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Melillo v. Brais

United States District Court, D. Connecticut

March 11, 2019

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

          ORDER GRANTING SUMMARY JUDGMENT SUA SPONTE AND REMANDING CASE

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE.

         On 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. 146-1.

         On March 5, 2019, the Court held a show cause hearing and reserved decision. Minute Entry, dated Mar. 5, 2019, ECF No. 154.

         For the 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. § 1983.

         The 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 New London.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         This 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.

         The 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 DESIST
For apartments located in a detached garage at 280 Lathrop Rd, Plainfield.
[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 Regulations.
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 permanently removed.
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.
Respectfully,
Ryan Brais - CZEO
Zoning Officer
Town of Plainfield

         Notice 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.

         Plaintiffs 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).

         Following this Cease and Desist Order, administrative inspections occurred on May 27, 2015, June 9, 2015, and July 2, 2015. Am. Compl. ¶¶ 15.

         In the 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. ¶¶ 21-23.

         Plaintiffs 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. ¶¶ 25-27.

         Plaintiffs 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.

         In 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.

         Discovery 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.

         On 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.

         On 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)).

         In that 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.'”) (citation omitted).

         Thus, 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.

         The 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.

         Ms. 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 No. 118.

         On 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.

         On 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.

         On 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.

         That 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 warranted.” Id.

         On 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. at 3.

         According 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.

         On 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.[1]

         On March 5, 2019, the Court held the show cause hearing and reserved decision. Minute Entry, dated Mar. 5, 2019, ECF No. 154.

         II. STANDARD OF REVIEW

         A court 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.

         The 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)).

         III. DISCUSSION

         Plaintiffs' 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 alleged theft.

         Because 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.

         The 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 Court.

         A. 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 ...


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