Boccanfuso v. Zygmant et al
Filing
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ORDER granting in part and denying in part 13 Motion to Dismiss pursuant to the attached decision. Count Two is dismissed but all other counts remain. The parties are directed to contact Magistrate Judge Robert A. Richardson's chambers for a settlement conference. Signed by Judge Vanessa L. Bryant on 12/28/2017. (Lee, E.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GIUSEPPE BOCCANFUSO,
Plaintiff,
v.
EDWARD ZYGMANT, TERRANCE
DUNN, JR., PHILLIP RESTIERI,
Defendants.
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No. 3:17-CV-00162 (VLB)
December 28, 2017
MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART
MOTION TO DISMISS [DKT. 13]
Plaintiff Giuseppe Boccanfuso (“Plaintiff” or “Boccanfuso”) has filed this
action against Town of Westport officials Edward Zygmant (“Zygmant”) and
Terrance Dunn, Jr. (“Dunn”), and Westport Police Department official Phillip
Restieri (“Restieri”) (collectively, “Defendants”) arising out of his arrest, the
prosecution, and his acquittal of alleged violations of first degree reckless
endangerment, Conn. Gen. Stat. § 53a-631, and failure to abate a fire hazard,
Conn. Gen. Stat. § 29-306. Plaintiff brings forth five counts: (1) deprivation of
constitutional rights in violation of 42 U.S.C. § 1983, (2) reckless infliction of
emotional distress, (3) negligent infliction of emotional distress, (4) false
imprisonment, and (5) malicious prosecution. Before the Court is Defendants’
Motion to Dismiss Counts Two and Three of the Complaint for failure to state a
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Plaintiff cites Conn. Gen. Stat. § 53a-60, which is the provision for second
degree assault. Because Plaintiff specifically references first degree reckless
endangerment, the Court presumes he intended to refer to Conn. Gen. Stat. § 53a63.
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claim upon which relief may be granted. [Dkt. 13]. For the foregoing reasons, the
motion is GRANTED as to Count Two and DENIED as to Count Three.
Background
The following facts are taken from the Complaint and are assumed to be
true for the purposes of this motion. Fire Marshall Zygmant, Fire Inspector Dunn,
and Officer Restieri investigated Mr. Boccanfuso and secured an arrest warrant
on March 3, 2014. [Dkt. 1 (Compl.) ¶¶ 5-10]. The warrant alleged violations of first
degree reckless endangerment in violation of Conn. Gen. Stat. § 53a-63 and
failure to abate a fire hazard in violation of Conn. Gen. Stat. § 29-306. The arrest
warrant affidavit allegedly indicated “the oil tank was tested for flammable vapors
and metered a reading 100% over the lower range of the explosive limit.” Id. ¶ 11.
Mr. Boccanfuso alleges that a meter was not the method to read the tank interior,
the tank did not otherwise meter the alleged limits, and the meter could not
measure the vapors referenced. Id. ¶¶ 11-13. The tank would not explode as the
affidavit alleged and did not constitute a fire hazard or violate rules and
regulations as set forth by the Office of the State Fire Marshall. Id. ¶¶ 15-16. It is
also alleged the arrest warrant incorrectly indicated soil samples tested positive
for contamination. Id. ¶ 20.
A representative from the Department of Energy and Environmental
Protection (“DEEP”) notified Mr. Boccanfuso in the presence of Defendants
Zygmant and Dunn that Mr. Boccanfuso could remove the tank from the ground
and reuse it for waste oil. Id. ¶ 17. Mr. Boccanfuso did not need a “fire watch”
unless the tank was opened. Id. Plaintiff complied with DEEP’s tank removal
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requirements. Id. ¶ 18. DEEP investigated Mr. Boccanfuso’s case and closed the
investigation without finding any violations. Id. ¶ 19.
Mr. Boccanfuso alleges Defendants investigated and drafted the arrest
warrant affidavit with reckless disregard for the truth.
Id. ¶ 20.
He avers
Defendants mislead the magistrate who signed the warrant by recklessly omitting
material facts in disregard for the truth. Id. ¶ 23. Without the material omissions,
Defendants would not have shown probable cause for the warrant. Id. ¶ 24. Mr.
Boccanfuso was compelled to retain counsel and attend court proceedings for
two years before his acquittal on March 21, 2016.
Id. ¶ 27.
As a result, Mr.
Boccanfuso experienced severe emotional distress including “great humiliation,
strains upon his marriage, embarrassment, anxiety, stress, emotional and mental
upset, loss of sleep, and loss of time from personal pursuits.” Id. ¶ 30.
Legal Standard
To survive a motion to dismiss, a plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). In considering a motion to dismiss for failure to state a claim, the
Court should follow a “two-pronged approach” to evaluate the sufficiency of the
complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can
choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 556
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U.S. at 679). “At the second step, a court should determine whether the
‘wellpleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an
entitlement to relief.’”
Id. (quoting Iqbal, 556 U.S. at 679). “The plausibility
standard is not akin to a probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (internal
quotations omitted).
In general, the Court’s review on a motion to dismiss pursuant to Rule
12(b)(6) “is limited to the facts as asserted within the four corners of the
complaint, the documents attached to the complaint as exhibits, and any
documents incorporated by reference.” McCarthy v. Dun & Bradstreet Corp., 482
F.3d 184, 191 (2d Cir. 2007).
The Court may also consider “matters of which
judicial notice may be taken” and “documents either in plaintiffs’ possession or
of which plaintiffs had knowledge and relied on in bringing suit.” Brass v. Am.
Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993); Patrowicz v. Transamerica
HomeFirst, Inc., 359 F. Supp. 2d 140, 144 (D. Conn. 2005).
Analysis
Defendants move to dismiss Plaintiff’s claims for reckless infliction of
emotional distress and negligent infliction of emotional distress. Plaintiff does
not object to dismissal of the reckless infliction of emotional distress claim. The
Court therefore DISMISSES Count Two and will address only Count Three:
negligent infliction of emotional distress.
Under Connecticut law, a claim for negligent infliction of emotional distress
has four elements: “(1) the defendant’s conduct created an unreasonable risk of
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causing the plaintiff emotional distress; (2) the plaintiff's distress was
foreseeable; (3) the emotional distress was severe enough that it might result in
illness or bodily harm; and (4) the defendant’s conduct was the cause of the
plaintiff’s distress.” Carrol v. Allstate Ins. Co., 262 Conn. 433, 444 (2003).
Defendants challenge the third element, contending that Plaintiff’s allegations of
intentional conduct are insufficient for a negligent infliction of emotional distress
claim.
Plaintiff
alleges
he
suffered
emotional
distress,
including
“great
humiliation, strains upon his marriage, embarrassment, anxiety, stress, emotional
and mental upset, loss of sleep, and loss of time from personal pursuits.” Id. ¶
30. The Court notes that several of these allegations, particularly anxiety and
loss of sleep, are legitimate diagnosable illnesses under the Diagnostic and
Statistical Manual of Mental Disorders (“DSM-V”), Am. Psychiatric Ass’n (5th ed.
2003).
The Court also finds that Connecticut trial courts routinely deny motions to
dismiss where the plaintiff alleges anxiety and loss of sleep in the complaint in
the absence of a claim of attendant physical injury. See, e.g., Witt v. Yale-New
Haven Hosp., 51 Conn. Supp. 155, 169 (Conn. Super. Ct. 2008) (addressing a
negligent infliction of emotional distress claim in a motion to strike and ruling,
“Indeed, the anxiety the plaintiffs experienced as a result of the lost ovarian
tissue was so predictably severe that the defendant should have known that it
could reasonably lead to illness or physical injury.”); Burns v. Grudberg, No.
CV156051882S, 2015 WL 5626361, at *13 (Conn. Super. Ct. Aug. 20, 2015) (denying
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motion to strike negligent infliction of emotional distress claim where plaintiff
alleged suffering “severe emotional distress which included mental, physical and
emotional harm, substantial loss of sleep and anxiety”); Dichello v. Marlin
Firearms Co., No. CV06500296S, 2007 WL 429474, at *3 (Jan. 22, 2007) (in a
workplace sexual harassment case also alleging a negligent infliction of
emotional distress claim, finding “the hostile workplace caused her anxiety and
other negative emotional effects, resulting in severe depression, loss of sleep,
and physical trauma” sufficient to survive a motion to strike); Goldenberry Ltd. v.
Thornton, No. X08CV010184707, 2005 WL 1394778, at *4 (Conn. Super. Ct. May 13,
2005) (denying motion to strike negligent infliction of emotional distress claim
where defendant’s phone calls and accusations of unauthorized charges “were
deeply disturbing to [plaintiff], caused her to fear physical attack, caused panic
and anxiety attacks, loss of sleep and nightmares”); see generally, Hebrew Home
and Hosp., Inc. v. Brewer, 92 Conn. App. 762, 772-73 (2005) (finding a reasonable
attorney might have felt there existed probable cause to bring a negligent
infliction of emotional distress claim when the attorney’s client was alleged to
require medication for anxiety).
Such allegations are therefore sufficient to
survive the Rule 8 pleading standard.
Defendants’ reliance on Abdella v. O’Toole, 343 F. Supp. 2d 129 (D. Conn.
2004) and Cuadrado v. Cocchiola, No. 3:14-cv-1160 (AWT), 2016 U.S. Dist. LEXIS
105482 (D. Conn. Aug. 10, 2016) does not persuade this Court that Plaintiff fails to
satisfy the third element of the Carrol test. Both are decisions ruling on summary
judgment in which the court considers whether there is a genuine issue of
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material fact. As stated above, here the Court must determine instead whether
the well-pleaded facts alleged in the complaint and assumed to be true are
sufficient to state a claim.
See Iqbal, 556 U.S. at 679 (requiring the court to
determine whether a complaint “plausibly give[s] rise to an entitlement to relief”).
The district court in both cases found the evidence insufficient to establish
emotional distress severe enough to lead to “illness or bodily harm.”
See
Abdella, 343 F. Supp. 2d at 141 (“There is no evidence in this case that the
actions of the defendants caused the plaintiffs to suffer illness or bodily harm.”);
Cuadrado, 2016 U.S. Dist. LEXIS 105482, at *25 (finding plaintiffs’ allegations of
being “worried, depressed, unhappy in their community, and that they lost trust
in the police” as a result of the search did not constitute distress “so severe as to
cause illness or bodily harm without some proof of such harm,” and asserting
“the record is devoid of sufficient proof on this point”). Indeed, implicit in the
fact that Abdella and Cuadrado reached the summary judgment stage is that the
complaints satisfied the Rule 8 pleading standard; therefore, these cases are
neutral or support Plaintiff’s position.
The Court has reviewed the Complaint and finds that it alleges facts
sufficient to warrant a negligent infliction of emotional distress claim.2
Conclusion
For the aforementioned reasons, the Court hereby GRANTS in part and
DENIES in part Defendants’ Motion to Dismiss. Count Two is hereby DISMISSED
2
The Court does not find Defendants’ argument about “intentional” conduct
persuasive as it is based on New York district court cases applying New York
state law, which is not applicable here. See [Dkt. 13-1 (Mem. Mot. Dismiss) at 7].
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but all other claims remain. This case is referred to Magistrate Judge Robert A.
Richardson for a settlement conference and the parties are directed to contact his
chambers.
IT IS SO ORDERED.
________/s/______________
Vanessa L. Bryant
United States District Judge
Order dated in Hartford, Connecticut on December 28, 2017.
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