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Silano v. Scarnuly-Grasso

United States District Court, D. Connecticut

June 28, 2017

VIRGINIA SILANO and GREGORY MARCONI, Plaintiffs,
v.
VICTORIA SCARNULY-GRASSO, DANIEL SILVA, ROCCO TESTI, KEVIN HAMMEL, and the TOWN OF TRUMBULL, CONNECTICUT Defendants.

          RULING ON DEFENDANTS' MOTIONS TO DISMISS

          JANET BOND ARTERTON, U.S.D.J.

         Plaintiffs Virginia Silano and Gregory Marconi bring this complaint pro se against Defendants Victoria Scarnuly-Grasso, the Town of Trumbull (the "Town"), Daniel Silva ("Officer Silva"), Rocco Testi ("Detective Testi"), and Kevin Hammel ("Detective Hammei") (together with the Town, Officer Silva, and Detective Testi, the "Trumbull Defendants") alleging defamation per se (Count I) and libel per se (Count II) against Ms. Scarnuly-Grasso; negligence per se against Ms. Scarnuly-Grasso (Count III); a "Stigma Plus" violation of the ADA against Officer Silva that is construed, upon consent of the parties, as a defamation claim against Officer Silva (Count IV); a claim of civil conspiracy to maliciously prosecute against Ms. Scarnuly-Grasso and the Trumbull Defendants (Count V), violation of 42 U.S.C. § 1983 against the Town of Trumbull (the "Monell Claim") (Count VI); and slander per se against Ms. Scarnuly-Grasso predicated on a different set of facts (Count VII). Ms. Scarnuly-Grasso moves [Doc. # 39] to dismiss the claims against her and the Trumbull Defendants move [Doc. # 58] to dismiss the claims against them.

         I. Facts Alleged

         The Amended Complaint ("Compl.") [Doc. # 69] sets forth a history of disputes Plaintiff Silano has with two neighbors, non-party Thomas Chetlen and Defendant Scarnuly-Grasso, that began in the summer of 2010. (Compl. at 9.)[1] These disputes, and the interactions with police that occurred in conjunction with them, give rise to the causes of action set forth in the Complaint.

         A. Interactions with Mr. Chetlen and Non-party Officer Wheeler

          In late May, 2010, Ms. Silano complained to the Bridgeport Police Department that she had been harassed and assaulted by non-party Thomas Chetlen, who is Ms. Silano's neighbor. (Compl. at 18.) As a result of this complaint, the police warned Mr. Chetlen to stay away at risk of arrest. (Id.)

         Mr. Chetlen and Ms. Silano had a further altercation on June 25, 2010 when Mr. Chetlen allegedly drove into Ms. Silano while she was crossing the street. (Id. at 19.) After calling 911, Ms. Silano was interviewed by non-party Trumbull Police Officer Daniel Wheeler. Officer Wheeler issued a citation to Mr. Chetlen for failing to stay in his lane and arrested Ms. Silano for criminal mischief. (Id. at 20.)

         B. Interactions with Mr. Chetlen and Officer Silva

         Some six weeks later, on August 10, 2010, Plaintiff Silano and Mr. Chetlen had a further altercation in a nearby park when Ms. Silano encountered Mr. Chetlen while walking her dogs. (See Ex. D ("Aug. 10 Incident Report") to Compl.) After Mr. Chetlen and Ms. Silano both contacted the Trumbull police, Officer Silva visited them and took down a report. (Id.) Plaintiffs allege the report misrepresented what Ms. Silano told Officer Silva in an attempt to "cast [Ms.] Silano as mentally unstable" and in retaliation for Ms. Silano's complaints to the police. (Compl. at 9, 20.)

         The Aug. 10 Incident Report first details Mr. Chetlen's version of events and then recounts Ms. Silano's version. Ms. Silano described an on-going dispute with Mr. Chetlen. (Id.) Officer Silva's Aug. 10, 2010 report notes in its final sentence, "on a final note, [Ms. Silano] mentioned that she ha[s] psychological issues that she is dealing with, and added that it runs in the family." (Id.)

         On August 31, 2010, Ms. Silano sent a letter to the Town Clerk of Trumbull providing notice of her "Intention to Commence an Action for Intentional [In] friction of Emotional Distress, Dereliction of Duties, [and] Filing a False Police Report." (See Ex. G. ("Aug. 31 Letter") to Compl.) This letter sets forth Ms. Silano's description of her interaction with Officer Silva.

         In the letter, Ms. Silano stated that she told Officer Silva, "if Mr. Chetlen came onto [her] property again, [she] would shoot him." (Id.) The Aug. 31 Letter also lists details that Officer Silva allegedly omitted from his Aug. 10 report, including the fact that Officer Silva told Ms. Silano that "if Mr. Chetlen continues to complain about [Ms. Silano], [she] would be arrested or worse, committed to a mental institution ...." (Aug. 31 Letter.)

         C. Autumn Interactions between Plaintiff Silano and Defendant Scarnuly-Grasso

         In an apparently unrelated incident, on or about September 6, 2010, Ms. Silano observed Defendant Scarnuly-Grasso assaulting a child in the street in front of Ms. Silano's home. Ms. Silano ran out of her home "and screamed obscenities at Scarnuly-Grasso in order to stop" the assault. (Compl. at 3.)

         On September 28, 2010, Plaintiffs allege that Ms. Scarnuly-Grasso entered Ms. Silano's home and threatened Ms. Silano "with action by the Trumbull Police Department (specifically Testi) if Silano spoke about the child abuse incident or continued to complain about George Cooney's sale of Pepsi at the Pinewood lake association." (Id.) On October 22, 2010 Ms. Scarnuly-Grasso returned to Plaintiff Silano's home and "ma[de] statements about working with the police and Honis... ." (Id.) On November 6, 2010, Plaintiffs allege that Plaintiff Silano and her husband Plaintiff Marconi attended a wine-tasting event at which she was accosted by Ms. Scarnuly-Grasso. (Id.)

         D. November Interactions with Ms. Scarnuly-Grasso

         Plaintiffs allege that on November 9, 2010 Ms. Scarnuly-Grasso intentionally gave a report both orally and in writing to the Trumbull police department that falsely claimed Ms. Silano had threatened her, harassed her, and created a public disturbance. (Compl. at 2; see Ex. A. ("Nov. 9 Scarnuly-Grasso Complaint to Police") to Compl.) Officer Silva memorialized Ms. Scarnuly's complaint in an Incident Report (Ex. B ("Nov. 9 Incident Report") to Compl.).

         Ms. Scarnuly-Grasso's seven-page handwritten complaint describes, among many other incidents, a phone call on the evening of November 8, 2010 "where [Ms. Silano] threatened [Ms. Scarnuly-Grasso by saying, ] 'This is not over and I will finish you off" (Nov. 9 Scarnuly-Grasso Complaint to Police, at 4-5.) Ms. Scarnuly-Grasso also stated that she had been "threatened" by Ms. Silano (id. at 6).

         As a result of the Nov. 9 Complaint to Police, Officer Silva interviewed Ms. Silano at her home on Nov. 12, 2010. (Compl. at 11.) During this meeting, the Complaint alleges that Ms. Silano provided her version of the events with Ms. Scarnuly-Grasso and told Officer Silva that she had seen Ms. Scarnuly-Grasso abusing a child. The Complaint alleges that Officer Silva refused to mention the child abuse in his Nov. 12 Incident Report, and that this omission is part of the conspiracy to prosecute Ms. Silano for falsely reporting child abuse to DCF. (See Ex. E ("Nov. 12 Incident Report") to Compl.)

         On November 22, 2010, Ms. Silano delivered a three-page written statement to the Trumbull Police Department, which was received by Officer Driscoll and forwarded to Officer Silva. (Compl. at 21; see Ex. J ("Nov. 22 Silano Complaint to Police") to Compl.) Plaintiffs allege that this statement laid out the allegations of harassment and child abuse against Ms. Scarnuly- Grasso. (Compl. at 21.)

         Officer Testi later interviewed Ms. Scarnuly-Grasso to follow up on her original November 9 complaint of harassment and wrote up his interview notes. (See Ex. C ("Nov. 24 Incident Report) to Compl.)[2] In this report, he noted Ms. Scarnuly-Grasso did not want to press charges against Ms. Silano. (Id.) On December 1, 2010, Officer Testi followed up with a telephone call to Ms. Silano. (Id.) Officer Testi described their conversation in the Nov. 24 Incident Report:

On 12/01/10, 1... spoke via telephone with Virginia Silano regarding this incident. Silano seemed very irritated with Scarnuly in regards to other incidents that occurred between the two and other parties in the past. I explained to [her] that from this phone call forward if she contacts Scarnuly in any way ... as well as goes on her property she will be arrested. Silano stated she understood this warning.

         (Nov. 24 Incident Report.) Plaintiffs allege that this report contains material omissions. During the conversation, Officer Testi allegedly stated that it was the Trumbull Police Department's policy and custom "to withhold police services from individuals the Department regards as mentally disabled" and that the Trumbull police department regarded Ms. Silano as "crazy." (Compl. at 9.)

         E. Encounters with Chetlen and Scarnuly-Grasso in early 2011

         In January 2011, Mr. Chetlen came to Ms. Silano's house, prompting her to call 911. Officer Wheeler of the Trumbull Police Department responded to the call and subsequently arrested Ms. Silano on the ground that she "ran out in to the street and threatened to shoot [Mr. Chetlen]." (Compl. at 22.)

         In February 2011, Plaintiffs allege that Ms. Scarnuly-Grasso accused Plaintiff Marconi of "aiding and abetting" Ms. Silano in committing crimes against Ms. Scarnuly-Grasso and against Mr. Chetlen. The Complaint states, "While this meeting was never memorialized by the Association in writing, it was recorded via audio. Scarnuly-Grasso instigated the Board to fire me [Plaintiff Marconi] from my employment at the Association .. . because ... I didn't stop my wife from harassing Scarnuly-Grasso and because the guns in my house were registered to me." (Compl. at31.)[3]

         F. Police Reports Made Available to Others

         Plaintiffs allege that on or about February 9, 2011, the Trumbull Police Department provided a copy of the August 10, 2010 Incident Report to non-parties George or Diana Cooney. Ms. Scarnuly-Grasso provided copies of the August 10, November 9, and November 24 Incident Reports to the Pinewood Lake Association on May 5, 2011, and then to the Department of Children and Families ("DCF") on May 19, 2011. (Id. at 4.)

         G. DCF Investigation and Arrest of Ms. Silano

         On April 26, 2011, Plaintiff Silano called Connecticut's Department of Children and Families to report the September 6, 2010 incident in which she saw Ms. Scarnuly-Grasso strike a child. (Ex. A ("Hammel Aff.") to Trumbull Defendants' Mot. to Dismiss [Doc. # 58-2] at 5.)[4] After investigating this complaint, DCF adjudicated it as unsubstantiated at intake. The Complaint alleges that Detective Hammel both failed to fully investigate the complaint to DCF and that he ultimately arrested her for falsely reporting child abuse to DCF.

         H. Events of2012

         In May of 2012, Ms. Silano told Detective Hammel about a recording she made of nonparties Mr. Chetlen, Mr. William Verespy and Mr. George Cooney in which they described a plot to kill Ms. Silano. (Compl. at 23.) Ms. Silano attempted to provide this recording to Detective Hammel and State's Attorney Kevin Drumm, but they refused to accept it. (Id.) The audio recording also contains evidence that Detective Hammel plotted to entrap Ms. Silano and he plotted to entrap Ms. Silano's former attorney, Mr. Crozier, for money-laundering. (Id.) In August 2012, Detective Hammel again arrested Ms. Silano for violation of the no-contact order. (Id. at 24.) In April, 2013, Detective Hammel arrested Ms. Silano for filing a false report with the police. (Id. at 25.)

         II. Procedural Posture

         Plaintiffs filed their complaint in the Superior Court, Judicial District of Fairfield, on November 7, 2012, and Defendants removed to federal court on December 10, 2012. The original complaint pleaded "False Statement" against Defendant Scarnuly-Grasso (Count I), "Stalking" against Defendant Scarnuly-Grasso (Count II), and violation of 42 U.S.C. § 1983 against Officers Silva (Count III) and Testi (Count IV) on the basis of equal protection violations arising from attempts cast Ms. Silano as mentally ill in police reports. On December 26, 2012, the Court stayed the case [Doc. # 8] pending resolution of one of the state criminal cases underlying the complaint and restored it to the active docket on July 28, 2016 [Doc. # 11]. On February 22, 2017, the Court granted [Doc, # 57] Plaintiffs' motion to amend their complaint, adding the Town of Trumbull and Detective Hammel as defendants, adding and modifying the causes of action, and modifying some of the factual allegations.

         III. Discussion [5]

         Ms. Scarnuly-Grasso moves to dismiss Counts I, II, III, V, and VII. She moves to dismiss Counts I, II, and VII-the defamation per se claims-because Plaintiffs fail to allege that she charged them with crimes of moral turpitude as required under Connecticut law. She argues that Count III, the negligence per se claim predicated on violation of the Connecticut criminal harassment charge, should be dismissed because there is no private cause of action for harassment in Connecticut. Count V, which alleges a conspiracy to maliciously prosecute Ms. Silano, should be dismissed as to Ms. Scarnuly-Grasso because Plaintiffs fail to allege that she acted in concert with the Trumbull Defendants.

         The Trumbull Defendants move to dismiss Counts IV, V, and VI. They argue that all claims should be dismissed as time-barred. Count V, conspiracy to maliciously prosecute, should also be dismissed because Plaintiffs have not pleaded an underlying tort, the allegations do not rebut the presumption of probable cause created by issuance of the arrest warrant, several of the defendants did not initiate the prosecution, and the arresting officer made a full and fair disclosure to the prosecuting attorney. Count VI, the Monell claim, which alleges that the town had a policy and practice of refusing to help, should be dismissed because Plaintiffs fail to allege a policy or custom in all but conclusory fashion.

         A. Counts I and II: Defamation Per Se

         Counts I and II allege libel and slander per se against Ms. Scarnuly-Grasso for the written and oral complaints she furnished to the Trumbull Police Department on November 9, 2010. Under Connecticut law, a defamatory statement is "a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Levesque v. Town of Vernon, 341 F.Supp.2d 126, 140 (D. Conn. 2004). To establish a prima facie case of defamation, a plaintiff must show that "(1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiffs reputation suffered injury as a result of the statement." Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217 (2004) (internal quotations and citations omitted). "Truth is a complete defense to a suit for defamation." Timbro v. Hertler, 2006 WL 1230560 at *3 (Conn. Super. Ct. April 24, 2006) (internal citations omitted) (citing Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316(1984)).

         "Libel or slander is . . . actionable per se if it charges a crime involving moral turpitude or to which an infamous penalty is attached." Miles v. Perry, 11 Conn.App. 584, 602 (1987). "The modern view of this requirement is that the crime be a chargeable offense which is punishable by imprisonment." Gleason v. Smolinski, 319 Conn. 394, 431 n.31 (2015) "Whether words are actionable per se is a question of law for the court." Id.

         In her Motion to Dismiss, Ms. Scarnuly-Grasso argues that a fair reading of the complaint she made to the police shows no allegation of commission of a crime punishable by imprisonment. Rather, she "simply described her interactions with Ms. Silano and explained how she felt as a result of those interactions." (Mem. Supp. Scarnuly-Grasso Mot. to Dismiss ("Scarnuly Mot. to Dismiss") [Doc. # 39-1] at 7-8.) However, the text ...


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