United States District Court, D. Connecticut
RULING ON MOTION TO DISMISS THE AMENDED
A. BOLDEN, UNITED STATES DISTRICT JUDGE
Melillo and Allen Norden (together, “Plaintiffs”)
filed an Amended Complaint on January 19, 2018, against Ryan
Brais, a zoning official in Plainfield, Connecticut, for
allegedly violating their Fourth Amendment rights under 42
U.S.C. § 1983 by repeatedly and unnecessarily performing
inspections in their garage; opening a closet door and taking
photographs of its contents; and taking several objects from
the closet. Am. Compl., ECF No. 64.
moves to dismiss under Federal Rules of Civil Procedure
12(b)(5) and 12(b)(6), arguing that any claims against Mr.
Brais in his official capacity must be dismissed for
insufficient service of process, Plaintiffs' Fourth
Amendment claims must be dismissed for failing to state a
claim upon which relief can be granted, and Plaintiffs'
various other claims must be dismissed for exceeding the
scope of the leave to amend and for failing to state a claim.
Mot. Dismiss at 1-2, ECF No. 80.
reasons discussed below, Defendant's motion to dismiss is
GRANTED in part and DENIED
in part. Plaintiffs' claims against Mr. Brais in his
official capacity are dismissed; all other claims will
FACTUAL AND PROCEDURAL BACKGROUND
allege that Mr. Brais, a zoning official for the Town of
Plainfield, violated their right to privacy when he made
three inspections of their detached garage within thirty-five
days, looking for a kitchen and bathroom each time. Am.
Compl. ¶¶ 8-9, 13. Plaintiffs allege that Mr. Brais
used “false, inaccurate, and unsubstantiated”
information to gain access to their garage, and then made
three inspections “looking for a kitchen and full
bathroom each time.” Id. ¶¶ 11, 13.
Mr. Brais allegedly told Plaintiffs that during the
inspection “no (personal) items stored within the
upstairs area of the detached garage could be covered.”
Id. ¶ 14. Mr. Brais also allegedly
“demanded that the Plaintiffs destroy and remove all
plumbing and fixtures for a bathroom toilet and sink that was
in the process of being permitted by the Northeast District
Department of Health, ” even though “in order to
complete testing for water and waste, required by the NDDH
for the permit, the toilet and sink in the upstairs area of
the detached garage, had to be in place and
functional.” Id. ¶¶ 15-16.
also allege that Mr. Brais, “acting in his official
capacity, and acting under the color of law, ” during
an inspection unlawfully opened the doors to a closed
wardrobe, looked through it, and photographed its contents.
Id. ¶ 18. Plaintiffs allege that Mr.
Brais's inspection was supposed to determine “the
existence of ‘apartments or dwelling units'
allegedly located in the detached garage on the Property,
” and that Mr. Brais knew or should have known that
“the upstairs area of the detached garage on the
Property was used as a recreational area and for
storage[.]” Id. ¶¶ 21-23.
also allege that after Mr. Brais's second inspection, on
June 9, 2015, “a small bag containing miscellaneous,
sentimental items and jewelry that had been stored within,
was missing, ” including a 1968 fourteen-karat gold
U.S. Marine ring, two 1918 ten-dollar gold coins,
miscellaneous military uniform bars and patches, and a pewter
cigarette case with a lighter. Id. ¶¶
25-27. Plaintiffs claim that they sent Mr. Brais a letter on
June 10, 2015, explaining that their belongings were missing
and claim that Mr. Brais admitted that he opened the wardrobe
and inspected and photographed its contents, but denied
taking any of their belongings. Id. ¶ 30.
allege that Mr. Brais filed a civil complaint in Superior
Court against Ms. Melillo on June 12, 2015. Id.
¶ 32. In the complaint, Mr. Brais allegedly stated that
Plaintiffs had an apartment located within the detached
garage, even though he allegedly “was well aware that
there was no violation or ‘apartment' located in
the detached garage prior to the drafting of the civil
complaint.” Id. ¶¶ 33-34. As part of
the civil litigation, Plaintiffs allege that Mr. Brais
required Ms. Melillo “to sign a ‘Stipulated
Judgment' . . . giving the Defendant the absolute right
to inspect/search all buildings on the Property, including
the home, with only a 24-hour notice, at his will.”
Id. ¶ 38.
claim that, on July 2, 2015, Mr. Brais inspected their
detached garage for a third time, “accompanied by a
Plainfield Police Officer and German Shepard attack
dog.” Id. ¶ 39. They claim that their
property had no violations, but Mr. Brais “knowingly
and willfully never informed the Plaintiffs there were no
violations and did not withdraw the civil litigation until
three (3) weeks after the Property was sold.”
Id. ¶ 40. The civil complaint was allegedly
withdrawn on September 28, 2015, three weeks after Plaintiffs
sold the property. Id. ¶ 41.
allege that Mr. Brais “was aware that it was imperative
for the inspection to take place as soon as possible, so the
Plaintiffs could get to Florida” to visit Mr.
Norden's sister, “who was suffering from a mentally
debilitating and terminal disease.” Id. ¶
44. Plaintiffs allege that Mr. Norden “suffered
[severe] emotional distress, as a consequence of the
Defendant's actions, for not being able to see his sister
before her illness prevented her from having the ability to
recognize and speak to him.” Id. ¶ 61.
They allege that, as a result of Mr. Brais's actions,
they were forced to prematurely sell their home, and that
they suffered emotional and financial distress as a result.
Id. ¶¶ 64-65.
initially filed in small claims court on December 21, 2016.
Defendant moved to transfer the case to the regular civil
docket of the Connecticut Superior Court, Judicial District
of New London, on January 31, 2017, and his motion was
granted on February 6, 2017. Notice of Removal at ...