Mondesir

IN THE UNITED STATES DISTRICT COURT

| FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PIERRE MONDESIR, individually and : No. 3:22cv1175

trading as Mondesir Entertainment — :

Investment Group, LLC, (Judge Munley)

Plaintiff ;

V. □

| KINGSTON BOROUGH; CHIEF

| RICHARD J. KOTCHIK; OFFICER :

| JOHN BELVILAGUA; and OFFICER:

| “DOE” 1-10, :

| Defendants :

| MEMORANDUM

| Plaintiff Pierre Mondesir purchased a takeout pizza shop and bar in

| Kingston Borough which went out of business not long after the purchase. He

| contends that the borough and two of its police officers, Chief Richard J. Kotchik

| and Officer John Bevilaqua, used their official authority in a manner that violated

| plaintiff's civil rights, effectively forcing his business to close. Through a motion

| for summary judgment, defendants assert that Mondesir has no evidence to

| support such allegations. As discussed below, defendants are correct and their

| motion for summary judgment will be granted.

| Background

In April 2021, Pierre Mondesir bought a business—Leonardo’s—in

| Kingston Borough, Luzerne County.' (Doc. 52, SOF § 1). At the time of

| purchase, Leonardo’s operated as a pizza shop and beer store. (Id. J 2). The bar

on the property was not operating. (Id.) Mondesir testified that he purchased the

property because it had a bar and a place to hold parties. (Doc. 52-2, PI. Dep.

| 14:6-15:19). Mondesir indicated that he invested over $100,000 into

rehabilitating the structure. (Id. 43:5-20).

| Mondesir later opened the bar.? (Doc. 52, SOF 9 5; Doc. 52-2, PI. Dep.

| 44:7-10). He testified that he ran part of the bar area as a private club. (Doc. 52-

2, Pl. Dep. 33:5-15).

Mondesir’s vision for Leonardo’s came into conflict with local building codes

| and zoning ordinances. On October 18, 2021, Mondesir applied for a zoning

| permit to offer live entertainment, live bands, and DJs at Leonardo’s. (Doc. 52-5,

| ' Unless noted otherwise, the court cites to the defendants’ statement of material facts

| (“SOF”), (Doc. 52), for facts which the plaintiff admitted in his response to the SOF, (see Doc.

151, “RSOF”). Additionally, the court cites to plaintiff's counterstatement of material facts

| (“CSOF”), (Doc. 54), for additional facts not present in the SOF but which the defendants

admitted in their response (“RCSOF”), (Doc. 60). All facts from the record are construed in a

light most favorable to Mondesir as the nonmoving party. See Daniels v. Sch. Dist. of

| Philadelphia, 776 F.3d 181, 187 (3d Cir. 2015) (citation omitted).

2 Mondesir testified that the bar operated as Shanix and Leonardo’s. (Doc. 52-2, Pl. Dep.

| 44:7-12, 72:20-73:9). The court refers to all of the businesses operating on the property as

| “Leonardo’s” to avoid confusion.

|

| ECF p. 1). The application was denied by the zoning officer and by the Kingston

| Borough Zoning Hearing Board (“Kingston ZHB”) because it was a non-permitted

| use in a commercial zone where the property was located. (Id. ECF pp. 27-31,

|ZHB Decision |). Thereafter, Mondesir filed a notice of appeal in the Luzerne

| County Court of Common Pleas, which remanded the matter back to the

| Kingston ZHB with questions regarding pre-existing, non-conforming uses. (Id.

| ECF pp. 37-45, ZHB Decision Il). Based on testimony and evidence presented

| at the remand hearing, the Kingston ZHB reaffirmed its original decision to deny

| Mondesir’s application for live entertainment at Leonardo’s, holding that there

no evidence of a pre-existing, non-conforming use at the property. (Id.)

Additionally the Kingston ZHB concluded that any pre-existing use of live

| entertainment had been abandoned for at least four years. (Id.)

| While zoning and land use proceedings were ongoing, the Kingston

Borough Police Department (“Kingston PD”) responded to Leonardo’s on multiple

| occasions for reasons disputed by the parties in this matter. (Doc. 52, SOF □□

13-15). Defendants contend that the police responses were for legitimate

purposes. (Id.) Mondesir asserts that police officers intended to intimidate his

| customers. (Doc. 54, CSOF J 24). In any event, at no time did an officer of

| Kingston PD initiate charges or take action against Mondesir. (Doc. 52, SOF

20).

In April 2023, Kingston Borough’s fire chief notified Mondesir that an

investigation was ongoing regarding overcrowding at the establishment. (Doc.

92-5, ECF p. 35). Per the fire chief, he had evidence from Kingston PD and

borough code enforcement that an estimated crowd of 200 or more individuals

was present on the premises on April 23, 2022, in violation of the code. (Id.)

Leonardo’s certificate of occupancy only permitted 85 persons. (Id. ECF pp. 35—

36). At his deposition, Mondesir testified that a Kingston Borough official showed

him a video on the official’s phone and told him that Leonardo’s had over 200

people on the premises. (Doc. 52-2, Pl. Dep. 47:5-48:19). Mondesir

nonetheless denied that Leonardo’s had over 200 people on the premises in April

2022. (Id.)

Kingston Borough revoked Leonardo's certificate of occupancy with an

effective date of April 26, 2022. (Doc. 52, SOF J 11). In a letter, Kingston

Borough's code enforcement officer notified Mondesir of the revocation and

ordered him to cease and desist from operating any business at the location.

(Doc. 52-5, ECF p. 32). The borough further stated in the letter that Kingston PD

had confirmed that Leonardo’s was providing live entertainment on the premises

in direct violation of the Kingston ZHB decision and that the premises had been

overcrowded. (Id.) As a result, the property was deemed off-limits to all

individuals effective immediately. (Id.) The letter also explained that the

| revocation would be permanent unless Mondesir’s pending appeal of the board’s

decision was adjudicated in his favor by the Luzerne County Court of Common

| Pleas. (Id.) From the record available to the court, it does not appear that the

zoning matter was appealed again to the trial court.

| According to defendants, Leonardo’s unlawfully hosted live entertainment

on multiple occasions. (Doc. 60, CSOF ¥ 1). For instance, a police officer

| working in an undercover capacity witnessed a DJ performing live at Leonardo’s

on April 22, 2022. (Doc. 52-5, ECF p. 106). The record also includes multiple

advertisements promoting live entertainment at the premises. (See Doc. 56-11).

Frederic Strohl, Leonardo’s former manager, testified that advertisements for live

events were posted online and, at times, were displayed at the facility. (Doc. 52-

3, F. Strohl Dep. 48:13-49:4). Strohl further testified that during his time at

Leonardo’s, various DJs performed there on numerous occasions. (Id. 49:8-

50:14).

| Mondesir, by contrast, maintains that his establishment never hosted live

entertainment. (Doc. 54, CSOF 7 1). He also asserts that the advertisements

| were not created at his direction and that he had no control over their content.

Mondesir voluntarily ceased operations at Leonardo’s at some point in

2022.° (Doc. 52, SOF J 21). Mondesir contends that defendants’ actions caused

the closure. (Doc. 53, RSOF □□ 21). According to Mondesir, the constant

presence of police officers near Leonardo’s conveyed the message that black

patrons and a black owner of the establishment were not welcome in Kingston.

(Doc. 54, CSOF J 29). Defendants, however, assert that the police officers

reported to Leonardo’s on multiple occasions when called to address specific,

legitimate concerns. (Doc. 60, RSOF J 26).

Plaintiff filed his complaint on July 28, 2022 with eight (8) separate claims.

(Doc. 1). Following a split ruling on defendants’ motion to dismiss, Mondesir v.

Kingston Borough, No. 3:22CV1175, 2024 WL 2328210 (M.D. Pa. May 22,

2024), the operative claims remaining in this case are as follows:

e Count | — Deprivation of property interest (liquor license and

occupancy permit) without due process of law, pursuant to 42

U.S.C. § 1983 and the Fourteenth Amendment to the United

States Constitution as to all defendants;

e Count Il — Violation of the Equal Protection Clause of the United

States Constitution based on selective enforcement pursuant to

42 U.S.C. § 1983 as to Defendants Chief Kotchik, John

Bevilagua, and Officer “Doe” 1-10;

3 Per Mondesir, he closed the club portion of the business in March 2022. (Doc. 52-2, Pl. Dep,

103:17-104:4). He then testified that as of May 2022, Leonardo’s was still receiving

customers. (Id. at 104:5-8).

e CountIll — Municipal liability claim for Kingston Borough’s failure

| to adequately train its officers under Monell v. Dep’t of Soc. Svcs.

| of City of New York, 436 U.S. 658 (1978);

e Count IV — State common law claims for tortious interference

| with business relations as to Defendants Chief Kotchik, John

| Bevilagua, and Officer “Doe” 1-10;

e Count Vill — Civil conspiracy under 42 U.S.C. § 1983 as to all

| defendants.

Following the close of discovery, defendants filed a motion for summary

judgment on the above claims. (Doc. 50). Their brief in support addressed all

counts remaining in the complaint. (Doc. 51). Mondesir’s brief in opposition

only addressed his selective enforcement claim asserted in Count II under 42

U.S.C. § 1983 (“Section 1983”). (Doc. 55 at 6-24). Despite this apparent

abandonment of certain claims, the parties have supplied an extensive record.

After careful review, summary judgment is appropriate, and the motion will be

granted in favor of defendants as to all claims.

Jurisdiction

| As plaintiff brings several claims pursuant to 42 U.S.C. § 1983 (“Section

| 1983"), the court has federal question jurisdiction. See 28 U.S.C. § 1331. The

| court has supplemental jurisdiction over plaintiffs state law claims pursuant to 28

| U.S.C. § 1367.

|

| Legal Standard

| Defendants have filed a motion for summary judgment. Summary

judgment is proper when there is no genuine issue of material fact in the case

and the moving party is entitled to judgment as a matter of law. Reedy v.

| Evanson, 615 F.3d 197, 210 (3d Cir. 2010) (citation omitted); see also FED. R.

Civ. P. 56(a). “A fact is material if its resolution ‘might affect the outcome of the

| suit under the governing law,’...[a]nd a dispute is genuine ‘if the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.’ ” Mall

Chevrolet, Inc. v. Gen. Motors LLC, 99 F.4th 622, 631 (3d Cir. 2024) (quoting

| Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

At this stage, the judge's function is not “to weigh the evidence and

| determine the truth of the matter but to determine whether there is a genuine

issue for trial.” Anderson, 477 U.S. at 249. All “facts in dispute,” Daniels, 776

F.3d at 187, and all “inferences to be drawn from the underlying facts must be

viewed in the light most favorable to the [opposing] party[,]” Matsushita Elec.

| Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (cleaned up).

| “[W]hen there is a disagreement about the facts or the proper inferences to be

| drawn from them, a trial is required to resolve the conflicting versions of the

| parties.” Peterson v. Lehigh Valley Dist. Council, United Bhd. of Carpenters &

Joiners: 676 F.2d 81, 84 (3d Cir. 1982). Furthermore, “a court's role remains

|

circumscribed in that it is inappropriate for a court to resolve factual disputes and

to make credibility determinations.” Big Apple BMW, Inc. v. BMW of N. Am., Inc.,

974 F.2d 1358, 1363 (3d Cir. 1992) (citation omitted). “[W]here the non-moving

| party's evidence contradicts the movant's, then the non-movant's must be taken

| as true.” Id. (citations omitted).

As for the claims apparently discarded by the counseled plaintiff, a motion

for summary judgment may also be granted where a moving party demonstrates

that the nonmoving party “has not made ‘a showing sufficient to establish the

existence of an element essential to that party's case ... on which that party will

| bear the burden of proof at trial.’ ” Mall Chevrolet, Inc., 99 F.4th at 630 (quoting

Celotex Corp. v. Catrett, 477 U.S. 317, 332 (1986) (emphasis removed)). After a

moving party carries their burden to show the absence of a genuine, material

factual dispute, Rule 56 flips the burden onto “the nonmovant to ‘go beyond the

pleadings and by [its] own affidavits, or by the depositions, answers to

| interrogatories, and admissions on file, designate specific facts showing that

there is a genuine issue for trial.’ ” Daubert v. NRA Grp., LLC, 861 F.3d 382, 391

(3d Cir. 2017) (quoting Celotex Corp., 477 U.S. at 324). The non-moving party

| must “do more than ‘simply show that there is some metaphysical doubt as to the

material facts.” Id. (quoting Matsushita Elec. Indus. Co., 475 U.S. at 587).

|

If a party fails to properly address another party’s assertion of fact as

required by Rule 56, the court may “grant summary judgment if the motion and

supporting materials—including the facts considered undisputed—show that the

movant is entitled to it.” FED. R. Clv. P. 56(e)(3). Summary judgment is

appropriate where the moving party is entitled to judgment as a matter of law.

Anchorage Assocs. v. Virgin Islands Bd. of Tax Rev., 922 F.2d 168, 175 (3d Cir.

1990).

Analysis

Prior to reviewing Mondesir’s claims against the summary judgment record

itself, there are threshold disputes over that record, which were raised by the

| defendants in their reply brief. Defendants contend that Mondesir has engaged

in litigation misconduct. Mondesir has not responded to these serious

| allegations.

| ls Whether the Court Should Consider Video Evidence and Mondesir’s

Affidavit

| Defendants raise two issues, one related to video footage provided by

plaintiff after the motion for summary judgment was filed and another regarding

| Mondesir’s affidavit, which defendants argue is a sham affidavit. The court will

address these issues in turn.

Surveillance and Snapchat Videos — To support his brief in opposition,

| Mondesir attached a series of short videos purportedly demonstrating a police

10

presence outside of Leonardo’s. (See Doc. 56-4). While defendants maintain

that these videos do not demonstrate any improper conduct, they contend that

their use in support of Mondesir’s brief in opposition is improper. (Doc. 59, Reply

| Br. at 7-9). Defendants argue that they specifically requested video footage in

their initial discovery requests on at least four occasions. * (Id. at 8).

| Defendants aver that Mondesir provided the requested videos for the first

in an email dated January 21, 2025, over a month after the expiration of the

discovery deadline in this matter and nearly three weeks after defendants

| submitted their motion for summary judgment. (Id. at 9). Per defendants,

| Mondesir has offered no justification for his failure to produce these videos during

discovery. (Id.) Thus, defendants argue that the video footage Mondesir relied

upon in his brief in opposition should be excluded from consideration.

| Rule 26 of the Federal Rules of Civil Procedure requires litigants to

| supplement discovery responses in a timely manner should additional responsive

information become known or available, or should the responding party learn that

a previously made disclosure is incorrect or incomplete. FED. R. Clv. P. 26(e)(1).

Adkltionally Rule 37 provides that “[i]f a party fails to provide information... as

4 Defendants requested a discovery conference with the court on July 9, 2024 and August 5,

| 2024 to address plaintiff's failure to produce these videos. (Doc. 59, Reply Br. at 8-9).

Nevertheless, a scheduled discovery conference was cancelled upon the defendants’ request.

(See Doc. 45).

11

required by [Rule 26(e)], the party is not allowed to use that information... to

supply evidence on a motion... or at a trial, unless the failure was substantially

justified or is harmless.” FED. R. Civ. P. 37(c)(1).

To rely on the videos in opposing the motion for summary judgment,

Mondesir must demonstrate that his failure to produce them in discovery was

substantially justified or harmless. Tolerico v. Home Depot, 205 F.R.D. 169, 175

(M.D. Pa. 2002). Plaintiff can demonstrate neither.

First, “substantial justification” means “justification to a degree that could

satisfy a reasonable person that parties could differ as to whether the party was

required to comply with the disclosure request.” Id. (citation omitted). “The test of

substantial justification is satisfied if ‘there exists a genuine dispute concerning

compliance.’ ” Id. at 175-76 (citation omitted). Mondesir, however, did not

attempt to refute defendants’ assertions.°

Second, “[a] party's misconduct is harmless if it involves an honest mistake,

coupled with sufficient knowledge by the other party of the material that has not

been produced.” Id. From the circumstances discernable to the court, the

misconduct is not harmless.

5 Although this issue was raised in defendants’ reply brief, Mondesir could have requested

leave to file a sur-reply brief to challenge these assertions.

12

Furthermore, the decision to exclude evidence is also a matter of the

court's discretion. Several factors® have been identified for courts to consider

when exercising that discretion:

(1) the prejudice or surprise in fact of the party against

| whom the excluded witnesses would have testified or the

| excluded evidence would have been offered; (2) the

| ability of that party to cure the prejudice; (3) the extent to

which allowing such witnesses or evidence would disrupt

the orderly and efficient trial of the case or of other cases

| in the court; (4) any bad faith or willfulness in failing to

comply with the court's order and (5) the importance of

the excluded evidence.

| See ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 298 (3d Cir. 2012);

| Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 719 (3d Cir. 1997).

| In consideration of the above factors, plaintiff has offered no explanation

why video evidence was submitted after the discovery and dispositive motions

| deadlines or why such late disclosure is harmless. Defendants conducted

| discovery, formulated their litigation strategy, and prepared their dispositive

| motion without the opportunity to examine this evidence or question witnesses in

| their depositions about such evidence. They are prejudiced at this point in the

| litigation. The court cannot alleviate such prejudice without completely reopening

record. Doing so would condone plaintiff's discovery violations and untimely

These factors are commonly referred to as the Pennypack factors as originating from Meyers

v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 905 (3d Cir. 1977), overruled on

| other grounds by Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir. 1985).

| Te

disclosures. Additionally, the decision to produce the videos in opposition to

summary judgment (after over two years of litigation) supports an inference of

willfulness. Finally, as for the importance of the videos, plaintiff cites them for the

proposition that they demonstrate “an abusive police presence” and efforts “to

harass and intimidate the bar’s black and Hispanic patronsJ.]” (Doc. 55 at 18-19).

If such evidence is as important as Mondesir claims, he had every reason to

disclose it during discovery. Because he did not, the court will not consider the

videos offered by Mondesir in opposition to summary judgment.’

| Mondesir's Affidavit - Mondesir also submits his own affidavit to oppose

motion for summary judgment. (Doc. 56-1). In reply, defendants assert that

Mondesir's affidavit is unsupported by the record and created for the sole

| purpose of defeating summary judgment. (Doc. 59, Reply Br. at 12). Defendants

| thus rely on the sham affidavit rule to argue that Mondesir’s missive should be

| disregarded here. See Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 253 (3d

| Cir. 2007) (“A sham affidavit is a contradictory affidavit that indicates only that the

? Having reviewed the video submissions in order to exercise its discretion, the court

| concludes that the videos do not demonstrate much of anything. Police vehicles are visible

| enough to be identified in three of the videos. In addition to one Kingston PD vehicle

| observable in one video, a Pennsylvania State Police and an Edwardsville Police Department

| vehicle are visible in the other videos. Additionally, one other submission appears to be a

| Snapchat video depicting the establishment filled shoulder-to-shoulder with patrons. Snapchat

| stickers suggest that the video was taken at 1:58 a.m. during a birthday party. Even if

considered in this case, the videos would not create a genuine issue of material fact as to any

| of plaintiff's claims.

| 14

| affiant cannot maintain a consistent story or is willing to offer a statement solely

| for the purpose of defeating summary judgment.”). After review of the affidavit

against the record, a very time-consuming process, adopting the defendants’

| position in this case would extend that doctrine too far.

| Specific rules about affidavits exist at the summary judgment phase

because memory is fallible, but fabrication is unforgivable. See FED. R. Civ. P.

| 56(h) (“If satisfied that an affidavit or declaration under [Rule 56] is submitted in

bad faith or solely for delay, the court — after notice and a reasonable time to

respond — may order the submitting party to pay the other party the reasonable

expenses, including attorney’s fees, it incurred as a result. An offending party or

attorney may also be held in contempt or subjected to other appropriate

sanctions.”)

| Short of such sanctionable conduct, “a party may not create a material

issue of fact to defeat summary judgment by filing an affidavit disputing his or her

| Own sworn testimony without demonstrating a plausible explanation for the

| conflict.” Baer v. Chase, 392 F.3d 609, 624 (3d Cir. 2004) (citing Hackman v.

Fair, 932 F.2d 239, 241 (3d Cir. 1991)). As recently articulated, “[t]he

| sham affidavit rule allows a court to disregard a later statement by a deponent on

two conditions: the later statement contradicts the witness's deposition testimony,

and the discrepancy between the two statements is neither supported by record

| 15

| evidence nor otherwise satisfactorily explained.” SodexoMAGIC, LLC v. Drexel

Univ., 24 F.4th 183, 209 (3d Cir. 2022) (citing Daubert v. NRA Grp., LLC, 861

F.3d 382, 391-92 (3d Cir. 2017); Jiminez, 503 F.3d at 254. In applying this

doctrine, courts “adhere to a ‘flexible approach,’...giving due regard to the

‘surrounding circumstancesJ.]’” Daubert, 861 F.3d at 391 (quoting Baer, 392

| F.3d at 624).

lf, for example, the witness shows she was confused at the

earlier deposition or for some other reason misspoke, the

| subsequent correcting or clarifying affidavit may be

sufficient to create a material dispute of fact. Same result

| if there's independent evidence in the record to bolster an

| otherwise questionable affidavit.

| The court may, on the other hand, disregard an affidavit

| when the affiant was carefully questioned on the issue, had

| access to the relevant information at that time, and

| provided no_ satisfactory explanation for the later

contradiction. It may similarly disregard an affidavit entirely

unsupported by the record and directly contrary to other

relevant testimony, or if it's clear the affidavit was offered

solely to defeat summary judgment.

Id. at 391-92 (cleaned up).

| At the same time, the sham affidavit rule “does not apply to...

| noncontradictory portions of the declarations” because that would take the trial

judge into the forbidden province of weighing witness credibility. SodexoMAGIC,

LLC, 24 F.4th at 210 (3d Cir. 2022).

A review of Mondesir’s affidavit reveals that only certain portions, rather

than the affidavit as a whole, are contradicted by his testimony. Specifically, the

affidavit states that Kingston Borough concluded that the nonconforming use (live

entertainment at the subject property) had been abandoned despite having no

records of prior nonconforming uses. (See Doc. 56-1 J 14). This particular

paragraph in the affidavit is contradicted by Mondesir’s own deposition testimony

in which he repeatedly stated that the bar had not been in operation when he

| purchased the business. (Doc. 52-1, Pl. Dep., 15:6-17:13). This testimony

| supports the borough's determination that any nonconforming use had been

abandoned. Additionally, the former manager of Leonardo’s, Frederic Strohl,

similarly testified that the portion of the property dedicated to a bar had been

| closed at the time plaintiff purchased it. (See Doc. 52-3, F. Strohl Dep. at 7:5-12).

| For purposes of the analysis that follows, the court will apply the sham

affidavit rule only to those portions of Mondesir’s affidavit addressing zoning

|issues. Summary judgment does not present an occasion to make credibility

| assessments. SodexoMAGIC, LLC, 24 F.4th at 210. Thus, the court will deny

| defendants’ request to strike the remaining portions of Mondesir’s affidavit. In

| any event, as explained below, those other portions of the affidavit do not defeat

| summary judgment.

2. Defendants Officer “Doe” 1-10 Will Be Dismissed

| Mondesir’s affidavit does not save his claims relative to Defendants Officer

| “Doe” 1-10, the unidentified police officer defendants in this matter. Under the

law, “Doe defendants ‘are routinely used as stand-ins for real parties until

discovery permits the intended defendants to be installed.’ ” Hindes v. F.D.I.C.,

| 137 F.3d 148, 155 (3d Cir. 1998) (quoting Scheetz v. Morning Call, Inc., 130

| F.R.D. 34, 36 (E.D. Pa. 1990)). A plaintiff must identify a Doe defendant

| because, if discovery yields no identities, fictitious parties must eventually be

| dismissed. See id. (citing Scheetz, 130 F.R.D. at 37).

Moreover, “[o]n motion or on its own, the court may at any time, on just

terms, add or drop a party.” Feb. R. Civ. P. 21. Put another way, “Rule 21

| empowers courts to police the litigation's cast of characters.” Avenatti v. Fox

| News Network LLC, 41 F.4th 125, 130 (3d Cir. 2022).

Where a plaintiff has had a reasonable opportunity to conduct discovery

and ascertain the identities of Jonn Doe defendants but has failed to do so,

| dismissal of the John Doe defendants is appropriate. Blakeslee v. Clinton Cnty.,

336 F. App'x 248, 250 (3d Cir. 2009). Courts in the Third Circuit have used Rule

21 to exclude Doe parties from an action under appropriate circumstances, such

as the failure to identify individuals during discovery. See King v. Mansfield Univ.

of Pennsylvania, No. 1:11-CV-1112, 2014 WL 4546524, at *10 (M.D. Pa. Sept.

18

12, 2014) (Brann, J.) (collecting cases). Moreover, at the summary judgment

stage, claims against unidentified defendants cannot proceed to trial because the

plaintiff cannot establish that a genuine dispute of material fact exists as to any

particular individual. See Celotex Corp., 477 U.S. at 322-23.

At this stage, discovery has been closed and Mondesir has not identified

Officer “Doe” 1-10 by name. The court will thus dismiss all claims against these

defendants under Rule 21.

That leaves two known, named police officers from Kingston PD as

defendants in this action, Chief Kotchick and Officer Bevilaqua. The court will

discuss the claims involving these individual defendants after a more general

evaluation of the evidence against Mondesir's claims in this matter. As

discussed next, Mondesir’s evidence is insufficient to counter the evidence

| supplied in support of the motion for summary judgment

3. Summary Judgment is Appropriate on Mondesir’s Section 1983

Claims

| Mondesir’s complaint asserts that defendants violated his Fourteenth

/Amendment rights by violating his due process and equal protection rights.

Section 1983 serves as the vehicle through which private citizens may seek

| redress for violations of federal constitutional rights committed by state officials.

The statute is not a source of substantive rights; rather it serves as a mechanism

| for vindicating rights otherwise protected by federal law. See Gonzaga Univ. v.

19

Doe, 536 U.S. 273, 284-85 (2002). As such, Section 1983 serves as a statutory

tool for enforcing the Fourteenth Amendment. Lynch v. Household Finance

Corp., 405 U.S. 538, 545 (1972). The court will address Mondesir’s procedural

due process claims first.

a. Procedural Due Process Claims

The Fourteenth Amendment of the U.S. Constitution forbids a state from

depriving persons of life, liberty, or property without due process of law. U.S.

CONST. AMEND XIV, §1. Procedural due process requires that individuals receive

“the opportunity to be heard at a meaningful time and in a meaningful manner”

when they are impacted by government action. Mathews v. Eldridge, 424 U.S.

319, 333 (1976). To prevail on a procedural due process claim, a plaintiff must

establish that: 1) the defendant acted under color of state law; (2) the defendant

deprived him of a property interest; and (3) the state procedures for challenging

the deprivation failed to satisfy the procedural due process requirements.

Midnight Sessions, Ltd. v. City of Phila., 945 F.2d 667, 680 (3d Cir. 1991)

(overruled on other grounds by United Artists Theatre Cir., Inc. v. Twp. of

Warrington, PA, 316 F.3d 392 (3d Cir. 2003)).

Mondesir alleges in his complaint that the defendants deprived him of his

liquor license and occupancy permit without affording him due process of law.

(Doc. 1, Compl. ff] 61, 69). However, when a state “affords a full judicial

20

mechanism with which to challenge the administrative decision” at issue, it

provides adequate procedural due process, regardless of whether a plaintiff

elects to avail himself of that process. DeBlasio v. Zoning Bd. of Adjustment for

Twp. of W. Amwell, 53 F.3d 592, 597 (3d Cir. 1995), abrogated by United Artists

Theatre Cir., Inc. v. Twp. of Warrington, PA, 316 F.3d 392 (3d Cir. 2003); see

also Midnight Sessions, 945 F.2d at 681 (“The availability of a full judicial

mechanism to challenge the administrative decision to deny an application, even

an application that was wrongly [decided], preclude[s] a determination that the

decision was made pursuant to a constitutionally defective procedure.”).

The allegations that Kingston PD, Chief Kotchick, and Officer Bevilacqua

deprived Mondesir of his liquor license are meritless against the summary

judgment record. Mondesir testified that his liquor license was not revoked.

(Doc. 52-2, Pl. Dep. 93: 16-17). Additionally, there is no evidence that Kingston

PD was involved in any alleged liquor license violations. Rather, a Pennsylvania

Liquor Control Board adjudication (supplied by Mondesir) indicates that the

license was suspended for one day in October 2022 and Mondesir’s business

was assessed a $2,500 fine. (Doc. 56-3, ECF p. 4). The adjudication indicates

that Mondesir executed a statement of admission, waiver, and authorization in

which he: 1) admitted to the charged violations; 2) agreed that the Bureau of

Liquor Control Enforcement of the Pennsylvania State Police (“Bureau”) complied

21

| with all applicable laws and regulations; 3) authorized the administrative law

| judge to enter an adjudication without a hearing based on the Bureau summary

| of facts and prior citation history; and 4) waived his right to appeal the

adjudication. (Id. ECF p. 3).

As for the zoning and occupancy permit issues, Mondesir has not supplied

| evidence indicating that he fully availed himself of the process available in state

| courts to challenge local land use decisions. Under the law, when a state

| provides a judicial mechanism that appears to afford due process, the plaintiff

| may not bypass that remedy and seek relief in federal courts. See McDaniels v.

| Flick, 59 F.3d 446, 460 (3d Cir. 1995). Accordingly, federal courts routinely

| reject procedural due process claims asserted by plaintiffs who fail to fully avail

themselves of those remedies under state law. See, e.g., Giuliani v. Springfield

Twp., 238 F. Supp. 3d 670, 692 (E.D. Pa. 2017), aff'd, 726 F. App'x 118 (3d Cir.

2018); Sixth Angel Shepherd Rescue Inc. v. West, 790 F. Supp. 2d 339, 358

(E.D. Pa. 2011), affid, 477 F. App'x 903 (3d Cir. 2012); See also Zinermon v.

| Burch, 494 U.S. 113, 126 (1990) (holding that a due process violation “is not

complete when the deprivation occurs; it is not complete unless and until the

State fails to provide due process.”).

The evidence supplied by defendants indicates that Mondesir’s certificate

| of occupancy was revoked as of April 26, 2022. (Doc. 52-5, ECF p. 36).

| 22

According to defendants, the revocation stemmed from severe overcrowding that

| far exceeded Leonardo’s permitted occupancy. (Id. ECF pp. 32-33). In a letter

addressed to Mondesir, Kingston Borough explained that the revocation would

be permanent unless Mondesir’s pending appeal of the Kingston ZHB decision

was adjudicated in his favor by the Luzerne County Court of Common Pleas. (Id.)

In response to this evidence and defendants’ arguments, Mondesir did not supply

| any countervailing evidence or contrary arguments. The record ends with the

| Kingston ZHB decisions. Nothing in the record indicates that Mondesir appealed

that decision to the trial court.

Consequently, it is undisputed that Mondesir retained the opportunity to

appeal the land use decisions by Kingston Borough to the Luzerne County Court

of Common Pleas throughout his ownership and operation of Leonardo’s but

failed to do so. Because no reasonable jury could conclude that adequate

judicial remedies were not available to Mondesir under state law, defendants’

motion for summary judgment as to Mondesir’s procedural due process claims

will be granted.

b. Equal Protection Claims

The Fourteenth Amendment prohibits a state from “deny[ing] to any person

within its jurisdiction the equal protection of the laws.” U.S. CONST. AMEND XIV,

§1. The Equal Protection Clause directs that “all persons similarly situated

23

| should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S.

432, 439 (1985). To succeed with a Section 1983 claim for a denial of equal

protection, a plaintiff must prove the existence of purposeful discrimination and

demonstrate that he received different treatment from that received by other

individuals similarly situated. Chambers ex rel. Chambers v. Sch. Dist. Of

Philadelphia Bd Of Educ., 587 F.3d 176, 196 (3d Cir. 2009).

Here, Mondesir’s equal protection claims take the form of selective

enforcement. These selective enforcement claims are advanced only against

Chief Kotchik and Officer Bevilaqua, not Kingston Borough. (Doc. 1, Compl. JJ

|71~-82).

Selective enforcement of, and selective prosecution under, facially neutral

laws or policies is a form of discrimination that violates the Equal Protection

| Clause. Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005) (citing Yick Wo

v. Hopkins, 118 U.S. 356, 373-74 (1886); Holder v. City of Allentown, 987 F.2d

188, 194 (3d Cir. 1993)).

Mondesir identifies as a person of color. He also asserts that Leonardo’s

was the only bar and restaurant in Kingston Borough owned by a person of color.

Additionally, Mondesir avers that Leonardo’s clientele was predominantly African

American and Hispanic. On this basis, Mondesir predicates his selective

enforcement claims on race.

24

| “To make an equal protection claim in the profiling context,” Mondesir must

demonstrate that the actions of Chief Kotchik and Officer Bevilaqua “(1) had a

| discriminatory effect and (2) were motivated by a discriminatory purpose.”

| Bradley v. United States, 299 F.3d 197, 205 (3d Cir. 2002) (citing Arlington

Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 264-66 (1977); Washington

iv. Davis, 426 U.S. 229, 239-42 (1976) (further citations omitted). To establish a

| discriminatory effect, Mondesir must show that he was treated differently from

| other similarly situated individuals. ld. A “discriminatory purpose,” in essence,

| means an “unjustifiable standard, such as race, or religion, or some other

| arbitrary factor, ... or to prevent the exercise of a fundamental right.” Holder, 987

F.2d at 197 (citing United States v. Schoolcraft, 879 F.2d 64, 68 (3d Cir. 1989)

: (internal quotations omitted).

| With respect to the similarly situated element, persons are similarly situated

under the Equal Protection Clause when they are “alike in all relevant aspects.”

Startzell v. City of Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008). Mondesir must

| therefore prove that Leonardo’s was treated differently from similarly situated

establishments and must produce evidence from which a racially discriminatory

| purpose can be inferred. Mondesir’s assertion that Leonardo’s was the only bar

| and restaurant owned by a person of color in Kingston Borough, standing alone,

| 25

does not satisfy his burden. Likewise, lists of other establishments, without any

| further explanation or supporting detail, do not suffice.

Additionally, Mondesir referenced another bar numerous times in his

deposition, Swizzle Sticks, a bar his business shared a parking lot with. (Doc. 52-

2 58:10-17, 61:23-63:24-: 78:14-81:19, 83:4-85:23-: 86:20-90:1; 102:3-14:

104:24—105:6; 125:3-126:4). However, the border of Edwardsville Borough and

Kingston Borough runs down Main Street. Id. Mondesir’s establishment was

located in Kingston, while Swizzle Sticks was in Edwardsville. Mondesir offered

no evidence regarding the demographic composition of Swizzle Sticks’ clientele,

nor any evidence that Swizzle Sticks received preferential treatment from any

police department. Thus, Swizzle Sticks is not an appropriate comparator

business. Additionally, its existence supplies non-discriminatory reasons why

| police departments from two different jurisdictions would have patrolled the area

around Mondesir’s business.

| At summary judgment, the plaintiff must present evidence sufficient to

permit a reasonable jury to find that the defendant officers engaged in selective

| enforcement. See Hill, 411 F.3d at 125. After review of the record, all Mondesir

| has to offer are conclusory allegations of discriminatory treatment without specific

| factual support and evidence that no reasonable jury would use to find in his

| 26

| favor. Summary judgment will be granted in favor of Chief Kotchik and Officer

Bevilaqua on the selective enforcement claim.

| c. Municipal Liability Claims Against Kingston Borough

Count III of Mondesir’s complaint alleges that Kingston Borough failed to

train its police officers, a municipal liability claim. As demonstrated above,

Mondesir has advanced no evidence of an underlying constitutional violation.

Nonetheless, the court will briefly address this count in Mondesir’s complaint.

| Under certain circumstances, a municipality may be found to violate

Section 1983 by failing to train or supervise its employees. City of Canton, Ohio

v. Harris, 489 U.S. 378, 380 (1989); Forrest v. Parry, 930 F.3d 93, 105 (3d Cir.

2019). To satisfy Section 1983, a municipality's failure to train or supervise its

employees in a relevant respect must be caused by an inadequacy that reflects

deliberate or conscious choice, Forrest, 930 F.3d at 105, or amount to “deliberate

indifference to the rights of persons with whom the [untrained employees] come

into contact[,]” Connick v. Thompson, 563 U.S. 51, 61 (2011) (quoting City of

Canton, 489 U.S. at 388)).

A plaintiff could bring a “failure to train and supervise” claim under a

| “pattern of violations” theory or a “single violation” theory. Under the “pattern of

| violations theory,” liability can be imposed where the alleged policy or practice

“concerns a failure to train or supervise municipal employees” by showing “that

| 27

the failure amounts to ‘deliberate indifference’ to the rights of persons with whom

those employees will come into contact.” Carter v. City of Phila., 181 F.3d 339,

357 (3d Cir.1999). As for the “single-incident” theory of liability, the Third Circuit

Court of Appeals has reiterated that such claims are “vanishingly rare” and may

proceed in only “unusual” and “extreme” cases. Miller v. City of Philadelphia, 162

F.4th 88, 94 (3d Cir. 2025) (citing City of Canton, 489 U.S. at 390, n.10; Connick,

963 U.S. at 63-64; Hightower v. City of Philadelphia, 130 F.4th 352, 357 (3d Cir.

2025)). It has emphasized that the United States Supreme Court has never

found this bar satisfied and that the hypothetical example offered in Canton

involved life-or-death consequences from a failure to train—"if a city armed its

police with guns and set them loose without any legal training on when to use

them.” Hightower, 130 F.4th at 357.

Here, Mondesir does not specify under which theory he advances his

municipal liability claim. Regardless, his claim fails under either theory. Under

the “pattern of violations” theory, Mondesir failed to produce evidence of any

constitutional violations by inadequately trained or supervised employees. Nor

does this case fit under the “single-incident” theory, which applies only in narrow

circumstances involving life-or-death consequences arising from a failure to train.

Accordingly, summary judgment will be granted on all of Mondesir’s claims

against Kingston Borough.

28

| d. Civil Conspiracy Claims

| Count VIII of Mondesir’s complaint alleges a civil rights conspiracy under

Section 1983. But, “[t]here can be no civil conspiracy to commit an unlawful act

| under § 1983 where the plaintiff has not proven a deprivation of a constitutional

or federal statutory right or privilege.” Rink v. Ne. Educ. Intermediate Unit 19, 717

|F. App'x 126, 141 (3d Cir. 2017) (citing Black v. Montgomery Cty., 835 F.3d 358,

372 n.14 (3d Cir. 2016) and Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th

Cir. 2011). Mondesir has not produced evidence of any underlying constitutional

violation against him. Therefore, summary judgment is warranted on plaintiff's

civil conspiracy claim.

4. State Law Claims

| The only claims remaining are Mondesir’s allegations that Chief Kostick

and Officer Bevilagua committed tortious interference with plaintiff's business

| relationships. Summary judgment is also appropriate on this claim.

To state a claim for intentional interference with prospective contractual

| relations, a plaintiff must show: 1) a prospective contractual relationship between

plaintiff and a third party; 2) a purpose or intention to harm plaintiff by preventing

| that relationship from occurring; 3) the absence of privilege or justification with

respect to defendants’ conduct; and 4) the occurrence of actual harm or damage

to plaintiff resulting from defendants’ conduct. Orange Stones Co. v. City of

| 29

Reading, 87 A.3d 1014, 1025 (Pa. Commw. Ct. 2014). To prevail on such a

claim, a plaintiff must show that the Defendants intentionally induced or

intentionally caused a third person not to perform a contract with the plaintiff.

Restatement (Second) of Torts § 766; KBT Corp., Inc., v. Ceridion Corp., 966 F.

Supp. 369, 376 (E.D. Pa. 1997).

In this case, Mondesir did not address this claim in his brief in opposition.

Instead, he offers only a conclusory assertion that repeated law enforcement

visits to Leonardo’s harmed his business by intimidating customers and deterring

them from patronizing Leonardo’s. (Doc. 55, Br. in Opp. at 2, 6). Mondesir has

not produced evidence that Chief Kostick and Officer Bevilaqua intentionally or

improperly interfered with any existing or prospective contractual relationship

between Leonardo’s and a third party. Therefore, defendants’ motion for

summary judgment will be granted as to Mondesir’s claim for tortious interference

with business relationships.

Conclusion

For the reasons set forth above, defendants’ motion for summary judgment,

(Doc. 50), will be granted. An appropriate order Ss.

Date: d 6 apie

P| JUDGE JULIA K. MUNLEY

United States District Co

30