Sergei Kovalev v. City of Philadelphia ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-1474
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SERGEI KOVALEV,
Appellant
v.
CITY OF PHILADELPHIA; PHILADELPHIA DEPARTMENT OF REVENUE;
PHILADELPHIA TAX REVIEW BOARD; PHILADELPHIA OFFICE OF
ADMINISTRATIVE REVIEW; PHILADELPHIA SHERIFFS OFFICE;
PHILADELPHIA LAW DEPARTMENT; PAULA WEISS; YOLANDA KENNEDY;
ANGELINEL BROWN; FRANCIS BRESLIN; AGOSTINO J. FANELLI;
NANCY A. KAMMERDEINER; MEGHAN E. CLAIBORNE; SHANNON G. ZABEL;
AS-YET-UNKNOWN JOHN AND JANE DOES 1-25 INCLUSIVE
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2:19-cv-05790)
District Judge: Honorable Mark A. Kearney
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 21, 2021
Before: AMBRO, PORTER and SCIRICA, Circuit Judges
(Opinion filed: January 26, 2021)
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OPINION *
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PER CURIAM
Sergei Kovalev sued the City of Philadelphia (“the City”) and three of its
employees, asserting that his constitutional rights were violated during administrative
review of commercial refuse-collection fees assessed against property owned by his
purported house of worship (named “House of Worship”). Most of Kovalev’s claims
were dismissed as a result of dispositive motions; a jury rejected the remainder after a
three-day trial. Kovalev appealed, and we affirmed. See Kovalev v. City of Philadelphia,
775 F. App’x 72, 77 (3d Cir. 2019) (per curiam). Also unsuccessful was Kovalev’s
subsequent suit challenging the authenticity of an exhibit used by the defense at trial. See
Kovalev v. Claiborne, 829 F. App’x 592, 593 (3d Cir. 2020) (per curiam).
In the present litigation, Kovalev claims that his waste-collection woes resulted
from widespread, coordinated criminal activity by the City and various City departments
and employees. He filed his complaint pro se and invoked, primarily, the Racketeer
Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-68. The District
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
Court dismissed Kovalev’s complaint—sua sponte and without leave to amend—under
28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim.
The District Court first determined that to the extent Kovalev was attempting to
litigate on behalf of House of Worship, he could not do so because he is not an attorney.
See DC ECF No. 7 (Op.) at 5 (“Mr. Kovalev lacks standing to pursue claims on behalf of
others even if he is the person running the House of Worship. He is not a house of
worship.”). The District Court next determined that Kovalev failed to plead an injury
cognizable under RICO. See Op. at 6 (“His Complaint is devoid of allegations Mr.
Kovalev made payments out of his own pocket. * * * Physical or emotional harm to a
person is insufficient to show a person is injured in his business or property under
RICO.”). The District Court also determined: that Kovalev’s claims, insofar as they
concerned a 2015 administrative proceeding and related litigation, were barred by the
principle of res judicata, see Op. at 7; that Kovalev could not rely on a criminal statute as
an independent cause of action, see Op. at 8; that it would decline to exercise
supplemental jurisdiction over Kovalev’s state law claim, see Op. at 8-9; and that
offering Kovalev leave to amend his complaint would be futile, see Op. at 9.
Kovalev appealed. We have jurisdiction under 28 U.S.C. § 1291, and our review
of a dismissal under § 1915(e)(2)(B)(ii) is de novo. See Allah v Seiverling, 229 F.3d 220,
223 (3d Cir. 2000). We review the decision to decline leave to amend for abuse of
discretion but review the District Court’s “determination that amendment would be
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futile” de novo. U.S. ex. rel. Schumann v. AstraZeneca Pharms. L.P., 769 F.3d 837, 849
(3d Cir. 2014).
We have carefully considered the arguments raised by Kovalev in his brief on
appeal. 1 None of them is persuasive. In particular, we reject Kovalev’s efforts to
reconcile his assertions that (1) he is not litigating on behalf his purported church, (2) the
House of Worship owns the property for which commercial refuse-collection fees were
imposed by the City, (3) Kovalev does not derive any compensation from his
management of the House of Worship, and (4) he somehow was “injured in his business
or property,” 18 U.S.C. § 1964(c), as a result of the City’s fee-imposition and related
conduct, in a way that establishes standing to maintain a civil RICO action. 2 To the
District Court’s well-reasoned analysis we also add that Kovalev’s RICO claims against
the City and its departments were improper as a matter of law. See Genty v. Resolution
Tr. Corp., 937 F.2d 899, 914 (3d Cir. 1991) (holding “that a civil claim brought
1
The first twenty or so pages of Kovalev’s brief is little more than a list of grievances
that were raised and rejected in prior litigation. See, e.g., Br. at 29 (“RICO Defendants
were intentionally creating false documents and false evidence to deny Mr. Kovalev fair
trial, to obstruct justice and derail judicial machinery.”).
2
This is not the first time Kovalev has attempted to use a civil RICO action to remedy his
grievances. See Kovalev v. City of Philadelphia, DC Civ. No. 07-cv-4875, 2008 WL
5377625 (E.D. Pa. Dec. 23, 2008); see also, Kovalev v. Stepansky, No. 20-1473, 2020
WL 6746985, at *1 (3d Cir. Nov. 17, 2020) (“Kovalev maintains that [his dentist] is
engaged in a criminal enterprise involving ‘intentional human body mutilations and
health insurance fraud.’”).
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under section 1964(c) of the RICO Act . . . cannot be maintained against a municipal
corporation”).
For those reasons, we will affirm the judgment of the District Court. Kovalev’s
motion to correct on our docket the spelling of the name of one of the defendants is
granted. The correct spelling appears in the caption for this opinion and will be corrected
on the docket in due course.
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