Onofrio v. Savoy et al

3:15-cv-01744-WIG

2018 | Cited 0 times | D. Connecticut | September 24, 2018

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

CLIFFORD ONOFRIO, Plaintiff, v. RAYMOND SAVOY and STEPHANIE SAVOY, Defendants. _____________________________________X

No. 3:15-cv-1744(WIG)

in essence a

made by the Savoys on December 12, 2012. Now before the Court are Summary Judgment. [Doc. ## 36, 37]. For the reasons that follow, the Court grants the motions

Background Onofrio commenced this action on November 25, 2015. He filed an Amended Complaint on December 20, 2016, seeking to assert the following claims against the Savoys: intentional infliction of emotional distress, invasion of privacy, slander, and malicious prosecution. On November 24, 2017, the Savoys moved for summary judgment on all counts. Onofrio filed an opposition on December 15, 2017. In violatio Case 3:15-cv-01744-WIG Document 43 Filed 09/24/18 Page 1 of 12 include a 56(a)(2) Statement of Facts in Opposition to Summary Judgment. 1

The Court ordered Onofrio to submit this statement. He did so on February 5, 2018.

Facts 2 In 2011, Onofrio purchased a condominium, Apartment 2B, in Naugatuck, Connecticut, and hired a contractor to do some renovation work. The Savoys lived next door, in Apartment 2A. Onofrio alleges that the Savoys did not like him because they thought the contractor who was doing the renovations made too much noise. [Plaintiff Rule 56(a)(2) Statement, Doc. # 42, at ¶ 7]. According to Onofrio, the Savoys began to retaliate against him by banging walls, dropping things, and making noise in their own apartment. [Id.]. The impetus of the instant action occurred on December 12, 2012. On that date, several Naugatuck police officers were dispatched to the Savoy residence to respond to their complaint

1 See (i) A party opposing a motion for summary judgment shall file and serve with the opposition papers a document entitled a reproduction of each numbered paragraph in followed by a response to each paragraph admitting or denying the fact and/or objecting to the fact as permitted by Federal Rule of Civil Procedure 56(c). This portion of the Local Rule 56(a)2 Statement shall be double-spaced and shall be no longer than twice the length of the moving All admissions and denials shall be binding solely for purposes of the motion unless otherwise specified. All denials must meet the requirements of Local Rule 56(a)3. A party shall be deemed to have waived any argument in support of an objection that such party does not include in its memorandum of law. (ii) The Local Rule 56(a)2 Statement must also include a separate section requirements of Local Rule 56(a)3 any additional facts, not previously set forth in responding to 56(a)1 Statement, that the party opposing summary judgment contends establish genuine issues of material fact precluding judgment in favor of the moving party. The statement of Additional Material Facts shall be no longer than nine (9) double-spaced pages, 2 The following recitation presents the facts in the light most favorable to Onofrio but notes any direct dispute between the parties. Facts that are not in dispute are stated without citation to the record.

had been hitting walls, screaming, and slamming doors that day. 3

They also told the officers that similar incidents had been occurring for about a year and a half, and that these incidents were distracting and disturbing, and frightening to their young family members. Onofrio was issued an infraction for creating a public disturbance in violation of Conn. Gen. Stat. § 53a-181a in connection with the December 12, 2012 police encounter. In July 2013, a nolle prosequi 4

was entered with respect to the infraction issued against Onofrio. The Savoys maintain that all of the information they provided to the police on December 12, 2012 was true and accurate to the best of their knowledge. [ Statement, Doc. # 36-1, at ¶ 5]. They deny intentionally causing any type of disturbance to

distress Onofrio, and deny any involvement in infraction for creating a public disturbance on December 12, 2012. [Id. at ¶¶ 6-7]. They aver

that any emotional distress Onofrio experienced was a result of his chronic mental illness and not connected to his experience in the condominium. [Id. at ¶¶ 8-9]. Onofrio alleges that his son, his health aides, and his friends had all also heard the Savoys being loud and disruptive. [ ]. He claims that the Savoys, who have connections to the Naugatuck police department 5

, called the police because they wanted to intimidate him and cause his arrest, and believed that their connections

3 Onofrio concedes that, on December 12, 2012, he hit the adjoining wall, alleging he did so in at ¶ B2].

4 The Connecticut Practice Boo enter a nolle prosequi in a case. It shall be entered upon the record after a brief statement by the 39-29. A nolle State v. Kallberg, 326 Conn. 1, 12-13 (2017). 5 Onofrio asserts that Raymond Savoy is a retired police sergeant and Stephanie Savoy is a member of the town police commission. [ 6].

would make them more credible to the officers. [Id. at ¶ 6]. Plaintiff states he was traumatized by his arrest on December 12, 2012, and as a result of it, he expended legal fees to resolve the charge. [Id. at ¶¶ B3, 7].

Legal Standard The court shall grant summary judgment if the moving party demonstrates that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A material fact is identified by the substantive law under which the claim is brought, and is one that may make a difference in the outcome of a case. Anderson v. Liberty Lobby, Inc. Id. The

burden is on the moving party to demonstrate the absence of any material factual issue genuinely in dispute. , 664 F.2d 348, 351 (2d Cir. 1981).

The c evidence and determine the truth of the matter but to determine whether there is a genuine issue Anderson, 477 U.S. at 249. In making this determination, the court should review all of the evidence in the record and resolve all ambiguities and draw all reasonable inferences in favor of the non-moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court, however, may not make credibility determinations. Id. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991), cert. denied, 502 U.S. 849 (1991). Stated

for the non- Marvel Characters, Inc. v.

Simon, 310 F.3d 280, 286 (2d Cir. 2002). Keeping these standards in mind, the Court discusses

Discussion A. Intentional Infliction of Emotional Distress

The Savoys move for summary judgment with respect to claim for intentional infliction of emotional distress. They argue (1) they did nothing more than report information to the police that was true and accurate to the best of their knowledge; (2) they did not act intentionally to cause distress to Onofrio; and (3) distress was caused by his chronic mental illness, and not his interactions with them. In opposition, Onofrio contends that whether

distress claim is an issue of fact not resolvable on a motion for summary judgment. The Court agrees with the Savoys and grants summary judgment on this claim.

In order to prevail on a claim for intentional infliction of emotional distress, a plaintiff (1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result of his conduct; (2) that the conduct was extreme and out s conduct was the cause of the pl s distress; and (4) that the emotional distress sustained by the plaintiff DeLaurentis v. City of New Haven, 220 Conn. 225, 266-67 (1991).

The extreme and outrageous conduct element requires so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of Appleton v. Bd. of Educ. of Town of Stonington, 254 Conn. 205, 211 (2000). Put another way, a

merely insulting or displays bad manners or results in hurt feelings

is insufficient to form the basis for an action based upon intentional infliction of emotional Id. (citing Mellaly v. Eastman Kodak Co., 42 Conn.Supp. 17, 19 (1991)). s conduct is sufficient to satisfy the requirement that it be extreme and outrageous is

Hartmann v. Gulf View Estates Homeowners n, Inc. the court performs a criteria required to establish a claim premised on intentional inflict Gagnon v. Housa n, 92 Conn. App. 835, 847 (2006).

Here, even assuming Onofrio has presented evidence to establish the other three elements of his intentional infliction of emotional distress claim, the claim fails because conduct was not extreme and outrageous as a matter of law. Even if there were instances of noise coming from the Savoys apartment, and even if the behavior of the Savoys was less than neighborly, their actions were neither extreme nor outrageous. A review of the case law indicates that behavior of the type alleged here simply does not amount to conduct that is Appleton, 254 Conn. at 211.

For example, actions including of exterior paint color, retaliating against the plaintiffs, and selectively and vindictively

imposing fines on them ed to state a cause of action for intentional infliction of emotional distress. Hartmann, 88 Conn. App. at 295. Further, actions including a repeatedly threatening her in an angry and hostile manner, threatening to evict her from the marital residence, and changing the locks to the marital residence were not extreme and outrageous as a matter of law. Davis v. Davis, 112 Conn. App. 56, 67 (2009).

The conduct Onofrio alleges here is no more extreme or outrageous than that described in Hartmann or Davis. Although less than cordial, and perhaps even occasionally troublesome or disturbing, the Court would be strained to find that the Savoys conduct met the legal definition of extreme and outrageous. Even taking the facts as actions simply cannot be described as so atrocious and intolerable as to cause an average member of the Appleton, 254 Conn. at 210-11. claim.

B. Invasion of Privacy

privacy claim, arguing that he cannot establish the publicity element of the cause of action. Onofrio, in his opposition, does not address at all argument that they are entitled Federal courts may deem a claim abandoned when a party moves for summary judgment on one ground and the party opposing summary judgment fails to address the argument in any way. Taylor v. City of New York, 269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003), order clarified, No. 01-CV-5750 (ILG), 2003 WL 21781941 (E.D.N.Y. July 29, 2003); accord Douglas v. Victor Capital Grp., 21 F. Supp. 2d 379, 393 (S.D.N.Y. 1998) (citing cases). Since Onofrio has abandoned his invasion of privacy claim, summary judgment is granted in favor of the Savoys.

Even if the claim has not been abandoned, it has not been established as a matter of law. Connecticut recognizes four types of invasion of privacy claims: n, for the s benefit s name or likeness; (2) intrusion upon the s physical solitude or seclusion; (3) publicity, of a highly objectionable kind, given to

private information about the plaintiff even though it is true and no action would lie for defamation; and (4) publicity which places the plaintiff in a false light i Honan v. Dimyan, 52 Conn. App. 123, 132 (1999) (quoting Venturi v. Savitt, Inc., 191 Conn. 588, 591 n. 1 (1983)). Here, the Court construes Onofrio as either the third or fourth type because it is based on the Savoys the responding Naugatuck police officers that Onofrio creaming and slamming doors, causing them great irritation and anxiety, for approximately

Amended Complaint, Doc. # 29, at ¶ 5]. Therefore, in order to prevail on his invasion of privacy claim, Onofrio

associated with invasion of privacy means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. Holmes v. Town of E. Lyme, 866 F. Supp. 2d 108, 131 (D. Conn. 2012) (internal quotation marks omitted). A

sure to reach, the public at Id. at 132.

Here, the Savoys communicated their complaints about Onofrio to the handful of police officers who responded to their call on December 12, 2012. This does not amount to a communication to the public at large. C.f. Pace v. Bristol Hosp., 964 F. Supp. 628, 631 (D.

establish the requisite level of publicity for an invasion of ; Handler v. Arends, No. 0527732 S, 1995 WL 107328, at *14 (Conn. Super. Ct. Mar. 1, 1995) (no publicity when a university

official shared with s colleagues a memorandum inaccurately portraying the circumstances surr s tenure application because the communication was made for business purposes and did not invite broader dissemination to the public).

Even assuming Onofrio has established the other elements of his invasion of privacy claim, based on the uncontested facts taken in the light most favorable to Onofrio, the information the Savoys provided to the officers was not publicized. There is no indication that the information communicated was disseminated beyond the initial audience of the responding officers. Rather, the facts show that the Savoys provided information to police, who were acting in their official roles, so that the information was not disseminated broadly or shared with the public at large. Accordingly, the

Savoys are entitled to summary judgment on the invasion of privacy claim.

C. Slander

The Savoys also r claim, contending the claim is time- opposition, again, fails to address the Savoy argument that they are entitled to summary judgment on the slander claim. Therefore, the Court finds the claim abandoned and grants summary judgment in favor of the Savoys. See Taylor, 269 F. Supp. 2d at 75; Douglas, 21 F. Supp. 2d at 393. Even if the claim is not abandoned, the Court agrees with the Savoys that it is barred by the statute of limitations. The purportedly defamatory conduct the allegedly false report the Savoys made to Naugatuck police officers occurred on December 12, 2012. [Amended Complaint, Doc. # 29, at ¶¶ 3-5]. el or slander shall be Conn. Gen. Stat. § 52- 597. Onofrio filed this action on November 25, 2015, well beyond the limitations period. A

statute of limitations defense may be asserted successfully on a motion for summary judgment when, as here, there are no genuine issues of fact material to the defense. See AT Engine Controls Ltd. v. Goodrich Pump & Engine Control Sys., Inc., No. 3:10-CV-01539(JAM), 2014 WL 7270160, at *10 (D. Conn. Dec. 18, 2014). Since the slander claim is barred by the applicable statute of limitations, summary judgment is granted in favor.

D. Malicious Prosecution

Finally, the Savoys move for summary judgment on the malicious prosecution claim, asserting that the claim is not viable because the infraction issued to Onofrio was nolled, because an infraction cannot give rise to a malicious prosecution claim, and because they neither initiated nor procured a criminal pro 2012 resulted in an infraction being issued against him; this is the basis of his malicious prosecution claim. [Amended Complaint, Doc. # 29, at ¶¶ 5, 6, 8].

An action for malicious (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice. Brooks v. Sweeney, 299 Conn. 196, 210-11 (2010). Because the Court finds that, as a matter of law, an infraction cannot give rise to a malicious prosecution claim, it need not address the additional elements of the cause of action. 6

6 that recent Second Circuit authority establishes that a nolle prosequi is a favorable termination for a malicious prosecution claim. The case to which Onofrio refers, Spak v. Phillips, 857 F.3d 458 (2d Cir. 2017), cannot be read that broadly. In Spak, the court held that a nolle prosequi the purpose of determining when a Section 1983 claim accrues Id. at 463 (emphasis added). Id. In

s based on his being cited for creating a public disturbance under Conn. Gen. Stat. § 53a-181a. According to the plain language of the statute, reating a public disturbance is an infraction. See Conn. Gen. Stat. § 53a-181a (emphasis added). The issuance of an infraction ticket for creating a public disturbance cannot constitute with respect to a malicious prosecution claim. See Rogan v. Rungee, No. CV085008476, 2012 WL 1435246, at *2 (Conn. Super. Ct. Mar. 30, 2012) (citing State v. Jimenez-Jaramill, 134 Conn.App. 346, 373 (2012)); see also Hary v. Dolan, No. 3:08-CV-1611(JCH), 2010 WL 419404, at *5 (D. Conn. Jan. 29, 2010) (granting summary judgment to defendant when the statute under which the plaintiff was cited was an infraction,

a malicious prosecution Libby v. Santangelo, No. 3:94-CV-1274(AWT), 1998 WL 229917, at *3 (D. Conn. Mar. 31, 1998) (granting malicious prosecution claim, finding that a charge under § 53a-181a is an infraction, which does

not initiate a criminal proceeding). Plaintiff relies on Clark v. Town of Greenwich, No. CV000179460S, 2001 WL 1561769, at *2 (Conn. Super. Ct. Nov. 21, 2001) to argue that there is a split of authority on whether issuance of an infraction is sufficient to establish the first element of a malicious prosecution claim. While the court in Clark denied summary judgment on a malicious prosecution claim, it did so perfunctorily, and appears to have assumed, without deciding, that an infraction may be sufficient. Given that the cases cited above, which actually decided the issue, clearly hold that an infraction does not constitute the institution of a criminal

claim. Thus, interpretation of the term in the context of accrual is inapposite.

proceeding in the malicious prosecution context, the Court is not persuaded that Clark requires it to hold otherwise. Accordingly, the Court grants summary judgment

Conclusion

accordingly and close this case.

It is SO ORDERED, this 24 th

day of September, 2018 at Bridgeport, Connecticut. /s/ William I. Garfinkel WILLIAM I. GARFINKEL United States Magistrate Judge

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

CLIFFORD ONOFRIO, Plaintiff, v. RAYMOND SAVOY and STEPHANIE SAVOY, Defendants. _____________________________________X

No. 3:15-cv-1744(WIG)

in essence a

made by the Savoys on December 12, 2012. Now before the Court are Summary Judgment. [Doc. ## 36, 37]. For the reasons that follow, the Court grants the motions

Background Onofrio commenced this action on November 25, 2015. He filed an Amended Complaint on December 20, 2016, seeking to assert the following claims against the Savoys: intentional infliction of emotional distress, invasion of privacy, slander, and malicious prosecution. On November 24, 2017, the Savoys moved for summary judgment on all counts. Onofrio filed an opposition on December 15, 2017. In violatio Case 3:15-cv-01744-WIG Document 43 Filed 09/24/18 Page 1 of 12 include a 56(a)(2) Statement of Facts in Opposition to Summary Judgment. 1

The Court ordered Onofrio to submit this statement. He did so on February 5, 2018.

Facts 2 In 2011, Onofrio purchased a condominium, Apartment 2B, in Naugatuck, Connecticut, and hired a contractor to do some renovation work. The Savoys lived next door, in Apartment 2A. Onofrio alleges that the Savoys did not like him because they thought the contractor who was doing the renovations made too much noise. [Plaintiff Rule 56(a)(2) Statement, Doc. # 42, at ¶ 7]. According to Onofrio, the Savoys began to retaliate against him by banging walls, dropping things, and making noise in their own apartment. [Id.]. The impetus of the instant action occurred on December 12, 2012. On that date, several Naugatuck police officers were dispatched to the Savoy residence to respond to their complaint

1 See (i) A party opposing a motion for summary judgment shall file and serve with the opposition papers a document entitled a reproduction of each numbered paragraph in followed by a response to each paragraph admitting or denying the fact and/or objecting to the fact as permitted by Federal Rule of Civil Procedure 56(c). This portion of the Local Rule 56(a)2 Statement shall be double-spaced and shall be no longer than twice the length of the moving All admissions and denials shall be binding solely for purposes of the motion unless otherwise specified. All denials must meet the requirements of Local Rule 56(a)3. A party shall be deemed to have waived any argument in support of an objection that such party does not include in its memorandum of law. (ii) The Local Rule 56(a)2 Statement must also include a separate section requirements of Local Rule 56(a)3 any additional facts, not previously set forth in responding to 56(a)1 Statement, that the party opposing summary judgment contends establish genuine issues of material fact precluding judgment in favor of the moving party. The statement of Additional Material Facts shall be no longer than nine (9) double-spaced pages, 2 The following recitation presents the facts in the light most favorable to Onofrio but notes any direct dispute between the parties. Facts that are not in dispute are stated without citation to the record.

had been hitting walls, screaming, and slamming doors that day. 3

They also told the officers that similar incidents had been occurring for about a year and a half, and that these incidents were distracting and disturbing, and frightening to their young family members. Onofrio was issued an infraction for creating a public disturbance in violation of Conn. Gen. Stat. § 53a-181a in connection with the December 12, 2012 police encounter. In July 2013, a nolle prosequi 4

was entered with respect to the infraction issued against Onofrio. The Savoys maintain that all of the information they provided to the police on December 12, 2012 was true and accurate to the best of their knowledge. [ Statement, Doc. # 36-1, at ¶ 5]. They deny intentionally causing any type of disturbance to

distress Onofrio, and deny any involvement in infraction for creating a public disturbance on December 12, 2012. [Id. at ¶¶ 6-7]. They aver

that any emotional distress Onofrio experienced was a result of his chronic mental illness and not connected to his experience in the condominium. [Id. at ¶¶ 8-9]. Onofrio alleges that his son, his health aides, and his friends had all also heard the Savoys being loud and disruptive. [ ]. He claims that the Savoys, who have connections to the Naugatuck police department 5

, called the police because they wanted to intimidate him and cause his arrest, and believed that their connections

3 Onofrio concedes that, on December 12, 2012, he hit the adjoining wall, alleging he did so in at ¶ B2].

4 The Connecticut Practice Boo enter a nolle prosequi in a case. It shall be entered upon the record after a brief statement by the 39-29. A nolle State v. Kallberg, 326 Conn. 1, 12-13 (2017). 5 Onofrio asserts that Raymond Savoy is a retired police sergeant and Stephanie Savoy is a member of the town police commission. [ 6].

would make them more credible to the officers. [Id. at ¶ 6]. Plaintiff states he was traumatized by his arrest on December 12, 2012, and as a result of it, he expended legal fees to resolve the charge. [Id. at ¶¶ B3, 7].

Legal Standard The court shall grant summary judgment if the moving party demonstrates that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A material fact is identified by the substantive law under which the claim is brought, and is one that may make a difference in the outcome of a case. Anderson v. Liberty Lobby, Inc. Id. The

burden is on the moving party to demonstrate the absence of any material factual issue genuinely in dispute. , 664 F.2d 348, 351 (2d Cir. 1981).

The c evidence and determine the truth of the matter but to determine whether there is a genuine issue Anderson, 477 U.S. at 249. In making this determination, the court should review all of the evidence in the record and resolve all ambiguities and draw all reasonable inferences in favor of the non-moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court, however, may not make credibility determinations. Id. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991), cert. denied, 502 U.S. 849 (1991). Stated

for the non- Marvel Characters, Inc. v.

Simon, 310 F.3d 280, 286 (2d Cir. 2002). Keeping these standards in mind, the Court discusses

Discussion A. Intentional Infliction of Emotional Distress

The Savoys move for summary judgment with respect to claim for intentional infliction of emotional distress. They argue (1) they did nothing more than report information to the police that was true and accurate to the best of their knowledge; (2) they did not act intentionally to cause distress to Onofrio; and (3) distress was caused by his chronic mental illness, and not his interactions with them. In opposition, Onofrio contends that whether

distress claim is an issue of fact not resolvable on a motion for summary judgment. The Court agrees with the Savoys and grants summary judgment on this claim.

In order to prevail on a claim for intentional infliction of emotional distress, a plaintiff (1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result of his conduct; (2) that the conduct was extreme and out s conduct was the cause of the pl s distress; and (4) that the emotional distress sustained by the plaintiff DeLaurentis v. City of New Haven, 220 Conn. 225, 266-67 (1991).

The extreme and outrageous conduct element requires so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of Appleton v. Bd. of Educ. of Town of Stonington, 254 Conn. 205, 211 (2000). Put another way, a

merely insulting or displays bad manners or results in hurt feelings

is insufficient to form the basis for an action based upon intentional infliction of emotional Id. (citing Mellaly v. Eastman Kodak Co., 42 Conn.Supp. 17, 19 (1991)). s conduct is sufficient to satisfy the requirement that it be extreme and outrageous is

Hartmann v. Gulf View Estates Homeowners n, Inc. the court performs a criteria required to establish a claim premised on intentional inflict Gagnon v. Housa n, 92 Conn. App. 835, 847 (2006).

Here, even assuming Onofrio has presented evidence to establish the other three elements of his intentional infliction of emotional distress claim, the claim fails because conduct was not extreme and outrageous as a matter of law. Even if there were instances of noise coming from the Savoys apartment, and even if the behavior of the Savoys was less than neighborly, their actions were neither extreme nor outrageous. A review of the case law indicates that behavior of the type alleged here simply does not amount to conduct that is Appleton, 254 Conn. at 211.

For example, actions including of exterior paint color, retaliating against the plaintiffs, and selectively and vindictively

imposing fines on them ed to state a cause of action for intentional infliction of emotional distress. Hartmann, 88 Conn. App. at 295. Further, actions including a repeatedly threatening her in an angry and hostile manner, threatening to evict her from the marital residence, and changing the locks to the marital residence were not extreme and outrageous as a matter of law. Davis v. Davis, 112 Conn. App. 56, 67 (2009).

The conduct Onofrio alleges here is no more extreme or outrageous than that described in Hartmann or Davis. Although less than cordial, and perhaps even occasionally troublesome or disturbing, the Court would be strained to find that the Savoys conduct met the legal definition of extreme and outrageous. Even taking the facts as actions simply cannot be described as so atrocious and intolerable as to cause an average member of the Appleton, 254 Conn. at 210-11. claim.

B. Invasion of Privacy

privacy claim, arguing that he cannot establish the publicity element of the cause of action. Onofrio, in his opposition, does not address at all argument that they are entitled Federal courts may deem a claim abandoned when a party moves for summary judgment on one ground and the party opposing summary judgment fails to address the argument in any way. Taylor v. City of New York, 269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003), order clarified, No. 01-CV-5750 (ILG), 2003 WL 21781941 (E.D.N.Y. July 29, 2003); accord Douglas v. Victor Capital Grp., 21 F. Supp. 2d 379, 393 (S.D.N.Y. 1998) (citing cases). Since Onofrio has abandoned his invasion of privacy claim, summary judgment is granted in favor of the Savoys.

Even if the claim has not been abandoned, it has not been established as a matter of law. Connecticut recognizes four types of invasion of privacy claims: n, for the s benefit s name or likeness; (2) intrusion upon the s physical solitude or seclusion; (3) publicity, of a highly objectionable kind, given to

private information about the plaintiff even though it is true and no action would lie for defamation; and (4) publicity which places the plaintiff in a false light i Honan v. Dimyan, 52 Conn. App. 123, 132 (1999) (quoting Venturi v. Savitt, Inc., 191 Conn. 588, 591 n. 1 (1983)). Here, the Court construes Onofrio as either the third or fourth type because it is based on the Savoys the responding Naugatuck police officers that Onofrio creaming and slamming doors, causing them great irritation and anxiety, for approximately

Amended Complaint, Doc. # 29, at ¶ 5]. Therefore, in order to prevail on his invasion of privacy claim, Onofrio

associated with invasion of privacy means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. Holmes v. Town of E. Lyme, 866 F. Supp. 2d 108, 131 (D. Conn. 2012) (internal quotation marks omitted). A

sure to reach, the public at Id. at 132.

Here, the Savoys communicated their complaints about Onofrio to the handful of police officers who responded to their call on December 12, 2012. This does not amount to a communication to the public at large. C.f. Pace v. Bristol Hosp., 964 F. Supp. 628, 631 (D.

establish the requisite level of publicity for an invasion of ; Handler v. Arends, No. 0527732 S, 1995 WL 107328, at *14 (Conn. Super. Ct. Mar. 1, 1995) (no publicity when a university

official shared with s colleagues a memorandum inaccurately portraying the circumstances surr s tenure application because the communication was made for business purposes and did not invite broader dissemination to the public).

Even assuming Onofrio has established the other elements of his invasion of privacy claim, based on the uncontested facts taken in the light most favorable to Onofrio, the information the Savoys provided to the officers was not publicized. There is no indication that the information communicated was disseminated beyond the initial audience of the responding officers. Rather, the facts show that the Savoys provided information to police, who were acting in their official roles, so that the information was not disseminated broadly or shared with the public at large. Accordingly, the

Savoys are entitled to summary judgment on the invasion of privacy claim.

C. Slander

The Savoys also r claim, contending the claim is time- opposition, again, fails to address the Savoy argument that they are entitled to summary judgment on the slander claim. Therefore, the Court finds the claim abandoned and grants summary judgment in favor of the Savoys. See Taylor, 269 F. Supp. 2d at 75; Douglas, 21 F. Supp. 2d at 393. Even if the claim is not abandoned, the Court agrees with the Savoys that it is barred by the statute of limitations. The purportedly defamatory conduct the allegedly false report the Savoys made to Naugatuck police officers occurred on December 12, 2012. [Amended Complaint, Doc. # 29, at ¶¶ 3-5]. el or slander shall be Conn. Gen. Stat. § 52- 597. Onofrio filed this action on November 25, 2015, well beyond the limitations period. A

statute of limitations defense may be asserted successfully on a motion for summary judgment when, as here, there are no genuine issues of fact material to the defense. See AT Engine Controls Ltd. v. Goodrich Pump & Engine Control Sys., Inc., No. 3:10-CV-01539(JAM), 2014 WL 7270160, at *10 (D. Conn. Dec. 18, 2014). Since the slander claim is barred by the applicable statute of limitations, summary judgment is granted in favor.

D. Malicious Prosecution

Finally, the Savoys move for summary judgment on the malicious prosecution claim, asserting that the claim is not viable because the infraction issued to Onofrio was nolled, because an infraction cannot give rise to a malicious prosecution claim, and because they neither initiated nor procured a criminal pro 2012 resulted in an infraction being issued against him; this is the basis of his malicious prosecution claim. [Amended Complaint, Doc. # 29, at ¶¶ 5, 6, 8].

An action for malicious (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice. Brooks v. Sweeney, 299 Conn. 196, 210-11 (2010). Because the Court finds that, as a matter of law, an infraction cannot give rise to a malicious prosecution claim, it need not address the additional elements of the cause of action. 6

6 that recent Second Circuit authority establishes that a nolle prosequi is a favorable termination for a malicious prosecution claim. The case to which Onofrio refers, Spak v. Phillips, 857 F.3d 458 (2d Cir. 2017), cannot be read that broadly. In Spak, the court held that a nolle prosequi the purpose of determining when a Section 1983 claim accrues Id. at 463 (emphasis added). Id. In

s based on his being cited for creating a public disturbance under Conn. Gen. Stat. § 53a-181a. According to the plain language of the statute, reating a public disturbance is an infraction. See Conn. Gen. Stat. § 53a-181a (emphasis added). The issuance of an infraction ticket for creating a public disturbance cannot constitute with respect to a malicious prosecution claim. See Rogan v. Rungee, No. CV085008476, 2012 WL 1435246, at *2 (Conn. Super. Ct. Mar. 30, 2012) (citing State v. Jimenez-Jaramill, 134 Conn.App. 346, 373 (2012)); see also Hary v. Dolan, No. 3:08-CV-1611(JCH), 2010 WL 419404, at *5 (D. Conn. Jan. 29, 2010) (granting summary judgment to defendant when the statute under which the plaintiff was cited was an infraction,

a malicious prosecution Libby v. Santangelo, No. 3:94-CV-1274(AWT), 1998 WL 229917, at *3 (D. Conn. Mar. 31, 1998) (granting malicious prosecution claim, finding that a charge under § 53a-181a is an infraction, which does

not initiate a criminal proceeding). Plaintiff relies on Clark v. Town of Greenwich, No. CV000179460S, 2001 WL 1561769, at *2 (Conn. Super. Ct. Nov. 21, 2001) to argue that there is a split of authority on whether issuance of an infraction is sufficient to establish the first element of a malicious prosecution claim. While the court in Clark denied summary judgment on a malicious prosecution claim, it did so perfunctorily, and appears to have assumed, without deciding, that an infraction may be sufficient. Given that the cases cited above, which actually decided the issue, clearly hold that an infraction does not constitute the institution of a criminal

claim. Thus, interpretation of the term in the context of accrual is inapposite.

proceeding in the malicious prosecution context, the Court is not persuaded that Clark requires it to hold otherwise. Accordingly, the Court grants summary judgment

Conclusion

accordingly and close this case.

It is SO ORDERED, this 24 th

day of September, 2018 at Bridgeport, Connecticut. /s/ William I. Garfinkel WILLIAM I. GARFINKEL United States Magistrate Judge

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