VICTOR A. BOLDEN, 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
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 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)
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.
On March 5, 2019, the Court held the show cause hearing and reserved decision. Minute Entry, dated Mar. 5, 2019, ECF No. 154.
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)).
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.
"[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 Watertown, 936 F.2d 677, 679 (2d Cir. 1991) (quoting Anderson, 477 U.S. at 252).
Thus, the Supreme Court has recognized that a plaintiff may not "rest on his allegations. . . to get to a jury without `any significant probative evidence tending to support the complaint.'" Anderson, 477 U.S. at 249 (quoting Cities Serv., 391 U.S. at 290). "[T[he plaintiff must present affirmative evidence in order to defeat . . . summary judgment. This is true even where the evidence is likely to be within the possession of the defendant, as long as the plaintiff has had a full opportunity to conduct discovery." Id. at 257.
"Conclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (citing D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998)). Thus, plaintiffs "`may not rely on mere speculation or conjecture as to the true nature of the facts to overcome'" summary judgment. Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)). "`[M]ere conclusory allegations or denials . . . cannot by themselves create a genuine issue of material fact where none would otherwise exist.'" Id. (quoting Fletcher, 68 F.3d at 1456); see also Price v. Cushman & Wakefield, Inc., 808 F.Supp.2d 670, 685 (S.D.N.Y. 2011) ("In seeking to show that there is a genuine issue of material fact for trial, the non-moving party cannot rely on mere allegations, denials, conjectures or conclusory statements, but must present affirmative and specific evidence showing that there is a genuine issue for trial.") (citations omitted).
Likewise, "a jury may not base its verdict on mere speculation, surmise or guesswork." Prunier, 936 F.2d at 680 (citation omitted); see also Jaquez v. Flores, No. 10 Civ. 2811 (KBF), 2016 WL 1267780, at *4 (S.D.N.Y. Mar. 30, 2016) ("Plaintiffs have proffered no evidence that supports that wound A was a substantial contributing factor in Jaquez's death. Instead, plaintiffs argue that the jury should be allowed to infer that the wound was a substantial contributing factor without any supportive medical evidence. But this merely seeks to have the jury engage in speculation. There is no principle of law that would allow this.") (citing Prunier, 936 F.2d at 680).
The Second Circuit thus has upheld grants of summary judgment for defendants where plaintiffs' allegations were not supported by any probative evidence creating a genuine issue of material fact. See, e.g., Llewellyn v. Asset Acceptance, LLC, 669 F. App'x 66, 68 (2d Cir. 2016) ("Llewellyn has not provided any evidence creating a genuine dispute that her debt was sold to the Citibank Trust. The district court correctly determined that there was no genuine issue of material fact as to Asset's valid ownership of the debt.") (citations omitted); Henderson v. Sikorsky Aircraft Corp., Inc., 590 F. App'x 9, 10 (2d Cir. 2014) ("Nor has he produced any evidence suggesting that Sikorsky's explanation is a camouflage for more insidious motives, testifying only to his `belief" that his failure to receive a pay increase was in fact racially motivated—an entirely speculative assertion that in any event does not speak directly to Henderson's claim of retaliatory animus. Henderson's conclusory allegations thus fail to create a genuine dispute of material fact sufficient to defeat summary judgment.") (citations omitted); Hicks, 593 F.3d at 167 ("The following claims were properly dismissed as too conclusory to survive summary judgment. . . . As to the general claim of sabotage: Plaintiffs' affidavits on this point lack specifics and are conclusory; a party cannot create a triable issue of fact merely by stating in an affidavit the very proposition they are trying to prove. . . . As to the compromised security system claim: Plaintiffs do not assert that it was Baines who had compromised the facility's security; instead, they suggest only that `someone having the security codes and keys to the building' was responsible. Plaintiffs then fail to offer evidence as to which employees had the codes and keys, leaving purely to speculation whether Baines was responsible. . . . As to the dirty dishes and missing knife claim . . . . Plaintiffs' assertion that Baines took the knife to retaliate against them—which is explicitly grounded only on their `information and belief"—is therefore insufficient.") (citations omitted).
"[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). However, "[a] defendant is entitled to qualified immunity only if he can show that, viewing the evidence in the light most favorable to plaintiffs, no reasonable jury could conclude that the defendant acted unreasonably in light of the clearly established law." Golodner v. Berliner, 770 F.3d 196, 205 (2d Cir. 2014) (quoting Demoret v. Zegarelli, 451 F.3d 140, 148 (2d Cir. 2006)).
"To overcome the defense of qualified immunity, a plaintiff must show both (1) the violation of a constitutional right and (2) that the constitutional right was clearly established at the time of the alleged violation." Huth v. Haslun, 598 F.3d 70, 73 (2d Cir. 2010) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," U.S. CONST. amend. IV, and "safeguard[s] the privacy and security of individuals against arbitrary invasions by government officials." Camara v. Mun. Court of City & Cty. of S.F., 387 U.S. 523, 528 (1967). It is well established that this protection extends to administrative searches by municipal officials. Camara, 387 U.S. at 534 ("[W]e hold that administrative searches of the kind at issue here are significant intrusions upon the interests protected by the Fourth Amendment. . . .").
The Fourth Amendment does not, however, require every administrative search by a government official be conducted under a search warrant. See Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665 (1989) ("While we have often emphasized, and reiterate today, that a search must be supported, as a general matter, by a warrant issued upon probable cause, our decision in Railway Labor Executives reaffirms the longstanding principle that neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance.") (citing Skinner v. Rwy. Labor Execs. Ass'n, 489 U.S. 602 (1989)).
Instead, "absent consent, exigent circumstances, or the like, in order for an administrative search to be constitutional, the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker." City of Los Angeles, Calif. v. Patel, 135 S.Ct. 2443, 2453 (2015); see also Airbnb, Inc. v. City of N.Y., Nos. 18 Civ. 7712 & 18 Civ. 7742 (PAE), 2019 WL 91990, at *13 (S.D.N.Y. Jan. 3, 2019) ("Outside the criminal context, however, the Supreme Court, in assessing reasonableness, has not insisted on the procedures described by the Warrant Clause. . . . The Supreme Court's assessment of whether searches and seizures outside of the criminal context are reasonable has always turned on the particular circumstances at hand.") (citations omitted).
Plaintiffs argue that the main issue for trial is the legality of the Cease and Desist Order, which they contend was obtained "using lies and false information." Pls.' Show Cause Response at 5. Plaintiffs contend that all searches that flowed from that Order constituted "illegal unwarranted administrative inspections" that "violated the Plaintiffs' constitutional rights to privacy and unwarranted search and seizure." Id. at 3.
The Court disagrees.
Because Plaintiffs never appealed the Cease and Desist Order, they have no viable Fourth Amendment claim regarding the alleged invalidity of the Cease and Desist Order.
The Connecticut Supreme Court has held that "[w]hen a zoning inspection is aimed at a particular property . . . the government's interest [in promoting health and the general welfare] does not sufficiently outweigh the threat to individual privacy to warrant suspension of the [F]ourth [A]mendment requirement of particularized suspicion." Town of Bozrah v. Chmurynski, 303 Conn. 676, 691 (2012). The Connecticut Supreme Court has accordingly interpreted Connecticut General Statute § 8-12—which grants municipal zoning enforcement officials the power to enforce zoning regulations through cease and desist orders, inspections, and civil actions—as authorizing "that official to take enforcement action through available methods at law" in accord with the requirements of the Fourth Amendment. Id. at 685 n.5 (citing CONN. GEN. STAT. § 8-12).
The Fourth Amendment does not, however, require a warrant for all administrative searches of a home. It only requires one—or its functional equivalent—to be sought when a homeowner refuses to give their consent to that administrative search. See id. at 693-96 (holding that a trial court's grant of preliminary injunction under CONN. GEN. STAT. § 8-12 when homeowner refused to permit inspection of his property served the "functional equivalent" of a warrant "such that the resulting search would be reasonable nevertheless," because such a hearing, which results in a preliminary finding of probable cause, satisfies the purposes of the Fourth Amendment in ensuring that the search is reasonable).
After the Cease and Desist Order issued, Plaintiffs had an opportunity to appeal to the Board of Zoning Appeals and challenge that order, and therefore to prevent any subsequent administrative inspections/searches. But they did not avail themselves of this process. Instead, they chose not to appeal, and proceeded to schedule the three subsequent inspections of their property.
Under Connecticut law, local zoning boards of appeals have the power to "hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of" Chapter 124 of the Connecticut General Statutes, which sets the legal framework for zoning for all Connecticut municipalities. CONN. GEN. STAT. § 8-6(a)(1). "Any person aggrieved" by a zoning enforcement official's order, requirement, or decision has the right to appeal "within such time as is prescribed by a rule adopted by said board, or, if no such rule is adopted by the board, within thirty days, by filing with the zoning commission or the officer from whom the appeal has been taken and with said board a notice of appeal specifying the grounds thereof." CONN. GEN. STAT. § 8-7. The appeal period begins "at the earliest of the following: (1) Upon receipt of the order, requirement or decision from which such person may appeal, (2) upon the publication of a notice in accordance with subsection (f) of section 8-3, or (3) upon actual or constructive notice of such order, requirement or decision."
The Town of Plainfield's own zoning regulations, which are also publicly available, provide that the Zoning Board of Appeals has the power to "hear and decide appeals where it is alleged that there is an error in any order, requirement, or decision made by the official charged with the enforcement of these regulations." PLAINFIELD, CONN., ZONING REGS. § 16.3.1. Because Plainfield has not separately adopted a time period for appeals, Plaintiffs were subject to the state statute's thirty-day time limit for filing an appeal. If the Board of Zoning Appeals upholds the zoning enforcement official, the person aggrieved may take an appeal to the Connecticut Superior Court. CONN. GEN. STAT. § 8-8(b). That Court may, "after a hearing thereon, reverse or affirm, wholly or partly, or may modify or revise the decision appealed from." CONN. GEN. STAT. § 8-8(l). From there, the person aggrieved can take another appeal to the Appellate Court "on the vote of two judges of the Appellate Court so to certify and under such other rules as the judges of the Appellate Court establish." CONN. GEN. STAT. § 8-8(o).
Plaintiffs did not avail themselves of any of their appeal rights. They now claim that their rights to appeal were obscured by the wording of the Cease and Desist Order. Am. Compl. ¶ 9(g) ("The Defendant, violated the Plaintiffs' right to appeal the Cease and Desist order (4/7/15) by using false information that was clarified later by the town attorney. 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.").
No state statute obligated Mr. Brais to provide legal information or advice to Plaintiffs about how to appeal his orders. See Cardwell v. Town of Granby Zoning Bd. of Appeals, No. HHDCV105035217S, 2012 WL 234154, at *2 (Conn. Super. Ct. Jan. 4, 2012) ("[T]he court can locate no authority imposing a requirement that the plaintiff be notified of his right to appeal within the statutory time period. The only requirement regarding notice is that the aggrieved party be notified of the decision from which an appeal can be taken; in this case, Cardwell was notified of the ZEO's decision.") (citations omitted).
The Court further notes that Mr. Brais's order actually pointed them in the right direction by identifying the local zoning regulation Plaintiffs were alleged to have violated and a relevant state statute providing him authority to pursue civil penalties and fines for non-compliance. C&D Order at 2 (citing PLAINFIELD, CONN. ZONING REGS. § 7.2 and CONN. GEN. STAT. § 8-12). Had Plaintiffs reviewed the adjacent Plainfield Zoning Regulations or Connecticut General Statutes— or obtained the advice of counsel—they could have learned how to file an appeal.
Finally, the record reveals that Plaintiffs, in fact, learned of their appeal rights from Town Attorney Mark Branse only three days after the Cease and Desist Order issued. See Letter to Mark Branse, dated Apr. 15, 2015, annexed as Ex. 11 to Pls.' Response ("Your letter dated 4/10/15 stated that `the order issued by the Zoning Enforcement Officer must be appealed to the Zoning Board of Appeals within thirty (30) days of receipt of the order or the opportunity for such an appeal is lost forever."). Plaintiffs conceded, at oral argument, that they had learned of these appeal rights, but contend that they were told by someone at Plainfield Town Hall that the appeal would cost $700 to file and they decided not to incur that expense.
Plaintiffs' allegations that Mr. Brais somehow obscured their appeal rights thus are wholly without merit.
Defendant argued in his motion for summary judgment that a Cease and Desist Order alleging zoning violations in the attached garage that was issued, and was not directly appealed by Plaintiffs, is presumptively valid under Connecticut law and may not be collaterally attacked in a later-filed civil action absent exceptional circumstances. Def.'s Mem. in Support of Mot. Summ. J., dated Aug. 3, 2018, ECF No. 105-1, at 12 & n.3.
The Court agrees.
"[A]s a general rule, litigation about the merits of a cease and desist order does not permit a collateral attack on the validity of the underlying zoning decision that was not challenged at the time that it was made, even if the collateral attack is on jurisdictional grounds." Lallier v. Zoning Bd. of Appeals of Town of Stafford, 119 Conn.App. 71, 78 (2010); see Masayda v. Pedroncelli, 43 Conn.App. 443, 447 (1996) ("When a party has a statutory right of appeal from the decision of an administrative officer or agency, he may not contest the validity of the order if zoning officials seek its enforcement in the trial court after the alleged violator has failed to appeal.") (citing Gelinas v. West Hartford, 225 Conn. 575, 596 (1993) (holding that "the validity of the order may not be contested if zoning officials seek its enforcement after a violator has failed to appeal.")).
Because these searches were conducted more than thirty days after the issuance of the Cease and Desist Order, and that order was not appealed, the Court finds that the legality of the Cease and Desist Order is not a material issue of fact to be determined by a jury. Plaintiffs' claims about the illegality of the Order, and the searches, therefore fail for two distinct reasons.
First, because the Cease and Desist Order was not appealed, administrative searches taken under its authority cannot support a Fourth Amendment claim as a matter of law. Plaintiffs had their opportunity to demand a finding of probable cause, and to test the veracity of the facts that they now claim were lies and false information, by taking an appeal to the Board of Zoning Appeals. Had they failed there, the statute authorized them to take that appeal through the Connecticut courts. In short, they had more than an adequate opportunity to seek "precompliance review before a neutral decisionmaker." Patel, 135 S. Ct. at 2452. But because they chose not to take an appeal in the statutorily-required time, they lost that opportunity; instead, they went ahead and scheduled the three administrative inspections and took other steps to come into compliance with the Cease and Desist Order. Their Fourth Amendment claim here then fails as a matter of law.
Second, even if that was not the case, because Mr. Brais was acting under the authority of a presumptively valid Cease and Desist Order, he was not acting contrary to any "clearly established statutory or constitutional rights of which a reasonable person would have known" and therefore is entitled to qualified immunity with respect to his decision to schedule the administrative inspections, at times agreeable to Plaintiffs, and to undertake the inspections.
Accordingly, Mr. Brais is entitled to summary judgment on these claims.
As the Court previously advised Plaintiffs, Plaintiffs' allegation that Mr. Brais seized their property—the alleged bag of valuables—in violation of their Fourth Amendment rights to be free from unreasonable searches and seizures might not be subject to a qualified immunity defense. Because the Court found this allegation, if properly supported, would allow Plaintiffs to overcome a defense of qualified immunity, it ordered Plaintiffs to submit admissible evidence to support their allegation.
Plaintiffs now insist that they never alleged Mr. Brais stole their valuables, but merely pointed out that the valuables were present before his search and missing after it. This is a distinction without a difference.
In response to the Court's August 22, 2018 Order, Plaintiffs submitted numerous exhibits, but most are irrelevant to the second inspection. The only exhibits relevant to the second inspection are: (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) correspondence between Ms. Melillo and Mr. Brais about the second inspection and alleged theft; and
(3) affidavits from Plaintiffs and their son, Matthew Melillo.
The photos submitted by Plaintiffs appear to have been produced by Mr. Brais in discovery, and correspond with Mr. Brais's admission that he photographed the contents of the wardrobe:
Ex. 17 to Pls.' Response, ECF No. 113-1, at 67-68. But photographing the wardrobe was not, in and of itself, a clearly established violation of law. The photos are only relevant, to the extent that they support the allegation of improper seizure of the bag.
The photos do not document the presence of the bag in question, nor do they document the alleged seizure of the bag. They simply establish that Mr. Brais did open the wardrobe and photograph its contents—a fact that is not in dispute. As a result, they do not create a genuine issue of material fact.
Plaintiffs have also submitted correspondence between them and Mr. Brais following the second inspection. On June 10, 2015, Ms. Melillo wrote the following letter to Mr. Brais:
Ex. 17 to Pls.' Response, ECF No. 113-1, at 69.
The same day, Mr. Brais responded with the following letter:
Ex. 18 to Pls.' Response, ECF No. 113-1, at 71.
Two days later, Ms. Melillo replied in a lengthy letter. In relevant part, it states:
Ex. 19 to Pls.' Response, ECF No. 113-1, at 72-74.
The fact that these letters were written is not in dispute and cannot create a genuine issue of material fact. These letters simply establish facts not in dispute: that Mr. Brais opened the wardrobe, inspected, and photographed its contents.
The letters also show that neither Ms. Melillo nor Mr. Norden directly observed any circumstances of the alleged theft of their bag; any testimony of theirs on this subject, then, would merely involve reporting on their son's account. See Ex. 17 ("Our son just got up and informed us about the inspection yesterday."); see also Affidavit of Alice Melillo, dated Sept. 3, 2018, annexed to Pls.' Response, ECF No. 113-1, ¶ 42 ("Allen was very sick; possibly pneumonia, and did not accompany them on the inspection. My son Matthew Melillo did so on Allen's behalf."); Affidavit of Allen Norden, dated Sept. 3, 2018, annexed to Pls.' Response, ECF No. 113-2, ¶ 66 ("The next morning around 10:00 a.m. was the first chance we had to speak to Matthew in detail about the inspection. . . . He told us he said (to Brais), `What are you doing taking pictures of people's personal belongings.'").
While the letters suggest that perhaps Plaintiffs' son, Matthew Melillo, could testify at trial about the inspection of the cabinet and circumstances of the alleged theft, Matthew Melillo's deposition testimony reveals otherwise:
Transcript of Deposition of Matthew Melillo, annexed as Ex. E to Def.'s Local Rule 56(a)(1) Statement, ECF No. 105-8, at 34:2-7, 11-13, 39:3-7.
The letters therefore do not create the genuine issue of material fact necessary for a jury trial.
The final relevant exhibits are affidavits from Ms. Melillo, Mr. Norden, and Matthew Melillo. Ms. Melillo's affidavit contains the following paragraphs that speak to the second inspection and alleged theft:
Affidavit of Alice Melillo, dated Sept. 3, 2018, annexed to Pls.' Response, ECF No. 113-1, ¶¶ 42-46.
Mr. Norden's affidavit contains the following paragraphs that speak to the second inspection and alleged theft:
Affidavit of Allen P. Norden, III, dated Sept. 3, 2018, annexed to Pls.' Response, ECF No. 113-2, ¶¶ 64-73.
Matthew Melillo's affidavit contains the following paragraphs that speak to the second inspection and alleged theft:
Affidavit of Matthew Melillo, dated Sept. 3, 2018, annexed to Pls.' Response, ECF No. 113-2, ¶¶ 15-21.
These paragraphs offer no additional evidence that Ms. Melillo, Mr. Norden, or Ms. Melillo's son would be able to testify to having witnessed Mr. Brais take anything out of the wardrobe. See FED. R. CIV. P. 56(c)(4) ("An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated."); cf. Beyah v. Coughlin, 789 F.2d 986, 989 (2d Cir. 1986) ("This requirement means that hearsay testimony that would not be admissible if testified to at the trial may not properly be set forth in the Rule 56(e) affidavit.") (citations, internal quotation marks, and alterations omitted) (citing pre-restyling version of FED. R. CIV. P. 56(c)(4)). They also do not contain any specific facts or circumstances that would suggest that this would be a reasonable inference for a jury to make. See Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir. 1986) ("Such testimony, unsupported by documentary or other concrete evidence of the supposed lead line effect, is simply not enough to create a genuine issue of fact in light of the evidence to the contrary."); D'Amico, 132 F.3d at 149 ("The non-moving party may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful."); Prunier, 936 F.2d at 679 (in 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.").
There are no facts in this record narrowing the possibilities as to what happened to the bag. See, e.g., Cities Serv., 391 U.S. at 284-86 (explaining that the plaintiff in Poller v. Columbia Broad. Sys., 368 U.S. 464 (1962), could survive summary judgment, despite lack of direct evidence as to motives of CBS in canceling its affiliation with the plaintiff, because evidence showed that "the competitive relationship between CBS and the plaintiff was such that it was plausible for the plaintiff to argue that CBS had embarked on a plan to drive him out of business."); Cameron v. Cmty. Aid for Retarded Children, Inc., 335 F.3d 60, 65 (2d Cir. 2003) ("Choosing one explanation over another without more evidence is a matter of speculation . . . .") (citation omitted). As a result, Plaintiffs simply would be asking the jury to agree with their speculation about what might have occurred. See Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 177 (2d Cir. 2003) ("NMPC argues that the presence of BTEX and PAHs in the surrounding environment permits an inference that MVO was the source of the contamination since these components were found in the fuel oil stored by MVO. However, these same substances are also by-products of NMPC's manufactured gas operations. NMPC argues that the question of whether these substances came from MVO, NMPC or some other defendant is for the fact-finder to resolve. But because there is no evidence that points to one party rather than another, the only basis for such a jury finding would be impermissible speculation.").
The Court therefore finds that Plaintiffs are not entitled to a trial on their claim that Mr. Brais illegally seized their items. To be clear: the Court takes no position as to whether or not Mr. Brais actually took the items. It simply finds that based on the record before the Court, no reasonable fact finder could infer that Mr. Brais took the items. Under the Federal Rules of Civil Procedure, the Court therefore is obligated not to permit such a case to proceed to trial.
Accordingly, the Court finds Defendant is entitled to summary judgment on this claim.
Because qualified immunity does not provide a defense to state-law intentional torts, it does not provide a defense to Plaintiffs' state-law intentional infliction of emotional distress claim. See Schnabel v. Tyler, 230 Conn. 735, 741 (1994) ("Qualified immunity may serve as a defense to civil suits brought pursuant to § 1983, but not to common law actions predicated on intentional torts."); accord Williams v. Hauser, No. 3:96-cv-786 (AHN), 1998 WL 241218, at *7 (D. Conn. May 7, 1998).
Having determined that all federal claims over which the Court had original jurisdiction should be dismissed, however, the Court may decline to exercise supplemental jurisdiction over Plaintiffs' state-law claim. 28 U.S.C. § 1367(c)(3); Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) ("[A] district court `may decline to exercise supplemental jurisdiction' if it `has dismissed all claims over which it has original jurisdiction.'") (quoting 28 U.S.C. § 1367(c)(3)).
"Once a district court's discretion is triggered under § 1367(c)(3), it balances the traditional `values of judicial economy, convenience, fairness, and comity' in deciding whether to exercise jurisdiction." Id. (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) and citing Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 446-47 (2d Cir. 1998). "In weighing these factors, the district court is aided by the Supreme Court's additional guidance in Cohill that `in the usual case in which all federal-law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state-law claims.'" Id. (quoting Cohill, 484 U.S. at 350 n.7).
The Court finds that the balance of the Cohill factors makes this the usual case, and therefore declines to exercise jurisdiction over the state-law intentional infliction of emotional distress claim. Accordingly, this case should be remanded to Connecticut Superior Court.
Plaintiffs have failed to submit evidence suggesting that a genuine issue of material fact remains for trial. In addition, at the hearing held on March 5, 2019, Plaintiffs did not offer any additional evidence that could suggest a genuine issue of material fact remains for trial.
For the reasons explained above, the Court sua sponte
Any remaining state law claims in Count Three of the Amended Complaint are
The Clerk of the Court is respectfully directed to enter judgment for Mr. Brais on the federal claims and close this case.
As the Court has previously noted, however, the August 22, 2018 denial of Mr. Brais's summary judgment motion was not a decision as to the merits of the substantive legal arguments he made. See Order on Mot. to Stay, dated Oct. 29, 2018, ECF No. 130, at 1 ("[T]he substantive legal issue that Mr. Brais claims is implicated by his appeal has not been decided and remains under review by this Court . . . Accordingly, Mr. Brais's motion to stay these proceedings is DENIED."); see also Am. Scheduling Order, dated Oct. 5, 2018, at 2 ("An interlocutory appeal does not stay district court proceedings absent an order from the district court or the Court of Appeals[.]") (citing 28 U.S.C. § 1292(b)).
The Court further notes that Mr. Brais never sought leave to take an interlocutory appeal of the Order denying summary judgment. Interlocutory orders, such as the August 22, 2018 Order, are generally not appealable as of right absent an applicable exception. See S.E.C. v. TheStreet.com, 273 F.3d 222, 228 (2d Cir. 2001); 28 U.S.C. § 1292.
