United States District Court, D. Connecticut
RULING ON MOTION FOR SUMMARY JUDGMENT [DKT.
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. 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.
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].
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.].
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.
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.
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].
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.
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.
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
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.].
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)
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
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.
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
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).
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).
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
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.
The Franks Standard
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).
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.
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).
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).
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.”).