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Melillo v. Brais

United States District Court, D. Connecticut

April 17, 2018

ALICE MELILLO and ALLEN NORDEN, Plaintiffs,
v.
RYAN BRAIS, Defendant.

          RULING ON MOTION TO DISMISS THE AMENDED COMPLAINT

          VICTOR A. BOLDEN, UNITED STATES DISTRICT JUDGE

         Alice 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.

         Defendant 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.

         For the 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 proceed.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Allegations

         Plaintiffs 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.

         Plaintiffs 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.

         Plaintiffs 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.

         Plaintiffs 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.

         Plaintiffs 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.

         Plaintiffs 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.

         B. Procedural History

         Plaintiffs 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 ...


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