Kovalev v. City of Philadelphia, No. 16-6380 (E.D. Pa.) September 22, 2017.

Sergei Kovalev sought a federal court’s determination that his First Amendment rights of access were violated during incidents at Philadelphia city office buildings, that he was retaliated against in connection with exercise of those rights, that city officials’ conduct shocked the conscience, that the city was deliberately indifferent to violations of constitutional rights, and that Kovalev was subjected to intentional infliction of emotional distress.

The federal court dismissed all but his retaliation claim.

Kovalev found himself caught in a web of bureaucratic hearings and appeals concerning trash assessments imposed on his property. Following one such hearing, Kovalev demanded that city administrative officials provided him with hearing board members’ names.  In response, administrators telephoned the Sheriff’s office.

Kovalev was accompanied to elevators by an officer.  He left the building only to return through another entrance.  On encounter with a Sheriff’s office official, he demanded and was provided with a copy of a report documenting the call from the city administrator’s concerning Kovalev.

Where the public or non-public nature of the city office fora was not clearly established, and while any disruptive nature of Kovalev’s conduct within that area was in dispute, Kovalev’s claim for violation of any First Amendment right of access could not proceed.

The same was not true of his claim for retaliation.   It is well established that filing a false report about unlawful activity can impair the exercise of First Amendment rights, and that filing such a report can be seen as unlawful retaliation for exercise of those rights.

The federal court found Kovalev’s other claims could not survive.  First, no claim for assault could be established where the Sheriff’s officer, without more, walked him to the elevator.  No conduct “shocking to the conscience” could be adduced, as his factual allegations do not evince the sort of grave harm, such as loss of employment or child custody, found in such cases.

Even if city officials lacked sufficient training to be aware of their obligations to avoid Section 1983 litigation, no pattern or practice of exclusion depriving individuals of constitutional rights could be shown, making it impossible to prove that the municipality had been deliberately indifferent to such issues.

Finally, no claim for intentional infliction of emotional distress could survive where no medical evidence supported Kovalev’s assertions.

Kovalev v. City of Phila. (E.D. Pa., 2017)

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