Alicea v. Fider

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MARIA M. ALICEA, Plaintiff, v. EVERTON FIDER, ET AL., Defendants.

No. 3:22-cv-1406 (KAD)

United States District Court, D. Connecticut

August 31, 2023

MEMORANDUM OF DECISION RE: DEFENDANTS' MOTIONS TO DISMISS (ECF NOS. 15 & 26)

Kari A. Dooley, United States District Judge:

This action arises out of the events of March 28, 2022, when Plaintiff, Maria Alicea, went to the Southport Center for Nursing and Rehabilitation to remove her father, Octavio Alicea, a resident at the facility. Plaintiff sues Defendant Everton Fider, the Director of the facility, and Defendants Walter Burke and Michael Paris, officers with the Fairfield Police Department who responded to the scene when called by facility staff. All Defendants seek dismissal of the Complaint. Plaintiff has opposed the motions. For the reasons set forth below, Defendants' motions to dismiss are GRANTED.

Standard of Review

To survive a motion to dismiss filed pursuant to Rule 12(b)(6) “a complaint must contain sufficient factual matter accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v Iqbal, 556 U.S. 662, 678 (2009) (quoting 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.” Iqbal, 556 U.S. at 678. “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.” Id. (quoting Twombly, 550 U.S. at 557).

Legal conclusions and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are not entitled to a presumption of truth. Iqbal, 556 U.S. at 678. Nevertheless, when reviewing a motion to dismiss, the court must accept well-pleaded factual allegations as true and draw “all reasonable inferences in the non-movant's favor.” Interworks Sys. Inc. v. Merch. Fin. Corp., 604 F.3d 692, 699 (2d Cir. 2010).

“Because a Rule 12(b)(6) motion challenges the complaint as presented by the plaintiff, taking no account of its basis in evidence, a court adjudicating such a motion may review only a narrow universe of materials. Generally, we do not look beyond facts stated on the face of the complaint, documents appended to the complaint or incorporated in the complaint by reference, and.matters of which judicial notice may be taken.” Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (citations and internal quotation marks omitted)

Courts liberally construe pleadings and briefs submitted by self-represented plaintiffs, “reading such submissions to raise the strongest arguments they suggest.” McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156-57 (2d Cir. 2017). If a pro se complaint is dismissed, the court should grant leave to amend “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would succeed in stating a claim.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999).

Allegations

Plaintiff's Complaint is a single page submitted on a superior court form for the filing of motions. She attaches a PACER docket entry from a different federal case, Alicea v. Bridgeport et al., Case No. 3:22-cv-221 (KAD), which reflects the Recommended Ruling of Magistrate Judge Vatti recommending that the complaint in that case be dismissed with prejudice.^[1] She also attaches a Fairfield Police Department Incident Report from the March 28, 2022 incident at the Southport nursing care facility that gives rise to her claims. Finally, she attaches copies of her Husky Health Connecticut identification card.

While the allegations are largely inscrutable, Plaintiff indicates that she seeks relief against Officer Burke for violating her Fourth Amendment rights, which the Court construes as an excessive force claim, for kicking her out of Southport and then phoning her and threatening to arrest her if she visits her father at the nursing home. She alleges that she was trying to “assist, advocate and see” her father who, she alleges, is being abused and neglected at the Southport facility. Plaintiff sues Officer Burke for “civil violation and bullying, intimidating [a] civilian.” And construed liberally, Plaintiff also appears to allege that Officer Burke committed a crime by filing a false police report, which the Court assumes to be the report attached to the Complaint.

Plaintiff identifies her claim against Dr. Fider as one of “defamation and Tampering with U.S. District Court Case 3:22 cv 221, Alicea v. Bridgeport.” There are no other allegations regarding Dr. Fider.

Lastly, Plaintiff identifies her claim against Officer Paris as “Tampering with providing records, placed civilian in interrogation room then plain ignored civilians calls. Feel unsafe to return to FPD.” She further alleges that Officer Paris “Tampering with Appeals court case Alicea v. Bridgeport et al. 2^nd Circuit Appeals in NY.”

Insofar as the Plaintiff attached the Incident Report from March 28, 2022, the Court considers its content, summarized as follows: On March 28, 2022, at 7:35 a.m., the police received a report of a family member being disruptive and arguing with staff at the Southport nursing home.

Octavio Alicea, a patient at the facility, is a conserved person. His conservator is Attorney Fransica Hodges. On that date, Octavio's daughter, Maria Alicea (Plaintiff), arrived to remove Octavio from the facility. Staff members called the Fairfield Police because “this was against the direction from Octavio's conservator.” Staff reported that Plaintiff became argumentative and began raising her voice, yelling at staff members and video recording staff, which is a violation of the facility's policy. Dr. Fider explained to the responding police officers that Plaintiff had brought civil litigation against the facility, but that the suit was dismissed. Dr. Fider reported that “Maria Alicea continues to be an antagonist” and that she “did not follow visitation protocol by signing in as a guest and [he did] not know how Alicea gained access to the building.” Dr. Fider also advised that Maria Alicea is “not on the emergency contact list for her father” and that he does “not want Maria Alicea back at the [facility] for the welfare of their patient, Octavio Alicea and [the] protection of his staff.” Finally, the Report reflects that “Maria Alicea was contacted via phone and warned not to return to Southport Center for Nursing and Rehabilitation or [she could] be subject to arrest. Maria stated she understood.”

Discussion

Dr. Fider's Motion to Dismiss

Dr. Fider seeks dismissal and asserts that the Complaint, even with its attachments, is bereft of allegations to support a claim of defamation. By response dated January 24, 2023, Plaintiff asserts a litany of new allegations which appear nowhere in the Complaint or its attachments. See ECF No. 35. She alleges that Dr. Fider defamed her to Officer Burke and a heretofore unnamed “Conservator Cardona” and that he stated that she “abuses her father.” See id. at 3. She further appears to assert-for the first time-that Dr. Fider is a state actor and that he, in concert with Officers Burke and Paris, has deprived her of her constitutional rights. By way of “Final” response to Dr. Fider's motion to dismiss filed February 24, 2023, Plaintiff offers additional allegations that are absent from the Complaint or its attachments. See ECF No. 37. She reiterates her claim that Dr. Fider has and continues to violate her constitutional rights. To this opposition, Plaintiff attaches a portion of the Rule 26(a) Initial Disclosures received from Defendants Burke and Paris to purportedly support these new theories of liability and factual allegations.^[2]

As discussed above, Plaintiff identifies two claims against Dr. Fider-defamation and tampering with her civil court case. As an initial matter, the Court cannot discern any legally cognizable claim against Dr. Fider that might derive from the dismissal of Plaintiff's case in Alicea v. Bridgeport et al., 3:22 cv 221 (KAD). The complaint in that case was dismissed for a multitude of reasons following Initial Review pursuant to 28 U.S.C. §1915 before any defendants were served or appeared. The dismissal did not relate to Dr. Fider in any way. And the appeal of the court's dismissal was itself dismissed as lacking any basis in law or fact. See supra, Alicea v. Bridgeport, AC No. 22-1120. Accordingly, this claim is DISMISSED. See Gonzalez v. U.S., Civil Action No. 3:13-CV-650 (CSH), 2014 WL 3738179, at *3 (D. Conn. July 29, 2014) (“.[T]he district court has the authority to dismiss actions.. .in the rare case when it faces a truly frivolous suit.”) (citing Abrams v. Sprizzo, 201 F.3d 430, 1999 WL 1295815 (Table), at *1 (2d Cir. 1999); see also Denton v. Hernandez, 504 U.S. 25, 32 (1992) (holding that a court may find a complaint frivolous “when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them”).

Defamation

Turning to Plaintiff's defamation claim, the Court similarly concludes that the allegations in the Complaint do not plausibly allege defamation. A defamatory statement is a “communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Bailey v. Nexstar Broadcasting Inc., No. 3:19-cv-00671 (VLB), 2020 WL 1083682, at *5 (D. Conn. Mar. 6, 2020). It is well settled that “for a claim of defamation to be actionable, the statement must be false.and under the common law, truth is an affirmative...