Mondesir et al v. Kingston Borough et al

OCR transcription for search; preserved printed pages are authoritative

Case 3:22-cv-01175-JKM Document61_ Filed 02/10/26 Page 1 of 30

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

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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.

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

1 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.
51, “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.

2

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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 I|). 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
was 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 JJ]
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 ¥ 24). In any event, at no time did an officer of

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

20).

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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 4] 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

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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.

(Id.)

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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),.

6

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e Count Ill — 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
five counts remaining in the complaint. (Doc. 51). Mondesir’s brief in opposition
only addressed his selective enforcement claim asserted in Count I] 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.

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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

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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).

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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. Civ. 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.

1. 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

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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
time 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. Civ. P. 26(e)(1).

Additionally, 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).

ale

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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. Clv. 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.

° Although this issue was raised in defendants’ reply brief, Mondesir could have requested
leave to file a sur-reply brief to challenge these assertions.

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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

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

6 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).

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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 patrons[.]” (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

the 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

7 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.

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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.

Valley 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

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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 circumstances[.]’” 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).

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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.

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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.” FED. 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 John 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.

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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.
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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

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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, PI. 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

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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).

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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

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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. Jf]
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.

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“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

v. 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. Id. 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,

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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

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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

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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,

563 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.

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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 Bevilaqgua 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

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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 o9)
Date: )) 6 wae

JUDGE JULIA K. MUNLEY ‘
United States District Co <

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