Pietrangelo v. Alvas Corp.

• Court: U.S. District Court — District of Vermont
• Writing for the Court: J. Garvan Murtha
• Citation: Pietrangelo v. Alvas Corp., 664 F.Supp.2d 420 (D. Vt. 2009)
• Decision Date: 07 October 2009
• Docket Number: File No. 1:09-CV-68.
• Parties: James E. PIETRANGELO, II, Plaintiff, v. ALVAS CORPORATION, George Alvanos, Christine Alvanos, Evan Alvanos, John Doe, City of Burlington, Emmet Helrich, Wade Labrecque, William Sorrell, Defendants.

664 F.Supp.2d 420

James E. PIETRANGELO, II, Plaintiff, v. ALVAS CORPORATION, George Alvanos, Christine Alvanos, Evan Alvanos, John Doe, City of Burlington, Emmet Helrich, Wade Labrecque, William Sorrell, Defendants.

File No. 1:09-CV-68.

United States District Court, D. Vermont.

October 7, 2009.

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James E. Pietrangelo, II, Cleveland, OH, pro se.

Richard H. Wadhams, Jr., Pierson Wadhams Quinn Yates & Coffrin, LLP, Steven C. Collier, Lynn, Lynn & Blackman, P.C., Burlington, VT, David R. Groff, Vermont Office of the Attorney General, Montpelier, VT, for Defendants.

OPINION AND ORDER

(Papers 6, 7, 24, 27, 34, 41, 42, 43, 52, 68, 73, 76 and 87)

J. GARVAN MURTHA, Senior District Judge.

The facts of this case began with the plaintiff's purchase of a hot dog at a deli in Burlington, Vermont. Plaintiff James Pietrangelo, an attorney proceeding pro se, was not satisfied with how the hot dog was prepared. He shared his concern with the deli's management, the Health Department, and after deciding to picket outside the deli, the Burlington Police Department.

While picketing, Pietrangelo was allegedly confronted in a hostile and aggressive manner by an unknown defendant ("John Doe"). According to the complaint, the police responded to the scene, allowed John Doe to depart, and notified Pietrangelo that he was not to picket on private property. Days later, Pietrangelo commenced this lawsuit in state court alleging conspiracy, tort violations, and violations of his state and federal constitutional rights. The case was subsequently removed to this Court.

Pending before the Court are a series of motions, including Pietrangelo's state court motion for a temporary restraining order, his motion to remand, and cross-motions for summary judgment.

Factual Background

The complaint alleges that on July 25, 2008 at approximately 3:45 p.m., Pietrangelo ordered a hot dog at the Pine Street Deli in Burlington, Vermont. The employee who prepared the order allegedly "handled the food in an unsanitary manner. Dismayed and disgusted, Plaintiff paid for the hot dog—obtaining a receipt—and left without receiving his food." (Paper 5 at 4).

Pietrangelo immediately called the Health Department to report the incident, and was allegedly informed that the handling of the hot dog did, in fact, constitute a health violation. He then returned to the deli to inform the owner "so that the owner could take corrective action himself immediately." Id. The owner was not available, but Pietrangelo was able to speak to the owner's son, defendant Evan Alvanos. In the course of the conversation, Alvanos was allegedly rude to the plaintiff, telling him to "shove the health regulations up his ass" and accusing him of failing to pay for the hot dog. Id. at 5. Pietrangelo informed the Health Department of Alvanos's response, and was told that a health inspection would be scheduled.

After speaking with the Health Department, Pietrangelo determined that he must, "for the public's sake ... picket Pine Street Deli to warn the public about the unsanitary food handling and to prompt Pine Street Deli to respect Health regulations." Id. Before doing so, he called the Burlington Police Department and informed the police of his plan. He also informed the police of his conversation with Evan Alvanos.

At approximately 5:30 p.m. that same day, Pietrangelo returned to the public sidewalk in front of the deli, armed with a sign and a video camera. According to the complaint, the sign "mentioned the unsanitary food handling and Evan's response when confronted by Plaintiff." Id. at 6. The purpose of the video camera was "to document the picketing." Id. at 5.

Around the time that Pietrangelo began his picketing, a Burlington Police car arrived and parked in the deli parking lot. The officer in the car, later identified as defendant Wade Labrecque, did not speak with Pietrangelo initially, but did speak with Evan and Christine Alvanos. Deli owner George Alvanos subsequently arrived at the scene, and Officer Labrecque spoke with him as well. Labrecque did "eventually" approach Pietrangelo and "merely told Plaintiff that he could not come onto Pine Street Deli property while picketing." Id. Pietrangelo responded that he would only be picketing on public property.

The complaint claims that before Officer Labrecque's departure, Evan Alvanos made "an obvious veiled-threat to Plaintiff," telling him "to the effect: `Best you leave.'" Id. at 7. Pietrangelo complained to Officer Labrecque about the threat, but Labrecque allegedly took no action before leaving the scene. The parties dispute whether Labrecque himself overheard Alvanos's comment.

At approximately 6:30 p.m., defendant John Doe approached Pietrangelo in an aggressive manner from the direction of the deli. The complaint describes Doe as a male with a "hardened, muscular look to his body and a hardened, violent look on his face." Id. at 8. Doe allegedly proceeded to stand close to the plaintiff, touching him on at least three occasions, and yelled at him in a violent manner. When Pietrangelo tried to move away, Doe repositioned himself so as to impede Pietrangelo's progress. When Pietrangelo complained to Doe that his movement was being impeded, Doe told him that he was "free to leave the area entirely." Id. at 9.

Pietrangelo called 911 and informed the dispatcher that he was being "accosted." Id. The dispatcher advised him to walk away, but Pietrangelo insisted that he could not because Doe was blocking his movements. Although Pietrangelo claims that the police response to his call was delayed, Burlington Police Lieutenant Emmett Helrich subsequently arrived at the scene.

The complaint alleges that Lieutenant Helrich spoke with John Doe and instructed him to leave, but failed to obtain his name or question him about his conduct. Helrich also spoke with the Alvanoses and Pietrangelo. When speaking with Pietrangelo, Helrich allegedly required him to "stand in place on a small strip of curb lawn along Pine Street and answer his questions, which Plaintiff did." Id. at 10. Pietrangelo claims in his complaint that he "did not consent to this order and requirement but complied with it because he felt he had no choice otherwise." Id.

Helrich allegedly asked Pietrangelo about his reason for picketing and issued him a "no trespass" order warning him not to step onto deli property.¹ Helrich also allegedly ordered Pietrangelo to limit his picketing to a strip of curbside lawn. Helrich and Officer Labrecque, who had returned to the scene, then drove away.

At summary judgment, Lieutenant Helrich has provided an affidavit in which he explains his actions. According to Helrich, his first conversation when he arrived at the scene was with John Doe. "I told John Doe Plaintiff had every right to protest on public property.... I also told John Doe Plaintiff likely sought attention through his protesting, and that if he didn't like his message, the best course was to ignore him. John Doe seemed rational, agreed with me, and left the area." (Paper 88-4 at 2).

Helrich next spoke with the deli owners. "I essentially gave them the same advice .... The owners seemed rational and agreed Plaintiff had a right to be there, and I believe they accepted and agreed with my advice. I did not believe the owners—or any other known individual— planned to harm Plaintiff for protesting." Id.

Helrich then approached Pietrangelo, "who would not identify himself, and began berating me. Of all the individuals I spoke to, Plaintiff seemed to be the least rational." Id. Helrich acknowledged Pietrangelo's right to picket, but advised him that he could not obstruct pedestrian traffic on the sidewalk or interfere with access to the store. Although he does not recall the exact words he used, he remembers suggesting that Pietrangelo protest from the grassy "greenbelt" next to the sidewalk. Id. at 4. "I do not believe I told Plaintiff to stay off the sidewalk, but rather, said he could not obstruct others on the sidewalk while protesting." Id. Helrich also informed Pietrangelo that the deli owners did not want him on their property, and issued the notice against trespass before leaving the scene.

Pietrangelo subsequently called the Burlington Police Department and asked to speak with Helrich's superior. The dispatcher allegedly informed him that all superiors had left for the day, and that he could lodge his complaint with the FBI. Pietrangelo decided to walk to the police station to obtain the name of the officers involved, and to then go home. He claims that after leaving the police station, he was harassed by a group of young males.

Pietrangelo asserts in his complaint that he had planned to continue his picketing "for an indefinite period." However, because of the actions allegedly taken by the defendants, he decided not to return. (Paper 5 at 14).

The complaint sets forth nineteen causes of action, ranging from assault and battery to false imprisonment and conspiracy. Pietrangelo also claims that the defendants denied him a host of constitutional rights. For relief, he is seeking damages, an injunction barring the City of Burlington from preventing his picketing, and an order "requiring Defendant City of Burlington to have a police officer present on public property at Pine Street Deli at all times while Plaintiff is picketing...." (Paper 5 at 24). Pietrangelo's current mailing address is in Cleveland, Ohio.

Procedural Background

Pietrangelo filed his complaint in state court on July 31, 2008, less than one week after the incident in question. He also moved for a preliminary injunction and a temporary restraining order. A hearing on these motions was held in state court on August 26, 2008, but no order was issued.

Over the next several months, the parties filed various dispositive and non-dispositive motions. On March 16, 2009, defendants City...