Preview
Here, Mason was not a care-giver to the Plaintiff and did not abuse the Plaintiffin any way,
instead, Mason reported her for neglecting her goats and for the resulting nuisance that she created.
The Plaintiff's harassment Count fails to identify a legal theory or statutory source providing the
Plaintiff with the authority to bring her elder abuse claim and the existing case law on this issue.
Additionally, to the extent that this count can be read as stating a claim for intentional infliction of
emotional distress, this count should still be dismissed as discussed below in response to Count
Nine where the Plaintiff asserts a claim for intentional infliction of emotional distress.
E. The Plaintiff Cannot Demonstrate Probable Cause That She Will Prevail on
the Merits of Count Six Claiming Illegal Search and Seizure.
Count Six of the Plaintiff's Complaint alleges, pursuant to 42 U.S.C. § 1983, that actions
taken by Mason and the Defendants constituted violations of the Plaintiff's Fourth Amendment
protections from unreasonable search and seizure. In this count, the Plaintiff claims that she was
denied rights guaranteed under the Fourth Amendment to the Constitution of the United States,
and enforceable pursuant to the provisions of42 U.S.C. § 1983. Section 1983 provides as follows:
Every person who,under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. State courts have concurrent jurisdiction with federal courts for a § 1983 cause
of action. See Red Maple Properties v.Zoning Commission 222 Conn. 730, 739 n.7(1992). Thus,
the Connecticut Supreme Court gives great weight to decisions ofthe federal courts in the second
circuit in the interpretation of42 U.S.C. § 1983. Id.
There are two essential elements to a claim brought under 42 U.S.C. § 1983:"(1) whether
the conduct complained of was committed by a person acting under color of state law; and (2)
24
2898297_1
whether this conduct deprived a person of rights, privileges, or immunities secured by the
Constitution or laws ofthe United States." Fusco v. Connecticut,815 F.2d 201,205(2d Cir. 1987),
cert. denied,484 U.S. 849(1987)(quoting Parratt v. Taylor,451 U.S. 527, 535 (1981).
In State v. Sixty-Five Goats,the court considered the validity ofthe State's basis for seizing
the Plaintiff's goats, including the relevant search and seizure warrant that Plaintiff now claims
was based on fraudulent information. To the contrary, the court held as follows:
The court finds that while in the defendant's care, the sixty-five
goats were in imminent harm, and were neglected and cruelly
treated by the defendant. The court, therefore, determines that the
State has met its burden to establish reasonable care to find that the
animals' condition and the circumstances surrounding their care by
the defendant require that the temporary care and custody continue
to be assumed by the State to safeguard the goats' welfare.
2021 WL 1784758, at *2. The court thereafter ordered that the temporary care and custody of the
goats remain with the State, and that the Plaintiff relinquish her ownership rights. Id. The court
acknowledged that the goats had been located and seized "[p]ursuant to § 22-329a(c)and upon the
issuance of a warrant and finding of probable cause that the goats were neglected and cruelly
treated." Id., at 1. Thus, the court's findings, in light of such acknowledgment, conclusively
determined that the information on which the warrant was obtained, which the Plaintiff now
challenges as fraudulent, was in fact reliable. The existence of probable cause justifying the
warrant was fully and fairly litigated, actually considered by the court, and such finding was
necessary to the determination that custody remain with the state.
In the present action, the Plaintiff alleges that the conduct complained of was committed
by individuals acting under color of state law. See Compl.,Count Six,in 87, 88. In particular, she
claims Mason, Carmody, Gibbons, and the Redding Defendants violated her Fourth Amendment
protection from unreasonable search and seizure when they, along with the State Defendants, acted
25
2898297_1
in concert to "deliberately and maliciously contribute to the submission of a false and fraudulent
application for a search and seizure warrant,regarding Plaintiff's property ... which was granted."
Id., Count Seven, ¶ 81. Because the validity of the search and seizure warrant, and the reliability
ofthe information contained therein, has already been litigated and determined,the Plaintiffshould
be collaterally estopped from asserting her Fourth Amendment search and seizure claim here.
There is no evidence that the Plaintiff can produce that would(1)mandate a different outcome,(2)
demonstrate that Mason conducted a search or seized the Plaintiff's property, or (3) did anything
other than report a crime which provides Mason with a common law qualified immunity as a
complaining witness who initiates a prosecution or procures the issuance of an arrest warrant. . ."
Petyan v. Ellis,200 Conn. 243, 252(1986); See also Malley v. Briggs, 475 U.S. 335, 340(1986)
(observing that, at common law, a complaining witness is entitled to qualified, not absolute,
immunity); Flanagan v. McLane,87 Conn. 220, 223-24(1913)(holding that a qualified immunity
was applicable to the defendant's statement to the town constable accusing the plaintiff of theft).
The Connecticut Supreme Court has explained, qualified immunity affords sufficient protection
for those who cooperate with the police and provide statements to police investigators. Petyan,200
Conn. at 252; Flanagan,87 Conn. at 223-24. Therefore, the Plaintiff cannot demonstrate probable
cause that she is likely to prevail on the merits on her Count under 42 U.S.C. § 1983 due to the
validity of the underlying warrant and the existence of qualified immunity available to Mason for
his actions in petitioning the government related to the matter of public concern created by the
Plaintiff ownership and neglect of her goats.
F. The Plaintiff Cannot Demonstrate Probable Cause That She Will Prevail on
the Merits of Count Seven Claiming Violation of 42 U.S.C.§ 1983.
Count Seven incorporates the Plaintiff's previous allegations, and then alleges that "[t]he
defendants, some or all of them have, acted under color of state law to deprive plaintiff of her
26
2898297_1
rights and protections guaranteed by the U.S. Constitution, including her rights to due process,
First Amendment guarantees and the Fourth Amendment protection against illegal searches and
seizures. Such deprivations have caused plaintiffto suffer harm and financial loss." Compl.,Count
Seven, ¶ 88. Nowhere in the Plaintiff's Complaint, however, does the Plaintiff include factual
allegations that could reasonably substantiate § 1983 claim based on either due process and/or First
Amendment rights violations. Similar to her Fourth Amendment claim as set forth above, Mason
is protected by a qualified privilege for purposes ofthe Plaintiff's § 1983 claim for his cooperation
with police investigators. Accordingly, the Plaintiff has failed to establish a prima facie case for
either a First Amendment violation claim or a due process violation claim, and therefore Count
Seven should be dismissed.
G. The Plaintiff Cannot Demonstrate Probable Cause That She Will Prevail on
the Merits of Count Nine Claiming Intentional Infliction of Emotional
Distress.
Count Nine asserts that Mason is liable for intentionally causing the Plaintiff emotional
distress. Specifically, the Plaintiff again incorporates her previous allegations and then states that
"[b]y such conduct as is alleged hereinabove, defendants intended to and did inflict emotional
distress on plaintiff. Such emotional distress is severe and is continuing." Compl., Count Nine, ¶
94. The Plaintiff's claim for intentional infliction of emotional distress is unsupported by the facts
and must be dismissed.
"In order for the plaintiff to prevail in a case for liability . . .[alleging intentional infliction
of emotional distress], four elements must be established. It must be shown: (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 plaintiffs distress; and (4) that the emotional distress
27
2898297_1
sustained by the plaintiff was severe. Tracy v. New Milford Public Schools, 101 Conn. App. 560,
568 (2007). Whether a defendant's conduct is "extreme and outrageous is initially a question for
the court to determine." Appleton v. Board of Education of Town of Stonington, 254 Conn. 205,
2010(2000)."Only where reasonable minds disagree does it become an issue for the jury. Id.
To rise to the requisite level of extreme and outrageous, a defendant's conduct must be "so
extreme in degree, as to go beyond all possible bounds ofdecency, and to be regarded as atrocious,
and utterly intolerable in a civilized community." Carrol v. Allstate Ins. Co.,262 Conn. 433,443,
815 A.2d 119 (2003). Conduct that is "merely insulting or displays bad manners or results in hurt
feelings is insufficient to form the basis for an action based upon intentional infliction ofemotional
distress." Appleton,254 Conn. at 211.
Where a plaintiff's emotional distress claim stems from an arrest, the claim fails as a matter
of law if the arrest was supported by probable cause. See, e.g., Washington v. Blackmore, 119
Conn. App. 218,224(2010)(holding that the "existence of probable cause precluded recovery on
[the plaintiff's] remaining claims," which included her claim for intentional infliction ofemotional
distress); Pritsker v. Keating, 2016 WL 3451679 *7 (Conn. Super. 2016) (finding that
"Connecticut courts have indicated that when there is probable cause for an arrest, a claim
sounding in intentional infliction ofemotional distress based on the arrest will not be supported.").
These courts have reasoned that "enforcement ofthe law can hardly be called conduct beyond the
acceptable bounds of decent society." Castro v. Narcisse,2013 WL 5423689 *10(D. Conn. 2013)
(quoting Brooks v. Sweeney, 2008 WL 5481203 *4(Conn. Super. 2008), affd, 299 Conn. 196, 9
A.3d 347(2010)).
Here, none ofthe allegations in the Complaint support any ofthe elements ofthe Plaintiff's
intentional infliction of emotional distress claim against Mason, which therefore make it
28
2898297_1
appropriate for dismissal pursuant to Mason's special motion to dismiss. Mason's conduct of
reporting the Plaintiff to the police and using an air horn to shew the Plaintiff's goats away from
his spruce tree and off of his property and back to the Plaintiff's property would not satisfy the
elements required to support a claim for intentional infliction of emotional distress. Mason(1) did
not intend to inflict emotional distress or know that emotional distress was the likely result of his
conduct, (2) his conduct was not extreme and outrageous, (3) Mason's conduct was not a
recognized cause of the plaintiffs alleged distress; and (4) there is no support for the Plaintiff's
claim that her emotional distress was severe.
Shewing goats off of his property and reporting the Plaintiff's neglect of her goats to the
police are not the sort of conduct that is atrocious or so utterly intolerable to exceed all bounds
usually tolerated by decent society. Finally, because the Plaintiff's alleged emotional distress stems
from an arrest pursuant to a valid warrant, her claim fails as a matter of law. Washington, 119
Conn. App. at 224. Therefore, Count Nine must be dismissed because the Plaintiff cannot
demonstrate probable cause showing that she is likely to prevail on the merits of her claim for
intentional infliction of emotional distress.
H. The Plaintiff Cannot Demonstrate Probable Cause That She Will Prevail on
the Merits of Count Ten Claiming Negligent Infliction of Emotional Distress.
Count Ten asserts that Mason is liable for negligent infliction of emotional distress.
Specifically, the Plaintiff again incorporates her previous allegations and then states that "[b]y
such conduct as is alleged hereinabove, defendants negligently inflicted emotional distress, which
is extreme, on plaintiff . . . Such emotional distress is severe and is continuing." Compl., Count
Ten,In 127-28. The Plaintiff's claim for negligent infliction of emotional distress is unsupported
by the facts and must be dismissed.
29
2898297_1
A claim based on the negligent infliction ofemotional distress requires only that the actor's
conduct be unreasonable and create an unreasonable risk of foreseeable emotional harm. Olson v.
Bristol-Burlington Health Dist.,87 Conn. App. 1, 7(2005). The Plaintiff claims that she witnessed
animal cruelty towards her goats as a result ofthe April 30,2020 wherein Mason shewed goats off
of his property. Mason's conduct in shewing the Plaintiff's herd of goats away from his spruce
tree and off of his property using an air horn was not unreasonable or likely to create an
unreasonable risk of foreseeable emotional harm in the Plaintiff In fact, in Mason and the other
Defendants' experience the use ofan air horn was necessary to ensure that the goats would comply
and travel back home to the Plaintiff's property. The Plaintiff has further failed to demonstrate that
she has suffered any emotional harm as a result of Mason's conduct. Therefore, the Plaintiff's
claim for negligent infliction of emotional distress must be dismissed.
I. The Plaintiff Cannot Demonstrate Probable Cause That She Will Prevail on
the Merits of Count Eleven Claiming Conversion.
Count Eleven asserts that Mason is liable for conversion. Specifically, the Plaintiff again
incorporates her previous allegations and then states that "[b]y such conduct as is alleged
hereinabove, defendants, some or all of them, engaged in the tort of conversion when plaintiff's
personal property was unlawfully removed from 147 Cross Highway, Redding, Connecticut on or
about March 10, 2021." Compl., Count Eleven, ¶ 130. The Plaintiff's conversion claim asserted
against Mason is unsupported by the facts and must be dismissed.
Under Connecticut law, conversion "is an unauthorized assumption and exercise of the
right of ownership over property belonging to another, to the exclusion of the owner's rights."
Mystic Color Lab,Inc. v. Auctions Worldwide, LLC, 284 Conn. 408, 418 (2007). Here, Mason
has not exercised ownership over any of the Plaintiff's property including her goats. Therefore,
the Plaintiff's conversion count must be dismissed.
30
2898297_1
J. The Plaintiff Cannot Demonstrate Probable Cause That She Will Prevail on
the Merits of Count Thirteen Claiming Deprivation of Equal Rights and
Privileges.
Count Thirteen asserts that Mason is liable for Deprivation of Equal Rights and Privileges.
Specifically, the Plaintiff again incorporates her previous allegations and then states "[t]he
defendants, some or all of them, by the conduct set forth hereinabove, have violated plaintiff's
rights and privileges pursuant to Conn. Gen. Stat. § 52-571a." Compl., Count Thirteen, ¶ 148.
C.G.S. § 52-571a provides that"any person aggrieved by a violation of section 53-37b may apply
to the Superior Court for injunctive relief, recovery of damages, and such other relief as the court
deems just and proper." C.G.S. § 53-37b provides that:
Any person who, acting alone or in conspiracy with another, for the
purpose of depriving any person or class of persons of the equal
protection of the laws of this state or the United States, or of equal
privileges and immunities under the laws of this state or the United
States, engages in the use of force or threat, as provided in section
53a-62, shall be guilty of a class A misdemeanor, except that if
bodily injury results such person shall be guilty of a class C felony
or if death results such person shall be guilty of a class B felony.
Finally, C.G.S. § 53a-62 provides that "(a) A person is guilty of threatening in the second degree
when:(1)By physical threat, such person intentionally places or attempts to place another person
in fear of imminent serious physical injury,(2) such person threatens to commit any crime of
violence with the intent to terrorize another person, or (3) such person threatens to commit such
crime of violence in reckless disregard of the risk of causing such terror." C.G.S. § 53a-62.
The Plaintiff's claim on this Count must be dismissed pursuant to Mason's special motion
to dismiss because she cannot demonstrate probable cause that she will prevail on the merits as
discussed above and cannot provide any support for her claim that Mason acting "acting alone or
in conspiracy with another" deprived her of the "equal protection of the laws of this state or the
31
2898297_1
United States, or of equal privileges and immunities under the laws" by engaging in the use of
force or threat as provided in C.G.S. § 53a-62.
CONCLUSION
Each Count in the Plaintiff's Second Amended Complaint is based upon Defendant
Mason's exercise of his rights to petition the government and to free association in connection
with a matter of public concern related to health and safety, environmental, economic, and
community well-being, and government zoning and other regulatory matters. For the reasons set
forth above, the Plaintiff will not prevail because she cannot make a showing of probable cause,
considering all valid defenses, that she will prevail on the merits of the Complaint, and therefore
the Court must dismiss the Second Amended Complaint in its entirety and award Defendant
Mason's reasonable costs and attorneys' fees. C.G.S. § 52-196a(f)(1).9
Defendant,
David Mason
By his attorney,
17 4,4 nhaoon.a
Robert S. Hillson II(BBO #441402)
Rubin and Rudman LLP
53 State Street
Boston, MA 02109
(617) 330-7000
rhillsonaVubinrudman.com
9 Additionally, Mason incorporates and adopts all the arguments set forth by the co-defendants in their respective
motions to dismiss and/or motions to strike.
32
2898297_1
CERTIFICATE OF SERVICE
I, Robert S. Hillson II, Esq. counsel for the Defendant David Mason, do hereby certify that
on this 14th day of July 2021, I caused to be served a true copy of the foregoing document(s) via
e-mail to the following counsel and self-represented parties of record.
Nancy Burton Steven J. Stafstrom, Jr., Esq.
154 Highland Avenue Pullman & Comley, LLC
Rowayton, CT 06853 850 Main Street, P.O. Box 7006
(203) 313-1510 Bridgeport, CT 06601
nancyburtonct ( &,aol.com sstafstromkpullcom.com
James N. Tallberg, Esq. Jonathan E. Harding, Esq.
Karsten & Tallberg, LLC Matthew I. Levine, Esq.
500 Enterprise Drive, Suite 4B AG-Environmental
Rocky Hill, CT 06067 165 Capitol Ave., 5th Floor
jtallbergWa-lawfirm.com Hartford, CT 06106
jonathan.hardinggct.gov
Philip T. Newbury, Jr., Esq.
Kristan M. Jakiela, Esq.
Howd & Ludorf, LLC
65 Wethersfield Avenue
Hartford, CT 06114-1121
pnewburyghl-law.com
kiakielaghl-law.com
E Haunt lt
Robert S. Hillson II, Esq.
33
2898297_1
EXHIBIT A
STATE OF CONNECTICUT
Docket NO.:(X06)UWY-CV21-5028294-S
NANCY BURTON, SUPERIOR COURT
Plaintiff,
COMPLEX LITIGATION DOCKET
v.
AT WATERBURY
DAVID PHILIP MASON,ET AL.
Defendants.
June 10, 2021
AFFIDAVIT OF DAVID PHILIP MASON IN SUPPORT OF
HIS SPECIAL MOTION TO DISMISS THE PLAINTIFF ' S COMPLAINT
I, David Philip Mason who being duly sworn, depose and state as follows:
1. My name is David Philip Mason. I am a Defendant in the above captioned lawsuit.
2. I make this affidavit under oath and on my personal knowledge, in support of my
special motion to dismiss the Plaintiffs Complaint.
3. I have lived across the street from the Plaintiff Nancy Burton ("Plaintiff') in
Redding, Connecticut since October 2010.
4. The Plaintiff has kept goats on her property for many years.
5. In approximately 2015, the Plaintiffs herd of goats began to expand considerably.
6. As the herd grew, the goats more frequently came onto my property along with the
properties of my neighbors Elinore Carmody and Dennis Gibbons to forage for food.
7. Between the odor, the noise, neglect of the goats, destruction of property, and the
safety hazard created by the herd of goats repeatedly running across Cross Highway, which
separates my property and the Plaintiffs property, Carmody, Gibbons, and I and other concerned
citizens felt compelled to work together and to contact the authorities to fix what we considered to
be a matter of public concern.
1
2873369_1
8. In August 2017,the Redding Zoning Enforcement Officer issued a cease and desist
order to limit the Plaintiff's herd to the regulatory maximum of nine goats.
9. Despite the entry of the cease and desist order, the Plaintiff refused to cooperate
and the problem only got worse.
10. The Plaintiff continued to keep many more than nine goats on her property.
1 1. The ever-multiplying number of goats continued to hazardously cross the street
bordering the Plaintiff's property to trespass onto my property in search of food and the resulting
noise, damage, stench, and danger to passing motorists increased.
12. The Plaintiff did not adequately fence in the goats and hence they were often free
to roam onto my and my neighbor's property.
13. On April 30, 2020, the Plaintiff's herd of goats wandered onto my property after
passing over Cross Highway as they frequently did.
14. While I was in my backyard shooing some of the goats away from a spruce tree,
which the goats had previously damaged by eating the lower growth in their search for food, one
of the Plaintiffs goats ran onto Cross Highway and was struck by a vehicle and seriously injured.
15. I learned of the goat that was injured when I came to my front yard after the goats
had left the spruce tree alone.
16. As a result of that incident, the Plaintiff was charged with animal cruelty and
obstructing an animal control officer's investigation.
17. It was and has never been my intention to harm or injure any ofthe Plaintiff's goats.
I have only wanted the goats to receive the proper care and treatment they need while reducing the
damage and safety hazards they created in our neighborhood and on Cross Highway.
2
2873369_1
18. Given their stubborn nature when foraging for food and the sheer number of goats
that Plaintiff would allow to roam on my and my neighbors' property -- often 30-40 or more goats
-- it was necessary to use an air horn in order to get a response from the goats and to get them to
return onto the Plaintiff's property, as the goats ignored mere shouting or other attempts to steer
them back onto the Plaintiff's property.
19. The Plaintiff's characterization of the incident and her description of me chasing
the goats in an uncontrolled stampede is just not factually correct.
20. I would on a number of occasions herd the goats out ofthe street and back onto the
Plaintiff's property, but in this particular instance, at the time the goat was hit by a car, I was in
my backyard by the spruce tree shooing those goats away from the tree.
21. I believe the Plaintiff has brought this suit seeking retribution for my complaints
and the complaints of my neighbors, which ultimately led to an investigation and the Plaintiff's
arrest for animal cruelty due to her neglectful treatment of her animals.
SIGNED UNDER THE PENALTIES OF PERJURY THIS 10TH DAY OF JUNE 2021.
DAVID PHILIP MASON
Dated: June 10, 2021
3
2873369_1
EXHIBIT B
DCJ 2021- 9931 WA TH
AFFIDAVIT AND APPLICATION
STATE OF CONNECTICUT
SEARCH AND SEIZURE WARRANT SUPERIOR COURT
JD-CR-61 Rev,3-10
C.S S §5 54-33a.54-33c 54-331 tvpiwiud ct.gov
F01777.1D-CR-52 must also be completed
Instructions To Applicant Instructions To G.A. Clerk
tits the app4oation for the warrant and all affidavits upon which Upon execution and return ofthe wanent, affidavits which we
the warrant is based with the clerk of the court for the geographical
the subject ofan order dispensing with the requirement of giving
area within which any person who may be arrested in connection a copy to the owner, occupant or person within forty-eight hours
with or subsequent to the execution of the search warrant would shallremain in the custody ofthe cleric's office in a secure
be presented. together with the return of the warrant, location apart horn the remainder ofthe court file.
Police Case number 2020-360
TO: A Judge of the Superior Court or a Judge Trial Referee
The undersigned. being duly sworn, complains on oath that the undersigned has probable cause to believe that certain
property, to wit:
All goats on the property, alive or dead, and to have said animals evaluated and tested for dehydration, emaciation,
physical condition, wounds, parasites, injuries and illness by a licensed veterinarian; all animal health and ownership
records; photographs of animals; receipts and bills related to animal care and feeding; and medication related to animal
care.
r--7 is possessed, controlled, designed or intended for use or which is or 31E15 been or Thal: be used as the means of
" committing the criminal offense of:
jwas stolen or embezzled from:
0constitutes evidence of the following offense or that a particular person participated in the commission of the offense of:
C.G.S. 53-247 Animal Cruelty
0 is in the possession, custody or control of a journalist or news organization, to wit:
❑ and such person or organization has committed or is committing the following offense which is related to such
property:
❑ and such property constitutes contraband or an instrumentality of the criminal offense of:
And is within or upon a certain person, place. or thing, to wit:
The grounds, property, house, garage, trailers, vehicles, paddocks, barns and outbuildings located at 147 Cross Highway, Redding CT. The house is a
single family two story federal style structure built in 1850 with faded shingles that appear to be of a mustard color. Land records show that the home is
owned by William H Honan and Nancy Burton. The home has approximately 3200 square feet of living space and sits on approximately 3.6 acres of land.
There are two driveways, one located on the east side of the home and the other on the west. The west driveway extends to a dilapidated barn that a
survey map describes as "Old Barn".
(This is page 1 ofa 9 page Affidavit and Application.)
City/Town Date Signatu and 'Afflartt
IDAN1313R'Y 09 2021
A NTITTIrY'
Subscnt.led and sworn to tzefore rta on (Dale)S nad
Jurat 'mil 177)I) r‘ 900- ,11
RETURN FOR AND INVENTORY
rrturtm i T .=t.C.tU UN ti;k111.,.:t1 A NU JitILUKt VVAKKAN I liwentery control number
JudiDist=c G.A At Acciess of C—,0) Date of seizure
Docket number Uniform arrest number Pc1-;e case number Compenron sass number
CR- 2020-360
Then and there by virtue of and pursuant to the authority of the foregoing warrant, I searched the person, place or thing
named therein, to wit:
The grounds, property, house, garage, trailers, vehicles, paddocks, barns and outbuildings located at 147 Cross Highway, Redding CT. The house is a
single family two story federal style structure built in 1850 with faded shingles that appear to be of a mustard color. Land records show that the home is
ovmed by Wiliam H Honan and Nancy Burton. The home has approximately 3200 square feet of living space and sits on approximately 3.6 acres of land.
There are two driveways, one located on the east side of the home and the other on the west. The west driveway extends to a dilapidated barn that a
survey map describes as "Old Barn"
and found thereon or therein, seized, and now hold in custody, the following property:
❑ Total Cash Seized: , consisting of
and I gave a copy of such warrant to . the owner or occupant of
the dwelling, structure, motor vehicle or place designated therein, or to
the person named therein, on (Date)
(This is page 9 of a 9 page Affidavit and Application.)
Data I Spam° (Officers sagnaiura and departments
NOTE:Fom? JO-CR-61. paues 1- 9 must be supplemented by Form JD-CR-52.
JD'CR-6t Rev. 3-10
And the facts establishing the grounds for issuing a Search and Seizure Warrant are the following:
1. The undersigned, State Animal Control Officer Charles A. DellaRocco, being duly sworn, does
depose and state that he has been a member of the Connecticut Department of Agriculture Animal
Control Unit since July 2, 2019. At all times mentioned herein he was acting as a member of said
department. The undersigned has also been a sworn Police Officer with Old Saybrook Department of
Police Services from November of 1994 to June of 2007 as well as a sworn Police Officer with the
Connecticut State Supreme Court Police Department from June of 2007 to July of 2019. The following
facts and circumstances are stated from personal knowledge and observations as well as information
received from other animal control and police officers acting in their official capacity, official department
and police reports, and statements made by prudent and credible witnesses.
2. The undersigned, State Animal Control Officer Tanya Wescovich, being duly sworn, does depose
and state that she is a member of the Connecticut Department of Agriculture Animal Control Unit since
January 3, 2020. At all times mentioned herein she was acting as a member of said department. The
undersigned has also been a sworn municipal animal control officer for the Town of Stonington from
January 10, 2010 to January 2, 2020. The following facts and circumstances are stated from personal
knowledge and observations as well as information received from other officers acting in their official
capacity, from official department and police reports, and statements made by prudent and credible
witnesses.
3. On October 7, 2020, the Connecticut Department of Agriculture State Animal Control Unit received
a complaint about injured goats/general care issues on the property located at 147 Cross Highway,
Redding. The owner of the property, Nancy Burton, is well known to the Redding Police Department
as well as the Connecticut Department of Agriculture State Animal Control Unit because of the many
complaints received over the years. The Redding Police Department has at least one hundred and
twenty plus (120+) complaints since 2007. The majority of the complaints stem from goats roaming
and Burton has been cited numerous times for town ordinance violations. On April 30, 2020, Redding
Police Department investigated a motor vehicle accident involving a car vs. goat. The goat sustained
injury. As a result of the investigation, Nancy Burton was arrested for Animal Cruelty and the case is
still pending in Danbury Superior Court. The Connecticut Department of Agriculture Animal Control
Unit has had at least five complaints since 2017 all making reference to the conditions and the large
amount of goats on the property.
4. On October 15, 2020, State Animal Control Officer Barbara Godejohn accompanied by Redding
Police Detective Christina Dias had noticed at least fifty (50) goats. It was noted that one goat in
particular was observed for thirty minutes during which time the goat spent most this time walking on
it's front knees. When this goat did stand, Officer Godejohn saw that the goat appeared not to be able
to stand on both front feet. Due to the distance, it was difficult to assess the other goats on the
property.
5. On October 20, 2020, State Animal Control Officer Barbara Godejohn and Redding Police Detective
Dias made contact with the owner of the property, Nancy Burton, who denied that one of her goats was
walking on its knees but did mention that she has an older female goat named "Leda" for which she
(This is page 2 of a 9 page Affidavit and Application.)
Cityfro vn
DAMTTRY
DAN-B:0 f'
Subsumed itrW sworn to oeforrrtntrpn tpattt rood
Jurat 11'.;.e I' 1, i mil
) • • •
. 4,
J3-CR-61 Rev 3.40
has had to change her feed and give her a pill in an organic apple. She didn't know what the pill was
called. Burton told both officers that "Leda" has been limping for some time and that she has not
consulted a veterinarian because,"Nature knows more than vets." Burton claimed that she was too
busy to get a veterinarian out to examine the goats. In an email sent later in the day to Officer
Godejohn, Burton stated she has an appointment on November 5, 2020 with a veterinarian.
6. On November 9, 2020, State Animal Control Officer Barbara Godejohn confirmed with Salmon
Brook Veterinary Hospital the examination of two goats that Burton brought to their practice.
7. In early December of 2020, affiant DellaRocco was assigned to continue with the investigation in
this case as well as investigate a complaint made by Burton (Case #2020-424) due to the retirement of
State Animal Control Officer Godejohn. On December 10, 2020, affiant DellaRocco made contact with
Burton who refused to allow him onto the property so he could inventory the goats in advance of
helping her thin her herd. Burton had made reference to wanting to get the herd down to nine goats so
she could be in compliance with a town ordinance. During this visit, affiant DellaRocco noticed
approximately thirty-five (35) to forty-five (45) goats. Affiant DellaRocco was a distance away from
them and noticed one goat was unable to place her right hind leg down and was limping around. The
leg was just dangling and when asked about it, Burton stated that it might just be "Leda" who is an
older goat of hers.
8. On February 3, 2021, with permission of the owners located at 153 Cross Highway, Redding,
utilized an apartment just off the garage to conduct surveillance of the 147 Cross Hwy. Affiant
DellaRocco arrived at 0800 hrs. and noticed that it had recently snowed, about an inch or two on top of
about a foot. Affiant DellaRocco noticed that Burton's second west end driveway recently had a
delivery of hay and feed. It appeared that a delivery truck had pulled up to the fence and thrown the
bails of hay and feed over the fence. The hay did have fresh snow on it and it appeared to be a little
wet. At 1006 hrs., Affiant DellaRocco noticed Burton pull up in her white car and back down the first
east end driveway. At 1025 hrs., Affiant DellaRocco noticed Burton carrying two flakes of hay (a flake
of hay is formed by the baler pulling in the dried legume/grass from the row when it's totally dried. Most
square bales affiant DellaRocco have seen are between 10-12 flakes per bale) and walk them over to
the large paddock that affiant DellaRocco has identified as paddock #1. This paddock houses
approximately 10 large goats. Affiant DellaRocco was unable to see any water containers. It took
Burton, age 72, quite some time, approximately 10 minutes, to make itto the paddock resting from time
to time. Burton threw both flakes of hay into paddock #1 and affiant DellaRocco witnessed the goats
become
Preview
Here, Mason was not a care-giver to the Plaintiff and did not abuse the Plaintiffin any way, instead, Mason reported her for neglecting her goats and for the resulting nuisance that she created. The Plaintiff's harassment Count fails to identify a legal theory or statutory source providing the Plaintiff with the authority to bring her elder abuse claim and the existing case law on this issue. Additionally, to the extent that this count can be read as stating a claim for intentional infliction of emotional distress, this count should still be dismissed as discussed below in response to Count Nine where the Plaintiff asserts a claim for intentional infliction of emotional distress. E. The Plaintiff Cannot Demonstrate Probable Cause That She Will Prevail on the Merits of Count Six Claiming Illegal Search and Seizure. Count Six of the Plaintiff's Complaint alleges, pursuant to 42 U.S.C. § 1983, that actions taken by Mason and the Defendants constituted violations of the Plaintiff's Fourth Amendment protections from unreasonable search and seizure. In this count, the Plaintiff claims that she was denied rights guaranteed under the Fourth Amendment to the Constitution of the United States, and enforceable pursuant to the provisions of42 U.S.C. § 1983. Section 1983 provides as follows: Every person who,under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. State courts have concurrent jurisdiction with federal courts for a § 1983 cause of action. See Red Maple Properties v.Zoning Commission 222 Conn. 730, 739 n.7(1992). Thus, the Connecticut Supreme Court gives great weight to decisions ofthe federal courts in the second circuit in the interpretation of42 U.S.C. § 1983. Id. There are two essential elements to a claim brought under 42 U.S.C. § 1983:"(1) whether the conduct complained of was committed by a person acting under color of state law; and (2) 24 2898297_1 whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws ofthe United States." Fusco v. Connecticut,815 F.2d 201,205(2d Cir. 1987), cert. denied,484 U.S. 849(1987)(quoting Parratt v. Taylor,451 U.S. 527, 535 (1981). In State v. Sixty-Five Goats,the court considered the validity ofthe State's basis for seizing the Plaintiff's goats, including the relevant search and seizure warrant that Plaintiff now claims was based on fraudulent information. To the contrary, the court held as follows: The court finds that while in the defendant's care, the sixty-five goats were in imminent harm, and were neglected and cruelly treated by the defendant. The court, therefore, determines that the State has met its burden to establish reasonable care to find that the animals' condition and the circumstances surrounding their care by the defendant require that the temporary care and custody continue to be assumed by the State to safeguard the goats' welfare. 2021 WL 1784758, at *2. The court thereafter ordered that the temporary care and custody of the goats remain with the State, and that the Plaintiff relinquish her ownership rights. Id. The court acknowledged that the goats had been located and seized "[p]ursuant to § 22-329a(c)and upon the issuance of a warrant and finding of probable cause that the goats were neglected and cruelly treated." Id., at 1. Thus, the court's findings, in light of such acknowledgment, conclusively determined that the information on which the warrant was obtained, which the Plaintiff now challenges as fraudulent, was in fact reliable. The existence of probable cause justifying the warrant was fully and fairly litigated, actually considered by the court, and such finding was necessary to the determination that custody remain with the state. In the present action, the Plaintiff alleges that the conduct complained of was committed by individuals acting under color of state law. See Compl.,Count Six,in 87, 88. In particular, she claims Mason, Carmody, Gibbons, and the Redding Defendants violated her Fourth Amendment protection from unreasonable search and seizure when they, along with the State Defendants, acted 25 2898297_1 in concert to "deliberately and maliciously contribute to the submission of a false and fraudulent application for a search and seizure warrant,regarding Plaintiff's property ... which was granted." Id., Count Seven, ¶ 81. Because the validity of the search and seizure warrant, and the reliability ofthe information contained therein, has already been litigated and determined,the Plaintiffshould be collaterally estopped from asserting her Fourth Amendment search and seizure claim here. There is no evidence that the Plaintiff can produce that would(1)mandate a different outcome,(2) demonstrate that Mason conducted a search or seized the Plaintiff's property, or (3) did anything other than report a crime which provides Mason with a common law qualified immunity as a complaining witness who initiates a prosecution or procures the issuance of an arrest warrant. . ." Petyan v. Ellis,200 Conn. 243, 252(1986); See also Malley v. Briggs, 475 U.S. 335, 340(1986) (observing that, at common law, a complaining witness is entitled to qualified, not absolute, immunity); Flanagan v. McLane,87 Conn. 220, 223-24(1913)(holding that a qualified immunity was applicable to the defendant's statement to the town constable accusing the plaintiff of theft). The Connecticut Supreme Court has explained, qualified immunity affords sufficient protection for those who cooperate with the police and provide statements to police investigators. Petyan,200 Conn. at 252; Flanagan,87 Conn. at 223-24. Therefore, the Plaintiff cannot demonstrate probable cause that she is likely to prevail on the merits on her Count under 42 U.S.C. § 1983 due to the validity of the underlying warrant and the existence of qualified immunity available to Mason for his actions in petitioning the government related to the matter of public concern created by the Plaintiff ownership and neglect of her goats. F. The Plaintiff Cannot Demonstrate Probable Cause That She Will Prevail on the Merits of Count Seven Claiming Violation of 42 U.S.C.§ 1983. Count Seven incorporates the Plaintiff's previous allegations, and then alleges that "[t]he defendants, some or all of them have, acted under color of state law to deprive plaintiff of her 26 2898297_1 rights and protections guaranteed by the U.S. Constitution, including her rights to due process, First Amendment guarantees and the Fourth Amendment protection against illegal searches and seizures. Such deprivations have caused plaintiffto suffer harm and financial loss." Compl.,Count Seven, ¶ 88. Nowhere in the Plaintiff's Complaint, however, does the Plaintiff include factual allegations that could reasonably substantiate § 1983 claim based on either due process and/or First Amendment rights violations. Similar to her Fourth Amendment claim as set forth above, Mason is protected by a qualified privilege for purposes ofthe Plaintiff's § 1983 claim for his cooperation with police investigators. Accordingly, the Plaintiff has failed to establish a prima facie case for either a First Amendment violation claim or a due process violation claim, and therefore Count Seven should be dismissed. G. The Plaintiff Cannot Demonstrate Probable Cause That She Will Prevail on the Merits of Count Nine Claiming Intentional Infliction of Emotional Distress. Count Nine asserts that Mason is liable for intentionally causing the Plaintiff emotional distress. Specifically, the Plaintiff again incorporates her previous allegations and then states that "[b]y such conduct as is alleged hereinabove, defendants intended to and did inflict emotional distress on plaintiff. Such emotional distress is severe and is continuing." Compl., Count Nine, ¶ 94. The Plaintiff's claim for intentional infliction of emotional distress is unsupported by the facts and must be dismissed. "In order for the plaintiff to prevail in a case for liability . . .[alleging intentional infliction of emotional distress], four elements must be established. It must be shown: (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 plaintiffs distress; and (4) that the emotional distress 27 2898297_1 sustained by the plaintiff was severe. Tracy v. New Milford Public Schools, 101 Conn. App. 560, 568 (2007). Whether a defendant's conduct is "extreme and outrageous is initially a question for the court to determine." Appleton v. Board of Education of Town of Stonington, 254 Conn. 205, 2010(2000)."Only where reasonable minds disagree does it become an issue for the jury. Id. To rise to the requisite level of extreme and outrageous, a defendant's conduct must be "so extreme in degree, as to go beyond all possible bounds ofdecency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Carrol v. Allstate Ins. Co.,262 Conn. 433,443, 815 A.2d 119 (2003). Conduct that is "merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction ofemotional distress." Appleton,254 Conn. at 211. Where a plaintiff's emotional distress claim stems from an arrest, the claim fails as a matter of law if the arrest was supported by probable cause. See, e.g., Washington v. Blackmore, 119 Conn. App. 218,224(2010)(holding that the "existence of probable cause precluded recovery on [the plaintiff's] remaining claims," which included her claim for intentional infliction ofemotional distress); Pritsker v. Keating, 2016 WL 3451679 *7 (Conn. Super. 2016) (finding that "Connecticut courts have indicated that when there is probable cause for an arrest, a claim sounding in intentional infliction ofemotional distress based on the arrest will not be supported."). These courts have reasoned that "enforcement ofthe law can hardly be called conduct beyond the acceptable bounds of decent society." Castro v. Narcisse,2013 WL 5423689 *10(D. Conn. 2013) (quoting Brooks v. Sweeney, 2008 WL 5481203 *4(Conn. Super. 2008), affd, 299 Conn. 196, 9 A.3d 347(2010)). Here, none ofthe allegations in the Complaint support any ofthe elements ofthe Plaintiff's intentional infliction of emotional distress claim against Mason, which therefore make it 28 2898297_1 appropriate for dismissal pursuant to Mason's special motion to dismiss. Mason's conduct of reporting the Plaintiff to the police and using an air horn to shew the Plaintiff's goats away from his spruce tree and off of his property and back to the Plaintiff's property would not satisfy the elements required to support a claim for intentional infliction of emotional distress. Mason(1) did not intend to inflict emotional distress or know that emotional distress was the likely result of his conduct, (2) his conduct was not extreme and outrageous, (3) Mason's conduct was not a recognized cause of the plaintiffs alleged distress; and (4) there is no support for the Plaintiff's claim that her emotional distress was severe. Shewing goats off of his property and reporting the Plaintiff's neglect of her goats to the police are not the sort of conduct that is atrocious or so utterly intolerable to exceed all bounds usually tolerated by decent society. Finally, because the Plaintiff's alleged emotional distress stems from an arrest pursuant to a valid warrant, her claim fails as a matter of law. Washington, 119 Conn. App. at 224. Therefore, Count Nine must be dismissed because the Plaintiff cannot demonstrate probable cause showing that she is likely to prevail on the merits of her claim for intentional infliction of emotional distress. H. The Plaintiff Cannot Demonstrate Probable Cause That She Will Prevail on the Merits of Count Ten Claiming Negligent Infliction of Emotional Distress. Count Ten asserts that Mason is liable for negligent infliction of emotional distress. Specifically, the Plaintiff again incorporates her previous allegations and then states that "[b]y such conduct as is alleged hereinabove, defendants negligently inflicted emotional distress, which is extreme, on plaintiff . . . Such emotional distress is severe and is continuing." Compl., Count Ten,In 127-28. The Plaintiff's claim for negligent infliction of emotional distress is unsupported by the facts and must be dismissed. 29 2898297_1 A claim based on the negligent infliction ofemotional distress requires only that the actor's conduct be unreasonable and create an unreasonable risk of foreseeable emotional harm. Olson v. Bristol-Burlington Health Dist.,87 Conn. App. 1, 7(2005). The Plaintiff claims that she witnessed animal cruelty towards her goats as a result ofthe April 30,2020 wherein Mason shewed goats off of his property. Mason's conduct in shewing the Plaintiff's herd of goats away from his spruce tree and off of his property using an air horn was not unreasonable or likely to create an unreasonable risk of foreseeable emotional harm in the Plaintiff In fact, in Mason and the other Defendants' experience the use ofan air horn was necessary to ensure that the goats would comply and travel back home to the Plaintiff's property. The Plaintiff has further failed to demonstrate that she has suffered any emotional harm as a result of Mason's conduct. Therefore, the Plaintiff's claim for negligent infliction of emotional distress must be dismissed. I. The Plaintiff Cannot Demonstrate Probable Cause That She Will Prevail on the Merits of Count Eleven Claiming Conversion. Count Eleven asserts that Mason is liable for conversion. Specifically, the Plaintiff again incorporates her previous allegations and then states that "[b]y such conduct as is alleged hereinabove, defendants, some or all of them, engaged in the tort of conversion when plaintiff's personal property was unlawfully removed from 147 Cross Highway, Redding, Connecticut on or about March 10, 2021." Compl., Count Eleven, ¶ 130. The Plaintiff's conversion claim asserted against Mason is unsupported by the facts and must be dismissed. Under Connecticut law, conversion "is an unauthorized assumption and exercise of the right of ownership over property belonging to another, to the exclusion of the owner's rights." Mystic Color Lab,Inc. v. Auctions Worldwide, LLC, 284 Conn. 408, 418 (2007). Here, Mason has not exercised ownership over any of the Plaintiff's property including her goats. Therefore, the Plaintiff's conversion count must be dismissed. 30 2898297_1 J. The Plaintiff Cannot Demonstrate Probable Cause That She Will Prevail on the Merits of Count Thirteen Claiming Deprivation of Equal Rights and Privileges. Count Thirteen asserts that Mason is liable for Deprivation of Equal Rights and Privileges. Specifically, the Plaintiff again incorporates her previous allegations and then states "[t]he defendants, some or all of them, by the conduct set forth hereinabove, have violated plaintiff's rights and privileges pursuant to Conn. Gen. Stat. § 52-571a." Compl., Count Thirteen, ¶ 148. C.G.S. § 52-571a provides that"any person aggrieved by a violation of section 53-37b may apply to the Superior Court for injunctive relief, recovery of damages, and such other relief as the court deems just and proper." C.G.S. § 53-37b provides that: Any person who, acting alone or in conspiracy with another, for the purpose of depriving any person or class of persons of the equal protection of the laws of this state or the United States, or of equal privileges and immunities under the laws of this state or the United States, engages in the use of force or threat, as provided in section 53a-62, shall be guilty of a class A misdemeanor, except that if bodily injury results such person shall be guilty of a class C felony or if death results such person shall be guilty of a class B felony. Finally, C.G.S. § 53a-62 provides that "(a) A person is guilty of threatening in the second degree when:(1)By physical threat, such person intentionally places or attempts to place another person in fear of imminent serious physical injury,(2) such person threatens to commit any crime of violence with the intent to terrorize another person, or (3) such person threatens to commit such crime of violence in reckless disregard of the risk of causing such terror." C.G.S. § 53a-62. The Plaintiff's claim on this Count must be dismissed pursuant to Mason's special motion to dismiss because she cannot demonstrate probable cause that she will prevail on the merits as discussed above and cannot provide any support for her claim that Mason acting "acting alone or in conspiracy with another" deprived her of the "equal protection of the laws of this state or the 31 2898297_1 United States, or of equal privileges and immunities under the laws" by engaging in the use of force or threat as provided in C.G.S. § 53a-62. CONCLUSION Each Count in the Plaintiff's Second Amended Complaint is based upon Defendant Mason's exercise of his rights to petition the government and to free association in connection with a matter of public concern related to health and safety, environmental, economic, and community well-being, and government zoning and other regulatory matters. For the reasons set forth above, the Plaintiff will not prevail because she cannot make a showing of probable cause, considering all valid defenses, that she will prevail on the merits of the Complaint, and therefore the Court must dismiss the Second Amended Complaint in its entirety and award Defendant Mason's reasonable costs and attorneys' fees. C.G.S. § 52-196a(f)(1).9 Defendant, David Mason By his attorney, 17 4,4 nhaoon.a Robert S. Hillson II(BBO #441402) Rubin and Rudman LLP 53 State Street Boston, MA 02109 (617) 330-7000 rhillsonaVubinrudman.com 9 Additionally, Mason incorporates and adopts all the arguments set forth by the co-defendants in their respective motions to dismiss and/or motions to strike. 32 2898297_1 CERTIFICATE OF SERVICE I, Robert S. Hillson II, Esq. counsel for the Defendant David Mason, do hereby certify that on this 14th day of July 2021, I caused to be served a true copy of the foregoing document(s) via e-mail to the following counsel and self-represented parties of record. Nancy Burton Steven J. Stafstrom, Jr., Esq. 154 Highland Avenue Pullman & Comley, LLC Rowayton, CT 06853 850 Main Street, P.O. Box 7006 (203) 313-1510 Bridgeport, CT 06601 nancyburtonct ( &,aol.com sstafstromkpullcom.com James N. Tallberg, Esq. Jonathan E. Harding, Esq. Karsten & Tallberg, LLC Matthew I. Levine, Esq. 500 Enterprise Drive, Suite 4B AG-Environmental Rocky Hill, CT 06067 165 Capitol Ave., 5th Floor jtallbergWa-lawfirm.com Hartford, CT 06106 jonathan.hardinggct.gov Philip T. Newbury, Jr., Esq. Kristan M. Jakiela, Esq. Howd & Ludorf, LLC 65 Wethersfield Avenue Hartford, CT 06114-1121 pnewburyghl-law.com kiakielaghl-law.com E Haunt lt Robert S. Hillson II, Esq. 33 2898297_1 EXHIBIT A STATE OF CONNECTICUT Docket NO.:(X06)UWY-CV21-5028294-S NANCY BURTON, SUPERIOR COURT Plaintiff, COMPLEX LITIGATION DOCKET v. AT WATERBURY DAVID PHILIP MASON,ET AL. Defendants. June 10, 2021 AFFIDAVIT OF DAVID PHILIP MASON IN SUPPORT OF HIS SPECIAL MOTION TO DISMISS THE PLAINTIFF ' S COMPLAINT I, David Philip Mason who being duly sworn, depose and state as follows: 1. My name is David Philip Mason. I am a Defendant in the above captioned lawsuit. 2. I make this affidavit under oath and on my personal knowledge, in support of my special motion to dismiss the Plaintiffs Complaint. 3. I have lived across the street from the Plaintiff Nancy Burton ("Plaintiff') in Redding, Connecticut since October 2010. 4. The Plaintiff has kept goats on her property for many years. 5. In approximately 2015, the Plaintiffs herd of goats began to expand considerably. 6. As the herd grew, the goats more frequently came onto my property along with the properties of my neighbors Elinore Carmody and Dennis Gibbons to forage for food. 7. Between the odor, the noise, neglect of the goats, destruction of property, and the safety hazard created by the herd of goats repeatedly running across Cross Highway, which separates my property and the Plaintiffs property, Carmody, Gibbons, and I and other concerned citizens felt compelled to work together and to contact the authorities to fix what we considered to be a matter of public concern. 1 2873369_1 8. In August 2017,the Redding Zoning Enforcement Officer issued a cease and desist order to limit the Plaintiff's herd to the regulatory maximum of nine goats. 9. Despite the entry of the cease and desist order, the Plaintiff refused to cooperate and the problem only got worse. 10. The Plaintiff continued to keep many more than nine goats on her property. 1 1. The ever-multiplying number of goats continued to hazardously cross the street bordering the Plaintiff's property to trespass onto my property in search of food and the resulting noise, damage, stench, and danger to passing motorists increased. 12. The Plaintiff did not adequately fence in the goats and hence they were often free to roam onto my and my neighbor's property. 13. On April 30, 2020, the Plaintiff's herd of goats wandered onto my property after passing over Cross Highway as they frequently did. 14. While I was in my backyard shooing some of the goats away from a spruce tree, which the goats had previously damaged by eating the lower growth in their search for food, one of the Plaintiffs goats ran onto Cross Highway and was struck by a vehicle and seriously injured. 15. I learned of the goat that was injured when I came to my front yard after the goats had left the spruce tree alone. 16. As a result of that incident, the Plaintiff was charged with animal cruelty and obstructing an animal control officer's investigation. 17. It was and has never been my intention to harm or injure any ofthe Plaintiff's goats. I have only wanted the goats to receive the proper care and treatment they need while reducing the damage and safety hazards they created in our neighborhood and on Cross Highway. 2 2873369_1 18. Given their stubborn nature when foraging for food and the sheer number of goats that Plaintiff would allow to roam on my and my neighbors' property -- often 30-40 or more goats -- it was necessary to use an air horn in order to get a response from the goats and to get them to return onto the Plaintiff's property, as the goats ignored mere shouting or other attempts to steer them back onto the Plaintiff's property. 19. The Plaintiff's characterization of the incident and her description of me chasing the goats in an uncontrolled stampede is just not factually correct. 20. I would on a number of occasions herd the goats out ofthe street and back onto the Plaintiff's property, but in this particular instance, at the time the goat was hit by a car, I was in my backyard by the spruce tree shooing those goats away from the tree. 21. I believe the Plaintiff has brought this suit seeking retribution for my complaints and the complaints of my neighbors, which ultimately led to an investigation and the Plaintiff's arrest for animal cruelty due to her neglectful treatment of her animals. SIGNED UNDER THE PENALTIES OF PERJURY THIS 10TH DAY OF JUNE 2021. DAVID PHILIP MASON Dated: June 10, 2021 3 2873369_1 EXHIBIT B DCJ 2021- 9931 WA TH AFFIDAVIT AND APPLICATION STATE OF CONNECTICUT SEARCH AND SEIZURE WARRANT SUPERIOR COURT JD-CR-61 Rev,3-10 C.S S §5 54-33a.54-33c 54-331 tvpiwiud ct.gov F01777.1D-CR-52 must also be completed Instructions To Applicant Instructions To G.A. Clerk tits the app4oation for the warrant and all affidavits upon which Upon execution and return ofthe wanent, affidavits which we the warrant is based with the clerk of the court for the geographical the subject ofan order dispensing with the requirement of giving area within which any person who may be arrested in connection a copy to the owner, occupant or person within forty-eight hours with or subsequent to the execution of the search warrant would shallremain in the custody ofthe cleric's office in a secure be presented. together with the return of the warrant, location apart horn the remainder ofthe court file. Police Case number 2020-360 TO: A Judge of the Superior Court or a Judge Trial Referee The undersigned. being duly sworn, complains on oath that the undersigned has probable cause to believe that certain property, to wit: All goats on the property, alive or dead, and to have said animals evaluated and tested for dehydration, emaciation, physical condition, wounds, parasites, injuries and illness by a licensed veterinarian; all animal health and ownership records; photographs of animals; receipts and bills related to animal care and feeding; and medication related to animal care. r--7 is possessed, controlled, designed or intended for use or which is or 31E15 been or Thal: be used as the means of " committing the criminal offense of: jwas stolen or embezzled from: 0constitutes evidence of the following offense or that a particular person participated in the commission of the offense of: C.G.S. 53-247 Animal Cruelty 0 is in the possession, custody or control of a journalist or news organization, to wit: ❑ and such person or organization has committed or is committing the following offense which is related to such property: ❑ and such property constitutes contraband or an instrumentality of the criminal offense of: And is within or upon a certain person, place. or thing, to wit: The grounds, property, house, garage, trailers, vehicles, paddocks, barns and outbuildings located at 147 Cross Highway, Redding CT. The house is a single family two story federal style structure built in 1850 with faded shingles that appear to be of a mustard color. Land records show that the home is owned by William H Honan and Nancy Burton. The home has approximately 3200 square feet of living space and sits on approximately 3.6 acres of land. There are two driveways, one located on the east side of the home and the other on the west. The west driveway extends to a dilapidated barn that a survey map describes as "Old Barn". (This is page 1 ofa 9 page Affidavit and Application.) City/Town Date Signatu and 'Afflartt IDAN1313R'Y 09 2021 A NTITTIrY' Subscnt.led and sworn to tzefore rta on (Dale)S nad Jurat 'mil 177)I) r‘ 900- ,11 RETURN FOR AND INVENTORY rrturtm i T .=t.C.tU UN ti;k111.,.:t1 A NU JitILUKt VVAKKAN I liwentery control number JudiDist=c G.A At Acciess of C—,0) Date of seizure Docket number Uniform arrest number Pc1-;e case number Compenron sass number CR- 2020-360 Then and there by virtue of and pursuant to the authority of the foregoing warrant, I searched the person, place or thing named therein, to wit: The grounds, property, house, garage, trailers, vehicles, paddocks, barns and outbuildings located at 147 Cross Highway, Redding CT. The house is a single family two story federal style structure built in 1850 with faded shingles that appear to be of a mustard color. Land records show that the home is ovmed by Wiliam H Honan and Nancy Burton. The home has approximately 3200 square feet of living space and sits on approximately 3.6 acres of land. There are two driveways, one located on the east side of the home and the other on the west. The west driveway extends to a dilapidated barn that a survey map describes as "Old Barn" and found thereon or therein, seized, and now hold in custody, the following property: ❑ Total Cash Seized: , consisting of and I gave a copy of such warrant to . the owner or occupant of the dwelling, structure, motor vehicle or place designated therein, or to the person named therein, on (Date) (This is page 9 of a 9 page Affidavit and Application.) Data I Spam° (Officers sagnaiura and departments NOTE:Fom? JO-CR-61. paues 1- 9 must be supplemented by Form JD-CR-52. JD'CR-6t Rev. 3-10 And the facts establishing the grounds for issuing a Search and Seizure Warrant are the following: 1. The undersigned, State Animal Control Officer Charles A. DellaRocco, being duly sworn, does depose and state that he has been a member of the Connecticut Department of Agriculture Animal Control Unit since July 2, 2019. At all times mentioned herein he was acting as a member of said department. The undersigned has also been a sworn Police Officer with Old Saybrook Department of Police Services from November of 1994 to June of 2007 as well as a sworn Police Officer with the Connecticut State Supreme Court Police Department from June of 2007 to July of 2019. The following facts and circumstances are stated from personal knowledge and observations as well as information received from other animal control and police officers acting in their official capacity, official department and police reports, and statements made by prudent and credible witnesses. 2. The undersigned, State Animal Control Officer Tanya Wescovich, being duly sworn, does depose and state that she is a member of the Connecticut Department of Agriculture Animal Control Unit since January 3, 2020. At all times mentioned herein she was acting as a member of said department. The undersigned has also been a sworn municipal animal control officer for the Town of Stonington from January 10, 2010 to January 2, 2020. The following facts and circumstances are stated from personal knowledge and observations as well as information received from other officers acting in their official capacity, from official department and police reports, and statements made by prudent and credible witnesses. 3. On October 7, 2020, the Connecticut Department of Agriculture State Animal Control Unit received a complaint about injured goats/general care issues on the property located at 147 Cross Highway, Redding. The owner of the property, Nancy Burton, is well known to the Redding Police Department as well as the Connecticut Department of Agriculture State Animal Control Unit because of the many complaints received over the years. The Redding Police Department has at least one hundred and twenty plus (120+) complaints since 2007. The majority of the complaints stem from goats roaming and Burton has been cited numerous times for town ordinance violations. On April 30, 2020, Redding Police Department investigated a motor vehicle accident involving a car vs. goat. The goat sustained injury. As a result of the investigation, Nancy Burton was arrested for Animal Cruelty and the case is still pending in Danbury Superior Court. The Connecticut Department of Agriculture Animal Control Unit has had at least five complaints since 2017 all making reference to the conditions and the large amount of goats on the property. 4. On October 15, 2020, State Animal Control Officer Barbara Godejohn accompanied by Redding Police Detective Christina Dias had noticed at least fifty (50) goats. It was noted that one goat in particular was observed for thirty minutes during which time the goat spent most this time walking on it's front knees. When this goat did stand, Officer Godejohn saw that the goat appeared not to be able to stand on both front feet. Due to the distance, it was difficult to assess the other goats on the property. 5. On October 20, 2020, State Animal Control Officer Barbara Godejohn and Redding Police Detective Dias made contact with the owner of the property, Nancy Burton, who denied that one of her goats was walking on its knees but did mention that she has an older female goat named "Leda" for which she (This is page 2 of a 9 page Affidavit and Application.) Cityfro vn DAMTTRY DAN-B:0 f' Subsumed itrW sworn to oeforrrtntrpn tpattt rood Jurat 11'.;.e I' 1, i mil ) • • • . 4, J3-CR-61 Rev 3.40 has had to change her feed and give her a pill in an organic apple. She didn't know what the pill was called. Burton told both officers that "Leda" has been limping for some time and that she has not consulted a veterinarian because,"Nature knows more than vets." Burton claimed that she was too busy to get a veterinarian out to examine the goats. In an email sent later in the day to Officer Godejohn, Burton stated she has an appointment on November 5, 2020 with a veterinarian. 6. On November 9, 2020, State Animal Control Officer Barbara Godejohn confirmed with Salmon Brook Veterinary Hospital the examination of two goats that Burton brought to their practice. 7. In early December of 2020, affiant DellaRocco was assigned to continue with the investigation in this case as well as investigate a complaint made by Burton (Case #2020-424) due to the retirement of State Animal Control Officer Godejohn. On December 10, 2020, affiant DellaRocco made contact with Burton who refused to allow him onto the property so he could inventory the goats in advance of helping her thin her herd. Burton had made reference to wanting to get the herd down to nine goats so she could be in compliance with a town ordinance. During this visit, affiant DellaRocco noticed approximately thirty-five (35) to forty-five (45) goats. Affiant DellaRocco was a distance away from them and noticed one goat was unable to place her right hind leg down and was limping around. The leg was just dangling and when asked about it, Burton stated that it might just be "Leda" who is an older goat of hers. 8. On February 3, 2021, with permission of the owners located at 153 Cross Highway, Redding, utilized an apartment just off the garage to conduct surveillance of the 147 Cross Hwy. Affiant DellaRocco arrived at 0800 hrs. and noticed that it had recently snowed, about an inch or two on top of about a foot. Affiant DellaRocco noticed that Burton's second west end driveway recently had a delivery of hay and feed. It appeared that a delivery truck had pulled up to the fence and thrown the bails of hay and feed over the fence. The hay did have fresh snow on it and it appeared to be a little wet. At 1006 hrs., Affiant DellaRocco noticed Burton pull up in her white car and back down the first east end driveway. At 1025 hrs., Affiant DellaRocco noticed Burton carrying two flakes of hay (a flake of hay is formed by the baler pulling in the dried legume/grass from the row when it's totally dried. Most square bales affiant DellaRocco have seen are between 10-12 flakes per bale) and walk them over to the large paddock that affiant DellaRocco has identified as paddock #1. This paddock houses approximately 10 large goats. Affiant DellaRocco was unable to see any water containers. It took Burton, age 72, quite some time, approximately 10 minutes, to make itto the paddock resting from time to time. Burton threw both flakes of hay into paddock #1 and affiant DellaRocco witnessed the goats become