Melillo et al v. Brais

Filing 89

ORDER granting in part and denying in part 80 Motion to Dismiss. Signed by Judge Victor A. Bolden on 4/17/2018. (McDonough, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

ALICE MELILLO and
ALLEN NORDEN,
Plaintiffs,

No. 3:17-cv-520 (VAB)

v.
RYAN BRAIS,
Defendant.

RULING ON MOTION TO DISMISS THE AMENDED COMPLAINT
Alice Melillo and Allen Norden (together, “Plaintiffs”) filed an Amended Complaint on
January 19, 2018, against Ryan Brais, a zoning official in Plainfield, Connecticut, for allegedly
violating their Fourth Amendment rights under 42 U.S.C. § 1983 by repeatedly and
unnecessarily performing inspections in their garage; opening a closet door and taking
photographs of its contents; and taking several objects from the closet. Am. Compl., ECF No. 64.
Defendant moves to dismiss under Federal Rules of Civil Procedure 12(b)(5) and
12(b)(6), arguing that any claims against Mr. Brais in his official capacity must be dismissed for
insufficient service of process, Plaintiffs’ Fourth Amendment claims must be dismissed for
failing to state a claim upon which relief can be granted, and Plaintiffs’ various other claims
must be dismissed for exceeding the scope of the leave to amend and for failing to state a claim.
Mot. Dismiss at 1–2, ECF No. 80.
For the reasons discussed below, Defendant’s motion to dismiss is GRANTED in part
and DENIED in part. Plaintiffs’ claims against Mr. Brais in his official capacity are dismissed;
all other claims will proceed.
1

I.

FACTUAL AND PROCEDURAL BACKGROUND
A.

Factual Allegations

Plaintiffs allege that Mr. Brais, a zoning official for the Town of Plainfield, violated their
right to privacy when he made three inspections of their detached garage within thirty-five days,
looking for a kitchen and bathroom each time. Am. Compl. ¶¶ 8–9, 13. Plaintiffs allege that Mr.
Brais used “false, inaccurate, and unsubstantiated” information to gain access to their garage, and
then made three inspections “looking for a kitchen and full bathroom each time.” Id. ¶¶ 11, 13.
Mr. Brais allegedly told Plaintiffs that during the inspection “no (personal) items stored within
the upstairs area of the detached garage could be covered.” Id. ¶ 14. Mr. Brais also allegedly
“demanded that the Plaintiffs destroy and remove all plumbing and fixtures for a bathroom toilet
and sink that was in the process of being permitted by the Northeast District Department of
Health,” even though “in order to complete testing for water and waste, required by the NDDH
for the permit, the toilet and sink in the upstairs area of the detached garage, had to be in place
and functional.” Id. ¶¶ 15–16.
Plaintiffs also allege that Mr. Brais, “acting in his official capacity, and acting under the
color of law,” during an inspection unlawfully opened the doors to a closed wardrobe, 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[.]” Id. ¶¶ 21–23.
Plaintiffs also allege that after Mr. Brais’s second inspection, on June 9, 2015, “a small
bag containing miscellaneous, sentimental items and jewelry that had been stored within, was

2

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 claim that they sent Mr. Brais a letter on June 10, 2015, explaining that their
belongings were missing and claim that Mr. Brais admitted that he opened the wardrobe and
inspected and photographed its contents, but denied taking any of their belongings. Id. ¶ 30.
Plaintiffs allege that Mr. Brais filed a civil complaint in Superior Court against Ms.
Melillo on June 12, 2015. Id. ¶ 32. In the complaint, Mr. Brais allegedly stated that Plaintiffs had
an apartment located within the detached garage, even though he allegedly “was well aware that
there was no violation or ‘apartment’ located in the detached garage prior to the drafting of the
civil complaint.” Id. ¶¶ 33–34. As part of the civil litigation, Plaintiffs allege that Mr. Brais
required Ms. Melillo “to sign a ‘Stipulated Judgment’ . . . giving the Defendant the absolute right
to inspect/search all buildings on the Property, including the home, with only a 24-hour notice, at
his will.” Id. ¶ 38.
Plaintiffs claim that, on July 2, 2015, Mr. Brais inspected their detached garage for a third
time, “accompanied by a Plainfield Police Officer and German Shepard attack dog.” Id. ¶ 39.
They claim that their property had no violations, but Mr. Brais “knowingly and willfully never
informed the Plaintiffs there were no violations and did not withdraw the civil litigation until
three (3) weeks after the Property was sold.” Id. ¶ 40. The civil complaint was allegedly
withdrawn on September 28, 2015, three weeks after Plaintiffs sold the property. Id. ¶ 41.
Plaintiffs allege that Mr. Brais “was aware that it was imperative for the inspection to
take place as soon as possible, so the Plaintiffs could get to Florida” to visit Mr. Norden’s sister,
“who was suffering from a mentally debilitating and terminal disease.” Id. ¶ 44. Plaintiffs allege
that Mr. Norden “suffered [severe] emotional distress, as a consequence of the Defendant’s

3

actions, for not being able to see his sister before her illness prevented her from having the
ability to recognize and speak to him.” Id. ¶ 61. They allege that, as a result of Mr. Brais’s
actions, they were forced to prematurely sell their home, and that they suffered emotional and
financial distress as a result. Id. ¶¶ 64–65.
B.

Procedural History

Plaintiffs initially filed in small claims court on December 21, 2016. Defendant moved to
transfer the case to the regular civil docket of the Connecticut Superior Court, Judicial District of
New London, on January 31, 2017, and his motion was granted on February 6, 2017. Notice of
Removal at 1, ECF No. 1; Melillo v. Brais, No. KNL-CV175015354-S (Conn. Super. Ct. 2017).
Defendant then removed the lawsuit from Connecticut Superior Court to this Court.
Notice of Removal at 2 (claiming federal question jurisdiction). Plaintiffs moved to remand, and
this Court denied the motion, finding that federal question jurisdiction, timeliness, and no undue
hardship. Ruling on Motion to Remand Case at 4–7, ECF No. 26.
On July 14, 2017, Defendant moved to dismiss the original Complaint. First Mot.
Dismiss, ECF No. 40. On December 21, 2017, the Court granted Defendant’s motion to dismiss.
Order, ECF No. 53. The Court explained that the Complaint, which alleged direct violations of
the Fourth Amendment, should have been brought under 42 U.S.C. § 1983. Id. at 7. The Court
therefore, at that point, did not address whether Plaintiffs had successfully alleged plausible
claims of a Fourth Amendment violation through Section 1983, and instead granted Plaintiffs’
motion to amend the Complaint. Id. (“Rather than proceed with an analysis of whether Plaintiffs
have alleged facts to sustain a valid Fourth Amendment claim, which the Court may address if
Plaintiffs submit an Amended Complaint, the Court notes that Plaintiffs’ allegations should have
been pled under Section 1983, not as a direct claim under the Fourth Amendment.”). The Court

4

left open the possibility that the allegations could support a claim under a different legal theory
and allowed Plaintiffs to amend the Complaint within thirty days of the Order. Id. at 8–9.
Plaintiffs filed an Amended Complaint on January 19, 2018, asserting that, under Section
1983, Defendant had violated their Fourth Amendment rights to privacy and against unwarranted
searches and seizures by performing frequent and unnecessary inspections of their detached
garage. Am. Compl., ECF No. 64. Plaintiffs also brought a claim of intentional infliction of
emotional distress. Id.
Defendants now move to dismiss the Amended Complaint, claiming that any claims
against Mr. Brais in his official capacity must be dismissed, any Fourth Amendment claims must
be dismissed for failure to state a claim upon which relief can be granted, and Plaintiffs’ various
other claims, including intentional infliction of emotional distress, must be dismissed as legally
insufficient and exceeding the scope of the leave to amend, Second Mot. Dismiss at 10, 17, 20,
27, 34–39.
II.

STANDARD OF REVIEW
A complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief,” Fed. R. Civ. P. 8(a), and the Court will dismiss any claim that fails
“to state a claim upon which relief can be granted,” Fed. R. Civ. P. 12(b)(6). In reviewing a
complaint under Rule 12(b)(6), the Court applies a “plausibility standard” guided by “two
working principles.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
First, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations . . . a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of
5

the elements of a cause of action will not do.” (internal citations omitted)). Second, “only a
complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at
679. Thus, the Complaint must contain “factual amplification . . . to render a claim plausible.”
Arista Records LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (quoting Turkmen v. Ashcroft,
589 F.3d 542, 546 (2d Cir. 2009)).
At this stage, the Court takes all factual allegations in the complaint as true. Iqbal, 556
U.S. at 678. The Court also views allegations in the light most favorable to the plaintiff, and
draws all inferences in the plaintiff’s favor. Cohen v. S.A.C. Trading Corp., 711 F.3d 353, 359
(2d Cir. 2013); see also York v. Ass’n of the Bar of the City of New York, 286 F.3d 122, 125 (2d
Cir.) (“On a motion to dismiss for failure to state a claim, we construe the complaint in the light
most favorable to the plaintiff, accepting the complaint’s allegations as true.”), cert. denied, 537
U.S. 1089 (2002).
In addition, the Court will construe a complaint filed by a plaintiff proceeding pro se
liberally. Dolan v. Connolly, 794 F.3d 290, 293 (2d Cir. 2015). Pro se pleadings will be read “to
raise the strongest arguments they suggest.” Bertin v. United States, 478 F.3d 489, 491 (2d Cir.
2007). “Even in a pro se case, however, ‘although a court must accept as true all of the
allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and
threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.’” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (quoting
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)). “[W]hen addressing a pro se complaint, a
district ‘court should not dismiss without granting leave to amend at least once when a liberal
reading of the complaint gives any indication that a valid claim might be stated.’” Thompson v.

6

Carter, 284 F.3d 411, 416 (2d Cir. 2002) (quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir.
1991)).
Finally, under Federal Rule of Civil Procedure 12(b)(5), a party may move to dismiss for
“insufficient service of process,” and the Court will grant the motion “if the plaintiff fails to
serve a copy of the summons and complaint on the defendants pursuant to Rule 4 of the Federal
Rules, which sets forth the federal requirements for service.” Rzayeva v. United States, 492 F.
Supp. 2d 60, 74 (D. Conn. 2007); Fed. R. Civ. P. 12(b)(5). “Once validity of service has been
challenged, it becomes the plaintiff’s burden to prove that service of process was adequate.” Cole
v. Aetna Life & Cas., 70 F. Supp. 2d 106, 110 (D. Conn. 1999).
III.

DISCUSSION
The Court granted Plaintiffs’ motion to amend in this case because “Plaintiffs [had]

alleged facts that indicate[d] that ‘a valid claim might be stated,’ under a different legal theory.”
Order Granting Motion to Dismiss at 8 (quoting Shomo v. City of New York, 579 F.3d 176, 183
(2d Cir. 2009) (“‘[A] pro se complaint is to be read liberally’ and ‘should not [be] dismiss[ed]
without granting leave to amend at least once when a liberal reading of the complaint gives any
indication that a valid claim might be stated.”)). In their Amended Complaint, Plaintiffs did
revise their claims to assert that Mr. Brais violated the Fourth Amendment under Section 1983.
For the reasons discussed below, those claims will proceed.
Defendant moves to dismiss the Complaint, arguing that “the Amended Complaint seeks
to alter this case from an individual capacity suit to an ‘official capacity’ suit.” Second Mot.
Dismiss at 10 (citing Frank v. Relin, 1 F.3d 1317, 1326 (2d Cir. 1993) (“[W]hen the face of a
complaint fails to state clearly whether a government official is being sued in his official
capacity, or his individual capacity, or both, courts look to ‘[t]he course of the proceedings’ to

7

determine ‘the nature of the liability to be imposed.’”) (quoting Kentucky v. Graham, 473 U.S.
159, 165 n.14 (1985)) (additional internal quotation marks and citation omitted).
The Court disagrees that the Amended Complaint intended to transform the lawsuit into
an official capacity suit, and will construe the Amended Complaint liberally as bringing claims
under Section 1983. See Order at 7 (observing that “Plaintiffs’ allegations should have been pled
under Section 1983, not as a direct claim under the Fourth Amendment”); see also Bertin, 478
F.3d at 491 (explaining that the Court reads pro se pleadings “to raise the strongest arguments
they suggest”). Although Plaintiffs assert claims against Mr. Brais “acting in his official capacity
as zoning enforcement officer, for the Town of Plainfield, CT, and acting under the color of
law,” see, e.g., Am. Compl. ¶ 11, the Court construes Plaintiffs’ claims to intend to bring a
Fourth Amendment claim against Mr. Brais as an individual acting under the color of law in
violation of 42 U.S.C. § 1983, an individual capacity claim. See Mitchum v. Foster, 407 U.S.
225, 239 (1972) (“Section 1983 opened the federal courts to private citizens, offering a uniquely
federal remedy against incursions under the claimed authority of state law upon rights secured by
the Constitution and laws of the Nation.”).
Defendant also argues that the Amended Complaint must be dismissed for failure to state
a claim. Second Mot. Dismiss at 17. The Court disagrees. Plaintiffs allege 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 United States v. James Daniel Good Real
Property, 510 U.S. 43, 48–49 (1993) (“Our precedents establish the general rule that individuals
must receive notice and an opportunity to be heard before the Government deprives them of
property.”). To survive a motion to dismiss, Plaintiffs need only plead “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678

8

(quoting Twombly, 550 U.S. at 570). Here, Plaintiffs have pled sufficient facts to state a claim for
relief under the Fourth Amendment and Section 1983. See id. (“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.”).
Finally, Defendant also moves to dismiss Plaintiffs’ claim for intentional infliction of
emotional distress. Second Mot. Dismiss at 27. To establish a claim of intentional infliction of
emotional distress in Connecticut, a plaintiff must allege:
(1) that the actor intended to inflict emotional distress or that he
knew or should have known that emotional distress was the likely
result of his conduct; (2) that the conduct was extreme and
outrageous; (3) that the defendant’s conduct was the cause of the
plaintiff’s distress; and (4) that the emotional distress sustained by
the plaintiff was severe . . . Whether a defendant’s conduct is
sufficient to satisfy the requirement that it be extreme and
outrageous is initially a question for the court to determine . . . Only
where reasonable minds disagree does it become an issue for the
jury.
Geiger v. Carey, 170 Conn. App. 459, 497 (2017) (quoting Gagnon v. Housatonic Valley
Tourism District Commission, 92 Conn. App. 835, 846 (2006)). Extreme and outrageous conduct
means conduct that goes “beyond all possible bounds of decency, and [is] regarded as atrocious,
and utterly intolerable in a civilized community.” Id. (quoting Appleton v. Board of Education,
254 Conn. 205, 210–11 (2000)). “In order to state a cognizable cause of action, Plaintiff must not
only allege each of the four elements, but also must allege facts sufficient to support them.”
Golnik v. Amato, 299 F. Supp. 2d 8, 15 (D. Conn. 2003).
Here, Plaintiffs have alleged that Mr. Brais intentionally and recklessly caused Plaintiffs
severe emotional distress by performing unnecessary inspections of their property, including by
arriving with a police officer and an “attack dog,” delaying inspections and the sale of their
home, and taking their personal property. Am. Compl. ¶¶ 55–57, 59–68. The Court finds that
9

Plaintiffs have sufficiently pled the elements of the tort; whether these allegations can, as a
factual matter, support a claim of intentional infliction of emotional distress is a factual question
better considered at the summary judgment stage. See Gagnon, 92 Conn. App. at 846
(considering “[w]hether a defendant’s conduct is sufficient to satisfy the requirement that it be
extreme and outrageous” at summary judgment); Iqbal, 556 U.S. at 578 (“To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’”) (quoting Twombly, 550 U.S. at 570).
IV.

CONCLUSION
For all of the foregoing reasons, Defendant’s Motion to Dismiss is GRANTED in part

and DENIED in part. The motion to dismiss is granted to the extent that the Amended
Complaint asserts claims against Mr. Brais in his official capacity, and denied as to all other
claims.
SO ORDERED at Bridgeport, Connecticut, this 17th day of April, 2018.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE

10