Sergei Kovalev v. City of Philadelphia ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-1237
__________
SERGEI KOVALEV,
Appellant
v.
CITY OF PHILADELPHIA; PAULA WEISS, Executive Director of
Philadelphia Office of Administrative Review, in her individual capacity;
YOLANDA KENNEDY, Clerical Supervisor of Philadelphia Office of
Administrative Review, in her Individual and Capacity;
ANGELINEL BROWN, Deputy Sheriff Sergeant of Philadelphia
Sheriff’s Office, in her Individual Capacity
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2:16-cv-06380)
District Judge: Honorable Mark A. Kearney
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 21, 2019
Before: CHAGARES, BIBAS, and GREENBERG, Circuit Judges
(Opinion filed: May 29, 2019)
___________
OPINION*
___________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Sergei Kovalev filed suit against the City of Philadelphia (“the City”), Paula Weiss
(then-Executive Director of the City’s Office of Administrative Review (“OAR”)),
Yolanda Kennedy (a Clerical Supervisor at OAR), and Angelinel Brown (a Deputy Sheriff
Sergeant with the City’s Sheriff’s Office) (collectively, “Defendants”). Kovalev asserted
in his complaint that trash collection fees were improperly assessed against his property;
that he attended a hearing at the Tax Review Board (a component part of OAR) to challenge
those fees; that he received an unfavorable decision; and that his post-hearing treatment by
Defendants—which treatment included removal from OAR office space—is tortious, un-
constitutional, and retaliatory.
Several of Kovalev’s claims were dismissed under Federal Rule of Civil Procedure
12(b)(6), several more were lost as a result of summary judgment proceedings following
months of discovery, and the two claims that remained fell short at the end of a three-day
jury trial. After judgment was entered against him, Kovalev appealed.
We have jurisdiction under 28 U.S.C. § 1291. In his opening brief, Kovalev pur-
ports to challenge virtually every order and ruling that did not go his way in the District
Court. Concluding that Kovalev’s arguments are either unpreserved or unpersuasive, we
will affirm.
Kovalev principally takes issue with five litigation events: (1) the District Court’s
February 28, 2017 order granting in part Defendants’ Rule 12(b)(6) motion; (2) the District
Court’s June 27, 2017 order granting Defendants’ motion for a protective order; (3) the
District Court’s July 7, 2017 order denying Kovalev’s recusal motion; (4) the District
2
Court’s September 22, 2017 order granting in part Defendants’ motion for summary judg-
ment; and (5) the three-day jury trial, culminating in the January 12, 2018 verdict.1 We
address those events in turn.
1. The February 28, 2017 order partially granting Defendants’ Rule 12(b)(6) motion.
Reviewing Kovalev’s pleading in response to Defendants’ motion to dismiss, the
District Court concluded that Kovalev had failed to adequately plead violations of the Ninth
Amendment, substantive due process under the Fourteenth Amendment (against Brown),
procedural due process under the Fourteenth Amendment, equal protection under the Four-
teenth Amendment, and the First Amendment (but only to the extent Kovalev claimed re-
taliation against Kennedy and Weiss for requesting that Kovalev be removed from a gov-
ernment building and for allegedly “discouraging the [Tax Review] Board from making a
decision,” AR 13). The District Court also concluded that Kovalev had failed to adequately
plead intentional infliction of emotional distress against Brown, and had failed to plead
various other common law torts against all Defendants.
On appeal, Kovalev argues in conclusory fashion only that he adequately pleaded
facts that can withstand dismissal. See Br. at 27-29. We conclude that his argument is
underdeveloped to the point of effective waiver.2 Even assuming, however, that Kovalev
1
We exercise de novo review of orders granting motions to dismiss and motions for sum-
mary judgment, see Gallo v. City of Philadelphia, 161 F.3d 217, 221 (3d Cir. 1998) (sum-
mary judgment); Lorenz v. CSX Corp., 1 F.3d 1406, 1411 (3d Cir. 1993) (motion to dis-
miss), and abuse-of-discretion review for orders regarding recusal motions or discovery,
see SecuraComm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir. 2000)
(recusal motions); Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1310 (3d Cir.
1995) (discovery).
3
had sufficiently briefed those arguments, the District Court did not err in resolving the Rule
12(b)(6) motion, for substantially the reasons given in its February 28, 2017 memorandum
opinion. See AR 9-39.
2. The June 27, 2017 order granting Defendants’ motion for a protective order.
Kovalev argues that the protective order “prematurely terminated [his] discovery,”
Br. at 30, which prejudiced him in his case against the City, as evidenced by the fact that
the City was eventually granted summary judgment. Kovalev’s argument, however, has a
flawed factual premise. Rather than effectively terminate discovery, the District Court’s
June 27, 2017 order instead curtailed Kovalev’s ability to seek information that the District
Court had already ruled “is not permitted, outside the scope of discovery, or should other-
wise have been addressed in Defendants’ production to date.” The order also permitted
Kovalev to depose Defendants, permitted Kovalev to obtain “discoverable information
identified in the depositions and not produced as yet,” permitted Kovalev to issue “five
additional written discovery requests . . . to each Defendant,” directed Defendants to pro-
duce a signed certification along with un-redacted documents regarding confidential City
personnel files, and communicated to Kovalev that he was free to file a motion to compel
2
Kovalev contends that he is not obligated to make “specific arguments” on appeal be-
cause he made such arguments in the District Court and because the applicable standard
of review is de novo. Reply Br. at 7. Kovalev is incorrect; the issues on appeal are dic-
tated by sufficiently articulated arguments in an opening brief, not presumption or specu-
lation by the Court that it should consider any and every argument or issue that was
raised below. In addition, while the Court appreciates the not-insignificant number of
rulings by the District Court and the challenge for many pro se litigants not versed in
crafting legal arguments, these things were taken into account when Kovalev was granted
permission to exceed the word-count limit for opening briefs by 2600 words.
4
if Defendants were not complying with their discovery obligations. See AR 42-43. The
District Court’s June 27, 2017 order reflects thoughtful and legitimate case-management.
There was no abuse of discretion.
3. The July 7, 2017 order denying Kovalev’s recusal motion.
Kovalev argues that he presented good grounds in his motion to have Judge Kearney
recuse. We disagree. While Kovalev appears to interpret disproportionately adverse rul-
ings as evidence of judicial bias, see Br. at 19-22, “[w]e have repeatedly stated that a party’s
displeasure with legal rulings does not form an adequate basis for recusal,” Securacom,
224 F.3d at 278, and nothing in the record suggests that Judge Kearney did anything other
than faithfully apply the law.
Kovalev also argues that Judge Kearney should have recused because he labored
under a conflict of interest. According to Kovalev, the conflict exists because he sued
Philadelphia, which is located in Pennsylvania, and Pennsylvania is represented by United
States Senators who both sponsored Judge Kearney for an Article III judgeship. See Br. at
25-27.3 This line of argument was not raised below and is thus subject to waiver doctrine.
See Tri–M Grp., LLC v. Sharp, 638 F.3d 406, 416 (3d Cir. 2011). Regardless, Kovalev’s
3
Kovalev similarly contends that Judge Kearney labored under a conflict of interest be-
cause prior to his judicial service he hosted or co-hosted a political fundraiser for Senator
Casey. See Br. at 25-27.
5
arguments are incongruous4 and without merit.5 The District Court did not abuse its dis-
cretion in declining to recuse.
4. The September 22, 2017 order granting Defendants summary judgment in part.
Summarizing the case before it at summary judgment, the District Court stated:
“Today, we address state actors’ removal of a citizen for alleged disorderly conduct in a
receptionist area of a small government office which does not host hearings or public meet-
ings but is allegedly near the hearing room.” AR 52. Concluding that clear constitutional
guidelines for conduct in the receptionist area is lacking in the case law, the District Court
granted the individual Defendants qualified immunity on Kovalev’s claim that he was de-
prived of his First Amendment right to access a public forum. The District Court also
concluded that Kovalev had “failed to adduce evidence supporting his claims for the
[C]ity’s supervisory liability or for assault or intentional infliction of emotional distress.”
AR 53. The District Court granted Defendants’ motion for summary judgment in part. The
District Court denied the motion, however, with respect to Kovalev’s claims of “First
4
Under Kovalev’s unique interpretation of the general recusal statute, 28 U.S.C. § 455,
federal judges routinely would have to recuse from suits involving within-vicinage mu-
nicipalities.
5
We thus have no need to pass on the District Court’s decision, in the alternative to its
merits analysis, to follow the apparent trend, see AR 49, of district courts holding pro se
§ 144 movants (even those proceeding in forma pauperis) to the statutory requirement
that they obtain a “certificate of counsel” supporting recusal. Cf. United States v. Boyd,
208 F.3d 638, 645 (7th Cir. 2000) (Posner, C.J.), vacated on other grounds by Boyd v.
United States, 531 U.S. 1135 (2001) (observing in a criminal case – with constitutional
concerns different from those in civil cases - that “[t]he obvious solution” to the conun-
drum faced by a pro se criminal defendant needing a “certificate of counsel” under § 144
“is to appoint a lawyer for the pro se defendant for the limited purpose of enabling him to
determine whether to file the certificate”).
6
Amendment retaliation against the two state actors [Weiss and Kennedy] who called the
police to remove” him from the receptionist area. AR 53.
Kovalev does not cite specific, pertinent evidence or legal authority to challenge
any aspect of the District Court’s summary judgment ruling. He merely makes general
pronouncements about qualified immunity principles, see, e.g., Br. at 38-39, and the sum-
mary judgment standard, see, e.g., Br. at 40, followed by a request for “additional discovery
on all matters” as well as “a new trial,” Br. at 41. Accordingly, Kovalev has waived any
challenge to the District Court’s substantive summary judgment determinations. See Tri–
M, 638 F.3d at 416.6
5. The jury trial and the January 12, 2018 verdict.
Kovalev makes numerous arguments related to trial. He takes issue with, inter alia,
the District Court’s handling of voir dire and peremptory challenges, see, e.g., Br. at 49-
50, the District Court’s alleged misapplication of Batson v. Kentucky, 476 U.S. 79 (1986),
see Br. at 51, Defendants’ purported use of something called “dual reverse Batson,” Br. at
52, certain statements made by the District Court, see, e.g., Br. at 55, various evidentiary
rulings, see Br. at 56-64, the jury instructions, see, e.g., Br. at 71, and the District Court’s
decision to subject Kovalev’s testimony to questioning, rather than to permit Kovalev to
deliver an uninterrupted soliloquy about “all events,” Br. at 65.
6
Waiver aside, it is plain from the record that Kovalev failed to adduce evidence of the
City’s supervisory liability and the individual Defendants’ tortious conduct. We also
agree with the District Court’s qualified immunity analysis, again for substantially the
reasons given its opinion.
7
We cannot and will not consider the merits of any of these arguments. An appellant
seeking to challenge aspects of his trial has a duty to arrange for production of a trial tran-
script—we may dismiss an appeal if the appellant fails to do so, see Fed. R. App. P. 3(a)(2),
10(b)(1); 3d Cir. L.A.R. 11.1 (2011); Richardson v. Henry, 902 F.2d 414, 416 (5th Cir.
1990)—and Kovalev failed to make such arrangements.7 We thus have no record of the
jury selection process, or of the allegedly improper statements by the District Court, or of
certain evidentiary rulings, or of any of the other trial issues that Kovalev would like the
Court to consider. That is not acceptable; we require a trial transcript not only to assess
the merits of those issues, but also to assess whether Kovalev actually preserved them for
appellate review. The absence of a trial transcript prevents us from making either assess-
ment.
* * *
Kovalev’s remaining arguments on appeal are without even arguable merit and re-
quire no further discussion. Accordingly, for the reasons given in this opinion, we will
affirm.
7
Kovalev’s argument that Defendants have implicitly “accepted the accuracy of [his]
best recollections,” Reply Br. at 27, is unavailing. The same goes for his argument that
he cannot afford to order transcripts. See Reply Br. at 27. As Defendants pointed out to
Kovalev (who appealed in forma pauperis), he could have filed a motion under 28 U.S.C.
§ 753(f) for production of transcripts at Government expense. See Def. Br. at 30 n.7.
Moreover, Defendants, in attempting to cover all of their bases, even provided a roadmap
to Kovalev for how he might belatedly argue (successfully or not, we cannot say) in sup-
port of a § 753(f) motion and limited re-briefing. See Def. Br. at 30 n.8. Ultimately, Ko-
valev chose a different path.
8