Brunelle v. City of Scranton

ALEXANDER BRUNELLE, et al., Plaintiffs, v. CITY OF SCRANTON, et al., Defendants.

CIV NO. 3:15-CV-960

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

July 19, 2018

(Judge Mariani)

(Magistrate Judge Carlson)

REPORT AND RECOMMENDATION

I. Statement of Facts and of the Case

A. Procedural History and Factual Background

This case, which comes before us for consideration of a motion for partial summary judgment filed by the defendants, (Doc. 44), presents a longstanding and intractable dispute between Alexander Brunelle, a real estate developer and various licensing and inspection officials in the City of Scranton. The plaintiff in this litigation, Alexander Brunelle, is a real estate contractor and developer who initiated this lawsuit on May 15, 2015, and is now bringing an eleven-count complaint against the City of Scranton, Patrick Hinton, Director of the City of Scranton Department of Licensing and Patricia Jennings-Fowler, a Housing Inspector for the City of Scranton, (hereafter "Scranton defendants"), charging them with a host of illegal and arbitrary actions allegedly taken relative to the plaintiff's business activities and properties in Scranton. (Doc. 28.)

Brunelle's complaint is a detailed, 67 page, 273 paragraph pleading. (Id.) In it, Brunelle provides a lengthy factual recital describing a pattern of allegedly discriminatory conduct by the defendants targeting properties owned by the plaintiff. (Id., ¶¶30-195.) According to Brunelle, the defendants targeted at least eleven properties which he owned, and engaged in a wide array of discriminatory practices. (Id.) Thus, Brunelle alleges that the defendants singled him out for discriminatory non-traffic criminal citations, issuing more than 150 baseless criminal complaints against Brunelle and properties which he owned. (Id., ¶194(e).) Brunelle also alleges that the defendants issued baseless condemnation orders on various properties which he owned, condemning properties even after the properties had been inspected and approved for occupancy. (Id., ¶¶30-195.) Brunelle further avers that Fowler and Hinton issued arbitrary, contradictory and peremptory directives to the plaintiff which stymied efforts to renovate, market and rent these properties. For example, according to Brunelle, with respect to a property owned by the plaintiff on Lavelle Street in Scranton, in April of 2014 defendant Fowler simultaneously served stop work and mandate orders on the property. The stop work order required the plaintiff to cease operations immediately; the mandate order required him to correct deficiencies at the propertyimmediately. By issuing both orders simultaneously, Brunelle asserts that the defendants "put Plaintiff in an absurd situation as Plaintiff was prohibited from working on the property pursuant to the Stop Work Order but simultaneously required to address the alleged trash and sanitation violations immediately." (Id., ¶143.)

The complaint further avers that the defendants have issued demolition orders to arbitrarily frustrate Brunelle's business endeavors. Specifically, Brunelle contends that the defendants issued demolition orders on properties acquired by the plaintiff in December 2014, thus preventing the plaintiff from making any improvements or renovations to the property, but had yet to act upon these demolition orders as of June, 2017. (Id.,¶¶167-77.) In addition, Brunelle asserts that the defendants have arbitrarily denied licenses and permits to the plaintiff's brother, Theodore Brunelle, who served as an independent contractor on many of the plaintiff's renovation projects in order to deter and frustrate those projects. (Id., ¶194(d).)

According to Brunelle, many of these actions have been taken by the defendants without affording Brunelle any notice or opportunity to respond to alleged deficiencies. (Id., ¶¶30-195.) Moreover, Brunelle claims that both Fowler and Hinton have made statements which confirm their discriminatory bias against the plaintiff, including allegedly informing the plaintiff's employees that theiractions are designed to send a message to the plaintiff, or deter the plaintiff and his family members from filing lawsuits. (Id., ¶¶190, 194(d).)

Brunelle also specifically alleges that Defendant Fowler has engaged in disparate and discriminatory enforcement targeting his properties, by describing a pattern of disparate code enforcement by Fowler as compared to all other city inspectors. (Id., ¶¶30-40.) Finally, Brunelle alleges that this pattern of unlawful and discriminatory conduct increased after the plaintiff filed his initial complaint in federal court. (Id., ¶¶194(a)-194(i).) Furthermore, according to Brunelle, a city employee informed one of the plaintiff's employees: "that Patrick Hinton had instructed that no permits were to be issued for work by Theodore Brunelle while his brother's Alexander Brunelle's lawsuit was pending in the Federal Court." (Id., ¶194(d).)

Set against the backdrop of these well-pleaded facts, Brunelle brings eleven separate claims against the defendants. Six of these counts allege federal constitutional infractions. Specifically, Brunelle alleges that the conduct of these officials: (1) denied the plaintiff procedural due process (Id., Count 1 ¶¶195-209); (2) constituted a substantive due process violation, (Id., Count 2, ¶¶210-15); (3) violated Brunelle's right to equal protection under the law, (Id., Count 3, ¶¶216-26); (4) was taken in retaliation against Brunelle for exercising his First Amendment Right to petition the courts for redress of grievances, (Id., Count 4,¶¶227-231); (5) amounted to an unlawful and unconstitutional taking of property without just compensation, (Id., Count 5, ¶¶232-6); (6) entailed unreasonable searches and seizures in violation of the Fourth and Fourteenth Amendments, (Id., Count 6 ¶¶237-45); and (7) constituted malicious prosecution in violation of the plaintiff's constitutional rights. (Id., Count 8, ¶¶253-57.) Brunelle further alleges that the City of Scranton is legally responsible for the actions of its officers and employees because by failing to adequately train and oversee the actions of these employees, the city effectively fostered a custom, policy and practice of illegal discrimination. (Id., Count 7, ¶¶246-52.) Brunelle's complaint then asserts a series of pendant state law tort claims, including state law allegations of malicious prosecution (Id., Count 9, ¶¶258-62); abuse of process, (Id., Count 10, ¶¶263-67); and tortious interference with existing and prospective contractual relationships. (Id., Count 11, ¶¶268-73.)

B. The Defendants' Motion for Partial Summary Judgment

Following a course of discovery conducted by the parties, the defendants have filed a motion for partial summary judgment, (Doc. 44), which reprises on a more fulsome factual record three of the legal defenses raised by the defendants in a motion to dismiss previously filed with this court. (Doc. 30.)¹

Specifically, the defendants' motion for partial summary judgment seeks judgment in favor of the Scranton defendants on the following three legal claims advanced by Brunelle: First, Brunelle's Fifth Amendment Takings Clause claim, Count V of the complaint; second, Brunelle's class of one equal protection claim, Count III of the complaint; and third, Brunelle's malicious prosecution claims, Counts VIII and IX of the complaint. The arguments advanced by the defendants in support of this motion also closely parallel the assertions previously made in the defendants' motion to dismiss.

For example, with respect to the defendants' motion for partial summary judgment on Brunelle's Fifth Amendment Takings Clause claim, the defendants seek judgment in their favor as a matter of law, arguing that Brunelle is required as a matter of law to exhaust his state remedies for just compensation prior to bringing a Takings Clause claim in federal court. See Cty. Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 164 (3d Cir. 2006) (citing Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 194-96 (1985)). In support of this argument, defendants expressly rely upon a decision of this court which imposed such an exhaustion requirement upon plaintiffs pursuing Fifth Amendment Takings Clause claims, Knick v. Twp., No. 3:14-CV-02223, 2016 WL 4701549, at *5 (M.D. Pa. Sept. 8, 2016). However, as we have previously noted when addressing the parallel argument made by the defendants in their motion todismiss, there is reason to proceed cautiously in relying upon Knick. The United States Supreme Court has recently accepted a petition for writ of certiorari in Knick which invites the Court to set aside this state court exhaustion and ripeness requirement in Takings Clause cases. See Knick v. Twp., No. 3:14-CV-02223, 2016 WL 4701549, at *5 (M.D. Pa. Sept. 8, 2016), aff'd sub nom. Knick v. Twp. of Scott, 862 F.3d 310 (3d Cir. 2017), cert. granted in part sub nom. Knick v. Twp. of Scott, Pa., 138 S. Ct. 1262, 200 L. Ed. 2d 416 (2018).

Likewise, in this motion for partial summary judgment, the Scranton defendants seek dismissal of Brunelle's class of one equal protection claim. On this score, the defendants' advance two claims, one which invites an extremely literal interpretation of class of one equal protection claims and a second claim which urges us to resolve what appears to be a hotly contested factual issue, namely, whether the defendants in fact singled out Brunelle for disparate treatment. Thus, at the outset, the defendants suggest that Brunelle's class of one equal protection claim fails because it is similar to a claim made by another Scranton area real estate developer, Vsevolod Garanin. Citing the similarities between these two claims, noting that Brunelle and Garanin have reportedly discussed their cases at various times, and adopting a very literal construction of the phrase "class of one" to suggest that only a single person may bring such a claim against particular...