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Boccanfuso v. Zygmant

United States District Court, D. Connecticut

March 11, 2019

GIUSEPPE BOCCANFUSO, Plaintiff,
v.
EDWARD ZYGMANT, TERRANCE DUNN, JR., PHILLIP RESTIERI, Defendants.

          RULING ON MOTION FOR SUMMARY JUDGMENT [DKT. 41]

         Plaintiff Giuseppe Boccanfuso brought this action against Defendants Edward Zygmant, Fire Marshal for the Town of Westport, Terrance Dunn, Jr., Fire Inspector for the Town, and Philip Restieri, a Detective with the Westport Police Department, on February 4, 2017. Plaintiff alleges violations of his Fourth Amendment rights (Franks violations), false imprisonment, malicious prosecution and negligent infliction of emotional distress arising out of his arrest, the prosecution, and his acquittal for his alleged reckless endangerment of the public and failure to abate a fire hazard.[1] Before the Court now is Defendants' Motion for Summary Judgment on all claims. [Dkt. 41 (Summ. J. Mot.)]. For the reasons discussed below, the Court grants Defendants' Motion in full and awards judgment for Defendants on all claims.

         Background

         In or around 1989, Dominic and Crescienzo Boccanfuso installed a 2, 000-gallon underground storage tank (“UST”) underneath a parking area in the front of the Boccanfuso Brothers Garage (the “Garage”), located at 940 Post Road East, in Westport, Connecticut, which they used to store gasoline for a number of years. [Dkt. 41-2 (Defs.' R. 56(A)(1) Stat.) at ¶¶ 5-7]. It is unclear when exactly the Boccanfusos ceased use of the UST, but the parties agree it was no longer in use by 2009. Id. at ¶¶ 7-8; [Dkt. 56-7 (Pl.'s Resp. Defs.' R. 56(a)(1) Stat.) at ¶¶ 7-8 Resps].

         In October 2011, a tank-testing technician from Absolute Tank Testing, Inc. (“ATT”) conducted sampling of the soil around the UST, with the results indicating detectable concentrations of extractable total petroleum hydrocarbons (“ETPH”) of 540 parts per million (“PPM”). [Dkt. 41-2 at ¶ 9; Dkt. 41-8 (ATT Letter) at 1]. The letter reporting these results indicated that this amount was above the 500 PPM maximum allowable concentrations of ETPH in soil at a residential site and recommended the removal of the UST and remediation of any contaminated soil. [Dkt. 41-8 at 2]. Plaintiff contends that the Garage is a commercial site subject to the 2500 PPM maximum. [Dkt. 56-7 at ¶ 9 Resp.].

         In March 2013, a representative of the Department of Energy and Environmental Protection (“DEEP”), Mr. Tyson, called Dominic Boccanfuso and told him that they could not abandon the UST, but must either cut a hole in it and fill it with gravel or remove it from the ground. [Dkt. 41-2 at ¶¶ 10-11]. Following this conversation, Dominic Boccanfuso told Plaintiff that Mr. Tyson had said that they should fill or remove the UST. Id. at ¶ 13.

         On or about March 28, 2013, Plaintiff and Dominic Boccanfuso began excavating the ground about the UST using Plaintiff's backhoe. Id. at ¶ 14. While driving by, Defendants Zygmant and Dunn observed the excavation work occurring and approached the property. Id. at ¶ 15. When Zygmant and Dunn asked Plaintiff and Dominic Boccanfuso what they were doing, they explained that they were filling the UST with gravel and provided Zygmant and Dunn with the ATT letter from 2011. Id. at ¶ 17. Zygmant and Dunn were not aware of DEEP having permitted the Boccanfusos to excavate the UST, as the Fire Department had no record of the Boccanfusos applying for removal or abandonment of the UST, so they stopped the excavation work. Id. at ¶ 18.

         When Dunn contacted DEEP about the UST, it dispatched its representative, David Poynton an Emergency Response Coordinator. Id. at ¶ 20. Poynton met Dunn at the Garage-Zygmant had left by that time. Id. The parties dispute what observations and guidance Dunn and Poynton provided to the Boccanfusos during the interaction at the Garage on March 28, 2013. Defendants claim that Dunn and Poynton told the Boccanfusos that they needed to follow local regulations, including potentially getting permits to remove the UST. Id. at ¶ 22-24; [Dkt. 56-7 at ¶¶ 22-24 Resps.]. Defendants further claim that Dunn told the Boccanfusos that they needed to apply with the Fire Marshal's office and that a fire watch was necessary while the tank was being inerted and removed from the ground. [Dkt. 41-2 at ¶¶ 25, 29-30]. Plaintiff claims that Dunn ultimately told him that a permit was not necessary and that Poynton said that a fire watch would only be necessary if they cut the UST. Id. at ¶¶ 26, 31; [Dkt. 56-7 at ¶¶ 25, 29-30 Resps.]. Plaintiff was under the impression that Poynton had given permission for removal of the UST. [Dkt. 41-2 at ¶ 31; Dkt. 56-7 at ¶ 31 Resp.]. The parties seem to agree that Dunn and Poynton told the Boccanfusos that the UST needed to be inerted-purged of flammable vapors-and cleaned before it could be removed. [Dkt. 56-7 at ¶ 29, 29 Resp].

         On March 29, 2013, Plaintiff removed the UST from the ground. [Dkt. 41-2 at ¶ 33]. Plaintiff claims that there was no residual gasoline or flammable vapors in the tank when he removed it. Id. at ¶ 34. He testified at his deposition that the tank was aired out, dried, and emptied and that he used his “eyes, a vacuum, [and] air” to confirm. [Dkt. 41-7 (G. Boccanfuso 1/23/18 Dep. Tr.) at 55:20-56:25]. That day, Westport Fire Inspector Gibbons notified Zygmant and Dunn that the UST had been removed. [Dkt. 41-2 at ¶ 36]. On April 1, 2013, Zygmant went to the Garage and observed that the UST had been removed and Dunn contacted the Boccanfusos to gather more information. Id. at ¶¶ 37-39. The Boccanfusos told Dunn that they believed they were allowed to remove the tank and that DEEP had given them permission to do so. Id.

         On April 2, 2013, Zygmant and Dunn met with Detective Restieri, John Doucette, a Fire and Life Safety Specialist with the Office of the State Fire Marshal, and Trooper Michael Marino of the Connecticut State Police. Id. at ¶¶ 41-42. They determined that the Boccanfusos had failed to comply with safety regulations and had recklessly endangered the public because of the potential explosive vapors in the UST. Id. That afternoon, Zygmant returned to the Garage, observed the UST in the rear of the property next to a backhoe and a pile of soil, and called the Westport Fire Department to request a response for metering. Id. at ¶ 44. Members of the Westport Fire Department (Assistant Fire Chief William Dingee and Firefighters Christopher Swartz, Mike Grasso, and Paul Wohlforth) went to the Garage, where they smelled gasoline. Id. at ¶¶ 45-46. Dingee and Swartz, both certified hazardous materials technicians, used two Industrial Scientific M40 Multimeters-devices used to measure the relative concentration of carbon monoxide, oxygen, hydrogen sulfide, and combustible gases-to monitor the atmosphere around and within the UST. Id. at ¶¶ 44-47. With one meter they obtained a reading of 20% over the lower explosive limit around the exterior of the UST and with the other they obtained a reading of 100% plus “over range” of the lower explosive limit within the UST. Id.

         Plaintiff asserts that they did not test the inside of the UST and that the results would not have been able to show flammable vapors, but he was not at the Garage when the testing was done and has no actual basis for such assertions. [Dkt. 56-7 at ¶¶ 47-48 Resps.; Dkt. 41-11 at 64:2-68:5]. Plaintiff further represents that there were no flammable vapors or liquid in the UST when it was removed and tested. Id. at ¶ 49 Resp.; [Dkt. 41-2 at ¶ 49]. Plaintiff relies on his own and Dominic Boccanfusos actions and observations, as well as those of Poynton and Firefighter Gibbons, who Plaintiff asserts reported that the tank was empty and not a hazard. [Dkt. 56-7 at ¶¶ 49-50 Resps.].

         DEEP was called regarding the UST and Poynton responded on their behalf. [Dkt. 41-2 at ¶ 51]. Defendants assert that Poynton told the Boccanfusos that the UST had to be cleaned and inerted and that they should hire a contractor to conduct the work. Id. at ¶ 52. Plaintiff denies that such a conversation took place. [Dkt. 56- 7 at ¶ 52 Resp.]. The contractor, Connecticut Tank Removal (“CTR”), arrived at the property that same afternoon and inerted and cleaned the tank with a fire watch present. [Dkt. 41-2 at ¶ 53]. Plaintiff claims that the UST did not need to be inerted because it was empty. [Dkt. 56-7 at ¶ 53 Resp.].

         On April 11, 2013, Dunn met with Detective Restieri and Trooper Marino and they determined that there was probable cause to bring charges against Plaintiff because he had removed the UST without following the required procedures and had disregarded the instructions of Dunn and Poynton. [Dkt. 41-2 at ¶ 54]. They waited until December 2013, when the State Police completed their investigation and report on the matter, before pursuing charges. Id. at ¶¶ 54-55. The report, prepared by Trooper Marino, concluded that (1) Dominic Boccanfuso did not have proper soil samples conducted; (2) the soil samples were positive for contamination; (3) Dominic Boccanfuso did not contact the Westport Fire Marshal; (4) Dominic Boccanfuso did not apply for a permit to remove the UST; (5) Dominic Boccanfuso did not set up a fire watch; (6) Plaintiff illegally removed the UST; and (7) Plaintiff acted recklessly by removing the UST. Id. at ¶ 55; [Dkt. 41-16 (Investigative Report) at 10-11].

         After reviewing the report, reports from the Westport Fire Marshal's office, Poyton's field narrative, and the relevant statutes, Dunn and Restieri again determined that probable cause existed to charge Plaintiff with reckless endangerment in the first degree in violation of Conn. Gen. Stat. § 53a-63 and failure to abate a fire hazard in violation of Conn. Gen. Stat. § 29-306. Id. at ¶ 56.

         In or around February 2014, Dunn and Restieri prepared an application for a warrant for Plaintiff's arrest on those charges and it was submitted to the Superior Court of Connecticut in Norwalk and signed by a judge. Id. at ¶ 57. Both Dunn and Restieri signed the warrant application. [Dkt. 41-17 (Application for Arrest Warrant)]. On March 3, 2014, Restieri informed Plaintiff of the arrest warrant and requested he come to the Westport Police Department, where Restieri arrested, booked, processed, and released Plaintiff without incident. Id. at ¶¶ 59-60. Plaintiff appeared in court on March 13, 2014 and estimates that he appeared in court in connection with the charges once a month for the next two years. Id. at 63. On April 21, 2016, the Court dismissed the charges against Plaintiff at the request of the State. Id. at ¶ 66.

         Plaintiff initiated this suit on March 4, 2017, bringing claims for a Franks violation under 42 U.S.C. § 1983, reckless infliction of emotional distress, negligent infliction of emotion distress, false imprisonment, and malicious prosecution. See [Dkt. 1 (Compl.)]. The Court dismissed Plaintiff's reckless infliction of emotional distress claim on Defendants' Motion to Dismiss. See [Dkt. 13 (Decision on Mot. to Dismiss) at 4]. Defendants now move for summary judgment on the four remaining counts.

         Summary Judgment Standard

         Summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of proving that no genuine factual disputes exist. See Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). “In determining whether that burden has been met, the court is required to resolve all ambiguities and credit all factual inferences that could be drawn in favor of the party against whom summary judgment is sought.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). This means that “although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000); see Welch-Rubin v. Sandals Corp., No. 3:03-cv-00481, 2004 WL 2472280, at *14 (D. Conn. Oct. 20, 2004) (“At the summary judgment stage of the proceeding, [the moving party is] required to present admissible evidence in support of their allegations; allegations alone, without evidence to back them up, are not sufficient.”) (citing Gottlieb v. Cty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996)); Martinez v. Conn. State Library, 817 F.Supp.2d 28, 37 (D. Conn. 2011). Put another way, “[i]f there is any evidence in the record that could reasonably support a jury's verdict for the nonmoving party, summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315-16 (2d Cir. 2006) (internal quotation marks and citation omitted).

         However, a party who opposes summary judgment “cannot defeat the motion by relying on the allegations in his pleading, . . . or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible.” Gottlieb, 84 F.3d at 518 (citations omitted). Nor will “conclusory statements, conjecture, or speculation by the party resisting the motion” defeat summary judgment. Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996). Where there is no evidence upon which a jury could properly proceed to find a verdict for the party producing it and upon whom the onus of proof is imposed, such as where the evidence offered consists of conclusory assertions without further support in the record, summary judgment may lie. Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 726-27 (2d Cir. 2010).

         Furthermore, summary judgment is an appropriate method of resolving disputes concerning indemnification agreements. Gundle Lining Constr. Corp. v. Adams Cty. Asphalt, Inc., 85 F.3d 201 (5th Cir.1996); Commercial Ins. Co. of Newark v. Pacific-Peru Constr. Corp., 558 F.2d 948 (9th Cir.1977); Cont'l Cas. Co. v. Am. Sec. Corp., 443 F.2d 649 (D.C.Cir.1970).

         Discussion

         I. Franks Violation

         The Fourth Amendment provides the “right not to be arrested or prosecuted without probable cause.” Soares v. Conn., 8 F.3d 917, 920 (2d Cir. 1993) (citing Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991), cert. denied, 505 U.S. 1221 (1992). Plaintiff's first count alleges a violation of that Fourth Amendment right, claiming a Franks violation under 42 U.S.C. § 1983. Specifically, Plaintiff alleges that Defendants knowingly or recklessly included false statements or omitted information from the warrant application which was material, or necessary, to the finding of probable cause to arrest him for reckless endangerment of the public and failure to abate a fire hazard.

         A. The Franks Standard

         The issuance of a warrant by a judge, which depends on a finding of probable cause, creates a presumption that it was objectively reasonable for the officers to believe that there was probable cause. Golino, 950 F.2d at 870. However, a plaintiff can demonstrate that his or her right not to be arrested absent a warrant supported by probable cause “was violated where the officer submitting the probable cause affidavit ‘knowingly and intentionally, or with reckless disregard for the truth, made a false statement in his affidavit' or omitted material information, and that such false or omitted information was ‘necessary to the finding of probable cause.'” Soares, 8 F.3d at 920 (quoting Golino, 950 F.2d at 870-71). Thus, a plaintiff will prevail on a Franks claim if he or she shows (1) that the affidavit contained “[an omission or] a false statement knowingly and intentionally, or with reckless disregard for the truth, ” and (2) “the [omitted information or] allegedly false statement is necessary to the finding of probable cause.” Franks v. Delaware, 438 U.S. 154, 155 (1978). “[R]ecklessness may be inferred where the omitted information was critical to the probable cause determination.” Golino, 950 F.2d at 870 (internal citations omitted). “Unsupported conclusory allegations of falsehood or material omission cannot support a Franks challenge.” Veraldi v. Walsh, 40 F.3d 569, 573 (2d Cir. 1994).

         “A false statement ‘is material when the alleged falsehoods or omissions were necessary to the issuing judge's probable cause finding.” United States v. Martin, 426 F.3d 68, 73 (2d Cir. 2005) (quoting United States v. Awadallah, 349 F.3d 42, 64 (2d Cir. 2003)) (internal quotation marks and brackets omitted). “The materiality of a misrepresentation or an omission in this context is a mixed question of law and fact. The legal component depends on whether the information is relevant to the probable cause determination under controlling substantive law. But the weight that a neutral magistrate would likely have given such information is a question for the finder of fact, so that summary judgment is inappropriate in doubtful cases.” Id. at 574.

         The probable cause standard is “defined in terms of facts and circumstances ‘sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense.'” Gerstein v. Pugh, 420 U.S. 103, 111-12 (1975) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). “While probable cause requires more than a ‘mere suspicion,' of wrongdoing, ” Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir. 2007) (quoting Mallory v. United States, 354 U.S. 449, 455 (1957)), “it is clear that ‘only the probability, and not a prima facie showing, of criminal activity'” is required. Martin, 426 F.3d at 74 (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). It is a “common-sense test” that “turns on an ‘assessment of probabilities' and inferences, not on proof of specific criminal conduct beyond a reasonable doubt or even by a preponderance of the evidence.” Id. “Simply put, probable cause is a ‘relaxed standard,' . . . not a legal determination of guilt or liability.” Id. (internal citations omitted).

         “In determining whether omitted information was necessary to the finding of probable cause, ‘we look to the hypothetical contents of a ‘corrected' application to determine whether a proper warrant application, based on existing facts known to the applicant, would still have been sufficient to support arguable probable cause to make the arrest as a matter of law.'” McColley v. Cty. Of Rensselaer, 740 F.3d 817, 823 (2d Cir. 2014) (citing Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004)). “In performing the ‘corrected affidavit' analysis, ‘we examine all of the information the officers possessed when they applied for the arrest warrant.'” Id. (quoting Escalera, 361 F.3d at 743). “While the law does not demand that an officer applying for a warrant volunteer every fact that arguably cuts against the existence of probable cause, he must not omit circumstances that are critical to its evaluation.” Id. (quoting Walczyk, 496 F.3d 139, 161 (2d Cir. 2007)) (internal quotation marks omitted). Additionally, “every statement in a warrant affidavit does not have to be true.” United States v. Canfield, 212 F.3d 713, 718 (2d Cir. 2000). As the foregoing illustrates, “[t]he Franks standard is a high one.” Rivera v. United States, 928 F.2d 592, 604 (2d 1991).

         Whether the untainted portions of a warrant affidavit suffice to support a probable cause finding is a legal question. Martin, 426 F.3d at 74; Walczyk, 496 F.3d at 157 (citing Stewart v. Sonneborn, 98 U.S. 187, 194 (1878)) (“It has long been recognized that, where there is no dispute as to what facts were relied on to demonstrate probable cause, the existence of probable cause is a question of law for the court.”).

         B. Plaintiff's ...


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