Rattray v. The City of New York

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WENTWORTH RATTRAY, Plaintiff, v. THE CITY OF NEW YORK, POLICE OFFICER JOSE CADAVID BADGE NO. 9085, POLICE OFFICER SGT MERVIN BAUTISTA, and POLICE OFFICER ALYSSA TRIGUENO, Defendants.

No. 17 Civ. 8560 (PGG) (KHP)

United States District Court, S.D. New York

April 2, 2023

MEMORANDUM OPINION & ORDER

PAUL G. GARDEPHE UNITED STATES DISTRICT JUDGE

Pro se Plaintiff Wentworth Rattray brings this action under Section 1983 against New York City Police Department (“NYPD”) officers Jose Cadavid and Alyssa Trigueno. (Third Am. Cmplt. (“TAC”) (Dkt. No 99))

Defendants have moved for summary judgment as to the remaining claims against them: (1) unlawful search as to both Defendants; (2) false arrest as to Cadavid; and (3) as to Trigueno, failure to intervene in the false arrest and unlawful search. (Mot (Dkt. No. 206)) This Court referred Defendants' motion to Magistrate Judge Katharine Parker for a Report and Recommendation (“R&R”). (Dkt. No. 208) On September 14, 2022, Judge Parker issued an R&R recommending that the summary judgment motion be granted in part and denied in part. (R&R (Dkt. No. 221)) Defendants have not objected to the R&R, but Plaintiff has filed objections to the R&R. (Pltf. Obj. (Dkt. No. 222))

For the reasons stated below the R&R will be adopted in part.

BACKGROUND

I. FACTS^[1]

On November 5, 2016, Plaintiff Rattray had full custody of his then ten-year-old daughter. (R&R (Dkt. No. 221) at 2)^[2] At 6:49 p.m. that evening, Wendy Sandy - the girl's mother - called 911 and reported that she was having a custodial dispute with Rattray, the father of her child, and that Rattray was refusing to give the child back to her. (Def. R. 56.1 Stmt. (Dkt. No. 216-1) ¶ 16) Sandy reported that she was standing in front of Rattray's home, and she identified his apartment. (Def. Ex. D (911 Event Chronology) (Dkt. No. 207-6) at 2) She also reported that there were “no weapons” and “no injuries” involved. (Id.) The 911 operator's report indicates that Sandy was “hysterical crying.” (Id.; Def. R. 56.1 Stmt. (Dkt. No. 216-1) ¶ 16)

NYPD Officers Cadavid and Trigueno responded to the 911 call. As they approached Rattray's apartment building located at 42 West 120th Street in Manhattan (Def. Ex. D (911 Event Chronology) (Dkt. No. 207-6) at 2; Pltf. R. 56.1 Stmt. (Dkt No. 217) ¶ 10), the officers encountered Sandy, who identified herself as the 911 caller. (Def. R. 56.1 Stmt (Dkt. No. 216-1) ¶¶ 18-19) Sandy explained that (1) it was her time to pick up her daughter; (2) Rattray had refused to let Sandy see her; (3) Sandy had not heard from her daughter; and (4) the girl was not answering her phone. (Id. ¶ 20)

There is conflicting evidence about whether Sandy indicated that she was concerned for her daughter's safety. Officer Cadavid testified at his deposition that Sandy “stated to [him] that [Rattray] use[s] drugs and [has] drug dealers over [to] the apartment,” and that “she believed her daughter's life was in danger.” (Cadavid Dep. (Dkt. No. 207-3) at 7-10)^[3]

At her deposition, however, Sandy denied telling the officers that (1) she was concerned for her daughter's safety; (2) Rattray is a drug user; or (3) Rattray has drug dealers over to his apartment. (Sandy Dep. (Dkt. No. 217-1) at 24-25) Sandy testified that she would have “never” said such things, because “that's not the truth.” (Id.)

The officers knocked on Rattray's apartment door at 7:01 p.m., announcing themselves as police officers. (Def. R. 56.1 Stmt. (Dkt. No. 216-1) ¶¶ 24, 27-29) They asked Rattray to open the door so that they could speak with him. (Id. ¶ 30) Rattray did not open the door and told the officers he could hear them with the door closed. (Id. at ¶¶ 30-34; Pltf. R. 56.1 Stmt. (Dkt. No. 217) ¶¶ 29-30) Officer Cadavid told Rattray that if he did not open the door, Cadavid “may have to take the door down.” (Def. R. 56.1 Stmt. (Dkt. No. 216-1) ¶ 36) Rattray then opened the door “at a 45-degree angle.” (Id. ¶ 37)

The officers told Rattray they needed to see his daughter. (Id. ¶ 38) Rattray told the officers that she was not at home. (Id. ¶ 42) The officers nonetheless insisted that Rattray tell his daughter to come to the door. (Id. ¶¶ 43-49) Rattray responded, “No, I already told you she's not here.'” (Id. ¶ 44)^[4]

Officer Trigueno told Rattray that if he did not “have a piece of paper saying [his daughter] is supposed to be with [him], [he was] going to spend the night downtown.” (Rattray Dep. (Dkt. No. 207-5) at 50-51) Rattray told the officers to “get [their] supervisor because [he was] done talking,” and he attempted to close the apartment door, but Cadavid used his foot to block the door from closing. (Id.; Def. R. 56.1 Stmt. (Dkt. No. 216-1) ¶¶ 50-51)

Officer Cadavid then “made entry” to the apartment and searched for the child inside the apartment for as much as fifteen minutes.^[5](Cadavid Dep. (Dkt. No. 211-2) at 21, 26; Def. R. 56.1 Stmt. (Dkt. No. 216-1) ¶ 52, 56; Pltf. R. 56.1 Resp. (Dkt. No. 217) ¶ 56) The child was not inside the apartment. (Def. R. 56.1 Stmt. (Dkt. No. 216-1) ¶¶ 56-57) After Officer Cadavid searched the apartment, he remained inside, interrogating Rattray about the whereabouts of his daughter. (Id. ¶¶ 59-71) Cadavid asked where the child was, and Rattray responded, “She's with friends.” (Rattray Dep. (Dkt. No. 207-5) at 61) When Officer Cadavid asked Rattray which friend his daughter was with, Rattray answered “do you know her friends?” and stated that the child was “‘safe” and “where she's supposed to be.” (Id. at 61, 71; Def. R. 56.1 Stmt. (Dkt. No. 216-1) ¶¶ 62-64) Rattray asked Officer Cadavid to “‘get the eff out' of his apartment,” but Officer Cadavid did not leave. (Rattray Dep. (Dkt. No. 207-5) at 71; Def. R. 56.1 Stmt. (Dkt. No. 216-1) ¶ 62)

Rattray then asked Officer Cadavid for permission to retrieve his cellphone. Cadavid said, “Yeah. Go ahead.” (Def. R. 56.1 Stmt. (Dkt. No. 216-1) ¶ 65) After retrieving his cell phone, at about 7:12 p.m., Rattray called 911. Rattray reported to the 911 operator that he had “two police searching [his] apartment against [his] wishes” and that they refused to leave his home. (Id. ¶ 67; Rattray Dep. (Dkt. No. 207-5) at 85; Pltf. R. 65.1 Resp. (Dkt. No. 217) ¶ 67)

At some point while inside Rattray's apartment, Officer Cadavid called his supervisor to request assistance.^[6] Rattray remained on the line with the 911 operator for about an hour until Officer Cadavid's supervisor, NYPD Lieutenant Koch, arrived at about 8:15 p.m. (Def. R. 56.1 Stmt. (Dkt. No. 216-1) ¶¶ 69-71, 74-75; Pltf. R. 56.1 Resp. (Dkt. No. 217) ¶¶ 67, 69-75)

Officer Cadavid remained inside Rattray's apartment during the more than one-hour wait for the supervisor to arrive. (Def. R. 56.1 Stmt. (Dkt. No. 216-1) ¶ 71) During this period, Rattray said to Officers Cadavid and Trigueno: “Okay, fine. You guys want to stay here fine. Then can I go?” (Rattray Dep. (Dkt. No. 207-5) at 89 (internal quotation marks omitted)) Officer Cadavid told Rattray that he could not leave the apartment: “No. You got downtown involved. You gotta stay.” (Id. (internal quotation marks omitted)) Officer Cadavid confirmed at his deposition that Rattray was not free to leave his apartment: “Q: . . . Did you intend to keep Mr. Rattray in the apartment until the supervisor arrived? A: Yes. Q: Was Mr. Rattray free to leave? A: [He] w[as] not.” (Cadavid Dep. (Dkt. No. 211-2) at 46-47)

Although Rattray was told that he could not leave his apartment, he was not handcuffed at any point, and he was not told that he was under arrest. (Def. R. 56.1 Stmt. (Dkt. No. 216-1) ¶¶ 79-82))

Officer Trigueno remained at the door of Rattray's apartment throughout Officer Cadavid's encounter with Rattray. (Id. ¶ 54)

At about 8:15 p.m., NYPD Lieutenant Koch - Officer Cadavid and Officer Trigueno's supervisor - arrived at Rattray's apartment. (Pltf. R. 56.1 Resp. (Dkt. No. 217) ¶ 69)

There is conflicting evidence about whether Rattray shared new information with Lieutenant Koch that he had not already shared with Officer Cadavid. Defendants assert that while Rattray would not tell Officer Cadavid where his daughter was, Lieutenant Koch “obtained information about the whereabouts of the daughter and confirmed [her] location.” (Def. R. 56.1 Stmt. (Dkt. No. 216-1) ¶¶ 59, 61-64, 73-74) Cadavid testified that Koch “aided [him] in [his] investigation [as] to the whereabouts of [Rattray's daughter] . . . by confirming [her] whereabouts.” (Cadavid Dep. (Dkt. No. 211-2) at 50) At deposition, Officer Cadavid gave the following account:

Q: So when Lieutenant Koch left, he knew the whereabouts of the child?

A: Yes.

Q: And where was the child?

A: At a friend's house.

Q: And that was the first time you were told that the child was at a friend's house; is that your testimony here?

A: That's my recollection.

Q: That's your recollection. So you did not know this before? Plaintiff had not told you that the child was at a friend's house before this, before the lieutenant arrived?

A: That's correct.

(Id. at 50-51)

Defendants' Local Rule 56.1 Statement states, however, that “Plaintiff eventually told PO Cadavid that the daughter was with her ‘friends.'” (Def. R. 56.1 Stmt. (Dkt. No. 216-1) ¶ 63) Defendants' Local Rule 56.1 Statement indicates that Rattray shared this information with Officer Cadavid before Lieutenant Koch arrived at the apartment. (Id. ¶¶ 63-72)

Rattray asserts that “no new information was provided to” Lieutenant Koch with respect to his daughter's whereabouts, and that he had “shared the same information about the child's location . . . with [Officer] Cadavid.” (Pltf. R. 56.1 Resp. (Dkt. No. 217) ¶ 74) Rattray testified that he told “the officers that [his] daughter was with her friends after they broke into the apartment.”...