HOLTON v. HENON

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT HOLTON, : CIVIL ACTION

Plaintiff, :

:

v. : NO. 18-2228

:

BOBBY HENON, et al., :

Defendants. :

MEMORANDUM

Kenney, J. March 9, 2022

In October 2018, Plaintiff Robert Holton’s property was removed from land the City of

Philadelphia (the “City”) alleged that it owned. The property removal was pursuant to a cease

operations order issued by the City Department of Licenses and Inspections (“L&I”) based on

numerous L&I violations. Throughout this case, Mr. Holton has maintained that at the time of

removal he owned the land the property was removed from, and that, accordingly such removal

was an illegal “taking” of his land in violation of the Fifth Amendment of the United States

Constitution (Count II, Fifth Amendment Violation). The facts alleged by Mr. Holton underlying

this takings claim, however, have transformed substantially to make them fit the reality of the

record as it developed, which consequently had the effect of completely undermining some of his

own, basic claims to the land that he had originally made, as well as his additional conspiracy

claim that was predicated on the facts initially alleged. (Count I, Civil Conspiracy).

For the vast majority of the lengthy dispute over the land from which Mr. Holton was

removed, Mr. Holton maintained that he owned the land at issue by deed. In accordance with this

long-held assertion, in his Second Amended Complaint, Mr. Holton specifically alleges that he

was removed from the land he owned outright by deed. Then, despite proceeding deep into this

case with that assertion as the basis of his takings claim, well after the close of discovery (and as

it became evident that the land Mr. Holton was removed from was not within the metes and

bounds of any land owned by Mr. Holton via deed), Mr. Holton recast his takings claim to argue

that he was removed from land that he obtained through adverse possession. Indeed, in his two-

page Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment, Mr.

Holton appears to entirely abandon the argument that he was removed from land he owns by

deed, and instead moves forward solely on a theory of adverse possession. Most recently, the day

before Oral Argument was heard before this Court regarding the pending summary judgment

motion, Mr. Holton once again, proffering novel facts, substantially modified the basis of his

takings claim, asserting that the City removed him from the land because it blocked ingress and

egress from the disputed land which also blocked him from ingress and egress to his duly deeded

land that is contiguous to the disputed land. The record establishes, however, that he has ingress

and egress to his duly deeded land.

Mr. Holton also contends in the Second Amended Complaint that Defendants Bobby

Henon,1 Darin L. Gatti,2 and Edward Jefferson3 conspired against him to deprive him of his Fifth

Amendment Constitutional rights by way of the taking through the nefarious manipulation of lot

lines and issuance of falsified L&I violations.

Presently before the Court is Defendants’ Motion for Summary Judgment (ECF No. 74)

1 During all times material to the claims set forth in the Second Amended Complaint (ECF No. 21),

Defendant Bobby Henon served as a member of City Council of the City of Philadelphia, District 6.

2 During all times material to the claims set forth in the Second Amended Complaint (ECF No. 21),

Defendant Darin L. Gatti served as Chief Engineer of the City of Philadelphia and as President of the

Board of Surveyors of the Philadelphia Streets Department.

3 During all times material to the claims set forth in the Second Amended Complaint (ECF No. 21),

Defendant Edward Jefferson served as the Senior Attorney in the Housing and Code Enforcement Unit of

the Office of the City Solicitor for the City of Philadelphia Law Department.

and Plaintiff’s Affidavit and Response in Opposition (ECF Nos. 79, 80). For the reasons set forth

below, this Court GRANTS Defendants’ Motion for Summary Judgment (ECF No. 74) as to all

counts. An appropriate order will follow.

I. BACKGROUND

In or around 1990, Mr. Holton began working on an auto scrap yard owned and operated

by non-party Albert Buoncristiano.4 ECF No. 79 ¶ 2.

In 1994, Mr. Holton began leasing the scrap yard business and the land upon which the

business was operating from Mr. Buoncristiano. Id. ¶ 4.

On November 23, 2004, Mr. Holton purchased and obtained the deed (the “Holton

Property Deed”) to two separate parcels of land (collectively, the “Holton Property”) from Mr.

Buoncristiano, which he asserts he believed encompassed the entirety of the land upon which the

scrap yard was operating at that time. Id. ¶¶ 4–5; ECF No. 74 Defendants’ Statement of

Undisputed Material Facts in Support of Motion for Summary Judgment (“SUMF”) ¶ 1.

Prior to Mr. Holton’s purchase of the Holton Property, in 2004, Mr. Buoncristiano

requested and received a site plan of the Holton Property (the “Holton Property Survey Plan”)

from the City of Philadelphia Fifth Survey District, which provided the metes and bounds of the

two parcels of land, identified therein as Lot A and Lot B. ECF No. 74 SUMF ¶3; Id. Ex. B. The

metes and bounds of these two distinct parcels of land are also specified within the Holton

Property Deed but are labeled Premises A5 and Premises B therein rather than Lot A and Lot B;

4 Mr. Buoncristiano’s name is spelled a variety of different ways throughout both Plaintiff’s and

Defendants’ briefings and memoranda. To avoid confusion, this Court adopts the spelling,

“Buoncristiano” herein.

5 At some point Premises A of the Holton Property was misidentified by the Office of Property

Assessment (“OPA”) as 4085 Richmond Street (“4085 Richmond”), and accordingly various portions of

the record in this case refer to this portion of the Holton Property as 4085 Richmond. ECF No. 74 SUMF

¶ 7.

counterintuitively, Premises A corresponds with Lot B, and Premises B corresponds with Lot A.6

ECF No. 74 SUMF ¶¶ 2–7; Id. Ex. A; Id. Ex. B.

There is no current dispute that Mr. Holton is the owner of the Holton Property as

identified by the metes and bounds specified within the Holton Property Deed. ECF No. 74

SUMF at p. 4. And there is likewise, no dispute that Mr. Holton continues to operate his scrap

yard business on the Holton Property and that he has two modes of ingress and egress to and

from the Holton Property both of which remain accessible and are not the subject of this suit.

ECF No. 98 at 15:17–21.

There is, however, this dispute over the ownership of a separate portion of land located to

the west of Holton Property Premises A, known as 4087 Richmond Street7 (“4087 Richmond”).

ECF No. 74 SUMF ¶ 11; Id. at p. 4; ECF No. 79 ¶ 9.

On or around December 19, 1951, through eminent domain and in accordance with a City

Council Ordinance, the City obtained legal title to the land subject to this dispute, 4087

Richmond, in connection to its creation of a right-of-way (the “Frankford Creek Right-of-Way”).

ECF No. 74 SUMF ¶ 11; Id. at p. 4; ECF No. 79 ¶ 9. Defendants point out the City still has legal

title to the land, while Plaintiff contends that he acquired the land through adverse possession.

ECF No. 79 ¶ 9.

The disputed parcel of land, 4087 Richmond, is located to the west of the Holton

6 The Holton Property Deed also explicitly states that Premises A and B are the same parcels of land

identified by separate Plans of Surveys made by Barton and Martin Engineers dated June 24, 1977, which

provide the metes and bounds for these two parcels of land as well. ECF No. 74 SUMF ¶¶ 5–7; Id. Ex. C;

Id. Ex. B.

7 The address 4087 Richmond Street is a fictional address given to this portion of land by the City of

Philadelphia. ECF No. 74 SUMF ¶12; ECF No. 79 ¶ 1. According to the City, 4087 Richmond has also

been known as 3950 Delaware Avenue. ECF No. 74 Ex. H at p. 3:2–5; Id. Ex. H at p. 24:13–14.

Property Premises A and spans approximately from the center of former Balfour Street, which is

the western boundary of Premises A of the Holton Property (as set forth in the Holton Property

Deed) to Richmond Street, a public road further west. See infra Figure 1; see also ECF No. 74 ¶¶

8, 13; Id. Ex. D; Id. Ex. A; Id. Ex. B (describing the western boundary of Premises A of the

Holton Property as extending “to a point in the center line of former Balfour Street”).

In his Second Amended Complaint, Mr. Holton specifically alleged that pursuant to the

Holton Property Deed, he owned a parcel of land “bounded by Richmond Street to the west,

Delaware Avenue to the east, Conrail to the south and the Frankford Creek to the north,” which

facially includes the portion of the Frankford Creek Right-of-Way identified as 4087 Richmond.

ECF No. 21 ¶¶ 8, 16; ECF No. 74 Ex. B. The record subsequently established that this in fact is

not the case.

The Holton Property, as set forth in the Holton Property Deed, however, does not actually

include 4087 Richmond within its metes and bounds. Id. Ex. B. At this point in the litigation, Mr.

Holton appears to have abandoned the argument that he owns 4087 Richmond via deed and is

instead moving forward on a theory of adverse possession. See generally ECF No. 80.

For further clarification and by-way of providing a visual to this simple property dispute,

Figure 1 (below) depicts the relevant boundaries. See infra Figure 1. In Figure 1, the red line

indicates former Balfour Street (the western boundary of Premises A of the Holton Property).

See infra Figure 1; see also ECF No. 74 ¶ 13; Id. Ex. G. To the right of the red line, Figure 1

shows what is identified by the Holton Property Deed as Premises A extending to its eastern

boundary of former Carbon Street. See infra Figure 1; see also ECF No. 74 Ex. B. To the left of

the red line, Figure 1 depicts the piece of land known as 4087 Richmond, which extends

approximately east to west from former Balfour Street (the red line) to Richmond Street (shown

on the far-left side of the diagram). See infra Figure 1; see also ECF No. 74 Ex. G.

Figure 1°

Both parties agree that at some point, the scrap yard business began to access and use the

land outside the metes and bounds of the Holton Property (as specified by the Holton Property

Deed), crossing the western boundary of Premises A (i.e., former Balfour Street) and entering on

to the Frankford Creek Right-of-Way by way of 4087 Richmond, to some degree. ECF No. 74

SUMF 4 10; 7d. Ex. F, Answer to Interrogatory No. 5; ECF No. 79 4 2-5. Plaintiff Holton claims

that since the time he began working for Mr. Buoncristiano, as early as 1990, the scrap yard

business used the “entire parcel” of 4087 Richmond but has not obtained a survey of this land or

otherwise provided any specific metrics by which the “entire parcel” can be identified. ECF No.

79 4 2.

In connection with Mr. Holton’s use of 4087 Richmond the City did not commence

ejectment proceedings. Instead, the L&I inspected 4087 Richmond on March 2, 2017, and issued

several L&I Violations to Mr. Holton. ECF No. 74 SUMF 9/§ 15-17; Jd. Ex. I. According to

Defendants, City-owned 4087 Richmond was not zoned for the business Mr. Holton was

Figure | is an exact digital copy of Defendants’ Motion for Summary Judgment Ex. G, as shown within

Defendants’ Memorandum of Law in Support of Summary Judgment including the red line added to Ex.

G by Defense counsel to clearly identify the boundary of the Holton Property. ECF No. 74 Ex. G; see

also ECF No. 74 13.

operating, nor did Mr. Holton have the proper licenses to operate such business, as he did not

have legal title to the land. Id.

In relation to these L&I Violations, a Notice of Intent to Cease Operations and Order was

issued by L&I, which was scheduled to take effect April 12, 2017, unless the violations were

rectified. ECF No. 74 Ex. J. Plaintiff Holton appealed the L&I Violations to the L&I Review

Board (the “Board”) on April 3, 2017. ECF No. 74 Ex. K; Id. Ex. H; Id. Ex. L.

While this appeal was pending, Mr. Holton filed a motion in the Court of Common Pleas

seeking a preliminary injunction to restrain L&I from enforcing the Cease Operations Order.

ECF No. 25 Ex. L. On April 12, 2017, a hearing was held to decide Mr. Holton’s Motion for a

Preliminary Injunction (the “First Preliminary Injunction Hearing”). Id. Ex. M. At the First

Preliminary Injunction Hearing, Mr. Gatti, who served as Chief Engineer of the City of

Philadelphia and as President of the Board of Surveyors of the Philadelphia Streets Department

during the relevant time period, testified regarding the City’s use of the Frankford Creek Right-

of-Way, and in particular, the portion constituting 4087 Richmond. Id. Ex. M at 35:1–38:13.

Specifically, Mr. Gatti testified that 4087 Richmond was “[C]ity property” and spoke to

its public use as a floodway. ECF No. 25 Ex. M at 38:15–39:13. Mr. Gatti stated that Mr.

Holton’s use of the portion of the Frankford Creek-Right-of-Way at 4087 Richmond posed an

“environmental danger” because “every time [Frankford Creek] floods, [Mr. Holton’s property

located on 4087 Richmond] can go under water….then basically you [would] have a bunch of

junk cars in the creek…” Id. Mr. Gatti further explained the public health importance of the

Frankford Creek Right-of-Way remaining clear specifying that Frankford Creek “is less than a

thousand feet from the Delaware River, which is where half of Philadelphia gets their drinking

water from…” and thus, “not only every time it rains, but more importantly every time [there

are] heavy spring floods during a high tide on the Delaware River [there is] a danger of oils,

antifreezes, battery acids all going into the creek, which goes into the river, which goes into

[Philadelphia’s] drinking system.” ECF No. 25 Ex. M at 38:15–39:13. On April 13, 2017, the

Court of Common Pleas denied Mr. Holton’s Motion for a Preliminary Injunction. Id. Ex. N.

Subsequently, following a hearing held before the Board on August 29, 2017, the Board

unanimously affirmed the City’s violation determinations and denied Mr. Holton’s appeal on the

grounds that Mr. Holton did not have a zoning permit for operation of a scrap yard at 4087

Richmond. ECF No. 74 Ex. K; Id. Ex. H; Id. Ex. L. The Board did not explicitly make a

conclusion regarding ownership of 4087 Richmond, as it was able to affirm the L&I Violations

without doing so. ECF No. 74 Ex. K; Id. Ex. L. Mr. Holton appealed the Board’s decision to the

Court of Common Pleas on September 22, 2017. ECF No. 74 Ex. M.

While the Court of Common Pleas appeal was pending, on February 1, 2018, L&I issued

a Cease Operations Notice to Mr. Holton stating that Mr. Holton must “immediately comply with

the Cease Operations Order and to [sic] remove from the land all equipment, materials, vehicles,

structures, appliances and waste.” ECF No. 74 Ex. N. This Cease Operations Notice also stated

that 4087 Richmond was part of the Frankford Creek Right-of-Way and that if Mr. Holton did

not make the removals consistent with the Cease Operations Order and vacate the Frankford

Creek Right-of-Way, the City would “secure the land from entry after making the said removals

and disposals.” Id.

On February 15, 2018, Mr. Holton filed a second Motion for a Preliminary Injunction

against enforcement of the Cease Operations Order in the Court of Common Pleas. ECF No. 25

Ex. P. In his second Motion for a Preliminary Injunction, Mr. Holton stated that “commencing in

2006,” the City had been attempting to “acquire portions of real estate owned by [Mr.] Holton,

ostensibly for development located at the Richmond Street/Delaware Avenue address.” ECF No.

25 ¶ 4. The subject land was at the time, and still is, fallow, and there is no evidence whatsoever

that any portion of 4087 Richmond is being considered for development of any kind.

On February 16, 2018, a hearing was held in the Court of Common Pleas to decide Mr.

Holton’s second Motion for Preliminary Injunction (the “Second Preliminary Injunction

Hearing”). ECF No. 25 Ex. Q. At the Second Preliminary Injunction Hearing, the City agreed

that Mr. Holton owned the land specified in the Holton Property Deed, but argued that 4087

Richmond, which was the focus of the Cease Operation Order, was City land and that Mr.

Holton had no legal right to occupy or otherwise use that land. ECF No. 25 Ex. Q at 6:10–8:20,

40:7–15. The Court then gave Mr. Holton until February 21, 2018 to submit documentation to

the Court demonstrating that Mr. Holton owned 4087 Richmond. Id. Ex. Q at 101:9–104:5.

Although Mr. Holton, through counsel, subsequently filed a copy of a Quit Claim Deed related to

portions of the Holton Property, tellingly Mr. Holton never filed a deed or any other

documentation showing he had an ownership interest in 4087 Richmond. See ECF No. 25 at p.

19; Id. Ex. R. On March 1, 2018, the Court of Common Pleas denied Mr. Holton’s second

Motion for a Preliminary Injunction but did not explicitly make any findings as to ownership of

4087 Richmond.9 ECF No. 25 Ex. S.

On August 20, 2018, after hearing oral argument, the Court of Common Pleas affirmed

9 In May 2019, this Court granted a motion dismissing Plaintiff Holton’s claims for lack of subject matter

jurisdiction relying on the Rooker-Feldman doctrine. Holton v. Henon, No. 18-cv-2228, 2019 WL

2320871, at *4 (E.D. Pa. May 28, 2019); see also See Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923); D.C.

Ct. of Appeals v. Feldman, 460 U.S. 462 (1983). After finding that the Rooker-Feldman doctrine was

inapplicable to this case, the Third Circuit identified that “[i]t may be that [Plaintiff] Holton's claims

would be barred by issue preclusion – if, for instance, the state court determined on the merits, after a full

and fair opportunity to litigate the issue, that [Plaintiff] Holton did not own the property on which he

operated his business.” Holton v. Henon, 832 F. App'x 781, 785 (3d Cir. 2020). A careful review of the

procedural history of this case, however, reveals that no state court ever ruled specifically as to the

ownership 4087 Richmond, and accordingly, the case cannot be resolved as a matter of issue preclusion.

the Board’s decision regarding the L&I Violations. ECF No. 74 Ex. O (“Upon consideration of

the statutory appeal by [Mr.] Holton of the City of Philadelphia, Department of Licenses and

Inspections and argument by counsel, the Court hereby AFFIRMS the city of Philadelphia,

Department of Licenses and Inspections’ decision and DENIES the appeal of [Mr.] Holton.”).

Mr. Holton filed a Motion for Reconsideration asking the Court of Common Pleas to reconsider

its Order denying the appeal, but on September 11, 2018, the Court of Common Pleas denied Mr.

Holton’s Motion for Reconsideration, and subsequently Mr. Holton never appealed the Court of

Common Pleas decision affirming the Board’s denial of Mr. Holton’s appeal. Id. Ex. M; Id. Ex.

O.

On October 13, 2018, the City enforced the Cease Operations Order by closing off Mr.

Holton’s use of 4087 Richmond and removing Mr. Holton’s property therefrom. ECF No. 74

SUMF ¶ 31–33 ; Id. Ex. E at 50:19–51:3. Specifically, Defendant Gatti testified in his deposition

that at the time of the removal, the City cut through a locked gate and removed corrugated metal

that was affixed to a fence located on the Richmond Street edge of 4087 Richmond. See ECF No.

74 Ex. E at 54:14 –56:2. At Oral Argument on January 25, 2022 held before this Court as to

Defendants’ Motion for Summary Judgment, Plaintiff’s counsel represented that this fence was

erected by Mr. Holton or his predecessor, yet Mr. Holton’s sworn affidavit submitted in

opposition to Defendants’ Motion for Summary Judgment (ECF No. 79) (the “Holton Affidavit”)

is silent as to the erection or maintenance of any fence located on 4087 Richmond, and while

Defendant Gatti testified as to the existence of a gated fence on 4087 Richmond, there is no

evidence in the record regarding who erected or maintained the fence or when it was erected.

ECF No. 95 at p. 5; see also ECF No. 75 Ex. E at 24:1–17; Id. Ex. E at 54:14 – 46:2; ECF No 79.

In fact, the record reflects no improvements, no buildings, no paving, no sidewalk maintenance,

no curb cut outs, or anything reflective of an adverse taking made by Mr. Holton or his

predecessor to 4087 Richmond other than attaching “corrugated metal” to the fence located on

the Richmond Street side of 4087 Richmond on some unspecified date. ECF No. 74 Ex. E at

54:14–46. In addition to the removal of the corrugated metal, the City removed further scrap

metal and car parts, debris, and a couple of trailers that had been placed on the non-deeded land

on some unspecified date. See Id. Ex. E at 61:23–62:8; see also Id. Ex. E at 65:23–66:13.

Nothing was removed from the land deeded to Mr. Holton. ECF No. 74 Ex. E at 50:19–51:3.

Mr. Holton alleges that this removal constituted an illegal government taking. ECF No.

79 ¶¶ 13, 18. Though, as previously mentioned, the grounds on which Mr. Holton presents this

argument have shifted significantly over the course of the litigation.

On January 22, 2019, Plaintiff Holton filed a Second Amended Complaint in which he

claimed that he was removed from land he owns pursuant to the Holton Property Deed

(including 4087 Richmond).10 ECF No. 21 ¶ 8, 16; Id. Ex. B.

On September 24, 2021, Defendants filed a Motion for Summary Judgment as to all

Plaintiff’s claims, and on November 1, 2021, Mr. Holton submitted a Response in Opposition to

Defendants’ Motion abandoning the argument Mr. Holton owned 4087 Richmond by deed and

instead arguing summary judgment was not warranted on the grounds that Mr. Holton owned

10As explained in more detail below this contention is facially contradicted by the metes and bounds

specified by the Holton Property Deed in that 4087 Richmond is not part of the Holton Property as

defined by the Holton Property Deed. ECF No. 74 Ex. B. It is also contradicted by the testimony of Chief

Engineer and President of the Board of Surveyors, Defendant Darin Gatti. ECF No. 74 Ex. B; Id. Ex. E at

50:19–51:3. Specifically, Defendant Gatti stated in his deposition related to this case that at the time of

Mr. Holton’s removal the City staked out the relevant property lines to ensure that the City only removed

Mr. Holton and his belongings from City land and not from the land that Mr. Holton owns pursuant to the

Holton Deed. ECF No. 74 Ex. E at 50:19–51:3; ECF No. 74 SUMF ¶ 31–33. Additionally, at a

subsequent Sanction’s Hearing in this case held on September 7, 2021, Mr. Holton, through his attorney,

admitted to not actually knowing whether the City removed Mr. Holton from anywhere within the metes

and bounds of the Holton Property on October 13, 2018. ECF No. 74 Ex. P at 19:10-25; ECF No. 72 at

19:10-25.

4087 Richmond via adverse possession. ECF Nos. 74, 80. On January 25, 2022, Oral Argument

was heard by this Court as to the Motion for Summary Judgment. ECF No. 98.

The day before Oral Argument, January 24, 2022, Mr. Holton, through counsel,

submitted a Supplemental Response to Defendants’ Motion for Summary Judgment in which he,

yet again, transformed his argument related to his alleged ownership interest in 4087 Richmond

arguing that Mr. Holton and his predecessor used 4087 Richmond as ingress and egress to the

Holton Property and that the “[t]aking of ingress and egress is compensable as a [t]aking of the

entire parcel under applicable law, characterized as ‘inverse condemnation.’” ECF No. 95 at p. 5.

Again, it can be noted here that Plaintiff Holton’s scrap yard continues to operate and that

ingress and egress to the Holton Property continue unimpeded on his land that is contiguous to

4087 Richmond. ECF No. 98 at 15:17–21.

II. STANDARD OF REVIEW

Summary judgment is proper when “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Accordingly,

“[s]ummary judgment is appropriate when ‘the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact...’” Wright v. Corning, 679 F.3d 101, 103 (3d Cir. 2012)

(quoting Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995)). A fact is

“material” if it “might affect the outcome of the suit under the governing law.” Anderson v.

Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). There is a genuine issue of material fact if “the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

The party moving for summary judgment carries the initial burden “of informing the

district court of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). Once the moving

party has met this burden, the non-moving party must counter with “‘specific facts showing that

there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986) (citation omitted); see also Fed. R. Civ. P. 56(c).

“Although the non-moving party receives the benefit of all factual inferences in the

court's consideration of a motion for summary judgment, the nonmoving party must point to

some evidence in the record that creates a genuine issue of material fact. In this respect,

summary judgment is essentially ‘put up or shut up’ time for the non-moving party: the non-

moving party must rebut the motion with facts in the record and cannot rest solely on assertions

made in the pleadings, legal memoranda, or oral argument. In addition, if the non-moving party

has the burden of proof at trial, that party must set forth facts ‘sufficient to establish the existence

of an element essential to that party's case.’” Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195,

201 (3d Cir. 2006) (internal citations omitted).

The non-moving party must therefore show more than the “mere existence of a scintilla

of evidence” for elements on which the non-movant bears the burden of production. Anderson,

477 U.S. at 252. The party opposing a motion for summary judgment may not “rely merely upon

bare assertions, conclusory allegations or suspicions.” See Fireman’s Ins. Co. v. DuFresne, 676

F.2d 965, 969 (3d Cir. 1982). Nor can the non-moving party “rely on unsupported allegations”

and instead “must go beyond pleadings and provide some evidence that would show that there

exists a genuine issue for trial.” Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000).

Moreover, arguments made in briefs “are not evidence and cannot by themselves create a factual

dispute sufficient to defeat a summary judgment motion.” Jersey Cent. Power & Light Co. v.

Township of Lacey, 772 F.2d 1103, 1109–10 (3d Cir. 1985).

“At the summary judgment stage, facts must be viewed in the light most favorable to the

nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S.

372, 380 (2007); Fed. R. Civ. P. 56(c). The court need only decide whether “a fair-minded jury

could return a verdict for the plaintiff on the evidence presented.” Anderson, 477 U.S. at 252.

“Where the record taken as a whole could not lead a rational trier of fact to find for the non-

moving party, there is no ‘genuine issue for trial’” and the court should grant summary judgment

in favor of the moving party. Matsushita Elec. Indus. Co., 475 U.S. at 587 (citation omitted).

III. DISCUSSION

In pertinent part, the Fifth Amendment of the United States Constitution “prohibits the

government from ‘taking private property for public use without providing just compensation.’”

Newark Cab Ass’n v. City of Newark, 901 F.3d 146, 151 (3d Cir. 2018) (citing Am. Express

Travel Related Servs., Inc. v. Sidamon-Eristoff, 669 F.3d 359, 370 (3d Cir. 2012)). This clause,

aptly named the “Takings Clause” also “applies to state and local governments through the

Fourteenth Amendment.” Id. “To succeed on a takings claim, ‘the plaintiff[s] must first show

that a legally cognizable property interest is affected by the Government's action in question.’”

Id. at 151–52 (citing Prometheus Radio Project v. FCC, 373 F.3d 372, 428 (3d Cir. 2004); see

also Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160–61 (1980) (requiring

protected property interest for taking); In re Trs. of Conneaut Lake Park, Inc., 855 F.3d 519, 526

(3d Cir. 2017) (“Without a legally cognizable property interest, [a plaintiff] has no cognizable

takings claim.”). For the purposes of takings claims, property interests “‘are created and their

dimensions are defined by existing rules or understandings that stem from an independent source

such as state law.’” Newark Cab Ass’n, 901 F.3d at 151–2 (citing Bd. of Regents of State Colls. v.

Roth, 408 U.S. 564, 577 (1972) (“Property interests, of course, are not created by the

Constitution. Rather they are created, and their dimensions are defined by existing rules or

understandings that stem from an independent source such as state law—rules or understandings

that secure certain benefits and that support claims of entitlement to those benefits.”).

In the present case, Plaintiff’s takings claim and the underlying facts alleged by Plaintiff

in relation to his takings claim have changed significantly from the time he filed the Second

Amended Complaint to the present. Compare ECF No. 21 with ECF No. 80. Due to the

seemingly ever-changing nature of Mr. Holton’s takings claim, in connection with the fact that

Mr. Holton never formally amended his pleadings to include each new theory of ownership over

4087 Richmond (nor even raised these arguments until well after the close of discovery), there is

very little evidence in the record that speaks to the adverse possession or ingress and egress

arguments. Indeed, the only evidence Mr. Holton points to in support of his adverse possession

argument is the self-serving Holton Affidavit, submitted in Opposition to Defendants’ Motion

for Summary Judgment. See ECF No. 79. With respect to the ingress and egress argument, this

Court finds that the record is completely bare, and that Mr. Holton has failed to point to any

evidence at all that supports this claim. In fact, Mr. Holton continues to operate his salvage

business with ingress and egress to the Holton deeded side of the property and the record reflects

no evidence of business disruption to the operation of the salvage yard at any time.

Thus, although this case is at the summary judgment stage, Mr. Holton’s arguments and

briefings now read more like pleadings that would barely survive the plausibility standard. See

Jones, 214 F.3d 402, 407 (3d Cir. 2000) (finding a party opposing summary judgment may not

“rely on unsupported allegations but must go beyond pleadings and provide some evidence that

would show that there exists a genuine issue for trial.”). In any case, despite the dynamic nature

of Plaintiff’s takings claim, this Court attempts to address each of its many forms below and

finds that Plaintiff cannot survive summary judgment as he has failed to establish any genuine

issue of material fact. See Anderson, 477 U.S. at 248.

A. Plaintiff Holton’s Fifth Amendment Claim Alleging the City’s Unlawful Taking of

Land Owned by Plaintiff Holton by Deed Fails as a Matter of Law Because Mr.

Holton Has Failed to Create a Genuine Dispute of Material Fact as to Whether the

Government Actually “Took” Any Land Within the Metes and Bounds of the

Relevant Deed, and Thus No Reasonable Jury Could Find That Plaintiff Holton Has

Established a Legally Cognizable Property Interest on Which to Sustain His

Takings Claim.

Although it appears from Mr. Holton’s two-page Memorandum of Law in Opposition to

Summary Judgment that Mr. Holton has entirely abandoned his argument set forth in his Second

Amended Complaint that the City removed him from property he owns by deed (and is instead

proceeding primarily on a theory of adverse possession), this Court finds it is necessary to

address the allegations contained in the Second Amended Complaint in order to create a clean

and unambiguous record. Compare ECF No. 21 with ECF No. 80.

There is no dispute that Mr. Holton owns the entire Holton Property pursuant to the

Holton Property Deed, and this Court finds that Mr. Holton has failed to identify any specific

portions of the Holton Property that he was removed from by the City, much less put forth any

evidence that would support such claim. See generally ECF No. 80; see also ECF No. 74 Ex. P at

19:10–24. Further, Mr. Holton has also explicitly acknowledged, through counsel, that he does

not know whether the City removed him from any land within the metes and bounds specified in

the Holton Property Deed, and that determining whether the City did so would be impossible

without a survey.11 Specifically, when asked directly at the Sanctions Hearing held before this

11 At the September 7, 2021 Sanctions Hearing, this Court summarized Mr. Holton’s position stating,

“You’re saying…I don’t know whether the [C]ity took anything within the deeded property, but I do

Court on September 7, 2022, whether the City “remove[d] [Mr. Holton] from any of the property

that he owns via deed on,” Plaintiff’s counsel stated that “[t]here is no way to know, absent a

survey, whether or not [the City] took any of [Mr. Holton’s property or not, because there are no

distinguishing marks. There’s nothing…” ECF No. 72 at 13:3–5.

Because Mr. Holton has not provided any evidence that he owns, by deed, any portion of

4087 Richmond, which is the only real property that there is evidence Mr. Holton was actually

removed from, Mr. Holton has not affirmatively identified any land that the government actually

“took” from him. ECF No. 74 Ex. E at 50:19–51:3; see Newark Cab Ass’n, 901 F.3d at 151–2

(“To succeed on a takings claim, the plaintiff[s] must first show that a legally cognizable

property interest is affected by the Government's action in question.”) (internal citations

omitted) (emphasis added); Berckeley Inv. Grp., Ltd.,, 455 F.3d at 201 (“the nonmoving party

must point to some evidence in the record that creates a genuine issue of material fact”).

Thus, while Mr. Holton has asserted facts that establish a legally cognizable property

interest with respect to the land identified by the Holton Property Deed, Mr. Holton has failed to

put forth any facts at all upon which a reasonable jury could conclude this property interest was

in any way “affected by the Government’s action in question,” and thus any takings claim

premised on these grounds cannot survive summary judgment as there is no genuine dispute of

any material fact that would lead a juror to find otherwise. Id.; see also Matsushita Elec. Indus.

Co., 475 U.S. at 587 (citation omitted) (“[w]here the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial’” and

summary judgment should be granted in favor of the moving party) (internal citations omitted).

know that outside of the deeded property [Mr. Holton] adversely possessed things outside of the deed

property…is that right?” and Mr. Durham (counsel for Mr. Holton) then responded, “Yeah. I see it exactly

the way you’re saying it, Your Honor.” Id. (emphasis added). The Court then asked more explicitly,

“That’s your client’s position?” and Mr. Durham responded, “Yes, correct.” ECF No. 72 at 19:10–24.

In fact, the only evidence on this record relevant to this inquiry is the affirmative testimony of

the surveyor, Defendant Gatti, that the Holton Property was staked off during the October 2018

removal and that no property was removed from the Holton Property. See ECF No. 74 Ex. E at

50:19–51:3.

B. As a Threshold Matter to Considering Plaintiff’s Taking’s Claim Based on a Theory

of Adverse Possession, This Court Find, in Accordance With Both Parties, That It

Has Subject Matter Jurisdiction to Address Plaintiff’s Adverse Possession

Argument.

At the Sanctions Hearing held before this Court on September 7, 2021, Defendants

argued the Court did not have subject matter jurisdiction to address Plaintiff’s adverse possession

claim because it is a state law issue. ECF No. 72 at 17:9–24. Although both parties are now in

agreement that this Court has subject matter jurisdiction, this Court finds it necessary to address

the issue and finds that, in accordance with both parties, this Court does have subject matter

jurisdiction over the entire action.

As mentioned previously, Mr. Holton contends that he owns 4087 Richmond through

adverse possession, and that thus, the City’s enforcement of its Cease Operations Order and

subsequent removal from that land constitute an illegal government taking. See ECF No. 80.

There is no indication that prior to this litigation, Mr. Holton had commenced a quiet title action

or obtained documentation of legal title to any portion of the Frankford Creek Right-of-Way

from which he was removed on October 13, 2018. ECF No. 74 at p. 7. (In fact, the state court

record reflects he was given every opportunity to produce a deed and he did not.) See e.g., ECF

No. 25 Ex. R. Accordingly, although Mr. Holton has not formally filed a quiet title action in any

court, Mr. Holton’s arguments and pleadings ask a federal jury to resolve this title dispute and

convey title to him by finding that he has satisfied the elements of adverse possession in order to

find a legally cognizable property interest in 4087 Richmond for the purposes of his takings

claim. See generally ECF Nos. 79, 80.

At the Sanctions Hearing held before this Court on September 7, 2021, Defendants

argued that Plaintiff’s taking’s claim based on adverse possession was dependent on a state law

question, and that thus, Mr. Holton did “not have right to come to a federal court to seek a quiet

title action, to then retroactively go for a takings proceeding.” Id. at 20:2–4. Subsequently,

however, Plaintiff withdrew this argument (see ECF No. 93) stating that “[i]n light of the Third

Circuit’s decision in Bush v. Philadelphia Redevelopment Authority, 822 F.App’x 131, 134 (3d

Cir. 2020)… this Court has jurisdiction to hear Plaintiff’s Taking Clause claim, despite being

predicated on the state law issue of whether Plaintiff adversely possessed the property at

issue…”12 ECF No. 93 at p. 1; see also ECF 90 at 6:23–7:1. This Court agrees with both the

Plaintiff’s and Defendants’ interpretation of Bush that under the facts of this record, this Court

has jurisdiction to determine title and Mr. Holton’s adverse possession claim as a preliminary

step to determining the takings controversy that has been presented to it. 822 F.App’x at 134.

C. Plaintiff Holton’s Fifth Amendment Claim Alleging the City’s Unlawful Taking of

4087 Richmond Obtained by Plaintiff Holton Through Adverse Possession Fails as a

Matter of Law on the Basis of the Following Two Separate, Self-Supporting

Foundations: (1) Mr. Holton Has Failed to Put Forth More Than a Scintilla of

Evidence as to the Essential Elements of Adverse Possession; and (2) the Land Itself

is Immune From Adverse Possession as it is Municipal Land Held for Public Use.

For the reasons that follow, this Court finds that Mr. Holton has failed to establish a

genuine issue of material fact as to whether he owns 4087 Richmond via adverse possession, and

that thus, Mr. Holton cannot sustain his Fifth Amendment Takings Claim as a matter of law

12 In Bush, the District Court granted a motion to dismiss on the grounds that the plaintiff lacked Article

III standing because the Court determined that Plaintiff did not own the property at the time of the taking

either through adverse possession or by contract; however, the Third Circuit rejected this argument

finding that the plaintiff had standing because in order for the District Court to determine the question of

ownership interest the District Court “effectively required evidence and resolved disputed issues on the

merits.” Bush v. Philadelphia Redevelopment Auth., 822 F. App'x 131, 134 n.4 (3d Cir. 2020).

because he has failed to establish a legally cognizable ownership interest in the relevant land.

Wright, 679 F.3d at 103 (“[s]ummary judgment is appropriate when ‘the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact...’”); In re Trs. of Conneaut Lake Park, Inc., 855

F.3d at 526 (“Without a legally cognizable property interest, [a plaintiff] has no cognizable

takings claim.”). More specifically, Mr. Holton has (1) failed to present facts upon which a

reasonable juror could conclude he adversely possessed 4087 Richmond, as he has not presented

more than a scintilla of evidence as to the necessary elements of an adverse possession claim;

and (2) even if he had created a genuine issue of material fact as to the necessary elements of

adverse possession, his claim would still fail for the completely separate reason that the land in

question is immune from adverse possession as it is municipal property held for public use. In

sum, the record clearly establishes, and this Court finds, that the land in question from which Mr.

Holton’s property was removed from is now, and was at the time of the removal, municipal

property duly deeded to it and was not ever, nor could it have been, adversely possessed by

Plaintiff Holton. No reasonable juror could find otherwise.

1. Plaintiff’s Fifth Amendment Claim Fails as a Matter of Law Because

Plaintiff Has Failed to Create a Genuine Issue of Material Fact as to

Whether He Adversely Possessed 4087 Richmond.

Under Pennsylvania law, ““[a]dverse possession is an extraordinary doctrine which

permits one to achieve ownership of another's property by operation of law.” Zaloga v. Borough

of Moosic, No. 3:10CV2604, 2011 WL 2938422, at *17 (M.D. Pa. July 19, 2011) (citing

Recreation Land Corp. v. Hartzfield, 947 A.2d 771, 774 (Pa. Super. Ct. 2008)). “It is well settled

that a party claiming title to real property by adverse possession must affirmatively prove that

he or she had ‘actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of

the land for twenty-one years.’” Ammerman v. Shaffer, No. 387 WDA 2014, 2014 WL

10795233, at *4 (Pa. Super. Ct. Oct. 3, 2014) (emphasis added); see also Galdo, 217 A.3d at

820; 68 P.S §§ 81-88 (governing claims by adverse possession). Accordingly, title will not

confer, unless “[e]ach of these elements…exist[s.]” Tioga Coal Co. v. Supermarkets Gen. Corp.,

519 Pa. 66, 72, 546 A.2d 1, 3 (1988).

Further, Pennsylvania courts have emphasized that “[i]t is a serious matter indeed to take

away another's property,” and that,” the grant of this extraordinary privilege should be based

upon clear evidence.” Recreation Land Corp. v. Hartzfeld, 2008 PA Super 76, ¶ 7, 947 A.2d

771, 774 (2008) (emphasis added); Ammerman, No. 2013 WL 11251543, at *2 (citing Flannery

v. Stump, 786 A.2d 255, 258 (Pa. Super. 2001); see also Stevenson v. Stein, 412 Pa. 478, 195

A.2d 268, 270 (1963). (“Of course, the burden of proving this adverse possession was upon

the plaintiff by credible, clear and definitive proof.”) (emphasis added); Showalter v.

Pantaleo, 9 A.3d 233, 235 (Pa. Super. 2010). Thus, in order to establish a legally cognizable

ownership interest in 4087 Richmond through adverse possession at trial, Mr. Holton would bear

the burden of affirmatively proving through “credible, clear and definitive” evidence each of the

required elements necessary to establish ownership through adverse possession. Ammerman,

2013 WL 11251543, at *2 (citing Stevenson, 195 A.2d at 270). Accordingly, at the summary

judgment stage, although Mr. Holton as the non-moving party “receives the benefit of all factual

inferences in the court's consideration of a motion for summary judgment,” to actually survive

summary judgment, the burden is on Mr. Holton, as the party with the burden of proof in this

case, to “set forth facts in the record” that “create[] a genuine issue of material fact” as to an

essential element of his adverse possession claim. Berckeley Inv. Grp., Ltd., 455 F.3d at 201

(internal citations omitted). Resting “solely on assertions made in the pleadings, legal

memoranda, or oral argument” is not enough to create a genuine dispute of material fact. Id.

In the present case, Mr. Holton has not identified the particular metes and bounds of the

land he claims to own through adverse possession, nor has he put forth with specificity facts that

support the necessary elements of his adverse possession claim. See generally ECF Nos. 79, 80.

The only evidence offered by Mr. Holton in support of his adverse possession claim is the sworn

Holton Affidavit (ECF No. 79), submitted in opposition to Defendants’ Motion for Summary

Judgment (ECF No. 74), in which he asserts he “owns the property known as 4087 Richmond

Street by adverse possession, having occupied and used the property for more than 21 years

without the approval of the City.” ECF No. 79 ¶ 9.

In the Holton Affidavit, Mr. Holton also states that “as early as 1990” Mr. Bounocristo

“operated an auto scrap yard…on the entire parcel of 4087 Richmond…,” and that the use of

4087 Richmond was “open, notorious [sic] continuous and hostile to the interest of the City…”

ECF No. 79 ¶¶ 2, 10. In his Memorandum of Law in Opposition to Defendants’ Motion for

Summary Judgment (ECF No. 80), Mr. Holton, through counsel states that Mr. Holton “and his

predecessor had occupied the Frankford Creek tract for more than twenty one years… with

Richmond Street as the west boundary and the Frankford Creek [as the] north boundary,”), yet

no evidence is offered to support this claim, outside of the Holton Affidavit, which is silent as to

the boundaries of 4087 Richmond. ECF No. 80 at pp. 1–2; see also ECF No. 79.

Mr. Holton has had ample time to pursue an independent survey of the land he claims to

own via adverse possession, which would at least make clear for the Court the exact parcel of

land at issue, but rather than take this foundational step, Mr. Holton instead asks this Court to

travel back in time to the days of William Penn and credit his counsel’s indeterminate

declaration that he owns land from river to road. Indeed, Mr. Holton cannot survive summary

judgment by conclusively asserting that he and Mr. Buoncristiano used “the entire parcel” of

4087 Richmond for “twenty-one years” without putting forth any evidence establishing what

land constitutes “the entire parcel.” See ECF No. 79.

Yet, even if this Court were to move forward utilizing Plaintiff’s counsel’s vague

assertions as the relevant boundaries of the land at issue, Mr. Holton has not provided with the

necessary specificity how his use of this land was “actual, continuous, exclusive, visible,

notorious, distinct, and hostile” throughout the duration of any twenty-one-year period (and in

fact, Plaintiff’s counsel’s vague assertions regarding the relevant boundaries indicate Mr. Holton

has not marked off the land in any distinctive way). Ammerman, 2014 WL 10795233, at *4.

Pennsylvania courts have made abundantly clear, that the burden of proving each element of

adverse possession falls on the plaintiff and that because adverse possession is such an

extraordinary doctrine, it requires a heightened evidentiary standard. Id. Thus, for the reasons

below, this Court finds that Mr. Holton’s bare factual assertions related to his alleged use of 4087

Richmond do not create a genuine issue of material fact as to whether he adversely possessed it.

ECF No. 80 at pp. 1–2. Ammerman, 2013 WL 11251543, at *2 (citing Stevenson, 195 A.2d at

270); Jones, 214 F.3d 402, 407 (3d Cir. 2000) (finding a party opposing summary judgment may

not “rely on unsupported allegations but must go beyond pleadings and provide some evidence

that would show that there exists a genuine issue for trial.”).

Specifically, Mr. Holton has not pointed to any record evidence that he fenced in, marked

the boundaries of, or otherwise notoriously claimed the “entire parcel” of 4087 Richmond. See

Flannery, 786 A.2d at 259 (“An adverse possessor must intend to hold the land for himself, and

that intention must be made manifest by his act….He must keep his flag flying and present a

hostile front to all adverse pretensions. Broadly speaking, actual possession of land is dominion

over the land; it is not equivalent to occupancy.”). In his supplemental briefing prior to Oral

Argument, Mr. Holton, through counsel, stated that a “chain linked fence was maintained by

[Mr. Holton] and before him by [Mr.] Buoncristiano.” ECF No. 95 at p. 5. At Oral Argument,

Mr. Holton’s attorney stated that Mr. Holton had erected a fence on 4087 Richmond, though

tellingly, he did not cite any record evidence to support this contention or provide any details that

would establish when or by whom the fence was built. ECF No. 98 at 9:13–21; see generally

ECF Nos. 95, 98. During Defendant Gatti’s deposition in this case, Plaintiff’s counsel inquired

about Defendant Gatti’s knowledge as to the existence of a fence on the Richmond Street

boundary of 4087 Richmond, and Defendant Gatti acknowledged that at the time of Mr. Holton’s

removal there was a fence located on the Richmond Street boundary of 4087 Richmond, and he

also explained that there was a locked gate on the fence and that someone had adhered

corrugated metal to the fence. See ECF No. 74 Ex. E at 54:14 –56:2. Mr. Gatti explained that the

City cut through the lock and removed the corrugated metal during the removal in October 2018.

Id. Though, when asked if he had knowledge about who the fence belonged to Defendant Gatti

stated “[i]t’s on City property. It’s now the City’s fence…I do not know who erected it…” ECF

No. 74 Ex. E at 23:16–24:17; See also, Id. Ex. E at 60:20–63:24. Plaintiff’s counsel’s assertions

at Oral Argument and in briefings are not evidence in and of themselves, and a review of the

record indicates there is no evidence that Mr. Holton (or his predecessor Mr. Buoncristiano)

erected or maintained the fence along Richmond Street or any other boundary of 4087

Richmond. Moreover, the Holton Affidavit is silent as to the existence or maintenance of any

fence. See generally ECF No. 79. Further, Plaintiff’s counsel’s indeterminate declaration that

Mr. Holton owns land from river to road is in and of itself indicative of the fact that neither Mr.

Holton nor his predecessor clearly marked off, fenced in, or otherwise outwardly claimed the

land he now claims to have adversely possessed. Thus, this Court finds that the only thing the

record shows with respect to a fence, is that at the time of removal, there was a fence located

somewhere along the edge of the public road, Richmond Street, and the portion of the Frankford

Creek Right-of-Way known as 4087 Richmond. The mere existence of a fence, on the edge of a

public road, without any evidence as to when or by whom it was erected does not help to

establish Mr. Holton’s adverse possession claim.

At the summary judgment stage, where Mr. Holton “has the burden of proof at trial…[he]

must set forth facts sufficient to establish the existence of [the] element[s] essential to [his]

case.” Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006) (internal citations

omitted). To do this, Mr. Holton “must rebut the motion with facts in the record and cannot

rest solely on assertions made in the pleadings, legal memoranda or at oral argument.” Id.

(emphasis added). Here, this Court finds Mr. Holton has failed to meet this burden with respect

to establishing notorious use of the land at issue.

In any case, even if Mr. Holton could establish that there was a genuine issue of material

fact as to whether his use of 4087 Richmond was notorious, he has also failed to provide any

evidence, outside of the overbroad conclusory statements in the self-serving Holton Affidavit, as

to the essential element of continuous use of the 4087 Richmond. See ECF No. 79. Specifically,

Mr. Holton asserts that “[a]s early as 1990” he worked for “ [Mr.] Buoncristiano, who operated

an auto scrap yard…on the entire parcel of 4087 Richmond Street as part of his business…,” and

that he “[i]n 1994 [Mr. Holton] …leased the property and business” from Mr. Buoncristiano and

“ultimately purchased the business and the property from [Mr.] Buoncristiano in 2004 [and]…

continued to operate the business on the same parcel of land that [he] knew to be used by the

previous owner until October of 2018.” ECF No. 79 ¶ 2. Under Pennsylvania law, possessors in

privity may tack their shares in time to reach the necessary twenty-one years to establish adverse

possession. See e.g., Croyle v. Dellape, 2003 PA Super 328, 832 A.2d 466 (Pa. Super. 2003). In

this context, “[p]rivity refers to a succession of relationship to the same thing, whether created by

deed or other acts or by operation of law…[and] acceptance of a deed describing boundary lines

confines the premises conveyed to the area within the boundaries, and such deed does not convey

inchoate rights acquired by incomplete adverse possession.” Id. In other words, when a party

conveys an “inchoate claim for adverse possession in a deed…Pennsylvania courts have

determined that ‘the only method by which an adverse possessor may convey the title asserted by

adverse possession is to describe in the instrument of conveyance by means minimally

acceptable for conveyancing of realty that which is intended to be conveyed.’” Zaloga, 2011 WL

2938422, at *17 (citing Baylor v. Soska, 658 a.2d 743, 744–45 (Pa.1995)).

Outside of Mr. Holton’s assertion in the Holton Affidavit that Mr. Buoncristriano

operated his scrap yard business on 4087 Richmond, there is no evidence in the record to support

privity between Mr. Holton and Mr. Buoncristriano with respect to 4087 Richmond. ECF No. 79

at ¶ 2. Moreover, the survey of the Holton Property, which Mr. Buoncristriano obtained in 2004

prior to selling the Holton Property to Mr. Holton does not include any portion of 4087

Richmond within its metes and bounds and neither does the Holton Property Deed itself. ECF

No. 74 Ex. A; Id. Ex. B (describing the Holton Property’s western boundary as “along the center

line of the former Balfour Street”). Thus, even if this Court credited Mr. Holton’s assertions that

Mr. Buoncristiano also used 4087 Richmond in relation to his operation of the scrap yard

business, absent any indication that Mr. Buoncristiano intended to convey that portion of land to

Mr. Holton or included a description of 4087 Richmond during the conveyance, there is no basis

upon which Mr. Holton can “tack” his time period allegedly using 4087 Richmond to Mr.

Buoncristiano’s. See Zaloga, 2011 WL 2938422, at *17 (citing Baylor, 658 a.2d at 744–45).

Further, while the record indicates that Mr. Holton did, at some point and to some

unspecified degree, use 4087 Richmond in relation to his scrap yard business,13 there is no

evidence, outside of Mr. Holton’s blanket statements in the Holton Affidavit, that his (or Mr.

Buoncristiano’s) use actually involved continuous use of the “entire parcel” of 4087 Richmond

for any twenty-one-year period. ECF No. 79 ¶ 2. The record does support the claim that at

various points Mr. Holton had scrap materials, trailers, and debris related to his scrap yard

business located on 4087 Richmond, but the record is silent as to how long any of those items

were on 4087 Richmond, where on 4087 Richmond they were located, how much of 4087

Richmond they actually took up, or any other facts that would demonstrate Mr. Holton’s

continuous use of the “entire parcel.” In sum, there is nothing on the record to indicate that Mr.

Holton’s use of 4087 Richmond was continuous for any twenty-one-year term.

Finally, and completely fatal to Mr. Holton’s adverse possession claim, Mr. Holton has

also failed entirely to claim at any point that his purported use of 4087 Richmond was exclusive

for any twenty-one-year period, and this Court finds, upon review of the record, that there are no

facts upon which a reasonable juror could draw this conclusion. See e.g., ECF 79 ¶ 10 (“My use

was open, notorious [sic] continuous and hostile to the interest of the City”); ECF No. 98 at

12:3–11 (Plaintiff’s counsel stating at oral argument that Mr. Holton’s use of 4087 Richmond

that “was open….notorious.…[and] continuous [and that] [a]ll of the necessary elements for

adverse possession are there,” but failing to assert Plaintiff’s use was exclusive or provide any

evidence to this effect); see also Showalter, 2010 PA Super 212, 9 A.3d at 235 (“One who claims

13 There is also evidence that indicates that Mr. Holton rented a portion of 4087 Richmond to another

individual named Kevin Creedon at some point between 2010 and 2018. ECF No. 74 at Ex. E at19:23–

20:2.

title by adverse possession must prove actual, continuous, exclusive, visible, notorious, distinct

and hostile possession of the land for twenty-one years. Each of these elements must exist;

otherwise, the possession will not confer title.”) (emphasis added). Absent any evidence or even

claim that Mr. Holton’s alleged use of 4087 Richmond was “exclusive” Mr. Holton cannot

survive summary judgment, as exclusive use is an essential element of his adverse possession

claim for which he bears the burden of proof. Showalter, 2010 PA Super 212, 9 A.3d at 235.

As the Third Circuit has articulated, “summary judgment is essentially ‘put up or shut

up’ time for the non-moving party,” and Mr. Holton has quite frankly failed to “put up” evidence

(credible, clear, definitive or otherwise) to support the necessary elements to prove he owns 4087

through adverse possession. Berckeley Inv. Grp., Ltd., 455 F.3d at 201 (internal citations

omitted) (“the non-moving party must rebut the motion with facts in the record and cannot rest

solely on assertions made in the pleadings, legal memoranda, or oral argument…[and] if the non-

moving party has the burden of proof at trial, that party must set forth facts sufficient to

establish the existence of an element essential to that party's case.”). Thus, for the reasons

above, this Court finds, that no reasonable trier of fact could conclude Mr. Holton acquired

ownership of 4087 Richmond through adverse possession, and accordingly, Mr. Holton does not

have a legally cognizable property interest on which to sustain his Fifth Amendment takings

claim related to 4087 Richmond.14,15

2. Plaintiff’s Fifth Amendment Claim Fails Because No Genuine Dispute of

Material Fact Exists as to Whether 4087 Richmond is Municipal Property

Held for Public Use and is Therefore Immune from Adverse Possession.

Even if Plaintiff Holton had been able to establish a material dispute of fact as to whether

or not he met the elements of adverse possession with respect to 4087 Richmond, his claim

would still fail because 4087 Richmond is immune from adverse possession as it is municipal

property held for public use. Although under Pennsylvania law, generally an individual may

adversely possess property owned by political subdivisions of the Commonwealth of

Pennsylvania, such as the City of Philadelphia, “the high burden that adverse possessors must

satisfy to obtain title under the doctrine” is maintained, and the rule is not without exception, and

in this case, 4087 Richmond clearly falls within the scope of an exception. Galdo, 217 A.3d at

14 Additionally, although this Court considered the facts set forth in the Holton Affidavit in the light most

favorable to Mr. Holton in its analysis of Defendants’ Motion for Summary Judgment, this Court also

notes that, due to the fact that the Affidavit is, in part, unsupported and contradicted by the record, as well

as incredibly conclusory, this Court is skeptical as to whether the Affidavit (ECF No. 79) was submitted

for any purpose other than “defeating summary judgment,” and would thus constitute a “sham affidavit.”

Doherty v. Allstate Indem. Co., 734 F. App'x 817, 823 (3d Cir. 2018). “[I]f it is clear that an affidavit is

offered solely for the purpose of defeating summary judgment, it is proper for the trial judge to conclude

that no reasonable jury could accord that affidavit evidentiary weight and that summary judgment is

appropriate.” Id. (citing Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007).

15 Upon a careful review of the record, this Court finds that the broad conclusory statements put forth in

the Holton Affidavit are not only vague and unsupported and thus fall well below the standard of clear,

definitive, credible evidence, but are also, in part, contradictory to the record. Namely, in connection with

his second Motion for a Preliminary Injunction against enforcement of the Cease Operations Order related

to Mr. Holton’s use of 4087 Richmond, Mr. Holton argued that “commencing in 2006,” the City had been

attempting to “acquire portions of real estate owned by [Mr.] Holton, ostensibly for development located

at the Richmond Street/Delaware Avenue address,” which is at odds with his contention that he and Mr.

Buoncristiano continuously used the land for a period of twenty-one years beginning in 1990. ECF No.

25 ¶¶ 1, 4; see Brennan v. Manchester Crossings, Inc., 708 A.2d 815, 818 (Pa. Super. Ct. 1998) (“[I]n

order for adverse possession to ripen into title, it is necessary that such possession had been continuous

and uninterrupted for the full statutory period.”) (emphasis added). Additionally, throughout the

majority of this case, Mr. Holton maintained that he believed he was the owner of 4087 Richmond

pursuant to the Holton Property Deed, which is, at least seemingly, inconsistent with his contention in the

Holton Affidavit that he believed the City abandoned the Frankford-Creek-Right-of-Way. ECF No. 79 ¶

12.

822 (“While we acknowledge the vast number of condemned properties that the City oversees,

we emphasize the high burden that adverse possessors must satisfy to obtain title under the

doctrine and observe that the City need only intervene to prevent adverse possessors on each

municipal property at some point prior to the end of the twenty-first year after the purpose of the

condemnation has lapsed”) (emphasis added). More specifically, “an exception to this general

rule is where the property is devoted to a public use,” and this Court finds 4087 Richmond

constitutes municipal property held for public use making it immune from adverse possession.

Id. at 823–4 (emphasis added); see also Reading Area Water Authority v. Schuylkill River

Greenway Ass'n, 627 Pa. 357, 100 A.3d 572, 580 (2014) (holding that for purposes of eminent

domain, “[t]he question of what constitutes a public use is highly fact-dependent”); see also

Dornan v. Philadelphia Housing Authority, 331 Pa. 209, 200 A. 834, 840 (1938) (opining that

“judicial interpretation of ‘public use’ has not been circumscribed in our State by mere legalistic

formulas or philological standards ...,” but “has been left, as indeed it must be, to the varying

circumstances and situations which arise, with special reference to the social and economic

background of the period in which the particular problem presents itself for consideration”).

It is undisputed that the Frankford Creek Right-of-Way, and in particular the section

constituting 4087 Richmond, was obtained for public use by the City through eminent domain in

the 1950s. ECF No. 74 Ex. G. According to Defendants the Frankford Creek Right-of-Way was

“condemned for the purpose of redirecting the Frankford Creek and creating an adjacent

floodway” and that these “floodways constitute open lands on either side of the creek specifically

created and maintained along with the creek to provide for drainage, to allow space for the creek

to flood and to foster vegetation that helps filter that [sic] the surface water that drains into the

creek.” ECF No. 93 at p. 4. Defendant Gatti, who served as Chief Engineer of the City of

Philadelphia and as President of the Board of Surveyors of the Philadelphia Streets Department

during the relevant time period, testified to this effect at the Preliminary Injunction Hearing

explaining that the public interest in keeping the Frankford Creek Right-of-Way clear to avoid

the danger of polluting the City’s drinking water. ECF No. 25 Ex. M at 38:15–39:13. Mr. Gatti,

also testified in his deposition related to this case that 4087 Richmond has been “in continuous

use by the City…since its purchase back in the 1950s.” ECF No. 74 Ex. E at 23:10–14.

Mr. Holton contends in his Opposition to Defendants’ Motion for Summary Judgment

that “the City abandoned the Frankford Creek tract and later sought to reclaim it by removing

[Mr. Holton].” ECF No. 80 at p. 1. Outside of this conclusory statement, there is no evidence on

the record that suggests the City abandoned the Frankford Creek Right-of-Way or that it was not

serving its intended public use purpose during the time periods material to this case. In relation

to his Second Motion for a Preliminary Injunction to restrain L&I from enforcing the Cease

Operations Order Mr. Holton contended that the Pennsylvania Department of Environmental

Protection and the United States Environmental Protection Agency assured him “in writing that

the property owned by [Mr. Holton] at the Frankford Creek Right of Way was free of

contaminants, including the watercourse.” ECF No. 25 Ex. P at ¶ 10. Crediting this

representation, however, does not change this Court’s determination because whether or not Mr.

Holton actually ever contaminated the Frankford Creek Right-of-Way or Philadelphia’s drinking

water is a completely separate determination from whether or not the City has a legitimate public

interest in creating and maintaining a clear floodway adjacent to the Delaware River, and, the

record contains no evidence that speaks to the latter in support of Mr. Holton’s assertion that it

does not.

Thus, this Court finds that even considering the facts in the light most favorable to Mr.

Holton, no reasonable juror could conclude that the Frankford Creek Right-of-Way, and in

particular the portion identified as 4087 Richmond, was not held by the City for public use

during the entire time Mr. Holton claims to have been using it, and that accordingly, as a matter

of law, that portion of land is immune from any adverse possession claim. See Galdo, 217 A.3d

at 823–24; see also Jones, 214 F.3d at 407 (finding that in relation to a motion for summary

judgment, the non-moving party may not “rely on unsupported allegations but must go beyond

pleadings and provide some evidence that would show that there exists a genuine issue for

trial.”); Jersey Cent. Power & Light Co., 772 F.2d at 1109–10 (“finding that arguments made in

briefs “are not evidence and cannot by themselves create a factual dispute sufficient to defeat a

summary judgment motion.”).

D. Plaintiff Holton has Failed to Create a Genuine Dispute of Material Fact as to

Whether He Acquired a Legally Cognizable Ownership Interest in 4087 Richmond

via Ingress and Egress.

The day before Oral Argument on Defendants’ Motion for Summary Judgment, Mr.

Holton submitted a Supplemental Response to Defendants’ Motion for Summary Judgment (ECF

No. 95). Within this briefing, Mr. Holton argued that both he and his predecessor, Mr.

Buoncristiano, used 4087 Richmond as “ingress and egress” to the Holton Property, and that

Richmond Street is the “primary access to [P]laintiff’s…property” as well as the “principal

entrance to [P]laintiff’s business,” and that the “[t]aking of ingress and egress is compensable as

a [t]aking of the entire parcel under applicable law, characterized as ‘inverse condemnation.’”

ECF No. 95 at p. 5. Although Mr. Holton does not fully brief this argument, this Court will

attempt to address it.16 Mr. Holton appears to contend that his removal from 4087 Richmond

16 To support this argument, Mr. Holton cites to MCS Partners v. Lamson, asserting that in that case, a

trial judge “recognize[d] a taking where successive owners [were] deprived of ingress and egress for a

period in excess of 21 years by tacking.” 2012, Phila.Com Pl. LEXIS 38. In that case, the Philadelphia

County Court of Common Pleas found that a temporary injunction was warranted to prohibit the

constitutes a taking insofar as it prevents ingress and egress to the property he owns via deed—

the Holton Property.

To some degree, Mr. Holton is correct as “the right of access is a constitutionally[-]

protected property interest, incidental to ownership or occupancy of the land, and may be denied

only under compelling circumstances.” York Rd. Realty Co., L.P. v. Cheltenham Twp., 136 A.3d

1047, 1054 (Pa. Commw. Ct. 2016). Pennsylvania courts have found that a “de facto taking” can

occur when a “property owner’s access to the street upon which his property abuts and not every

impairment of access, as such, to the general system of public streets constitutes a taking which

entitles him to compensation. Such compensation must rest upon the property owner’s showing

of a Substantial [sic] impairment.” In re Mitchell, 209 Pa. Super. 288, 295, 228 A.2d 53, 57

(1967).

Here, however, this doctrine is inapplicable as Mr. Holton’s property does not even abut

Richmond Street as evidenced by the Holton Property Deed. ECF No. 74 Ex. B. Moreover, even

if it were applicable, outside of the claims made by Mr. Holton’s counsel in briefing and Oral

Argument, there is no evidence to suggest that Mr. Holton consistently used 4087 Richmond as

ingress and egress to the Holton Property. Berckeley Inv. Grp., Ltd., 455 F.3d at 201 (internal

citations omitted) (“the non-moving party must rebut the motion with facts in the record and

cannot rest solely on assertions made in the pleadings, legal memoranda, or oral

argument”) (emphasis added). Further, Mr. Holton, through counsel, conceded at Oral

Argument that he has two other modes of ingress and egress to the Holton Property and has not

set forth any facts upon which a reasonable jury could find that he has suffered a “substantial

immediate erection of fences because the Plaintiff in that case had “made a case for actual possession”

based on a theory of adverse possession. Id. at *1–2. In the present case, as discussed at length above, Mr.

Holton has not made a case for actual possession through adverse possession.

impairment” related to his inability to use 4087 Richmond as ingress and egress to the Holton

Property. ECF No. 98 at 15:17–21; In re Mitchell, 209 Pa. Super. 288, 295, 228 A.2d 53, 57

(1967) (A takings claim premised on the government’s taking of ingress and egress “must rest

upon the property owner’s showing of a Substantial [sic] impairment.”).

E. Plaintiff’s Claim for Conspiracy Fails as a Matter of Law Because He Has Failed to

Establish the Unlawful Act Underlying the Alleged Conspiracy.

Having determined that Defendants did not “take” any property owned by Mr. Holton,

and therefore that, Mr. Holton’s takings claim cannot survive summary judgment, this Court

finds that no actionable claim of conspiracy against Defendants can be maintained because

Defendants were merely performing their public duties by securing what they believed to be (and

what the record shows undoubtedly is) City-owned property for its intended public use.

Specifically, this Court finds that Plaintiff’s claim for conspiracy (Count I, Civil Conspiracy)

fails as a matter of law because, as set forth above, Plaintiff’s Fifth Amendment Takings Claim

(Count II, Fifth Amendment Violation) has failed to survive summary judgment. Boyanowski v.

Cap. Area Intermediate Unit, 215 F.3d 396, 406 (3d Cir. 2000) (“[U]nder Pennsylvania law,

when a party fails ‘to sufficiently allege in [other] counts any unlawful act or unlawful means’

the conspiracy claim must also fail when it is based on these claims.”) (citing Raneri v. DePolo,

441 A.2d 1373, 1376 (Pa.Cmwlth.1982).

To establish a claim for conspiracy pursuant to Title 42 of the United States Code Section

1983, “a plaintiff must establish (1) the existence of a conspiracy involving state action; and (2) a

deprivation of civil rights in furtherance of the conspiracy by a party to the conspiracy.”

Rosembert v. Borough of E. Lansdowne, 14 F. Supp. 3d 631, 647 (E.D. Pa. 2014) (citing Gale v.

Storti, 608 F.Supp.2d 629, 635 (E.D. Pa. 2009)). Alleging an actual agreement between co-

conspirators is a crucial element of a conspiracy claim under § 1983, and thus “[t]o state a claim

for conspiracy under § 1983, plaintiff must make ‘factual allegations of combination, agreement,

or understanding among all or between any of the defendants to plot, plan or conspire to carry

out the alleged chain of events. Hammond v. Creative Financial Planning Org., 800 F. Supp.

1244, 1249 (E.D. Pa. 1992) (citing Ammlung v. City of Chester, 494 F.2d 811, 814 (3d Cir.

1974).

In the Second Amended Complaint, Mr. Holton contends that “[Defendant ] Henon, in

concert with Defendants Jefferson and Gatti, conspired to unlawfully deprive Plaintiff of a large

portion of the Holton Property without payment of just compensation…[and that] to effect [sic]

the conspiracy…Defendants relocated the lot lines of the Holton Property, took exclusive

possession thereof, removed Plaintiff under threat of arrest for defiant trespass, removed valuable

scrap metal consisting of damaged motor vehicles, parts and other components, and exercised

dominion and control of the Holton Property on behalf of the City of Philadelphia.” ECF No. 21

¶ 14. Plaintiff Holton further maintains that after the alleged relocation of lot lines, the “illegal

taking” was carried out in “phases by issuance of citations for violations of regulatory

ordinances, followed by orders to cease operations…” related to his use of the land that he

claimed to have originally owned by deed, but that was allegedly taken from him through the

illicit relocation of lot lines. ECF No. 21 ¶ 17.

In the Holton Affidavit, Mr. Holton reemphasizes his conspiracy argument, stating that

“the central point of [his] lawsuit is the conspiracy between Mr. Henon and other City officials to

take [his] property...” ECF No. 79 ¶ 16. Mr. Holton further explains his allegations stating that

Mr. Henon “is currently on criminal trial in the Eastern District of Pennsylvania for abuse of his

office in using City Departments to punish his enemies and the enemies of his co-defendant John

Dougherty…[and that he] anticipate[s] that Mr. Henon [if deposed] would acknowledge that he

was instrumental in having the Department of Licenses and Inspection remove me from the

property.” ECF No. 79 ¶¶ 16 –17. At Oral Argument, Plaintiff’s counsel provided further

clarification to the basis of Mr. Holton’s conspiracy claim, arguing that “because Mr. Henon

made some vendetta, personal vendetta, to get rid of the {quote} {unquote} “junkyards” in the

neighborhood, they [the Defendants] began through L&I, to cite him for violations. This is

exactly the same thing that Mr. Henon was convicted of in front of Judge Schmehl in this federal

courthouse.” ECF No. 98 at 16:10–19.

Outside of these speculative assertions made by Mr. Holton and his counsel, however,

there is no record evidence that supports a finding that the lot lines of Mr. Holton’s property

were relocated at all, at any time, by anyone, or that Mr. Henon’s separate criminal case is in any

way linked to the present case or the moving of lot lines. There is likewise no evidence that the

relevant City ordinances or the L&I violations cited to Mr. Holton pursuant to City ordinances

were in any way manipulated (unless City officials merely enforcing City ordinances in line with

the exact purpose they were enacted to address is equivalent to manipulation), and in fact, as the

procedural history of this case outlines, the validity of these L&I violations was tested and

upheld on multiple occasions by the L&I Review Board and state court. By contrast, the record

demonstrates that the title-description for the Holton Property has not changed since Mr.

Holton’s purchase of the Holton Property in 2004. See e.g., ECF No. 21 Ex. B. Indeed, Mr.

Holton has conceded this in as much as he has deserted his lot line argument and replaced it with

an adverse possession claim, for which there are no associated “lot lines,” as his description of

the land he claims to own through adverse possession consists, essentially, of nothing more than

a description of what his eyes can see from river to road. See e.g., ECF Nos. 72, 80. In fact, at the

Sanctions Hearing held before this Court on September 7, 2021, Plaintiff’s counsel represented

to the Court that “Mr. Holton believed when he bought the property in 199117 [sic] that he

bought everything, the piece that he is currently using, and the piece that the [City] has called the

Frankford Creek right of way,” despite the fact that the metes and bounds in the Holton Property

Deed are written in language a lay-person could understand, and there is no indication Mr.

Holton’s predecessor represented to Mr. Holton that he was selling him any land outside of the

deed. See ECF No. 72 at 6:16–23; see also ECF No. 21 Ex. A. Specifically, in addition to

providing the technical metes and bounds, the Holton Property Deed describes the Holton

Property’s western boundary as “along the center line of the former Balfour Street,” and makes

no mention of Richmond Street. ECF No. 21 Ex. A.

Despite switching gears to an adverse possession theory, counterintuitively on October

15, 2021, Plaintiff’s counsel filed a Motion to Defer Consideration of Defendants’ Motion for

Summary Judgment based largely on the grounds that “Plaintiff [Holton] should be entitled to

discovery from [D]efendant Henon” related to the Plaintiff’s conspiracy claim including the

alleged “manipulation of officials of the Department of Licenses and Inspections to falsify

ordinance violations and issue cease operations orders predicated thereon.” ECF No. 75 at p. 3.

The logic outlined in the Second Amended Complaint is that the L&I violations and cease

operations orders were faulty because the lot lines of the Holton Property had been changed

pursuant to an alleged conspiracy. Thus, once the lot line argument has been disproved by the

record and abandoned by Plaintiff, there is no basis upon which Plaintiff Holton can sustain an

argument that there was a conspiracy to “falsify ordinance violations and issue cease operations

orders predicated thereon” in relation to 4087 Richmond. Id.

In any case, to the extent Mr. Holton believed he had purchased 4087 Richmond when he

17 Both parties agree Mr. Holton bought the Holton Property in 2004 not 1991. See e.g., ECF No. 79 at ¶ 4.

purchased the Holton Property it is conceivable that, as a lay-person with a mistaken

understanding of ownership, he genuinely believed the issuance of L&I violations as to his use of

4087 Richmond and ultimate removal from that portion of the Frankford Creek Right-of-Way

were part of an illegal conspiracy to force him off land the land he mistakenly thought he owned

(but that in reality, was outside the scope of the Holton Property Deed). Yet, what is bewildering,

is that Mr. Holton’s attorneys ran with this false notion from the beginning without ever even

obtaining a survey of the relevant land. Indeed, one begins to wonder if there was, even at this

case’s inception, an awareness of this lack of ownership and whether it was because the City

proceeded with license violations rather than eviction, that Mr. Holton’s counsel believed the

best course of action was to move forward on the contention Mr. Holton owned, by deed, the

land he was removed from despite there being absolutely no evidence to support this claim.

Revealingly, current Plaintiff’s counsel, who entered the case long after its inception, appears to

have realized that the deed-ownership approach has no basis in fact, and that, thus, adverse

possession is the only avenue left. Compare ECF No. 21 with ECF No. 80. Transitioning into an

adverse possession argument, however, then also takes the foundation out of the “conspiracy to

relocate property lines” allegation and consequently also out of the conspiracy to “falsify

ordinance violations and issue cease operations ordinances predicated thereon” allegation. ECF

No. 21 ¶¶ 14–17. A City Councilman’s promise to constituents to remove junkyards from the

area is not actionable whether or not he enlisted the help of others to do so. In fact, it is

commendable if a City Councilman seeks to remove scrap metal, debris, and trailers located on a

floodway owned by the City. It simply does not follow that because “Mr. Henon…was

convicted…of bribery charges…” in a completely separate criminal matter, a conspiracy to

deprive Mr. Holton of his constitutional rights through the illegal taking of his property exists in

the present matter. ECF No. 98 at 10:16–17.

Finally, to the extent Mr. Holton maintains that he is entitled to depose Defendant Henon

at this point in the case, this Court finds such contention is without merit for the following

reasons. As previously mentioned, on October 15, 2021, Plaintiff’s counsel filed a Motion to

Defer Consideration of Defendants’ Motion for Summary Judgment based largely on the grounds

that “Plaintiff [Holton] should be entitled to discovery from [D]efendant Henon” related to the

Plaintiff’s conspiracy claim including the alleged “manipulation of officials of the Department of

Licenses and Inspections to falsify ordinance violations and issue cease operations orders

predicated thereon.” ECF No. 75 at p. 3. This Court denied that Motion on October 21, 2022.

ECF No. 78.

Mr. Holton’s conspiracy claim was premised, at the beginning of this case, on the

assertion that Defendant Henon “in concert with Defendants Jefferson and Gatti” conspired to

unlawfully “relocate[] the lot lines” of the Holton Property and then, after “issu[ing]…citations

for violations of regulatory ordinances, followed by orders to cease operations…,” removed Mr.

Holton from land he claimed to own by deed. See ECF No. 21 ¶¶ 13–17; Id. ¶ 16 (“At all times

material to Count One [Civil Conspiracy], Plaintiff [Holton] owned the Holton property in fee,

free and clear, pursuant to a Deed dated November 23, 2004, recorded May 16, 2004…attached

hereto.”). Yet as the case developed, it became clear to everyone involved, including evidently

Mr. Holton’s new counsel, that there is no evidence to support the contention that Mr. Holton

was removed from any land he owned by deed or that the lot lines stated on the Holton Property

Deed had ever changed (through nefarious means or otherwise). Accordingly, by the time Mr.

Holton raised the issue of further discovery as to Defendant Henon (i.e., in Plaintiff’s October

15, 2021 Motion to Defer Summary Judgment), it had also become clear to this Court that should

Defendant Henon be deposed there would be nothing he could offer relevant to the conspiracy

claim because Mr. Holton himself had already abandoned the argument that any lot lines were

relocated18 or that Mr. Holton was removed from any land he owned by deed and replaced it

with an adverse possession argument. See e.g., ECF No. 72 at 19:10–24 (Plaintiff’s counsel

acknowledging at the September 7, 2021 Sanctions Hearing that Mr. Holton was proceeding on a

theory of adverse possession); see also ECF No. 80 (further demonstrating a complete

abandonment of any claim related to the relocation of lot lines and proceeding on a theory of

adverse possession). Had Mr. Holton, at the time he requested additional discovery on Defendant

Henon in connection to his conspiracy claim, provided any indication that the lot lines of the

land he owned by deed had been changed or that any aspect of his conspiracy claim had merit,

this Court would have likely allowed the deposition of Defendant Henon.19 As it stood then and

18 Despite seemingly abandoning the lot line argument and replacing it with a theory of adverse

possession, Defense counsel counterintuitively appears to maintain the argument that the issuance for

violations of regulatory ordinances associated with Plaintiff’s use of 4087 Richmond were “falsified” as

part of the alleged conspiracy, even though this claim is facially dependent on the lot line argument. See

e.g., ECF No. 75 at p. 3.

19 Additionally, at Oral Argument Plaintiff Holton’s counsel represented he has been precluded from

taking Defendant Henon’s deposition due to the representation that Defense counsel would raise the high-

ranking official defense should a deposition of Mr. Henon be sought. See ECF No 98 at 10:15–24

(Plaintiff’s counsel stating, “I’ve on numerous occasion [sic], asked to take the deposition of Mr.

Henon…I’ve been refused the opportunity to take Mr. Henon’s deposition because {quote} “he was a

high[-]ranking city official” and therefore I wasn’t entitled to take it without taking all the underlying

depositions. So I did take the underlying depositions and I’m still refused the opportunity to take Mr.

Henon’s deposition and he is no longer a high ranking city official. He resigned last week.”). Although

this Court’s denial of Mr. Holton’s request for additional discovery on Mr. Henon related to his

conspiracy claim was based entirely on this Court’s determination that such discovery was neither

relevant nor proportional to the needs of the case, this Court notes that during the time period relevant to

this case, Mr. Holton was a high-ranking city official and would have been exempt from deposition absent

a showing of extraordinary circumstances. See Buono v. City of Newark, 249 F.R.D. 469, 470 n. 2 (D.N.J.

2008) ("Absent extraordinary circumstances, good cause exists to preclude the deposition of a high[-

]level government official because there is a public policy interest in ensuring that high level government

officials are permitted to perform their official tasks without disruption or diversion… To determine if

extraordinary circumstances exist, courts consider whether or not the party seeking the deposition has

shown: (1) that the official's testimony is necessary to obtain relevant information that is not available

from another source; (2) the official has first-hand information that could not be reasonably obtained from

other sources; (3) the testimony is essential to that party's case; (3) the deposition would not significantly

as it stands now, however, Mr. Holton’s claim for conspiracy rests primarily on facts that he has

effectively conceded are not true (i.e. that he ever owned any portion of 4087 Richmond via

deed). See generally ECF No. 80.

IV. CONCLUSION

For the reasons stated above Defendants Motion for Summary Judgment (ECF No. 74) is

hereby GRANTED.

BY THE COURT:

DATED: March 9, 2022 /s/ Chad F. Kenney

CHAD F. KENNEY, J.

interfere with the ability of the official to perform his government duties; and (4) that the evidence sought

is not available through any alternative source or less burdensome means.”). As the record stands, there is

no evidence to suggest that Mr. Holton’s counsel would have been able to establish that Mr. Henon’s

testimony would have been necessary to obtain relevant information, that Mr. Henon had first-hand

information that could not reasonably obtained from other sources, that such testimony was essential to

Mr. Holton’s case, or that such evidence would have been unobtainable from less burdensome means. See

e.g., ECF No 98 at 10:15–24 (discussing Plaintiff’s counsel’s failure to serve interrogatories on Defendant

Henon).