Sergei Kovalev v. City of Philadelphia

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-2479
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SERGEI KOVALEV,
Appellant
v.
CITY OF PHILADELPHIA; JOSEPH FLANAGAN;
TERRENCE DILLON; ANGEL L. FRANQUI, JR.
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 07-cv-04875)
District Judge: Honorable Robert F. Kelly, Sr.
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Submitted Pursuant to Third Circuit LAR 34.1(a)
January 21, 2010
Before:MCKEE, FUENTES and NYGAARD, Circuit Judges
(Opinion filed: January 26, 2010 )
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OPINION
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PER CURIAM
Sergei Kovalev, proceeding pro se, appeals from the District Court’s entry of
summary judgment in favor of Appellees. For the reasons that follow, we will affirm.

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On November 19, 2007, Kovalev initiated the underlying civil rights action in the
United States District Court for the Eastern District of Pennsylvania. The detailed factual
and procedural background of this action is set forth in the District Court’s
comprehensive opinion of April 29, 2009. Essentially, Kovalev alleged that employees of
the City of Philadelphia acted both individually and in concert to deprive him of his rights
under the First, Fourth, Eighth, Ninth and Fourteenth Amendments, and that the City
itself failed to properly select the most appropriate employees and to properly train,
control and supervise the acts of those employees it did hire. After a period of discovery,
the District Court granted Appellees’ motion for summary judgment on all of these
claims, concluding that Kovalev failed to produce evidence that any alleged wrongful acts
on the part of the City amounted to a policy or custom; that any attempt by Jones-Culbreth
to search his property did not constitute a violation of the Fourth Amendment; that he was
not deprived of his right to procedural due process in light of the availability of judicial
review of decisions of the Philadelphia Department of Licenses & Inspections (“DL &
I”), which he in fact availed himself of; that Kovalev failed to substantiate his claims of
an equal protection violation, as he did not present any evidence other than his own
accusations that he was treated differently than other similarly situated individuals; that
the filing of two Municipal Court complaints against his corporation by an attorney
employed by the City of Philadelphia Law Department four days after he sent letters to
former Mayor Street and DL & I Commissioner Robert Solvible was, on its own,

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insufficient to demonstrate retaliation within the meaning of the First Amendment; that
Kovalev offered no evidence that the City or any of its employees interfered with his free
exercise of religion; that he failed to allege facts sufficient to demonstrate the existence of
a conspiracy among city employees to deprive him of equal protection of the laws; and
finally, that each of the Appellees, in their individual capacities, were entitled to qualified
immunity, as Kovalev failed to establish that any of them had violated a clearly
established constitutional right in the performance of their jobs. Based on the foregoing,
the District Court entered summary judgment in favor of Appellees. Kovalev timely filed
a notice of appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over the District Court’s entry of summary judgment, viewing the underlying facts and all
reasonable inferences therefrom in the light most favorable to Appellant, the non-moving
party. See Norfolk Southern Ry. v. Basell USA Inc., 512 F.3d 86, 91 (3d Cir. 2008).
Summary judgment is appropriate only if “there is no genuine issue as to any material fact
and . . . the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
Kovalev contests the District Court’s conclusions that an attempted warrantless
search cannot violate the Fourth Amendment; that he failed to present evidence sufficient
to demonstrate that DL & I treated him differently than other similarly situated
individuals; that timing alone was insufficient to support his retaliation claim; and that the
individual employees named in this action were entitled to qualified immunity. While the

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undisputed facts in this lawsuit indicate that Kovalev was involved in a protracted dispute
with several officials and employees of the City of Philadelphia regarding the status of the
corporations registered to his home address, the back taxes allegedly owed by those
corporations, and the legal standing of the improvements made to his property, Kovalev’s
attempts to weave these threads into a web of corruption, extortion, and sundry other
violations of his federal constitutional rights based on his own speculation and conjecture
is insufficient to defeat Appellees’ motion for summary judgment.
We have considered all of Appellant’s arguments on appeal and conclude that they
are without merit. Accordingly, we will affirm the judgment of the District Court.
Appellees’ motion to strike “Exhibit C” to Appellant’s supplemental appendix is granted.
While Appellant argues that the letter contained in Exhibit C was offered simply to prove
that it was within the City’s possession at the time the two Municipal Court complaints
were filed, the letter was not provided to the District Court for this purpose and therefore
we cannot consider it at this time. See Fassett v. Delta Kappa Epsilon (New York), 807
F.2d 1150, 1165 (3d Cir. 1986) (“The only proper function of a court of appeals is to
review the decision below on the basis of the record that was before the district court.”).

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