially what is called a "class of one" claim, an assertion that the plaintiff has been treated differently than all others in some invidious fashion. On this score, "cases have recognized successful equal protection claims brought by a 'class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. See Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340 (1923); Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U.S. 336, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989)." Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 1074, 145 L. Ed. 2d 1060 (2000). However, the legal standard to be applied when examining such a claim in the context of a land use dispute is an exacting one, and has been defined by the United States Court of Appeals for the Third Circuit in the following terms:
The Supreme Court has held that a " 'class of one' " can attack intentionally different treatment if it is " 'irrational and wholly arbitrary.' " Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (internal citations omitted) (per curiam). . . . The "irrational and wholly arbitrary" standard is doubtless difficult for a plaintiff to meet in a zoning dispute, id. at 565-66 (Breyer, J., concurring), and we do not
view an equal protection claim as a device to dilute the stringent requirements needed to show a substantive due process violation.Eichenlaub v. Township of Indiana, 385 F.3d 375, 286-87 (3d Cir. 2004).
In order to sustain a "class of one" equal protection claim "a plaintiff must allege that (1) the defendant 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). So, to state a claim for 'class of one' equal protection, a plaintiff must at a minimum allege that he was intentionally treated differently from others similarly situated by the defendant and that there was no rational basis for such treatment." Phillips v. Cty. of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008).
As to this first element—the requirement that the plaintiff be treated differently from others similarly situated—it has been held that:
While " '[p]ersons are similarly situated under the Equal Protection Clause when they are alike in all relevant aspects,' " Mun. Revenue Servs., Inc. v. McBlain, 347 Fed.Appx. 817, 825 (3d Cir.2009) (quoting Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir.2008)), "the law in the Third Circuit does not require [the plaintiff] to show that the [comparators] are identical in all relevant respects but only that they are alike." Southersby Dev. Corp. v. Borough of Jefferson Hills, 852 F.Supp.2d 616, 628 (W.D.Pa.2012) (citing Startzell, 533 F.3d at 203); see also Simmermon v. Gabbianelli, 932 F.Supp.2d 626, 632-33 (D.N.J.2013); Thomas v. Coopersmith, No. 11-7578, 2012 WL 3599415, at *5 (E.D.Pa. Aug. 21, 2012). "Determining whether an individual is 'similarly situated' to another individual is a case-by-case fact-intensive inquiry." Chan v. Cnty. of Lancaster, No. 10-3424, 2011 WL 4478283, at *15 (E.D.Pa. Sept. 26, 2011) (citing Monaco v. Am. Gen. Assurance Co., 359 F.3d 296, 305 (3d Cir.2004)).Borrell v. Bloomsburg Univ., 955 F. Supp. 2d 390, 405 (M.D. Pa. 2013).
Further, once a plaintiff has shown that he suffered some measure of disparate treatment as compared to others who were similarly situated, in order to ultimately prevail on a "class of one" equal protection:
[A] plaintiff must show that the differential treatment was "irrational and wholly arbitrary." Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 286 (3d Cir.2004) (quoting Olech, 528 U.S. at 564, 120 S.Ct. 1073) (internal quotation marks omitted). "These challenges fail when 'there is any reasonably conceivable state of facts that could provide a rational basis for the classification.' " Highway Materials, Inc. v. Whitemarsh Twp., 386 Fed.Appx. 251, 259 (3d Cir.2010) (quoting Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993)).Tucker Indus. Liquid Coatings, Inc. v. Borough of E. Berlin, 85 F. Supp. 3d 803, 811 (M.D. Pa. 2015), aff'd, 656 F. App'x 1 (3d Cir. 2016).
This rational basis test imposes only a minimal burden of justification upon those who are defending some government action. " '[R]ational-basis review in equal protection analysis "is not a license for courts to judge the wisdom, fairness or logic" ' of government activity. Heller v. Doe by Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993), quoting FCC v. Beach Comm'cns, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). 'These challenges fail when 'there is any reasonably conceivable state of facts that could prove a rational basis for the classification.'" Giuliani v. Springfield Twp., 238 F. Supp. 3d 670, 705 (E.D. Pa. 2017), aff'd, No. 17-1675, 2018 WL 1167524 (3d Cir. Mar. 6, 2018)(citations omitted).
The ultimate burden of proof and persuasion borne by the plaintiff on a class of one equal protection claim is plainly very exacting. However, given the minimal burden of justification imposed upon defendants under the rational basis test adopted by the courts, most defendants choose this aspect of class of one equal protection analysis as the grounds upon which they contest a plaintiff's claims, arguing that there was a rational basis for any disparate treatment experienced by the plaintiff. In this case, however, the defendants have elected to contest the first element of this equal protection analysis, arguing as factual matter that there is no evidence that Brunelle was singled out for disparate, discriminatory treatment by the defendants. With the defendants having chosen this issue as the hill upon which they are prepared to die, we have little difficulty in concluding that the evidence, at a minimum, reveals a profound dispute regarding whether Brunelle was singled out for discriminatory regulatory licensing enforcement by the defendants. Moreover, Brunelle has amassed substantial evidence which supports his characterization of these events as a singularly discriminatory course of conduct, unlike the treatment given to other similarly-situated property developers. Given this stark factual dispute, it cannot be said that Brunelle's claim fails because he has presented no evidence of disparate treatment by the defendants. Therefore, this fact-bound summary judgment argument falters in the face of what are disputed, material facts.
The Scranton defendants' legal argument that a class of one equal protection claim cannot exist here since two persons, Alexander Brunelle and Vsevolod Garanin, both claim that they were allegedly harmed by the defendants' disparate enforcement policies is also unavailing. At the outset, we note that this argument rests on an extraordinarily literal reading of the "class of one" concept. Typically, equal protection analysis begins with an assessment of whether the plaintiff belongs to a suspect class, a racial, religious, national or ethnic group which has been targeted for discrimination historically. If the plaintiff falls within a suspect class, the equal protection clause calls for strict scrutiny of any suspect class discrimination or classification. The class of one equal protection doctrine simply recognizes that equal protection analysis does not begin and end with a determination regarding whether the plaintiff falls within a suspect class. Instead, the gist of the class of one doctrine is a recognition that individuals may be specifically singled out by government officials for unfair disparate treatment even though that disparate treatment is not motivated by some broader class-based animus. In cases of individualized unfair disparate treatment, the class of one doctrine acknowledges that the person who is harmed by this disparate treatment may bring an equal protection claim, but such claims are judged by a deferential standard of review.
The term "class-of-one" is thus a term of art which describes individualized equal protection claims that are not grounded upon some broader group-based bias. It is not, however, some sort of strict legal arithmetic formula which prescribes that only one person may claim that a government actor has singled him out for unfair treatment. Indeed, the notion that class of one equal protection claims cannot exist if two or more people claim that they have been individually discriminated against by a government actor would lead to curious outcomes. It could permit government actors to immunize themselves from class of one equal protection claims through the simple expedient of selecting two people to target for unfair treatment. It would, in effect, forgive the greater sin of singling two or more people out for unfair treatment while forbidding the lesser offense of targeting a single person in an unfair manner. Since the legal argument suggested by the Scranton defendants, which implies that class of one equal protection claims cannot be sustained by two plaintiffs against the same defendants, fundamentally misconstrues the nature of this legal doctrine, that argument should not be embraced by this court, and the defendants' motion for summary judgment on this particular claim should be denied.
D. Disputed Issues of Fact Preclude Summary Judgment on the Plaintiff's Malicious Prosecution Claims
Finally, in this summary judgment motion the defendants also seek the dismissal of Counts VIII and IX of the complaint, which allege malicious prosecution claims, both as civil rights violations under §1983 and as pendant state tort law claims. The basis of this motion is the defendants' assertion that some of the various criminal citations have not been terminated favorably for Brunelle. Citing the favorable termination requirement that exists for malicious prosecution claims, the defendants insist that Brunelle's failure to sufficiently allege a favorable termination of these various citations is fatal to these malicious prosecution claims.
We disagree.
As we have previously observed when addressing the defendants' motion to dismiss, to be sure " 'our precedents are clear that § 1983 plaintiffs alleging arrest and prosecution absent probable cause may bring malicious prosecution claims under the Fourth Amendment, but are entitled to relief only if they are innocent of the crime for which they were prosecuted.' Washington v. Hanshaw, 552 Fed.Appx. 169, 173 (3d Cir. 2014) (citing Hector v. Watt, 235 F.3d 154, 156 (3d Cir. 2000) ). Therefore, 'a plaintiff claiming malicious prosecution must prove actual innocence as an element of his prima facie case.' Steele v. City of Erie, 113 Fed.Appx. 456, 459 (3d Cir. 2004)." Miles v. Zech, No. 3:18-CV-1061, 2018 WL 3214262, at *6 (M.D. Pa. May 23, 2018), report and recommendation adopted, No. CV 3:18-1061, 2018 WL 3207381 (M.D. Pa. June 29, 2018). Furthermore, in making favorable termination judgments for purposes of federal civil rights claims based upon allegations of malicious prosecution:
[W]e note that various authorities refer to the favorable termination of a "proceeding," not merely a "charge" or "offense." See Marasco, 318 F.3d at 521; Haefner, 626 A.2d at 521; W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 119 (5th ed.1984); 52 Am.Jur.2d Malicious Prosecution § 32 (Supp.2007) ("In the context of a malicious prosecution action, to determine whether a party has received a favorable termination in the underlying case, the court considers the judgment as a whole in the prior action; ... the termination must reflect the merits of the action and the plaintiff's innocence of the misconduct alleged in the lawsuit." (emphasis added)). Therefore, the favorable termination of some but not all individual charges does not necessarily establish the favorable termination of the criminal proceeding as a whole.
Kossler v. Crisanti, 564 F.3d 181, 188 (3d Cir. 2009).
The state law analogue tort of malicious prosecution similarly imposes a favorable termination requirement upon plaintiffs which is also grounded upon a favorable termination of the underlying proceedings. Therefore, "[i]n order to successfully state a claim under Pennsylvania law for malicious use of process, commonly referred to as malicious prosecution, the claim must allege (1) that a person who participated in the underlying proceedings acted in a grossly negligent manner or without probable cause; (2) that the person acted with a malicious purpose; and (3) that the proceedings were terminated in favor of the defendant in the underlying proceeding. 42 Pa.C.S.A. § 8351(a)(1) and (2); Shaffer v. Stewart, 326 Pa.Super. 135, 140, 473 A.2d 1017 (1984)." Rosen v. Tesoro Petroleum Corp., 399 Pa. Super. 226, 230-31, 582 A.2d 27, 29-30 (1990)(emphasis added).
Because the malicious prosecution favorable termination rule focuses on whether a particular prior proceeding terminated favorably, in a case like this where it is alleged that the plaintiff was subjected to 100 or more baseless non-traffic citations, the question of defining the proper scope of the prior proceedings is integral to the application of the favorable termination rule. The parties appear to recognize this issue, but posit different and diametrically opposed views regarding how we should evaluate these numerous citations under this favorable termination rubric. For their part, the Scranton defendants suggest that in order for Brunelle to demonstrate a favorable termination of these citations, he must have fully prevailed on all of these citations. In contrast, Brunelle seems to argue that each citation constitutes a separate proceeding for purposes of the favorable termination rule, and suggests that he may pursue a malicious prosecution claim on the basis of a single acquittal on an isolated citation even if he had been convicted of numerous other related offenses.
We decline to adopt either of these two categorical approaches. Instead, we believe that the courts have charted a third path towards the resolution of this issue, one which recognizes that a determination of whether particular prior proceedings terminated favorably for a plaintiff is a fact-intensive inquiry. In Kossler v. Crisanti, 564 F.3d 181 (3d Cir. 2009), the court of appeals considered the application of the favorable termination rule to a case where the civil rights plaintiff had previously been convicted of some charges, and acquitted of other offenses, all of which arose out of a single episode. In analyzing the favorable termination rule in this context, the court: "[r]equir[ed] a fact-based inquiry for the favorable termination element." Id. at 194. Applying this fact-intensive analysis, where the criminal charges arose out of a single incident, the court:
[C]onclude[d] that, upon examination of the entire criminal proceeding, the judgment must indicate the plaintiff's innocence of the alleged misconduct underlying the offenses charged. . . . . The favorable termination element is not categorically satisfied whenever the plaintiff is acquitted of just one of several charges in the same proceeding. When the circumstances—both the offenses as stated in the statute and the underlying facts of the case—indicate that the judgment as a whole does not reflect the plaintiff's innocence, then the plaintiff fails to establish the favorable termination element.Id. at 188.
While Kossler held that acquittal on some but not all charges arising from a single episode did not constitute a favorable termination of the underlying case for purposes of a malicious prosecution claim, a necessary corollary to this rule has been recognized by the courts as a result of the fact-intensive analysis mandated by Kossler. In cases where the underlying charges involved separate and distinct incidents and episodes, courts have held that a conviction on charges relating to one episode does not prevent a plaintiff from bringing a malicious prosecution claim concerning separate and factually distinct incidents in which the prior prosecution resulted in a favorable termination of the charges for the civil rights plaintiff. See e.g., Piazza v. Lakkis, No. 3:11-CV-2130, 2012 WL 2007112, at *10 (M.D. Pa. June 5, 2012); Jackson v. Nassan, No. 2:08CV1054, 2009 WL 2707447, at *4 (W.D. Pa. Aug. 26, 2009).
Adopting this analytical paradigm, we note at the outset that neither party has presented us with sufficient information to make a complete assessment of the degree to which the 100 or more citations lodged against Brunelle by the Scranton defendants have been terminated favorably. Indeed, it seems apparent that the parties may be uncertain with respect to this crucial fact, with the defendants suggesting that "at least two (2) of the subject citations remain pending" and asserting that the "Plaintiff testified that as many as twenty of the subject (20) citations were adjudicated guilty in favor of the City and remain on summary appeal." (Doc. 55, p. 16.) In stark contrast, Brunelle insists that "zero or perhaps only accountable [sic] on one hand quantity [of citations] has ever been adjudicated final guilty," asserts that "the number of not guilty is insanely higher than the number of pending by a ratio of three or four to one," (Doc. 69, pp. 22-3), and has submitted an affidavit, (Doc.69-1), which purports to describe the status of what is characterized as a partial list of these citations.
This affidavit summarizes approximately 80 of these cases and is illuminating on several scores in terms of the fact-intensive favorable termination analysis which we are called upon to conduct. First, the affidavit reveals that many of these citations have separate docket numbers, and involve alleged violations at a number of different locations. (Id.) The citations have different dates, and appear to involve distinct alleged violations. Yet, while the affidavit seems to indicate that Brunelle has received dozens of factually independent citations, one common theme emerges from this partial list: The vast majority of the citations included on the list have been terminated in Brunelle's favor. In fact approximately 66 of these 80 citations have resulted in not guilty findings according to Brunelle, and as for the remaining 14 cases Brunelle insists that in the vast majority of these cases there simply has been no final adjudication of guilt. (Id.)
Viewing this information through the fact-intensive favorable termination standards prescribed by the courts, we find that many of these citations on their face involve factually separate and distinct incidents. We further conclude that a large number of these factually distinct citations, as many as 66 citations, have ended with finding exonerating Brunelle, and thus Brunelle has earned a favorable termination of many of these cases. Therefore, we find that Brunelle may maintain his malicious prosecution claims with respect to all of those citations which describe distinct episodes and which resulted in favorable terminations, notwithstanding the fact that some other citations which appear to relate to separate matters may have resulted in convictions or have not yet been fully adjudicated. We further conclude that, to the extent that the defendants seek to rely upon the favorable termination rule to exclude consideration of particular citations as to which Brunelle was found not guilty on the grounds that Brunelle may have been convicted of other violations relating to the same incident, the defendants should identify those specific citations as to which they contend there has not been a favorable termination. However, on the current state of the record as it relates to these underlying citations as a whole, the defendants' motion for partial summary judgment, which would have sought to dismiss these malicious prosecution claims entirely, should be denied.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the defendants' motion for partial summary judgment (Doc. 44), be DENIED with respect to all claims except for the plaintiff's Taking Clause claim in Count V of the complaint. As to this claim only IT IS RECOMMENDED that the case be STAYED pending the Supreme Court's clarification of the question of whether state court exhaustion is needed prior to bringing a Takings Clause claim in federal court.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 19th day of July, 2018.
S/Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge