Rascoe et al v. Cody et al

BRIEF IN SUPPORT re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

M.D. Pa.April 6, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA MICHELLE C. RASCOE, et al., : No. 1:15-cv-0994 : Plaintiff : Chief Judge Conner : Magistrate Judge Saporito, Jr. v. : : Electronically Filed Document NEIL CODY, et al., : Defendants : Complaint Filed 5/21/15 BRIEF IN SUPPORT OF DEFENDANT CODY’S MOTION TO DISMISS THIRD AMENDED COMPLAINT Respectfully submitted, JOSH SHAPIRO Attorney General By: s/ Lindsey A. Bedell LINDSEY A. BEDELL Office of Attorney General Deputy Attorney General 15th Floor, Strawberry Square Attorney ID #308158 Harrisburg, PA 17120 Phone: (717) 772-3561 KENNETH L. JOEL Fax: (717) 772-4526 Chief Deputy Attorney General lbedell@attorneygeneral.gov Chief, Civil Litigation Section Date: April 6, 2017 Counsel for Defendant Cody Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 1 of 29 ii TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................. iii I. PROCEDURAL HISTORY .......................................................................... 1 II. STATEMENT OF FACTS ............................................................................ 2 III. QUESTIONS PRESENTED ......................................................................... 7 IV. THE CLAIMS AGAINST CODY SHOULD BE DISMISSED ................. 7 A. PLAINTIFFS’ CLAIMS ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS ................................. 9 B. EQUITABLE TOLLING DOES NOT APPLY TO PLAINTIFFS’ CLAIMS ................................................................... 10 C. ALTERNATIVELY, PLAINTIFFS FAILED TO STATE A STATE A COGNIZABLE CLAIM FOR A VIOLATION OF THEIR FOURTEENTH AMENDMENT PROCEDURAL DUE PROCESS RIGHTS ................................................................. 15 D. THE PLAINTIFFS FAILED TO STATE A COGNIZABLE CLAIM FOR A VIOLATION OF THEIR FOURTEENTH AMENDMENT SUBSTANTIVE DUE PROCESS RIGHTS ......... 17 E. PLAINTIFFS FAILED TO STATE A COGNIZABLE CLAIM FOR A VIOLATION OF FIFTH AMENDMENT RIGHTS ........... 20 V. CONCLUSION ............................................................................................ 21 CERTIFICATE OF WORD COUNT CERTIFICATE OF SERVICE Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 2 of 29 iii TABLE OF AUTHORITIES CASES Ashcroft v. Iqbal 556 U.S. 662, 678 (2009) ........................................................................................ 8 Baldwin County Welcome Center v. Brown 466 U.S. 147, 151 (1984) ................................................................................ 11, 13 Barren v. United States 839 F.2d 987, 990 (3d Cir. 1988)............................................................................ 9 Bd of Regents of State Colleges v. Roth 408 U.S. 564, 576 (1972) ...................................................................................... 15 Beahm v. Burke 982 F. Supp. 2d 451, 458 (E.D. Pa. 2013) ............................................................ 20 Bell Atl. Corp. v. Twombly 550 U.S. 544, 555 (2007) ........................................................................................ 8 Briscoe v. LaHue 460 U.S. 325, 330-31 (1983) ................................................................................ 17 Chainey v. Street 523 F.3d 200, 219 (3d Cir. 2008).......................................................................... 18 Cnty of Sacramento v. Lewis 523 U.S. 833, 840 (1998) ...................................................................................... 17 Cohen v. City of Philadelphia 736 F.2d 81, 87 (3d Cir. 1984).............................................................................. 16 Coleman v. Thompson 501 U.S. 722, 752-753 (1991) .............................................................................. 12 Eichenlaub v. Township of Indiana 385 F.3d 274, 285 (3d Cir. 2004).......................................................................... 18 Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 3 of 29 iv Hill v. Borough of Kutztown 455 F.3d 225, 233-234 (3d Cir. 2006) .................................................................. 15 Hishon v. King & Spalding 467 U.S. 69, 73 (1984) ............................................................................................ 7 Holland v. Florida 560 U.S. 631, 653 (2010) ...................................................................................... 12 Holmes Constant Care Ctr. v. Com., Dep't of Pub. Welfare 124 Pa. Cmwlth. 42, 44, 555 A.2d 282, 283 n.2 (Pa. Commw. Ct. 1989) ........... 16 In re Mushroom Transp. Co. 382 F.3d 325, 339 (3d Cir. 2004).......................................................................... 11 Irwin v. Dep’t of Veterans Affairs 498 U.S. 89, 96 (1996) .............................................................................. 10, 11, 12 Jones v. Morton 195 F.3d 153, 160 (3d Cir. 1999).......................................................................... 13 Kach v. Hose 589 F.3d 626, 634 (3d Cir. 2009)............................................................................ 9 LaCava v. Kyler 398 F.3d 271, 277 (3d Cir. 2005).......................................................................... 13 Lake v. Arnold 232 F.3d 360, 370 n.9 (3d Cir. 2000) ................................................................... 10 LLMD of Michigan, Inc. v. Jackson-Cross Co. 559 Pa. 297, 740 A.2d 186 (1999) ........................................................................ 16 Mayer v. Belichick 605 F.3d 223, 230 (3d Cir. 2010)............................................................................ 8 Miller Home, Inc. v. Com., Dep't of Pub. Welfare 124 Pa. Cmwlth. 198, 201, 556 A.2d 1, 2 (Pa. Commw. Ct. 1989) ..................... 16 Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 4 of 29 v Mosley v. Observer Publishing Company 422 Pa. Super. 255, 619 A.2d 343, 345 (1993)..................................................... 16 Oshiver v. Levin, Fishbein, Sedran & Berman 38 F.3d 1380, 1387 (3d Cir. 1994) ....................................................................... 10 Pension Benefit Guar. Corp. v. White Consol. Indus., Inc. 998 F.2d 1192, 1196 (3d Cir. 1993) ....................................................................... 8 Phillips v. Allegheny Cnty. 515 F.3d 224, 231 (3d Cir. 2008)............................................................................ 7 Pinker v. Roche Holdings Ltd. 292 F.3d 361, 374 n.7 (3d Cir. 2002) ..................................................................... 8 Post v. Mendel 510 Pa. 213, 507 A.2d 351 (1986) ........................................................................ 17 Ragan v. Horn 411 Fed. Appx. 491, 495 (3d Cir. 2011) ............................................................... 13 Ransom v. Marrazzo 848 F.2d 398, 401 (3d Cir. 1988)............................................................................ 7 Rehberg v. Paulk 132 S. Ct. 1497, 1505 (2012) ................................................................................ 16 Ruehl v. Viacom, Inc. 500 F.3d 375, 384 (3d Cir. 2007) ........................................................................ 11 Sameric Corp. v. City of Philadelphia 142 F.3d 582, 599 (3d. Cir. 1998) .......................................................................... 9 Schlueter v. Varner 384 F.3d 69, 76 (3d Cir. 2004).............................................................................. 12 Schuylkill Energy Res., Inc. v. Pa. Power & Light Co. 113 F.3d 405, 417 (3d Cir. 1997)............................................................................ 2 Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 5 of 29 vi Seitzinger v. Reading Hosp. & Med. Ctr. 165 F.3d 236, 239 (3d Cir. 1999).......................................................................... 12 Shoemaker v. City of Lock Haven 906 F. Supp. 230, 238 (M.D. Pa. 1995) ................................................................ 20 Smith v. City of Lebanon Civ. A. No. 1:07-CV-01207, 2009 WL 3806532, at *9 (M.D. Pa. Nov. 12, 2009), aff'd, 387 F. App'x 186 (3d Cir. 2010)....................... 19 Spitsyn v. Moore 345 F.3d 796, 802 (9th Cir. 2003), as amended (Nov. 3, 2003) ........................... 12 United Artists Theatre Circuit, Inc. v. Township of Warrington 316 F.3d 392, 399 (3d Cir. 2003).................................................................... 18, 19 United States v. Kubrick 444 U.S. 111, 120 (1979) ........................................................................................ 9 Wallace v. Kato 549 U.S. 384, 391 (2007) ...................................................................................... 10 RULES Fed. R. Civ. P. 8(a)(2) ................................................................................................ 8 Fed. R. Civ. P. 12(b)(6) .............................................................................................. 7 STATUTES 42 U.S.C. § 1983 ........................................................................................................ 9 Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 6 of 29 1 I. PROCEDURAL HISTORY This is a civil action brought pursuant to 42 U.S.C. § 1983 by Plaintiffs, Michelle C. Rascoe (“Rascoe”) and Rascoe Courts, Inc. (“Rascoe Courts”). Plaintiffs initiated this action by filing a pro se complaint on May 21, 2015. (Doc. 1). On May 26, 2015, Plaintiffs filed an amended pro se complaint. (Doc. 3). On January 15, 2016, counsel entered an appearance for Plaintiffs (Doc. 16). On February 25, 2016, Plaintiffs filed a second amended complaint alleging procedural and substantive due process violations of the Fifth and Fourteenth Amendments against all of the Defendants. (Doc. 42). Defendant Neil Cody, of the Pennsylvania Department of Human Services (“DHS”), is an Adult Residential Licensing Unit Regional Director. Other Defendants are Susquehanna Township and Susquehanna Fire Marshal George Drees. Cody and the other Defendants filed motions to dismiss the second amended complaint. (Docs. 29, 32). After the motions were fully briefed, Magistrate Judge Saporito issued a Report and Recommendation (“R&R”), recommending that the Court dismiss the second amended complaint as untimely without leave to amend. (Doc. 37). Plaintiffs filed objections to the R&R asserting, inter alia, that Plaintiff should be permitted leave to amend the complaint. (Doc. 38). The Court adopted the R&R but granted Plaintiffs leave to amend the complaint. (Doc. 41). Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 7 of 29 2 On March 10, 2017, Plaintiffs filed a Third Amended Complaint. (Doc. 42). Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant Cody filed a motion to dismiss the third amended complaint on the grounds that it fails to state a claim upon which relief may be granted. This brief supports the motion. II. STATEMENT OF FACTS1 In 2012, Plaintiffs acquired a building for intended use as a personal care home. (Doc. 42 ¶ 8). On November 19, 2012, Fire Marshal Drees and Susquehanna Township Health Inspector Lynn Roche conducted an inspection of the building. Id. ¶ 8. The building had been vacant for years and was cited for numerous violations, which were remedied. Id. ¶¶ 8-10. In mid-January, 2013, Cody, an Adult Residential Licensing Unit Regional Director from DHS, and a DHS Inspector appeared unannounced at the building due to concerns that unreported residents were being housed. Id. ¶ 11. On February 26, 2013, Plaintiffs received a provisional license for six months to house twelve residents, throughout which the building would be subject to periodic inspections by DHS, and opened the building as Rascoe Courts to residents. Id. ¶ 13. The provisional license implied the building was substantially compliant with applicable law. Id. ¶¶ 13-14. If Rascoe Courts became fully compliant, DHS would 1 Because the Court is required to accept all well-pleaded facts as true upon a motion to dismiss, for purposes of this motion only, Defendants treat the allegations in the second amended complaint as true. See Schuylkill Energy Res., Inc. v. Pa. Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997). Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 8 of 29 3 issue a regular license. Id. DHS was required to issue written notification of any deficiencies. Id. On April 15, 2013, two DHS inspectors went to Rascoe Courts to follow up on a claim of resident neglect. Id. ¶16. One inspector stated, “I better not find anything wrong with this building today.” Id. Rascoe excused herself, called DHS, and was directed to Cody, who dismissed her concerns. Id. Rascoe went back to the inspectors, and one inspector immediately stood up and left the building. Id. She asked the other inspector to join her in her office to proceed, but the other inspector received a call from Cody and left. Id. The next day, Cody and an inspector returned to Rascoe Courts to follow up on the claim of neglect. Id. ¶ 17. After they entered the building, the fire alarm sounded. Id. Per standard protocol, residents were evacuated and the alarm was silenced, but the strobe lights for the fire alarm system remained activated. Id. The fire company informed Rascoe that the strobe light needed to be repaired and to conduct a fire watch until that occurred. Id. As people returned to the building, Rascoe’s mother fainted and was accompanied to the hospital by Rascoe. Id. ¶ 19. Cody and the inspector remained at the building with Rascoe’s husband for several hours, but they did not request records and only walked through the building. Id. The next morning, Cody and an inspector returned and walked through the building and saw that the strobe lights remained activated. Id. ¶ 20. Cody requested Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 9 of 29 4 that Drees and Roche return to the building. Id. When Drees arrived around 1 p.m., although a company was scheduled to repair the strobe lights later that day, Drees informed Rascoe around 4 p.m. that he was recommending that the building be closed due to the inoperable fire alarm system. Id. Drees left and immediately reported the fire code violations to the Dauphin County Municipal Court. Id. ¶ 24. In turn, Cody informed Rascoe that he was closing Rascoe Courts due to multiple issues but repeatedly refused to specify what the issues were. Id. ¶ 20. On the same day, Roche informed Rascoe that the building passed the health inspection, but that if DHS revoked the provisional license, then she in turn had to revoke the building’s health license. Id. ¶ 22. Later that day around 6 p.m., a technician repaired the strobe light issue, and Rascoe called Drees and asked him to speak with the technician. Id. ¶ 23. Drees had already reported the violation and refused to speak with the technician, so Rascoe put the phone on speaker to compel Drees to hear the technician state the strobe lights were repaired, which Drees ignored. Id. Cody was still in the building, but he also would not accept the confirmation that the strobe light was repaired and informed Rascoe it was too late. Id. Contrary to standard practice, Plaintiffs did not receive an “Emergency Removal Order”, nor were they “afforded an opportunity to be heard” before residents started being removed from the building. Id. ¶ 21. Nevertheless, Cody Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 10 of 29 5 halted the ongoing evacuation of residents, and seven residents remained in the building. Id. On April 22, 2013, Plaintiffs were notified by letter that the provisional license had been revoked due to health and safety reasons cited by Cody and Drees. Id. ¶ 27. On April 29, 2013, Plaintiffs appealed the revocation of the building’s license and continued to operate under the provisional license. Id. ¶ 28. Over the next few weeks, Cody, Drees, and other officials continually visited Rascoe Courts to determine whether it could be granted a provisional certificate of compliance. Id. ¶ 29. A court later determined Plaintiffs had not violated the fire code. Id. ¶ 30. Plaintiffs hired an attorney to represent them in the appeal of the decision to revoke the license and gave the attorney all the documentation that they had pertaining to the appeal. Id. ¶ 32. The attorney advised Rascoe that she had to wait until the administrative appeal was resolved before she could sue the individuals involved. Id. ¶ 32. Rascoe called, emailed, and sent letters to the attorney, but he never returned her messages. Id. ¶33. Rascoe later discharged the attorney and attempted, unsuccessfully, to retain new counsel. Id. ¶¶ 33-34. A hearing was scheduled in the appeal of the license revocation, so Rascoe requested a thirty day continuance and explained that her reasons included the lack of communications from her prior counsel and her inability to retain new counsel. Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 11 of 29 6 Id. ¶ 34. Rascoe also requested a copy of all of the documentation that had been submitted by her previous attorney. Id. Despite Rascoe’s attempts to follow up with the court, the court never responded to the request for a continuance or for the documentation. Id. Rascoe appeared at the hearing, renewed the request for a continuance, and further explained her prior counsel had not returned the evidence and documents that she intended to present and use at the hearing. Id. ¶ 35. The court denied the request, and the hearing proceeded without the documents, which severely disadvantaged her ability to represent herself. Id. The hearing lasted two days. Id. ¶ 37. During the hearing, complaints were made of several building violations by Plaintiffs without proof. Id. ¶¶ 36-38. The court denied or was nonresponsive to Rascoe’s multiple requests for subpoenas for various witnesses, did not admit Rascoe’s exhibits into evidence, and denied Rascoe’s request for two witnesses to testify. Id. ¶ 39. On May 29, 2014, the court recommended denying the appeal, made several inaccurate findings of fact in its adjudication, and based its rationale on unsubstantiated claims. Id. ¶ 40. DHS denied the appeal and revoked Plaintiffs’ license. Id. ¶ 40. Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 12 of 29 7 III. QUESTIONS PRESENTED A. SHOULD THE COURT DISMISS THE COMPLAINT BECAUSE THE CLAIMS ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS? B. HAVE THE PLAINTIFFS FAILED TO STATE A COGNIZABLE CLAIM FOR A VIOLATION OF THEIR FOURTEENTH AMENDMENT PROCEDURAL DUE PROCESS RIGHTS? C. HAVE THE PLAINTIFFS FAILED TO STATE A COGNIZABLE CLAIM FOR A VIOLATION OF THEIR FOURTEENTH AMENDMENT SUBSTANTIVE DUE PROCESS RIGHTS? D. HAVE THE PLAINTIFFS FAILED TO STATE A COGNIZABLE CLAIM FOR A VIOLATION OF THEIR FIFTH AMENDMENT RIGHTS? IV. THE CLAIMS AGAINST CODY SHOULD BE DISMISSED Dismissal of a complaint for failure to state a claim is appropriate where it is certain that no relief could be granted under any set of facts that could be proved consistent with the allegations contained in the complaint. Fed. R. Civ. P. 12(b)(6); Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). In considering a motion to dismiss under Federal “Rule of Civil Procedure 12(b)(6), the Court must ‘accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.’” Phillips v. Allegheny Cnty., 515 F.3d 224, 231 (3d Cir. Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 13 of 29 8 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Therefore, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citations and quotation marks omitted). If the “well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” the complaint should be dismissed for failing to “show [] that the pleader is entitled to relief” as required by Rule 8(a)(2). Id. at 679 (internal quotation marks omitted). “To decide a motion to dismiss, courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); see also Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010). For the reasons that follow, Plaintiffs have failed to state Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 14 of 29 9 claims against Cody for which relief can be granted. The Court should dismiss all claims against Cody with prejudice. A. PLAINTIFFS’ CLAIMS ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS. For the following reasons, the Court should dismiss Plaintiffs’ claims as time-barred by the applicable two-year statute of limitations. The Third Circuit applies a two-year statute of limitations to actions brought pursuant to 42 U.S.C. § 1983. Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009). Under federal law, the statute of limitations begins to run “when the plaintiff knew or should have known of the injury upon which its action is based.” Id. (citing Sameric Corp. v. City of Philadelphia, 142 F.3d 582, 599 (3d. Cir. 1998)). The Court must make an objective determination regarding the time at which a claim accrues; it matters not what the plaintiff actually knew but what a reasonable person should have known. Id. (citing Barren v. United States, 839 F.2d 987, 990 (3d Cir. 1988)). “As a general matter, a cause of action accrues at the time of the last event necessary to complete the tort, usually at the time the plaintiff suffers an injury.” Id. (citing United States v. Kubrick, 444 U.S. 111, 120 (1979)). “The cause of action accrues even though the full extent of the injury is not then known or predictable. Were it otherwise, the statute would begin to run only after a plaintiff became satisfied that he had been harmed enough, placing the supposed statute of Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 15 of 29 10 repose in the sole hands of the party seeking relief.” Id. (citing Wallace v. Kato, 549 U.S. 384, 391 (2007) (internal quotation marks and citations omitted)). Plaintiffs’ alleged injury stems from the revocation of Plaintiff’s building license. Accordingly, the statute of limitations for Plaintiffs' claims began running, at a minimum, on April 29, 2013, when Plaintiffs appealed the decision to revoke the building’s license, which the Court has accepted as the date when an objective would have understood and believed that they had been wronged. (Doc. 37 at 13). Plaintiffs initiated this action by filing a pro se complaint on May 21, 2015. (Doc. 1). Therefore, the claims should be dismissed with prejudice because they are barred by the two-year statute of limitations. B. EQUITABLE TOLLING DOES NOT APPLY TO PLAINTIFFS’ CLAIMS. Furthermore, the statute of limitations should not be tolled in this case. Federal courts generally permit equitable tolling in very limited circumstances, principally where a defendant's active misconduct caused a plaintiff's noncompliance or he has timely asserted his rights but mistakenly in the wrong forum or through a defective complaint. See Lake v. Arnold, 232 F.3d 360, 370 n.9 (3d Cir. 2000); Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1996); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994). “In addition, ‘equitable tolling requires the plaintiff to demonstrate that he or she could not, by the exercise of reasonable diligence, have discovered essential information Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 16 of 29 11 bearing on his or her claim.’” Ruehl v. Viacom, Inc., 500 F.3d 375, 384 (3d Cir. 2007) (quoting In re Mushroom Transp. Co., 382 F.3d 325, 339 (3d Cir. 2004)). Equitable tolling may also be applicable where a plaintiff was prevented from asserting his rights for some extraordinary reason. Id. Nevertheless, Courts are “generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights.” Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (citing Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984)). Nothing suggests the existence of extraordinary circumstances which might justify equitable tolling of Plaintiffs’ claims. Simply put, Plaintiffs were not prevented by Cody in any way from filing the instant action. Furthermore, Plaintiffs did not timely assert their rights either in the wrong forum or timely file a defective complaint. Finally, even after the appeal of the license revocation was resolved, Plaintiffs still waited for almost a year before filing suit and cannot be found to have exercised the due diligence necessary to warrant equitable tolling. See Irwin, 498 U.S. at 96. Additionally, nothing indicates that any other extraordinary circumstances caused Plaintiffs to file the initial complaint late. For instance, Plaintiff’s claim that the attorney’s delay in returning documents caused excusable neglect also fails as a matter of law. The Supreme Court has declined to extend equitable tolling to Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 17 of 29 12 circumstances where counsel failed to act in a timely manner to provide the plaintiff with necessary documentation. See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (concluding “the principles of equitable tolling [] do not extend to what is at best a garden variety claim of excusable neglect” - where plaintiff’s lawyer was absent from his office when the necessary notice was received, and plaintiff filed within 30 days after he personally received the notice). Additionally, in the context of a procedural default, a plaintiff “must ‘bear the risk of attorney error.’” Coleman v. Thompson, 501 U.S. 722, 752-753 (1991). The Third Circuit has also held that attorney error, in non-capital cases, is an insufficient basis for equitable tolling, and that there are “‘narrow circumstances in which the misbehavior of an attorney may merit’ equitable tolling.” See Schlueter v. Varner, 384 F.3d 69, 76 (3d Cir. 2004) (denying to extend equitable tolling where attorney merely stated that he would file a petition but did not) (quoting Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999) (extending equitable tolling where attorney falsely stated he had filed a complaint for plaintiff when he had not)). No such circumstances exist here. Additionally, regardless of any extraordinary circumstances, Plaintiff must still act diligently in pursuing the claim. Holland v. Florida, 560 U.S. 631, 653 (2010); Spitsyn v. Moore, 345 F.3d 796, 802 (9th Cir. 2003), as amended (Nov. 3, 2003). “This . . . is an obligation that exists during the period appellant is Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 18 of 29 13 exhausting state court remedies as well.” LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005) (citing Jones v. Morton, 195 F.3d 153, 160 (3d Cir. 1999) (emphasis added). When the extraordinary circumstances are removed, Plaintiffs cannot “sit on their rights” and must initiate suit as soon as reasonably possible. Ragan v. Horn, 411 Fed. Appx. 491, 495 (3d Cir. 2011). “Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.” Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984). Furthermore, notwithstanding the alleged failure by Plaintiffs’ attorney to timely return the documentation, Plaintiffs already had first-hand knowledge of all the alleged wrongs at issue in this litigation including a letter they received on April 22, 2013 that indicated their license was revoked due to health and safety violations. (Doc. 42 ¶ 27). Also, in addition to various employees of Rascoe Courts as well as some family members with whom Plaintiffs had direct contact, Rascoe herself was present and actively participated in all of the events at issue. Therefore, it would be illogical to find that Rascoe was unable to recite sufficient details of the events to be able to prepare a complaint for a full year after the license appeal was finished. Finally, nothing indicates how the documents in the possession of Plaintiff’s counsel would have aided Plaintiffs in being able to timely file the initial complaint Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 19 of 29 14 in this case. In fact, there is no indication that the papers were ever obtained at all. Thus, Plaintiff has not alleged, nor is there evidence that there was any “essential information” that Plaintiffs lacked until when the complaint was filed. The attorney had Plaintiffs’ “exhibits and a list of witnesses”, Id. ¶ 35, but nothing indicates what those exhibits were or how the complaint could have been filed sooner if Plaintiffs had had the exhibits or list of witnesses. Additionally, nothing indicates that the attorney’s failure to return the documents prevented Plaintiffs from representing herself at the hearing. Ultimately, the court did not admit into evidence the exhibits that were presented by Plaintiffs anyway. Id. ¶ 39. Therefore, no objective person would conclude that Plaintiffs exercised reasonable diligence given that Plaintiffs waiting a full year after the appeal was finished to initiate suit. Accordingly, due to Plaintiff’s failure to file a proper civil action within the applicable two-year period, the Court should dismiss Plaintiff’s claims because they are barred by the statute of limitations as a matter of law. Therefore, as the statute of limitations for Plaintiffs’ claims has expired, Plaintiffs’ claims should be dismissed in their entirety with prejudice. Alternatively, as discussed below, even if the Court finds that Plaintiff’s claims are not barred by the statute of limitations, Plaintiffs’ claims fail as a matter of law due to a failure to state a claim upon which relief can be granted. Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 20 of 29 15 C. ALTERNATIVELY, PLAINTIFFS FAILED TO STATE A COGNIZABLE CLAIM FOR A VIOLATION OF THEIR FOURTEENTH AMENDMENT PROCEDURAL DUE PROCESS RIGHTS. To state a claim for violation of procedural due process, a plaintiff “must allege that (1) he was deprived of an individual interest that is encompassed within the Fourteenth Amendment’s protection of life, liberty, or property, and that (2) the procedures available to him did not provide due process of law.” Hill v. Borough of Kutztown, 455 F.3d 225, 233-234 (3d Cir. 2006) (internal quotations omitted). “The Fourteenth Amendment’s procedural protection of property is a safeguard of the security interests that a person has already acquired in specific benefits.” Bd of Regents of State Colleges v. Roth, 408 U.S. 564, 576 (1972). Plaintiffs cannot satisfy the second prong because they admit they were afforded due process prior to the building license being revoked. Specifically, Plaintiffs admit that they “continued to operate” “[d]uring the pendency of the appeal”. (Doc. 42 ¶ 28). The license revocation was not finalized until after Plaintiff fully participated at a hearing that lasted two days and used the opportunity to present evidence in front of an administrative law judge. Id. ¶¶ 28- 40. Accordingly, Plaintiffs admit that they have not been denied adequate due process under state procedures. Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 21 of 29 16 Furthermore, when the appeal was denied, Plaintiffs could have sought reconsideration by the Secretary for the Department of Public Welfare or could have filed an appeal of the license revocation in the Commonwealth Court. See, e.g., Holmes Constant Care Ctr. v. Com., Dep't of Pub. Welfare, 124 Pa. Cmwlth. 42, 44, 555 A.2d 282, 283 n.2 (Pa. Commw. Ct. 1989); Miller Home, Inc. v. Com., Dep't of Pub. Welfare, 124 Pa. Cmwlth. 198, 201, 556 A.2d 1, 2 (Pa. Commw. Ct. 1989). Plaintiffs have not pursued either route and instead initiated this litigation. Plaintiffs do not claim that they did not have recourse to the state courts. Furthermore, in Cohen v. City of Philadelphia, 736 F.2d 81, 87 (3d Cir. 1984), the Court held that “[a]lthough [Plaintiff] has waived his state law avenues of relief by his inaction, the very existence and apparent efficacy of such remedies defeats his claim that he was deprived of property without due process of law.” In Cohen, the plaintiff had argued that a state agency erred in its adjudication, similar to the claims by Plaintiffs that DHS erred in revoking their license. Finally, to the extent that Plaintiffs raise a claim based on any testimony by Cody at the hearing, the claim fails as a matter of law. Cody is shielded by judicial immunity for any testimony that he provided because no action lies for words spoken or written in the course of giving evidence. See Rehberg v. Paulk, 132 S. Ct. 1497, 1505 (2012); Mosley v. Observer Publishing Company, 422 Pa. Super. 255, 619 A.2d 343, 345 (1993); LLMD of Michigan, Inc. v. Jackson-Cross Co., Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 22 of 29 17 559 Pa. 297, 740 A.2d 186 (1999); Post v. Mendel, 510 Pa. 213, 507 A.2d 351 (1986). “The immunity of parties and witnesses from subsequent damages liability for their testimony in judicial proceedings was well established in English common law.” Briscoe v. LaHue, 460 U.S. 325, 330-31 (1983) (internal citations omitted). The truth-finding process is better served if witnesses are not inclined to self- censor out of fear of subsequent liability. Id. at 333-34. Thus, witnesses are absolutely immune for their testimony. Id. at 345. A finding to the contrary would “disserve the broader public interest.” Id. Therefore, Plaintiffs cannot establish that they were denied due process before the license was revoked, and the claim fails as a matter of law. As a result, Plaintiffs’ claim of denial of procedural due process under the Fourteenth Amendment should be dismissed with prejudice. D. THE PLAINTIFFS FAILED TO STATE A COGNIZABLE CLAIM FOR A VIOLATION OF THEIR FOURTEENTH AMENDMENT SUBSTANTIVE DUE PROCESS RIGHTS. A claim for a violation of the substantive due process clause can only be brought when a government official engages in “an abuse of executive power so clearly unjustified by any legitimate objective of law enforcement as to be barred by the Fourteenth Amendment.” Cnty of Sacramento v. Lewis, 523 U.S. 833, 840 (1998). Thus, two elements are necessary to state a substantive due process claim: (1) the particular interest at issue is protected by the substantive due process clause Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 23 of 29 18 and that (2) the government’s deprivation of the interest at issue shocks the conscience. Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008). The Third Circuit has held that "only the most egregious official conduct" will be found to "shock the conscience." United Artists Theatre Circuit, Inc. v. Township of Warrington, 316 F.3d 392, 399 (3d Cir. 2003). Situations involving conduct that has been found to "shock the conscience" include corruption, self-dealing, or a simultaneous infringement on other fundamental individual liberties, which result in harm that cannot be adequately mended by either a pre-deprivation or a post-deprivation hearing. Eichenlaub v. Township of Indiana, 385 F.3d 274, 285 (3d Cir. 2004). Given this high standard, Plaintiffs’ substantive due process claim fails as a matter of law. Plaintiffs admit that Cody’s actions were related to upholding the statutes that provide the guidelines for personal care homes. Plaintiffs admit that the strobe lights were still malfunctioning when the recommendation to close the building was made. (Doc. 42 ¶ 20). On that day, Drees arrived and informed Rascoe he was recommending that the building be closed due to the inoperable fire alarm system, left the building, and immediately reported the fire code violations. Id. ¶ 24. In turn, Cody informed Rascoe that he was closing down Rascoe Courts due to multiple issues. Id. ¶ 20. When the strobe light was repaired, Cody halted the ongoing evacuation of residents, and seven residents remained in the building. Id. ¶ 23. Then over the next few weeks, Cody and other officials continued to visit Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 24 of 29 19 Rascoe Courts to determine whether it could be issued a provisional certificate of compliance. Id. ¶ 29. Thus, Plaintiffs’ allegation that Cody’s actions were “malicious” (Doc. 42 ¶ 48) fails to meet the high standard for a substantive due process claim. Cody’s actions stemmed from the performance of his duties as the Adult Residential Licensing Unit Regional Director for DHS. Thus, Cody’s actions cannot be found to “shock the conscience” when they stemmed from the performance of his duties, even if they were performed with an improper purpose or in bad faith. This Court has held that government actions performed with an improper purpose or in bad faith do not shock the conscience if they are reasonably related to a legitimate government objective: A government actor’s conduct does not shock the conscience merely because it was performed with an improper purpose or in bad faith, the doctrine constrains only those activities that have no reasonable relation to legitimate government objectives. Smith v. City of Lebanon, Civ. A. No. 1:07-CV-01207, 2009 WL 3806532, at *9 (M.D. Pa. Nov. 12, 2009) (Connor, J.), aff'd, 387 F. App'x 186 (3d Cir. 2010). See also United Artists Theatre, 316 F.3d 392, 400-402 (3d Cir. 2003). Cody’s actions were related to the inoperable fire alarm system - thus, ensuring a safe environment for the patients and staff at Rascoe Courts with a functional fire alarm system unmistakably constitutes a legitimate government interest, and Plaintiffs do not claim otherwise. Therefore, Plaintiff has failed to allege actions by Cody that Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 25 of 29 20 “shock the conscience” and fails to state a viable cause of action for substantive due process. As a result, Plaintiffs’ claim of denial of substantive due process under the Fourteenth Amendment fails as a matter of law, and the claim should be dismissed with prejudice. E. PLAINTIFFS FAILED TO STATE A COGNIZABLE CLAIM FOR A VIOLATION OF FIFTH AMENDMENT RIGHTS. The due process clause of the Fifth Amendment only applies to the acts of the federal government, and does not apply to acts or conduct of state or local government officials. See Shoemaker v. City of Lock Haven, 906 F. Supp. 230, 238 (M.D. Pa. 1995) (McClure, J.) (internal citations omitted); see also Beahm v. Burke, 982 F. Supp. 2d 451, 458 (E.D. Pa. 2013) (discussing county officials). Plaintiffs admit that Cody is employed by DHS, a state agency. Since all the allegations against Cody include his actions taken during the performance of his duties as a state actor, Plaintiffs’ claim for a violation of their Fifth Amendment procedural and substantive due process fail as a matter of law and should be dismissed with prejudice. Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 26 of 29 21 V. CONCLUSION For all the foregoing reasons, Defendant Cody respectfully requests that the Court dismiss the third amended complaint with prejudice. Respectfully submitted, JOSH SHAPIRO Attorney General By: s/ Lindsey A. Bedell LINDSEY A. BEDELL Office of Attorney General Deputy Attorney General 15th Floor, Strawberry Square Attorney ID #308158 Harrisburg, PA 17120 Phone: (717) 772-3561 KENNETH L. JOEL Fax: (717) 772-4526 Chief Deputy Attorney General lbedell@attorneygeneral.gov Chief, Civil Litigation Section Date: April 6, 2017 Counsel for Defendant Cody Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 27 of 29 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA MICHELLE C. RASCOE, et al., : No. 1:15-cv-0994 : Plaintiff : Chief Judge Conner : Magistrate Judge Saporito, Jr. v. : : Electronically Filed Document NEIL CODY, et al., : Defendants : Complaint Filed 5/21/15 CERTIFICATE OF WORD COUNT I hereby certify that this brief contains 4,827 words within the meaning of Local Rule 7.8(b)(2). In making this certificate, I have relied on the word count of the word processing system used to prepare the brief. s/ Lindsey A. Bedell LINDSEY A. BEDELL Deputy Attorney General Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 28 of 29 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA MICHELLE C. RASCOE, et al., : No. 1:15-cv-0994 : Plaintiff : Chief Judge Conner : Magistrate Judge Saporito, Jr. v. : : Electronically Filed Document NEIL CODY, et al., : Defendants : Complaint Filed 5/21/15 CERTIFICATE OF SERVICE I, Lindsey A. Bedell, Deputy Attorney General for the Commonwealth of Pennsylvania, Office of Attorney General, hereby certify that on April 6, 2017, I caused to be served a true and correct copy of the foregoing document titled Brief in Support of Defendant Cody’s Motion to Dismiss Third Amended Complaint to the following: VIA ECF: Faye R. Cohen, Esq. Law Office of Faye Riva Cohen 2047 Locust Street Philadelphia, PA 19103 frc@fayerivacohen.com Counsel for Plaintiff Donald L. Carmelite, Esq. April Cressler, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 100 Corporate Center Drive, Suite 201 Camp Hill, PA 17011 dlcarmelite@mdwcg.com Counsel for Defendants Drees and Susquehanna Township s/ Lindsey A. Bedell LINDSEY A. BEDELL Deputy Attorney General Case 1:15-cv-00994-CCC-JFS Document 51 Filed 04/06/17 Page 29 of 29 Ragan v. Horn, 411 Fed.Appx. 491 (2011) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Declined to Extend by Campisi v. Superintendent, SCI-Dallas, M.D.Pa., April 13, 2012 411 Fed.Appx. 491 This case was not selected for publication in the Federal Reporter. Not for Publication in West's Federal Reporter See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Third Circuit LAR, App. I, IOP 5.7. (Find CTA3 App. I, IOP 5.7) United States Court of Appeals, Third Circuit. Derrick G. RAGAN, Appellant v. Commissioner Martin HORN, Pennsylvania Department of Corrections; Donald T. Vaugh, Superintendent of the State Correctional Institution at Graterford. No. 09-1636. | Argued Nov. 17, 2010. | Opinion filed: Jan. 19, 2011. Synopsis Background: After defendant's state-court first-degree murder conviction and life sentence was affirmed on appeal, and state-court post-conviction relief was denied, defendant petitioned for federal habeas relief. The United States District Court for the Eastern District of Pennsylvania, Anita B. Brody, J., 598 F.Supp.2d 677, denied petition as time-barred. Defendant appealed. Holding: The Court of Appeals, Ambro, Circuit Judge, held that defendant was entitled to equitable tolling of one-year habeas limitations period. Reversed and remanded. *492 On Appeal from the United States District Court For the Eastern District of Pennsylvania (D.C. Civil Action No. 2-00-cv-02092), District Judge: Honorable Anita B. Brody. Attorneys and Law Firms Mary E. Hanssens, Esquire, Jerome H. Nickerson, Esquire, Michael Wiseman, Esquire (Argued), Defender Association of Philadelphia, Federal Capital Habeas Corpus Unit, Philadelphia, PA, for Appellant. Thomas W. Dolgenos, Esquire, Helen T. Kane, Esquire (Argued), Office of the District Attorney, Philadelphia, PA, for Appellees. Before: AMBRO, FISHER and GREENBERG, Circuit Judges. OPINION AMBRO, Circuit Judge. **1 Derrick Ragan is currently serving a term of life imprisonment for a first-degree murder conviction in 1991. 1 At the time of the homicide, Ragan was driving a car with Jerry Burden in the passenger seat. They pulled up next to a car driven by Anthony Thomas, who had Steven Guilford in the passenger seat. According to Guilford, the only eyewitness to testify at trial, Ragan leaned over Burden and shot Thomas through the passenger- side window. Ragan contends, however, that it was Burden who shot Thomas. During their investigation, detectives interviewed another eyewitness, a bystander named Martino Crews, who initially reported that he saw Burden get out of Ragan's car and shoot Thomas, as Ragan claims, but later told them that he thought Ragan was the shooter. The parties dispute whether the prosecution disclosed Crews's statements to the defense. Neither party introduced the statements or called Crews to testify at trial. 1 Ragan was also convicted of a second, unrelated murder in 1991, for which he was sentenced to death. The murder conviction before us in this appeal served as the sole aggravating factor for the death sentence he received in the second case. Ragan pursued his direct and post-conviction appeals in state court to no avail. On April 21, 2000, he filed the counseled habeas petition that we now review. Ragan raises claims of actual innocence, prosecutorial Case 1:15-cv-00994-CCC-JFS Document 51-1 Filed 04/06/17 Page 1 of 15 Ragan v. Horn, 411 Fed.Appx. 491 (2011) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 misconduct, and that either the *493 prosecution violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose the Crews statements, or alternatively, if the prosecution disclosed them, that his trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for failing to investigate and call Crews to testify. Ragan conceded that his habeas petition was untimely under the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d)(1)(A), but argued that equitable tolling should be granted because the attorney he first retained to file the petition misled and abandoned him. The District Court granted Ragan's new counsel 60 days to file habeas petitions in his capital and non-capital cases, but both petitions were filed approximately 12 days after that deadline. After an evidentiary hearing, the Court ruled that Ragan's petition was timely because his prior counsel's conduct (amounting to abandonment of his client) was an extraordinary circumstance warranting equitable tolling. Ragan filed a motion to modify the Court's order, pointing out certain errors that the Court had made in its calculations. The Court then entered an Amended Memorandum and Order on June 24, 2008, 2008 WL 2551405, (the “Amended Order”), determining that Ragan was not entitled to equitable tolling because he failed to act with reasonable diligence after he learned of his prior counsel's abandonment. Ragan filed another motion for reconsideration seeking to modify the Court's Amended Order. He argued that equitable tolling was warranted because he exercised reasonable diligence in attempting to file his habeas petition, and alternately that AEDPA's one-year limitations period should not apply because Crews's first statement and a subsequent statement by Guilford show him to be actually innocent. The Court rejected both arguments and denied Ragan's motion by an “Explanation and Order” entered on February 10, 2009, 598 F.Supp.2d 677. However, it granted a certificate of appealability on the issue of whether Ragan exercised sufficient diligence to warrant equitable tolling. (Expl. & Ord. at 15). 2 In the Court's view, “reasonable jurists could disagree” because the “period of delay in this case is neither so short as to be unassailably diligent, nor so long as to be unequivocally dilatory.” Id. 2 The District Court did not grant a certificate of appealability on the actual innocence issue. **2 We reverse the District Court's Order and conclude that Ragan did exercise reasonable diligence under the circumstances. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de novo the District Court's legal ruling that Ragan's habeas petition is time-barred under AEDPA. See, e.g., Taylor v. Horn, 504 F.3d 416, 427 (3d Cir.2007); Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir.2003). The District Court concluded, and Ragan does not dispute, that his habeas petition was not filed within the one-year AEDPA limitations period. See 28 U.S.C. § 2244(d)(1)(A). The issue before us is whether he should be entitled to equitable tolling. “[A] litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005); see also Satterfield v. Johnson, 434 F.3d 185, 195 (3d Cir.2006). The Supreme Court has instructed that “[t]he diligence required for equitable tolling purposes is ‘reasonable diligence,’ ... not ‘maximum feasible diligence.’ ” Holland v. Florida, --- U.S. ----, 130 S.Ct. 2549, 2565, 177 L.Ed.2d 130 (2010) (internal citations omitted). *494 Our Court has similarly held that “[d]ue diligence does not require ‘the maximum feasible diligence,’ but it does require reasonable diligence in the circumstances.” Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir.2004) (internal citations omitted); see also Baldayaque v. United States, 338 F.3d 145, 153 (2d Cir.2003) (“The standard is not ‘extreme diligence’ or ‘exceptional diligence,’ it is reasonable diligence. On remand, the district court should ask: did the petitioner act as diligently as reasonably could have been expected under the circumstances? ”) (emphases in original). The District Court never changed its determination that the attorney abandonment Ragan faced was an extraordinary circumstance for equitable tolling purposes. 3 However, it ruled in its Explanation and Order that Ragan did not act with sufficient diligence after his extraordinary circumstance was resolved. We think that Ragan did act with reasonable diligence, and we therefore reverse and remand for a hearing on the merits of Ragan's habeas petition. Case 1:15-cv-00994-CCC-JFS Document 51-1 Filed 04/06/17 Page 2 of 15 Ragan v. Horn, 411 Fed.Appx. 491 (2011) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 3 “Ragan was ... abandoned by his attorney while he was diligently pursuing his rights. Based on the egregious acts of Ragan's attorney, I found that ‘extraordinary circumstances' existed to warrant equitable tolling.” (Expl. & Ord. at 2). Ragan's new Federal Defenders Capital Habeas Corpus Unit (“CHU”) attorneys were reasonably diligent under the circumstances, particularly in light of the following three considerations: (1) the District Court was made aware of the reason why CHU counsel had not filed within the Court's 60-day period before that deadline had passed; (2) the Court was actively involved in the process it directed of obtaining missing state court materials required for Ragan's habeas filings during and after those 60 days; and (3) the Court signed an order requiring the Commonwealth to turn over missing state court materials seven days after its 60-day deadline (April 17, 2000). The missing materials were collected three days later (April 20, 2000), and the habeas petitions were filed the next day (April 21, 2000). 4 4 The relevant events from February to April 2000 are as follows: On February 9, 2000, the Court granted Ragan's in forma pauperis motion and allocated his new CHU attorneys 60 days to file his habeas petitions in his capital and life cases. Fifty-seven days later, on April 6, 2000, CHU counsel wrote to the Court (copying the Commonwealth) asking the Court to convene a conference regarding “a matter that is preventing us from completing our work on Petitioner's habeas corpus filings.” (A289-92). The Commonwealth had declined to provide state court records that Ragan had already sought by several other means to CHU counsel without a court order. On the 60th day-April 10, 2000-the Court issued an order that a conference be conducted four days later regarding the missing materials. At the April 14, 2000 conference, CHU counsel appeared and the Commonwealth did not. Three days later, on April 17, 2000, the Court signed an order directing the Commonwealth to provide the missing materials. Three days after the Court's order (April 20), the CHU attorneys were able to collect the materials at issue. One day later (April 21), they filed Ragan's habeas petitions in both the life and capital cases. **3 While the District Court did note the 60-day window it had granted petitioner's new attorneys in its Explanation and Order denying equitable tolling, it omitted any mention of the series of events described herein. Instead, without noting the intervening events that it had supervised, it stated that “Ragan carelessly disregarded the deadline and did not file his Petition until nearly two weeks later....” (Expl. & Ord. at 8). This record does not reflect careless disregard. The petition was filed only one day after crucial missing state court documents were provided to Ragan's attorneys pursuant to the Court's order. *495 In sum, Ragan and his attorneys did not simply sit on their rights. Rather, they were actively involved in seeking-with the District Court's assistance -the documents they believed were necessary to pursue Ragan's claims adequately. As noted above, we expect only reasonable diligence for equitable tolling once extraordinary circumstances have been found. Although Ragan's habeas petition was filed 12 days after the Court's deadline, the reasons for the delay, the Court's involvement in managing the procurement of the missing materials, and the subsequent speed with which the petition was filed (one day after obtaining the materials), easily meet the reasonable diligence bar. Thus, we reverse the judgment to the contrary, conclude that Ragan's habeas petition is not time-barred, and remand for further proceedings. 5 5 We note that our ruling on the reasonable diligence issue resolves whether Ragan's habeas petition is time-barred, but because the District Court reached a different conclusion on that issue, it dealt with Ragan's actual innocence claim that we have not addressed here. Because the Court addressed the actual innocence issue only in order to determine whether it would have been an alternative basis to defeat untimeliness under AEDPA, rather than on its merits after additional briefing and an evidentiary hearing, this issue may be raised in further proceedings on remand. All Citations 411 Fed.Appx. 491, 2011 WL 149461 End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 1:15-cv-00994-CCC-JFS Document 51-1 Filed 04/06/17 Page 3 of 15 Smith v. City of Lebanon, 387 Fed.Appx. 186 (2010) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Rittenhouse Entertainment, Inc. v. City of Wilkes- Barre, M.D.Pa., June 4, 2012 387 Fed.Appx. 186 This case was not selected for publication in the Federal Reporter. Not for Publication in West's Federal Reporter See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Third Circuit LAR, App. I, IOP 5.7. (Find CTA3 App. I, IOP 5.7) United States Court of Appeals, Third Circuit. Lori SMITH; Rob Fam, Inc. t/a Liberty Square Cafe v. CITY OF LEBANON; Lawrence Minnick; David Lear; Robert Anspach Lori Smith; Rob Fam, Inc., Appellants. No. 09-4647. | Submitted Under Third Circuit LAR 34.1(a) July 16, 2010. | Filed: July 19, 2010. Synopsis Background: Tavern owner brought § 1983 action against city, city mayor, and city police officers, alleging that defendants violated owner's First and Fourteenth Amendment rights by conducting “invasive” police enforcement activities in vicinity of tavern. The United States District Court for the Middle District of Pennsylvania, Christopher C. Conner, J., 2009 WL 3806532, entered summary judgment in favor of defendants, and owner appealed. Holdings: The Court of Appeals, Greenaway, Jr., Circuit Judge, held that: [1] owner's First Amendment rights were not violated; [2] owner's substantive due process rights were not violated; and [3] owner's equal protection rights were not violated. Affirmed. *187 Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civ. Action No. 1-07-cv-01207), District Judge: Honorable Christopher C. Conner. Attorneys and Law Firms Don A. Bailey, Esq., Andrew J. Ostrowski, Esq., Harrisburg, PA, for Lori Smith and Rob Fam Inc, t/a Liberty Square Cafe. Robert G. Hanna, Jr., Esq., Frank J. Lavery, Jr., Esq., James D. Young, Esq., Lavery, Faherty, Young & Patterson, Harrisburg, PA, for City of Lebanon, Lawrence Minnick, David Lear and Robert Anspach. Before: RENDELL, JORDAN, and GREENAWAY, JR., Circuit Judges. OPINION GREENAWAY, JR., Circuit Judge. **1 Lori Smith and Rob Fam, Inc. (together, “Smith”) initiated this civil rights action under 42 U.S.C. § 1983 against the City of Lebanon; the Mayor of the City of Lebanon, Robert Anspach; and police officers Lawrence Minnick 1 and David Lear (collectively, “Defendants”). Smith alleges that Defendants violated Smith's constitutional rights by conducting “invasive” police enforcement activities in the vicinity of Smith's business, the Liberty Square Cafe (the “Tavern”). 2 The District Court for the Middle District of Pennsylvania granted summary judgment in favor of Defendants. The District Court concluded that Smith failed to produce sufficient evidence to support any of her claims. We will affirm. 1 Lawrence Minnick is incorrectly referred to in the complaint as “Officer Minnich.” 2 Smith is the sole officer of Rob Fam, Inc. Rob Fam, Inc. has a part ownership in the Tavern. The District Court had jurisdiction over Smith's § 1983 action, pursuant to 28 U.S.C. §§ 1331, 1343(a)(3)-(4), and Case 1:15-cv-00994-CCC-JFS Document 51-1 Filed 04/06/17 Page 4 of 15 Smith v. City of Lebanon, 387 Fed.Appx. 186 (2010) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a grant of summary judgment and apply the same standard used by the district court. Azur v. Chase Bank, USA, Nat. Ass'n, 601 F.3d 212, 216 (3d Cir.2010). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, *188 and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). We view the evidence in the light most favorable to the non-movant and draw all justifiable, reasonable inferences in the non-movant's favor. Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir.2009). Yet, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We write solely for the parties and recount only the essential facts. Before the District Court, Smith contended that Defendants' interactions with the Tavern, including surveillance, and investigation of reported crimes, constituted an “excessive intrusion.” Smith alleged a unique theory under the First Amendment. Specifically, Smith maintained that Defendants interfered with her ability to engage in her business by conducting law enforcement activities in the area around the Tavern. In addition, she asserted that Defendants violated the Fourteenth Amendment's substantive due process clause by recommending that the Tavern's customers frequent other establishments. Smith also asserted a Fourteenth Amendment equal protection claim, which rests on her assertion that Defendants treated the Tavern differently from another bar which, like the Tavern, was also the subject of reports of criminality. Smith presents one issue on appeal. She contends that the District Court erred in its application of the summary judgment standard. Specifically, she claims that the District Court resolved genuine issues of material fact rather than submitting those issues to the jury. **2 We are satisfied, after reviewing the record, that the District Court strictly adhered to the appropriate summary judgment standard. The District Court noted that it made all reasonable inferences in Smith's favor, and properly applied the relevant precedents to the undisputed material facts. The District Court determined that Smith failed to establish that the law enforcement activities she identified were other than lawful exercises of police power. We substantially agree with the District Court's analysis. [1] [2] [3] The District Court's grant of summary judgment to Defendants was proper because the three constitutional claims Smith raised below lack merit. The evidence Smith presented neither directly nor inferentially support her theories of liability. First, Smith's First Amendment rights were not violated because Smith and her clientele lack either an intimate or an expressive association. Roberts v. United States Jaycees, 468 U.S. 609, 618, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). Smith has not presented, nor have we found, any authority to support her business interference theory of liability under the First Amendment. Second, Smith cannot establish any conscience-shocking behavior, under her Fourteenth Amendment substantive due process claim, on the basis of Mayor Anspach's alleged “micromanagement” of the officials involved, and Defendants' surveillance and investigation of the Tavern. County of Sacramento v. Lewis, 523 U.S. 833, 846-47, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Third, the facts do not indicate, for purposes of Smith's equal protection claim, that Smith or the Tavern was intentionally singled out and treated differently, much less for an irrational reason. *189 Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam). Although “[o]ur court has not had the opportunity to consider the equal protection ‘class-of-one’ theory at any length,” Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir.2006), Smith's class-of-one claim resolutely fails. On appeal, Smith offers a bare-bones mention of a Fourth Amendment violation, arguing that Defendants conducted illegal searches of the Tavern and of its patrons. Because Smith failed to raise this argument below, it is waived on appeal. In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 261 (3d Cir.2009). There are no genuine issues as to any material facts in dispute, and Defendants prevail as a matter of law. 3 We will affirm the District Court's order granting summary judgment to Defendants. Case 1:15-cv-00994-CCC-JFS Document 51-1 Filed 04/06/17 Page 5 of 15 Smith v. City of Lebanon, 387 Fed.Appx. 186 (2010) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 3 In her appellate brief, Smith failed to raise any challenge to the District Court's grant of summary judgment to Defendants on her civil conspiracy and municipal liability claims. Smith, therefore, has waived any such challenge. In re Ins. Brokerage Antitrust Litig., 579 F.3d at 261. Because our resolution of Smith's substantive claims is dispositive, we need not reach the qualified immunity issue. In the absence of any viable federal claim, the District Court properly declined jurisdiction over Smith's state law claims. See 28 U.S.C. § 1367(c)(3). All Citations 387 Fed.Appx. 186, 2010 WL 2813279 End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 1:15-cv-00994-CCC-JFS Document 51-1 Filed 04/06/17 Page 6 of 15 Smith v. City of Lebanon, Not Reported in F.Supp.2d (2009) 2009 WL 3806532 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2009 WL 3806532 Only the Westlaw citation is currently available. United States District Court, M.D. Pennsylvania. Lori SMITH and Rob Fam, Inc., t/ a Liberty Square Café, Plaintiffs v. CITY OF LEBANON, Lawrence Minnick, David Lear, and Robert Anspach, Defendants. Civil Action No. 1:07-CV-01207. | Nov. 12, 2009. Attorneys and Law Firms Andrew J. Ostrowski, Don A. Bailey, Harrisburg, PA, for Plaintiffs. Frank J. Lavery, Jr. James D. Young, Robert G. Hanna, Jr., Lavery, Faherty, Young & Patterson, P.C. Harrisburg, PA, for Defendants. MEMORANDUM CHRISTOPHER C. CONNER, District Judge. *1 This civil rights case stems from plaintiff Lori Smith's notion that the Constitution affords her the right “to engage in the business enterprise of [her] choosing” free from government interference and irrespective of the criminal laws. (Doc. 27 at 5.) Specifically, Smith claims that the City of Lebanon violated her First and Fourteenth Amendment rights when officers questioned and arrested patrons of Smith's tavern for, inter alia, public intoxication, urination, vomiting, loitering, and drug activity. In addition, Smith contends that defendants unlawfully interfered with her business in contravention of state law. Presently before the court is a motion for summary judgment on all claims. (See Doc. 17.) For the reasons that follow, the motion will be granted. I. Statement of Facts 1 1 In accordance with the standard of review for a motion for summary judgment, the court will present the facts in the light most favorable to the plaintiff, who is the nonmoving party. See infra Part II. The question presented by the instant action essentially examines whether the frequent presence of law- abiding police officers in and around a neighborhood drinking establishment may subject municipal actors to constitutional tort liability. Plaintiff Lori Smith (“Smith”) is owner and manager of the Liberty Square Café (“LSC”), a tavern located in a high-crime district in the northwest section of the City of Lebanon (“Lebanon”). 2 (Doc. 19 ¶¶ 1-2; Doc. 24 ¶¶ 1-2.) At all times relevant to this matter, the Lebanon police department has maintained a small substation directly across the street from LSC. (Doc. 19 ¶ 3; Doc. 23 ¶ 3.) Regular staff are not assigned to the substation, but officers may access the building twenty-four hours per day to conduct department business. (See Doc. 18, Ex. B at 14-15.) A designated parking area for police personnel lies adjacent to the substation, but it is not uncommon for police cruisers to park on the street outside the substation, in close proximity to LSC. (See id. at 19-21.) Because of the spatial appropinquity of the tavern to the substation, uniformed officers are often visible from LSC property across the street. (See id.; Doc. 19 ¶ 3; Doc. 24 ¶ 3.) Additionally, defendant officers Lawrence Minnick 3 (“Minnick”) and David Lear (“Lear”) are each assigned a foot patrol covering the immediate area, rendering their neighborhood presence somewhat constant. (See Doc. 19 ¶¶ 33, 46; Doc. 24 ¶¶ 33, 46.) 2 Plaintiff Rob Fam, Incorporated, a corporate entity in which Smith is the sole officer, is also part owner of LSC. (See Doc. 18, Ex. D at 7.) 3 The caption of the instant case incorrectly refers to defendant Lawrence Minnick as “Officer Minnich.” (See Doc. 1.) The correct spelling will be used throughout this opinion. A. Initial Licensing Difficulties: 2004-2005 On February 24, 2004, Smith received correspondence from the Pennsylvania Liquor Control Board (“PLCB”) regarding renewal of LSC's liquor license. (See Doc. 19 ¶ 6; Doc. 24 ¶ 6.) The letter highlighted “allegations of abuse of [LSC's] licensing privilege,” including “sales to minors, assaults, fights, disorderly operations and sales to visibly intoxicated pa[tr]ons.” (Doc. 18, Ex. D at depo. ex. 1.) PLCB also noted two recent citations issued to the drinkery, one for operating illegal gambling devices Case 1:15-cv-00994-CCC-JFS Document 51-1 Filed 04/06/17 Page 7 of 15 Smith v. City of Lebanon, Not Reported in F.Supp.2d (2009) 2009 WL 3806532 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 and the other for oversale of alcohol for off-premises consumption. (See Doc. 18, Ex. D at depo. exs. 2-3; see also id., Ex. D at 16-19.) Although LSC's license was renewed, PLCB admonished Smith to “take affirmative steps to prevent violations of the Liquor Code and/or employees and patrons from engaging in inappropriate activities in and around your premises.” (Doc. 18, Ex. D at depo. ex. 1.) *2 Following receipt of this letter, Smith met with defendant and Lebanon mayor Robert Anspach (“Anspach”), and chief of Lebanon police William Harvey (“Harvey”). (Doc. 19 ¶ 9; Doc. 24 ¶ 9.) Smith expressed concern regarding the warnings contained in the letter, while Anspach and Harvey indicated that they were theretofore unaware of PLCB's action. (See Doc. 18, Ex. D at 22 .) The three also discussed various difficulties posed by LSC's neighborhood clientele and the near- constant presence of loiterers directly outside the bar. (See id. at 22-23.) This meeting marked the first instance in which Smith had spoken with either Anspach or Harvey, (see id. at 15-16), and Anspach testified that he left the encounter “thinking that we were going to ... start a new era of cooperation” between the tavern and the city, (Doc. 18, Ex. A at 20). After the meeting, Smith implemented several changes designed to discourage loitering, drug trafficking, and other criminality in and around the tavern. (Doc. 19 ¶ 11; Doc. 24 ¶ 11.) Specifically, LSC (1) installed additional security cameras, (2) erected a security fence to prevent congregation to the rear of the facility, (3) changed the hours of operation so that the taphouse would close earlier, (4) prohibited customers from receiving incoming phone calls to the house phone, and (5) refused to make change for $20 bills in order to inhibit $10 narcotics transactions. (See Doc. 18, Ex. D at 26-27, 30, 33- 34, 41-42.) In spite of these adaptations, neighborhood residents continued to complain of publicly intoxicated customers, public urination, vomiting on the sidewalk, broken bottles, and drug trafficking activity in and around LSC. 4 (See Doc. 18, Ex. A at 21-22; id., Ex. B at 13; Doc. 19 ¶¶ 4, 25; Doc. 24 ¶¶ 4, 25.) Furthermore, Smith continued to observe drug transactions inside the tavern itself; Smith concedes, however, that she never contacted the police when she noticed such behavior. (Doc. 18, Ex. D at 11-12.) 4 Although Smith has submitted a Rule 56 statement of material facts denying that drug activity persisted in and around LSC, (see Doc. 24 ¶ 25), her denial is unsupported by an appropriate citation to the record. Pursuant to Local Rule 56.1, Smith has therefore admitted defendants' contention. See L.R. 56.1. In 2005, Anspach commenced campaigning for reelection on an anti-crime platform. (Doc. 19 ¶ 19; Doc. 24 ¶ 19.) One facet of this campaign included a municipal effort to close “nuisance bars”-defined by Anspach as those facilities that engendered excessive complaints regarding noise, public urination and vomiting, loitering after hours, and which required law enforcement assistance on a regular basis. (See Doc. 19 ¶ 20; Doc. 24 ¶ 20.) According to Anspach, LSC fit this definition. (Doc. 18, Ex. A at 9.) He thus requested that PLCB commissioner Tom Goldsmith investigate the tavern to ensure that it was in compliance with state liquor licensing laws. 5 (See Doc. 19 ¶ 28; Doc. 24 ¶ 28.) Anspach did not request that LSC's license be revoked or its renewal be denied, and did not follow up with PLCB after his initial request. (See Doc. 19 ¶ 28; Doc. 24 ¶ 28.) 5 Anspach testified that in 2005 there were three taverns in Lebanon for which the “nuisance bar” moniker was apropos: LSC, Evergreen, and St. Gertie's Club. (Doc. 19 ¶ 23; Doc. 24 ¶ 23.) It is undisputed that he provided information to PLCB commissioner Tom Goldsmith pertaining to each of these establishments. (See Doc. 18, Ex. A at 37.) B. License Revocation: Early 2006 *3 In February 2006, Smith received a letter from PLCB questioning whether LSC had abused its licensing privilege. (See Doc. 19 ¶ 12; Doc. 24 ¶ 12.) This correspondence referenced “six (6) incidents of disturbance at or immediately adjacent to your licensed establishment during the time period January 2004 to the present.” (Doc. 18, Ex. D at depo. ex. 4.) The incidents were reported to PLCB by the Lebanon police department and included conduct encompassing “disorderly operations, a fight and drug activity at or near the licensed premises.” (Id.) Smith was advised that she would be permitted an opportunity to be heard at a future date, and LSC was afforded temporary authority to continue operations in the interim. (Id.) Smith claims that the presence of police officers in and around LSC increased dramatically after receipt of Case 1:15-cv-00994-CCC-JFS Document 51-1 Filed 04/06/17 Page 8 of 15 Smith v. City of Lebanon, Not Reported in F.Supp.2d (2009) 2009 WL 3806532 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 PLCB's license renewal letter in February 2006. (See Doc. 18, Ex. D at 85.) To bolster this contention, Smith submits a log purporting to chronicle each interaction between LSC employees, patrons, and the Lebanon police in 2006. (See Doc. 24, Ex. 3.) Several of the log entries describe instances in which officers-Minnick and Lear included-entered the tavern to inquire whether those present were in possession of information sought by law enforcement. (See id.) Other log entries document occasions of law enforcement ingression into the men's bathroom to search for narcotics. (See id.) Still others record Smith's observations of police interaction with loiterers and recent bar patrons outside of the tavern. (See id.) Many simply document the presence of officers in and around the substation across the street. (See id.) In total, the log contains forty-three entries describing varying degrees of LSC-police interaction. 6 Smith does not contend that any of these interactions was violative of the Fourth Amendment. 6 Of these forty-three entries, the court may consider only a fraction as evidence. Numerous items are replete with hearsay for which Smith offers no applicable exception. Smith's documentation for March 22, 2006 provides an appropriate example: “Minnich [sic] was in asking about a knife fight in the bar on Monday night. Jasmine [an LSC employee] told him she wasn't working but her understanding was that there was an argument but no knife fight. He also asked if we called the police about the [sic] what happened[.] She told him we didn't[,] we handled it ourselves.” (Doc. 24, Ex. 3.) When Smith was questioned about the March 22 entry during her deposition, she explained that the interaction was relayed to her by Jasmine, an LSC bartender. (See Doc. 18, Ex. D at 63.) Smith provides no evidentiary justification for admission of Jasmine's statement, and the court likewise finds none. These and all like hearsay statements contained in Smith's log may not be considered as part of the summary judgment record. See Shelton v. Univ. of Med. & Dentistry, 223 F.3d 220, 223 n. 2 (3d Cir.2000) (“In this circuit, hearsay statements can be considered on a motion for summary judgment if they are capable of admission at trial.”). Although each of Smith's log entries will not be analyzed in detail herein, the court offers the following general explanation regarding the admissibility of the proffered evidence: Those entries that amount to a clear recording of Smith's observations, or which Smith described in her deposition as observations, (see Doc. 18, Ex. D at 54-74), will be considered as record evidence. Those entries that consist of statements by a party opponent made to Smith herself will also be considered as non- hearsay under Federal Rule of Evidence 801(d)(2). Finally, those entries that appear to be statements relayed to Smith by her employees or other third parties will be deemed inadmissible hearsay for which no exception was offered by the proponent. See Shelton, 223 F.3d at 223 n. 2. In addition, Minnick and Lear offer testimony concerning their dealings with LSC employees and patrons, as well as employees of other Lebanon drinking establishments, in 2006. Both officers testified that they routinely entered local alehouses-LSC included-looking for wanted individuals or those under suspicion of parole violation. 7 (See Doc. 19 ¶¶ 36, 38, 53; Doc. 24 ¶¶ 36, 38, 53.) Both also testified that they have never stopped and searched an individual simply because he or she was entering or exiting LSC, and there is no evidence to the contrary. (See Doc. 19 ¶¶ 37, 50; Doc. 24 ¶¶ 37, 50.) There is undisputed evidence, however, of specific police interaction with LSC patrons engaging in criminal behavior. For example, on February 2, 2006, Minnick observed a hand-to-hand drug transaction outside of the tavern, which led him to stop and arrest the participants and recover narcotics. (See Doc. 18, Ex. B at 37-38; Doc. 19 ¶ 52; Doc. 24 ¶ 52.) On a subsequent occasion, Minnick observed a known burglary suspect enter the bar; Minnick followed the suspect inside, requested that the suspect step outside for questioning, and arrested the suspect once his identity was confirmed. (See Doc. 18, Ex. B at 36; Doc. 19 ¶ 51; Doc. 24 ¶ 19.) There is no contention that either of these instances amounted to a Fourth Amendment violation. 7 Among the Lebanon bars Minnick entered for such purposes are Cedars Bar, Evergreen, Manicourt Club, Silver Dollar, Royal Men's Club, Navy Club, VFW, and Saint Gertrude's. (Doc. 18, Ex. B at 43.) C. Licensing Appeal: Late 2006 *4 Smith's appeal of the PLCB licensing decision eventually proceeded to an administrative hearing in August 2006. (See Doc. 18, Ex. D at 47-48.) Smith was represented by counsel, was provided the opportunity to present and cross examine witnesses, and proffered argument. (See id.) Following the hearing, an administrative law judge affirmed the PLCB decision. (See id. at 49-50.) Smith appealed once more, and was again permitted to continue operating LSC pending Case 1:15-cv-00994-CCC-JFS Document 51-1 Filed 04/06/17 Page 9 of 15 Smith v. City of Lebanon, Not Reported in F.Supp.2d (2009) 2009 WL 3806532 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 review by the Pennsylvania state courts. (See id. at 50.) On December 27, 2006, the Lebanon County Court of Common Pleas reversed PLCB's decision and ordered the agency to renew LSC's liquor license for an additional two-year period. (See Doc. 24, Ex. 3.) None of the civil rights claims raised in the matter sub judice concern PLCB's licensing decision, nor do they contend that individual PLCB employees are liable based upon their involvement in the agency's decision-making process. D. Procedural History Smith commenced the instant suit on July 3, 2007, alleging violations of her constitutional rights under 42 U.S.C. § 1983, and her right to freely operate her business under state law. Specifically, Smith contends that she was deprived of the (1) First Amendment right to engage in the business of her choosing; (2) First Amendment right to associate with and serve the population of her choosing; (3) Fourteenth Amendment right to equal protection of the laws; (4) Fourteenth Amendment right to substantive due process; and (5) right to conduct her business affairs free of undue governmental interference pursuant to an undefined provision of Pennsylvania law. (See Doc. 1 at 4-6.) Defendants filed a motion for summary judgment on March 18, 2008, questioning whether each of Smith's claims is cognizable and asserting that she has nevertheless failed to produce sufficient evidence to sustain liability under any of the assertions. (Doc. 17.) The individual defendants-Anspach, Minnick, and Lear-also invoke the doctrine of qualified immunity as a shield from suit. The parties have fully briefed these issues, which are now ripe for disposition. II. Standard of Review Through summary adjudication the court may dispose of those claims that do not present a “genuine issue as to any material fact” and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56(c). The burden of proof is upon the nonmoving party to come forth with “affirmative evidence, beyond the allegations of the pleadings,” in support of its right to relief. Pappas v. City of Lebanon, 331 F.Supp.2d 311, 315 (M.D.Pa.2004); FED. R. CIV. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the nonmovant on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587- 89, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also FED. R. CIV. P. 56(c), (e). Only if this threshold is met may the cause of action proceed. Pappas, 331 F.Supp.2d at 315. III. Discussion *5 Smith brings her constitutional claims exclusively under 42 U.S.C. § 1983, a provision of the United States Code that offers private citizens a means to redress violations of federal law by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as follows: 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, suit in equity, or other proper proceeding for redress .... Id. Section 1983 is not a source of substantive rights, but merely a method to vindicate violations of federal law committed by state actors. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.1996). To establish a claim under this section, the plaintiff must show a deprivation of a “right secured by the Constitution and the laws of the United States ... by a person acting under color of state law.” Id. (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.1995)). Thus, the initial step in evaluating a contention raised pursuant to § 1983 is “to identify the exact contours of the underlying right said to have been violated and to determine whether the plaintiff has alleged a deprivation of a constitutional right at all.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir.2006) (quoting Nicini v. Morra, 212 F.3d 798, 806 (3d Cir.2000)). In the instant matter, Smith alleges a deprivation of what she characterizes as her First Amendment right to engage in business free of government interference, and her Fourteenth Amendment rights to equal protection and substantive due process. (Doc. 1 at 4.) The court will address each of these issues seriatim. ase 1:15-cv-00994-CCC-JFS Document 51-1 Filed 04/06/17 Page 10 of 15 Smith v. City of Lebanon, Not Reported in F.Supp.2d (2009) 2009 WL 3806532 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 A. First Amendment Liability As stated above, the first step in evaluating a contention raised pursuant to § 1983 is “to identify the exact contours of the underlying right said to have been violated and to determine whether the plaintiff has alleged a deprivation of a constitutional right at all.” Kaucher, 455 F.3d at 423 (internal quotations omitted). It is at this prefatory step where Smith's purported First Amendment claims encounter difficulty. Smith tasks the court with discerning “how far pursuit of a legitimate government interest can go, when it is driven by a politically expedient objective, in intruding into the rights of its citizenry to engage in a business enterprise of their choosing.” (Doc. 27 at 5.) She accuses Anspach, Minnick, and Lear of a “campaign of harassment and intimidation,” (id. at 6), and invokes a First Amendment “right to engage in the business of [her] choosing and to associate with and serve the population of [her] choosing,” (Doc. 1 at 4). Smith fails, however, to further explain her theory of business interference liability, to pinpoint a single authority of law relevant to such a theory, 8 or otherwise to delineate the contours of the cognizable First Amendment rights she claims were violated. To put it generously, her pleadings are difficult to follow. 8 Smith's brief in opposition to the motion for summary judgment contains just three case citations, one of which refers to Monell v. Department of Social Services for the now-unremarkable proposition that a municipality may be held liable for its unconstitutional policies. (See Doc. 27.) The second citation provided is to Valle v. Stengel, a 1949 Third Circuit opinion, wherein the appeals court expounds at length on the contours of the Privileges and Immunities Clause of Article IV of the Constitution, and discusses the extent to which this clause embraces the freedom of contract. See 176 F.2d 697, 703- 04. This commentary has no bearing on Smith's First Amendment “right to engage in the business of her choosing,” or her associational rights. The final citation, to Thomas v. Independence Township, 463 F.3d 285 (3d Cir.2006), is more recent, but also unsupportive of Smith's novel First Amendment right to business claim. Thomas is a qualified immunity decision and concerns those instances in which “a lack of factual specificity in a complaint prevents the defendant from framing a fact-specific qualified immunity defense.” Id. at 289. Although the individual defendants in the matter sub judice invoke qualified immunity as a barrier to liability, its invocation is unnecessary given Smith's inability to make a prima facie showing on any of her claims, see infra; hence, Thomas is inapposite. *6 The court will nonetheless attempt to decipher Smith's rather inscrutable First Amendment assertions. As an initial matter, the Constitution recognizes no “First Amendment right to engage in the business of [one's] choosing,” (Doc. 1 at 4). However, the inceptive amendment does, inter alia, protect limited rights of expressive and intimate association. See Roberts v. United States Jaycees, 468 U.S. 609, 618-20, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984); Pi Lambda Fraternity, Inc. v. Univ. of Pittsburgh, 229 F.3d 435, 443 (3d Cir.2000). To the extent that Smith is proffering an expressive association claim, such an assertion clearly fails. Expressive association safeguards the right to associate for the purpose of engaging in speech, assembly, the right to petition, and the free exercise of religion-in other words, those rights protected by the First Amendment. Roberts, 468 U.S. at 618-20 (explaining that the right to associate for expressive purposes protects those engaging in “political, social, educational, religious, and cultural ends”); Pi Lambda, 229 F.3d at 441 (same); see also Schultz v. Wilson, Civ. A. No. 1:04-CV-1823, 2007 WL 4276696, at *7 (M.D.Pa. Dec.4, 2007) (“Activity that commonly implicates the right includes that which fosters moral development, religious expression, political discourse, community engagement, cultural commentary, and similar civic purpose.”), aff'd, 304 F. App'x 116 (3d Cir.2008); Via v. Taylor, 224 F.Supp.2d 753, 759- 60 (D.Del.2002) (describing expressive association as “the right to associate for the purpose of engaging in activities protected by the First Amendment, such as speech, assembly, petition for the redress of grievances, and the exercise of religion”). Smith does not assert that her right to “associate with and serve the population of [her] choosing” is connected to any expressive activity protected by the First Amendment; she simply argues that the constant police presence near LSC has depressed business at the tavern. Quite obviously, the right of expressive association does not encompass some unfettered right to engage in sales of intoxicating beverages to the public, and the court rejects plaintiffs' efforts to invent one. Smith also fails to state a cognizable claim under an intimate association theory. The right of intimate ase 1:15-cv-00994-CCC-JFS Document 51-1 Filed 04/06/17 Page 11 of 15 Smith v. City of Lebanon, Not Reported in F.Supp.2d (2009) 2009 WL 3806532 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 6 association protects the closest and most interdependent of human relationships against state interference. See Pi Lambda, 229 F.3d at 441-42. Relationships that “by their nature involve deep attachments and commitments to the necessarily few other individuals with whom one shares ... distinctively personal aspects of one's life” are of the type that fall within the ambit of intimate association. Id. (quoting Roberts, 468 U.S. at 619-20); see also Bd. of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 545, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987). Family bonds represent the quintessential form of intimate association, but the right may also extend to other relationships based on the “size, purpose, policies, selectivity, [and] congeniality” of the group among which the relationships occur. Id. at 442 (quoting Roberts, 468 U.S. at 620). There is no specified size beyond which a group ceases to be intimate. Nevertheless, intimacy requires a small, tightly knit group, and gatherings of as few as twenty individuals have been denied intimate association status when they feature only social acquaintanceships. See Duarte, 481 U.S. at 546-47 (holding that local rotary clubs, which varied in size from twenty to nine hundred members, were not protected associations); Pi Lambda, 229 F.3d at 442 (holding that fraternity of twenty-two individuals was too large to qualify as an intimate association, in part because it had sometimes had as many as eighty active members). *7 Smith does not contend that the relationship between LSC and its clientele is sufficiently intimate to warrant First Amendment protection and, were she to do so, her claim would fail. LSC is a public drinkery open to any that pass through its entrance. Thus, the size of the “group” is limited only by the number of customers fancying an alcoholic beverage during LSC's hours of operation. Moreover, even if the LSC customer base were exceedingly insular, there is no evidence that Smith maintains any more than an arm's-length relationship with the tavern's patrons. Smith's theory of intimate association-were it applicable herein-would render intimate most, if not all, public restaurants and bars. The court is unwilling to countenance such an expansion, especially in light of Smith's failure to offer any authority consistent with this approach. Summary judgment on the proffered First Amendment claims is therefore appropriate. B. Equal Protection Smith's equal protection claim is premised on the theory that the individual defendants treated the tavern dissimilarly from other Lebanon drinking establishments, and that Minnick and Lear specifically harassed LSC's patrons. Smith does not purport to belong to a protected class, but instead appears to invoke the “class of one” theory announced by the United States Supreme Court in Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam). Under that theory, a plaintiff may establish an equal protection violation via proof that he or she was “intentionally treated differently from others similarly situated” and “that there is no rational basis for the difference in treatment.” Olech, 528 U.S. at 564; see also Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir.2006). The record fails to establish that municipal officials treated LSC differently from other similarly situated Lebanon taverns. Rather, the undisputed evidence demonstrates that Minnick and Lear routinely entered a number of local drinking establishments searching for criminal suspects or those in violation of the terms of their probation. (See Doc. 18, Ex. B at 43; Doc. 19 ¶¶ 36, 38, 53; Doc. 24 ¶¶ 36, 38, 53.) Smith offers no evidence to counter this testimony, and proffers virtually nothing to establish the manner in which police officers conducted themselves vis-à-vis other taverns. In fact, Smith's primary argument concerning differential treatment is that a bar located in Lebanon's southwest quadrant-Connors Tavern-generated more frequent citizen complaints but received less attention from law enforcement. (See Doc. 27 at 8.) This assertion is unsupported by record evidence. Although Lear testified that the Lebanon police department “probably” receives a greater volume of complaints concerning Connors Tavern, there is absolutely nothing in Lear's deposition- or any other portion of the record-to indicate how these complaints were handled by law enforcement personnel. (See Doc. 18, Ex. C at 62-64.) The burden to develop such testimony lies with Smith, see Anderson, 477 U.S. at 250- 57; because she neglects to carry this burden, her claims of differential treatment based upon the Lebanon police department's interaction with Connor's Tavern necessarily falls short. *8 Even if Smith had demonstrated that law enforcement personnel treated LSC differently from the way in which similar establishments were treated, there is no evidence that such behavior was irrational. The record clearly indicates that LSC clientele presented public safety concerns that other bars did not. LSC is located in a high-incidence crime area, and its patrons' ase 1:15-cv-00994-CCC-JFS Document 51-1 Filed 04/06/17 Page 12 of 15 Smith v. City of Lebanon, Not Reported in F.Supp.2d (2009) 2009 WL 3806532 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 7 conduct precipitated an above-average quantity of citizen complaints. Narcotics activity in and around the tavern was frequent and, Smith concedes, went unreported by LSC staff. (See Doc. 18, Ex. B at 13; id., Ex. D at 11-12.) It is unsurprising that police would visit LSC routinely, given the regularity with which unlawful behavior admittedly transpired therein. 9 Furthermore, it is conceded that when officers did interact with LSC clientele, they did so within the bounds of the Fourth Amendment. 10 (See Doc. 18, Ex. B at 36-38; Doc. 19 ¶¶ 37, 50; Doc. 24 ¶¶ 37, 50.) In sum, officers were confronted with an establishment around which recurrent lawbreaking transpired; it can hardly be claimed that law enforcement personnel act irrationally when they attempt to thwart behavior that is violative of state and federal law via methods consistent with the Fourth Amendment. See Congregation Kol Ami v. Abington Twp., 309 F.3d 120, 133-34 (3d Cir.2002) (explaining that government action is “reasonable, not arbitrary and bears a rational relationship to a (permissible) state objective” when it promotes public safety interests). Smith has failed to establish either differential treatment or irrational government behavior. See Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (stating that the burden is on the plaintiff to prove that government conduct lacks a rational basis). Summary judgment is therefore appropriate. 9 Smith also argues that Anspach improperly targeted LSC for purposes of political expediency, but the evidence belies such an assertion. Anspach testified that he considered the tavern a “nuisance bar” because its patrons were the source of a large number of noise and public intoxication complaints. (Doc. 19 ¶ 20; Doc. 24 ¶ 20.) LSC shared this distinction with two other alehouses, all three of which were a focus of Anspach's anti-crime electoral platform. (See Doc. 19 ¶¶ 19, 23; Doc. 24 ¶¶ 19, 23.) When Anspach spoke with PLCB regarding problematic Lebanon drinking establishments, he referred the agency to each of these “nuisance bars.” (See Doc. 18, Ex. A at 37.) This evidence strongly indicates that Anspach targeted all “nuisance bars” in a similar fashion and did so in a manner reasonably related to the public safety concerns presented by each tavern. 10 Adherence to the Fourth Amendment does not necessarily mean that officers were non- discriminatory in their interactions with the minority patrons of LSC. See Bradley v. United States, 299 F.3d 197, 205 (3d Cir.2002) (“The fact that there was no Equal Protection violation does not mean that one was not discriminatorily selected for a search.”). To state an equal protection claim as a result of officer profiling, however, a plaintiff must prove that an officer's actions (1) had a discriminatory effect, and (2) were motivated by a discriminatory purpose. Id. Proving the first prong of this inquiry requires the plaintiff to show that he or she belongs to a protected class and was treated differently from similarly situated individuals. Id. at 206. Smith does not claim to belong to a protected class and, as discussed supra, she has presented no evidence of differential treatment. Neither has Smith produced any evidence that Minnick, Lear, or Anspach acted pursuant to a discriminatory purpose. In short, to the extent that Smith is raising a profiling claim under the Equal Protection Clause-and it is unclear whether she is-such a claim is wholly unsupported by the record. C. Substantive Due Process In conclusory fashion, Smith claims that her right to substantive due process was violated by the actions of Minnick, Lear, and Anspach. (See Doc. 1 ¶ 18.) “To prevail on a non-legislative substantive due process claim, ‘a plaintiff must establish as a threshold matter that [s]he has a protected property interest to which the Fourteenth Amendment's due process protection applies.’ “ Nicholas v. Pa. State Univ., 227 F.3d 133, 139-40 (3d Cir.2000) (quoting Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118, 123 (3d Cir.2000)). Only those property interests that are considered “fundamental” are protected by substantive due process principles. Hill, 455 F.3d at 234. Success on a substantive due process claim requires the plaintiff to not only demonstrate that he or she was deprived of a protected property interest, but also that this deprivation was arbitrary and capricious. County Concrete Corp. v. Twp. of Roxbury, 442 F.3d 159, 165 (3d Cir.2006); see also United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392, 399 (3d Cir.2003). As the Third Circuit Court of Appeals has explained, “only the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense.” Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 400-01 (3d Cir.2000). *9 The first step in stating a cognizable substantive due process claim requires a plaintiff to describe the protected property interest of which he or she was arbitrarily deprived. See Nicholas, 227 F.3d at 139-40. Smith fails to ase 1:15-cv-00994-CCC-JFS Document 51-1 Filed 04/06/17 Page 13 of 15 Smith v. City of Lebanon, Not Reported in F.Supp.2d (2009) 2009 WL 3806532 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 8 explicitly delineate any such interest, and instead relies on the general assertion that she suffered a “violation of her liberty and property interests in her occupation as a tavern owner.” (Doc. 27 at 7.) The meaning of this statement is not altogether clear, though the court is willing to assume -for the sake of argument-that Smith is alleging that the presence of officers somehow harmed her business and that this business injury affected a fundamental property right. Even so, Smith's substantive due process claim flounders at the second step of the inquiry, for none of the executive conduct depicted in the record is of the conscience-shocking variety. See Boyanowski, 215 F.3d at 401 (explaining that a substantive due process violation requires an “executive abuse of power ... which shocks the conscience” (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998))). A government actor's conduct does not shock the conscience merely because it was performed with an improper purpose or in bad faith; rather, the doctrine constrains only those activities that have no reasonable relation to legitimate government objectives. See United Artists Theatre, 316 F.3d at 400-02; Corneal v. Jackson Twp., 313 F.Supp.2d 457, 465-66 (M.D.Pa.2003), aff'd, 94 F. App'x 76 (3d Cir.2004). As discussed above, the individual defendants' conduct was legitimate and reasonably related to combating the criminal behavior in and around LSC. See supra Part III.B. Accordingly, the executive action depicted in the record was rational, and summary judgment is warranted. D. Municipal Liability A municipality may be subject to liability if the plaintiff can “identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff's injury.” Bd. of County Comm'rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). However, in the absence of an underlying constitutional violation, see supra Parts III.A-C, Smith's constitutional tort claims against Lebanon fail as a matter of law. See Sanford v. Stiles, 456 F.3d 298, 314 (3d Cir.2006) (requiring constitutional violation as prerequisite to municipal liability); Grazier ex rel. White v. City of Phila., 328 F.3d 120, 124 (3d Cir.2003) (same). Summary judgment will therefore be granted in Lebanon's favor. 11 11 In addition to her constitutional claims, Smith contends that defendants interfered with her business relations under state law. (See Doc. 1 ¶¶ 21- 24.) Although Smith does not clearly articulate the parameters of this argument, it appears to arise under Pennsylvania tort law. Thus, in order to proceed with the claim, the court must assert supplemental jurisdiction, an avenue across which it declines to tread. Summary judgment is appropriate with respect to each of Smith's federal claims; to retain federal jurisdiction over what would be purely an issue of state law does not serve the interests of judicial economy, convenience, fairness to the instant parties, or comity, see Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (stating that “in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine-judicial economy, convenience, fairness, and comity-will point toward declining to exercise jurisdiction over the remaining state-law claims”). Even if the court were to retain jurisdiction over this claim, it would nonetheless grant summary judgment in defendants' favor as a result of Smith's failure to defend. Defendants moved for summary judgment on the state-law issue and Smith's counsel has not responded. (See Doc. 20 at 19-23; Doc. 27.) As such, Smith has abandoned the claim. See Smith v. Lucas, No. 4:05-CV-1747, 2007 WL 1575231, at *10 (M.D.Pa. May 31, 2007) (holding that the plaintiff abandoned claims by failing to oppose them in response to a motion for summary judgment); Clarity Software, LLC v. Allianz Life Ins. Co. of N. Am., No. 2:04-cv-1441, 2006 WL 2346292, at *5 (W.D.Pa. Aug.11, 2006) (same); Cacciatore v. County of Bergen, No. Civ. A. 02- 1404, 2005 WL 3588489, at *1 n. 1 (D.N.J. Dec.30, 2005) (same). IV. Conclusion For the foregoing reasons, defendants are entitled to summary judgment on all of the federal claims set forth in the complaint. Smith's purported First Amendment right to operate a tavern free of government interference is not cognizable under the Constitution. Furthermore, she has not proffered evidence sufficient to support those claims that are potentially cognizable-in this instance, those invoking equal protection and substantive due process. The record portrays a municipality attempting to address a crime problem and protect the public; defendants' reasonable measures to accomplish this goal ase 1:15-cv-00994-CCC-JFS Document 51-1 Filed 04/06/17 Page 14 of 15 Smith v. City of Lebanon, Not Reported in F.Supp.2d (2009) 2009 WL 3806532 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 9 hardly amount to a civil rights violation under 42 U.S.C. § 1983. *10 An appropriate order follows. ORDER AND NOW, this 12th day of November, 2009, upon consideration of defendants' motion (Doc. 17) for summary judgment, and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that: 1. The motion (Doc. 17) for summary judgment is GRANTED. See FED. R. CIV. P. 56(c). The Clerk of Court is directed to enter JUDGMENT in favor of defendants and against plaintiffs on all claims. The Clerk of Court is directed to CLOSE this case. All Citations Not Reported in F.Supp.2d, 2009 WL 3806532 End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. ase 1:15-cv-00994-CCC-JFS Document 51-1 Filed 04/06/17 Page 15 of 15