United States District Court, D. Connecticut
ORDER GRANTING SUMMARY JUDGMENT SUA SPONTE AND
A. BOLDEN UNITED STATES DISTRICT JUDGE.
February 11, 2019, the Court ordered Alice Melillo and Allen
Norden (“Plaintiffs”) to appear and show cause as
to why summary judgment should not be granted in favor of
Ryan Brais (“Defendant”) under Federal Rule of
Civil Procedure 56(f). Order to Appear and Show Cause, dated
Feb. 11, 2019 (“Show Cause Order”), ECF No.
March 5, 2019, the Court held a show cause hearing and
reserved decision. Minute Entry, dated Mar. 5, 2019, ECF No.
reasons explained below, the Court finds that
(“Plaintiffs”) have not identified any genuine
issue of material fact that is in dispute in this action,
and, even if they had, Mr. Brais is entitled to qualified
immunity as a matter of law, and the dismissal of
Plaintiffs' federal law claims under 42 U.S.C. §
Court therefore GRANTS summary judgment
sua sponte under Federal Rule of Civil Procedure
56(f), in favor of Defendant, on Plaintiffs' federal law
claims (i.e., Counts One and Two of the Amended Complaint),
but declines to exercise supplemental jurisdiction over
Plaintiffs' remaining state law claims and remands them
to the Connecticut Superior Court in the Judicial District of
FACTUAL AND PROCEDURAL BACKGROUND
case arose out of a series of administrative inspections
performed by Mr. Brais in his official capacity as a zoning
official for the Town of Plainfield, Connecticut. The Court
assumes the parties' familiarity with the full factual
and procedural background in this case.
administrative inspections occurred under the authority of a
Notice of Violation/ Cease and Desist Order issued by Mr.
Brais on April 7, 2015. Amended Complaint, dated Jan. 19,
2018 (“Am. Compl.”), ECF No. 64, ¶¶
11-12. That Order stated as follows:
NOTICE OF VIOLATION / CEASE AND
For apartments located in a detached garage at 280 Lathrop
[Assessor's Map 1CV, Block 82, Lot 9]
Dear Ms. Melillo, I have received information that there are
two apartments located in the detached garage behind your
house at 280 Lathrop Road. The first apartment is located on
the first floor, to the right of the garage doors. I first
discovered this apartment in 2006 during the construction of
the garage. All appliances and fixtures had been removed
prior to my inspection and I informed you that per our Zoning
Regulations and Health Department approval, no showers or
living space could be located in the garage. Only a sink and
toilet were allowed in the building.
In 2012, it was suspected that an apartment had been
constructed above the garage. The building inspector made an
inspection of the garage and found the remnants of an
apartment on the first floor, presumably in the same state
that I had seen it in 2006, and a finished space above the
garage that could have been used as living space. However, a
full bath had been removed from this area prior to that
inspection, rendering that space unlivable and qualifying it
as a bonus or recreation area that was in compliance with our
February 20, 2015, the building inspector received a
complaint regarding the condition of an apartment located on
the first floor of your detached garage, in the same location
as the apartment that I discovered in 2006. The building
inspector completed the inspection and noted that it is a
full apartment and was rented to an Arthur St.
Jean. In addition, Plainfield Police responded to a complaint
made by St. Jean of an unlawful entry into his apartment.
During that investigation, police went up to the “bonus
area” above the garage and interviewed a man who
identified himself as the tenant of the second floor area.
It is apparent that there are two apartments located in the
detached garage on your property. This use of the garage as
dwelling units is in violation of Section 7.2 of our Zoning
Regulations entitled Permitted Uses in Residential Zones. Our
Regulations do not allow for apartments in detached
structures. In addition, the Health Department only permitted
a sink and toilet and specifically stated that no dwellings
were allowed in the structure.
You are hereby found in Violation of Section 7.2 of our
Zoning Regulations and ordered to Cease and Desist all use of
the detached garage for dwelling purposes. All plumbing
fixtures aside from the sink and toilet located in the garage
bay area are to be permanently removed. All kitchen counters
and cooking appliances in the two dwelling areas are to be
Within thirty (30) days of receiving this order, you must
schedule and allow an inspection to be performed by either
myself or the Building Inspector to ensure compliance with
this order. Failure to comply with this order will result in
court action where the Town will seek damages in the amount
of up to $250.00 per day for each day of noncompliance as
provided per Section 8-12 of the Connecticut General
Statutes, along with reimbursement for all associated court
and legal fees.
If you have any questions, I can be reached at 860.230.3036.
Ryan Brais - CZEO
Town of Plainfield
of Violation / Cease and Desist Order, dated Apr. 7, 2015
(“C&D Order”), annexed as Ex. 1 to Affidavit
of Alice Melillo, dated Sept. 3, 2018, ECF No. 113-1.
did not directly appeal or challenge this Order. Plaintiffs
allege that Defendant “violated the Plaintiffs'
right to appeal the Cease and Desist order . . . by using
false information . . . . The Cease and Desist order stated
the Plaintiff, Alice Melillo, had 30 days to remedy the
alleged violations when actually the 30 days was for the
appeal process.” Am. Compl. ¶ 9(g).
this Cease and Desist Order, administrative inspections
occurred on May 27, 2015, June 9, 2015, and July 2, 2015. Am.
Compl. ¶¶ 15.
Amended Complaint, Plaintiffs, who are proceeding pro
se, allege that during the June 9, 2015 inspection, Mr.
Brais unlawfully opened the doors to a closed wardrobe
located in the upstairs area of the detached garage, 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” and was therefore
not a proper area for him to inspect. Id.
allege that while ostensibly inspecting the wardrobe, Mr.
Brais stole from them “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.
allege sending Mr. Brais a letter on June 10, 2015,
explaining that their belongings were missing. Id.
¶ 30. They also claim that, in response to their letter,
Mr. Brais wrote to them admitting that he opened the wardrobe
and inspected and photographed its contents, but denied
taking any of their belongings. Id.
rejecting Defendant's motion to dismiss this claim, the
Court construed Plaintiffs to be alleging that Mr. Brais,
acting under the color of law, seized Plaintiffs'
personal property in violation of their right to be free from
unreasonable searches and seizures. See Ruling on
Motion to Dismiss the Amended Complaint, dated Apr. 17, 2018,
at 8. The Court found that Plaintiffs had alleged sufficient
facts to state a claim for relief under the Fourth Amendment
and 42 U.S.C. § 1983. Id. at 9. The Court also
allowed all other Section 1983 claims against Mr. Brais in
his personal capacity to proceed, as well as an intentional
infliction of emotional distress claim against Mr. Brais in
his personal capacity.
was not stayed due to the motion to dismiss the Amended
Complaint, nor was it stayed at any time before that. The
parties thus engaged in discovery for approximately eight
months until discovery closed on March 30, 2018. See
Amended Scheduling Order, dated Feb. 8, 2018, ECF No. 76.
There was, as a result, ample opportunity for the parties to
develop a full evidentiary record with respect to all claims.
August 3, 2018, Mr. Brais moved for summary judgment on all
claims, asserting: (1) Mr. Brais is entitled to qualified
immunity with regard to Plaintiffs' constitutional claims
under Counts One and Two; (2) Mr. Brais, by commencing and
prosecuting a zoning enforcement action, did not violate
Plaintiffs' constitutional rights; (3) Mr. Brais did not
deprive Plaintiffs of a right to appeal a 2015 cease and
desist order; (4) the submission of a proposed stipulated
judgment to Plaintiffs did not violate their constitutional
rights; (5) Mr. Brais did not seize or take Plaintiffs'
personal belongings and is therefore not liable to compensate
Plaintiffs; and (6) Plaintiffs' state-law claim for
intentional infliction of emotional distress fails as a
matter of law. Motion for Summary Judgment, dated Aug. 3,
2018, ECF No. 105.
August 22, 2018, the Court denied Mr. Brais's motion for
summary judgment because the motion's sixty-six page
statement of material facts violated this Court's Local
Rule 56(a)(1), which limits a statement of material facts to
twelve pages absent leave of the Court granted for good cause
shown; the Court therefore denied the motion “in the
interest of moving this case at a swifter and more economical
pace, ” consistent with the Court's inherent power
to manage its docket and courtroom with a view toward the
efficient and expedient resolution of cases. See
Order Denying Motion for Summary Judgment, dated Aug. 22,
2018 (“Order on Mot. Summ. J.”), ECF No. 111, at
4, 6-7 (citing D. Conn. L. Civ. R. 56(a)(1); Dietz v.
Bouldin, 136 S.Ct. 1885, 1889 (2016)).
Ruling and Order, the Court acknowledged Mr. Brais's
qualified immunity defense would likely shield him from
liability with respect to most of the claims brought in this
action under 42 U.S.C. § 1983. Order on Mot. Summ. J. at
7-8. The Court focused on, however, the fact that Plaintiffs
may be able to overcome qualified immunity with respect to
the alleged seizure of items from their wardrobe, as this was
the only conduct still alleged in the Amended Complaint on
which the law was “clearly established” at the
time of the alleged violation. Order on Mot. Summ. J. at 8
(“. . . the law is clearly established that a state
official may not take personal property without consent or a
warrant, and a reasonable jury at this stage could find that
it was not ‘objectively reasonable for the defendant to
believe that his action did not violate the law.'”)
the Court explained that a trial could only proceed
“[i]f the factual allegations in Plaintiffs'
Amended Complaint can be established through the submission
of admissible evidence, through sworn affidavits, documents,
or otherwise.” Id. If Plaintiffs could meet
that threshold, the Court noted, questions of fact
“would remain for the jury to decide.”
Id. at 9.
Court therefore exercised its inherent power “to manage
its docket and courtroom with a view toward the efficient and
expedient resolution of cases, ” Dietz, 136
S.Ct. at 1889, ordering Plaintiffs to submit “to
provide support for their allegations that Mr. Brais not only
performed an administrative inspection of their private
property, but also photographed and/or took their belongings,
” by September 7, 2018, in order to determine whether
this claim against Mr. Brais could survive summary judgment
and proceed to trial. Order on Mot. Summ. J. at 9.
Melillo and Mr. Norden filed a response to that Order on
September 4, 2018. Plaintiffs' Response to Order on Mot.
Summ. J., dated Sept. 4, 2018 (“Pls.'
Response”), ECF No. 113. On October 5, 2018, the Court
informed the parties that it had reserved decision as to that
submission. Amended Scheduling Order, dated Oct. 5, 2018, ECF
February 11, 2019, the Court ordered Ms. Melillo and Mr.
Norden to appear and show cause as to why summary judgment
should not be granted in favor of Mr. Brais, observing that,
having reviewed the September 4, 2018 submission,
“Plaintiffs appear not to have admissible evidence that
Mr. Brais took their belongings and thus, lack the genuine
issue of material fact necessary to warrant a trial.”
Show Cause Order at 2. The Court permitted Plaintiffs to file
any written submissions in response to its Order to Appear
and Show Cause by March 1, 2019.
February 15, 2019, Plaintiffs moved for clarification of the
Court's Order with respect to eight issues including,
inter alia, whether the Court would be reconsidering
its prior order denying Defendant's motion for summary
judgment for its procedural defects, and whether the Court
would provide “[p]ermission and instructions for the
Plaintiffs how to modify a response to either of the
Defendant's (denied) Local Rule 56(a)(1)
Statements[.]” Motion for Clarification, dated Feb. 15,
2019, ECF No. 148, at 1-2. Plaintiffs further noted that they
“are prepared to reiterate their position on March 5,
2019, that the Defendant is not entitled to a qualified
immunity defense because his actions were deliberate, that
his administrative searches were illegal (because of a
fraudulent NOV/C&D order) and against their
Constitutional rights; and that the question of missing
personal items (which never were the main issue in this
action) is a matter for the jury to determine upon the
preponderance of the evidence.” Id. at 2.
February 16, 2019, Mr. Brais responded to the motion for
clarification. Response, dated Feb. 16, 2019, ECF No. 149.
Mr. Brais requested leave to file a response to any
submission by Plaintiffs responsive to the Order to Appear
and Show Cause. Id. at 1. He took no position on the
eight issues raised by Plaintiffs. Id.
same day, the Court granted in part and denied in part
Plaintiffs' motion. Order, dated Feb. 16, 2019, ECF No.
150. The Court clarified that “[a]s noted in the
Court's Order to Show Cause, the Court is considering
granting summary judgment under Rule 56(f) of the Federal
Rules of Civil Procedure, which permits the Court to consider
summary judgment on its own after identifying for the parties
material facts that may not be genuinely in dispute.”
Id. The Court reiterated that it had “already
given Plaintiffs permission to file any written response to
the Order to Show Cause by March 1, 2019, ” and gave
Defendant leave to file a response by March 3, 2019 at 12:00
p.m. Id. Finally, the Court denied the remainder of
Plaintiffs' motion for clarification “either
because Plaintiffs, who have chosen to be unrepresented, seek
legal advice from the Court or a response is otherwise not
February 25, 2019, Plaintiffs filed a submission in response
to the Order to Appear and Show Cause. Response to Order to
Show Cause, dated Feb. 25, 2019 (“Pls.' Show Cause
Response”), ECF No. 152. Plaintiffs argued that the
Court's August 22, 2018 Ruling and Order required them
“to provide proof that the Defendant performed the
illegal administrative inspection of their private property
(the wardrobe) and photographed their belongings
(stored within the closed wardrobe); or the
Defendant performed the illegal administrative inspection of
their private property (the wardrobe), photographed,
and took their belongings.” Id. at 2.
This interpretation, they believe, was supported by the
Order's use of “and/or.” Id. at 2-3
(citing Order on Mot. Summ. J. at 9 (“the Court
therefore orders Plaintiffs to provide support for their
allegations that Mr. Brais not only performed an
administrative inspection of their private property, but also
photographed and/or took their belongings by September 7,
2018.”)). Plaintiffs asserted that they “never
accused Mr. Brais (or anyone else) of taking their personal
belongings from the wardrobe” but had “only (and
always) stated that, before the second inspection, it was
believed that these items were stored within, and after the
inspection they were discovered missing.” Id.
to Plaintiffs, the Amended Complaint's core claim is that
Defendant used “false, manufactured, fabricated,
unsubstantiated information to serve upon the Plaintiff,
Alice Melillo, a Notice of Violation/Cease and Desist order
that was the catalyst for three (3) illegal unwarranted
administrative inspections.” Id. It is Mr.
Brais, they insist, who “repeatedly inserted the
subject of the missing personal items in numerous court
documents, including his motion for summary judgment, ”
id. at 4, and “has apparently convinced the
Court to believe that the missing personal items are the main
issue of this litigation, ” id. at 5. For
Plaintiffs, “[t]he question for this Court to decide is
whether or not the Defendant's NOV/C&D was illegal,
and therefore everything that followed was illegal including,
(but not limited to), all three inspections of the
Plaintiffs' detached garage on the subject
property.” Id. at 7.
March 1, 2019, Mr. Brais filed a response to Plaintiffs'
submission. Reply to Response to Order to Show Cause, dated
Mar. 1, 2019 (“Reply to Pls.' Show Cause
Response”), ECF No. 153.
March 5, 2019, the Court held the show cause hearing and
reserved decision. Minute Entry, dated Mar. 5, 2019, ECF No.
STANDARD OF REVIEW
may grant summary judgment sua sponte under Federal Rule of
Civil Procedure 56(f) “only ‘[a]fter giving
notice and a reasonable time to respond' and ‘after
identifying for the parties material facts that may not be
genuinely in dispute.'” In re 650 Fifth Ave. and
Related Properties, 830 F.3d 66, 96 (2d Cir. 2016) (quoting
Fed.R.Civ.P. 56(f)). Thereafter, if the record still shows no
genuine issue as to any material fact, and a party is
entitled to judgment as a matter of law, the Court may sua
sponte grant summary judgment in favor of that party.
judge's function at this stage “is not himself to
weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for trial,
” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). “The inquiry performed is the threshold inquiry
of determining whether there is the need for a trial-whether,
in other words, there are any genuine factual issues that
properly can be resolved only by a finder of fact because
they may reasonably be resolved in favor of either
party.” Id. at 250. “If the evidence is
merely colorable, or is not significantly probative, summary
judgment may be granted.” Id. (citing
Dombrowski v. Eastland, 387 U.S. 82, 87 (1967);
First Nat'l Bank of Ariz. v. Cities Serv. Co.,
391 U.S. 253, 290 (1968)).
September 4, 2018 response to the Court's August 22, 2018
Order contains only three exhibits that are germane to the
allegations related to the second inspection: (1) photos of
the interior of the alleged wardrobe in question, which
appear to have been produced to Plaintiffs by Mr. Brais in
discovery; (2) an affidavit from Mr. Norden; and (3)
correspondence between Ms. Melillo and Mr. Brais about the
these exhibits, along with evidence submitted with
Defendant's summary judgment motion, do not provide
admissible evidentiary support for Plaintiffs' claim, the
Court concludes there is no genuine issue of material fact
requiring a trial.
Court therefore finds that Defendant is entitled to summary
judgment with respect to the second inspection. The Court
also finds that Defendant is entitled to qualified immunity
with respect to all federal claims, and that this case
therefore must be remanded back to the Connecticut Superior
Evidence Necessary to Get to Trial
“[I] n an ordinary civil case, a plaintiff must present
evidence based on which ‘reasonable jurors could find
by a preponderance of the evidence that the plaintiff is
entitled to a verdict.'” Prunier v. City of