Rosado v. Vill. of Goshen

MICHELLE ROSADO, Plaintiff, v. VILLAGE OF GOSHEN, RYAN W. RICH, ROBERT NICHOLS, ROBERT FOLEY,MICHAEL HOWARD, JILLIAN GUERERRA, MICHAEL CASTNER and JOHN FARELL. Defendants.

No. 17-cv-00360 (NSR)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 27, 2019

OPINION & ORDER

NELSON S. ROMÁN, United States District Judge

On or about January 18, 2017, pro se Plaintiff, Michelle Rosado ("Plaintiff" or "M. Roasdo"), commenced this action asserting 42 U.S.C. §1983 ("Section 1983") claims against several identified and unidentified federal and state law enforcement officials. (ECF No. 2.) On July 18, 2017, Plaintiff filed an Amended Complaint asserting claims against Defendants Village of Goshen, Sergeant Ryan W. Rich ("Sgt. Rich"), of the Village of Goshen Police Department, in his individual and official capacity, federal agents Michael Howard ('Howard"), Jillian Guererra ("Guererra"), Michael Castner ("Castner") and John Farrell ("Farrell") (collectively referred to as the "Federal Defendants"), in their individual capacities, as well Robert Nichols ("Nichols") and Robert Foley ("Foley") in their individual capacities. (ECF No. 27.) Plaintiff asserts claims pursuant to Section 1983 for use of excessive force, and forcible seizure, and for municipal liability (commonly referred to as a Monell claim). Now before the Court are Defendants' motions to dismiss Plaintiffs' Amended Complaint pursuant to Federal Rules of Civil Procedure 12 (b)(1) ("Rule 12(b)(1)") and 12(b)(6) ("Rule 12(b)(6)"). (ECF Nos. 79, 88 & 91.) Plaintiff did not file opposition papers, and thus, the motion is deemed unopposed. For the following reasons, Defendants' motions are is GRANTED in part and DENIED in part.

FACTUAL BACKGROUND

The following facts are derived from the Amended Complaint, the operative complaint, and are assumed to be true for the purposes of this motion.

On June 28, 2016 at approximately 6 a.m. Plaintiff M. Rosado, was asleep in her home at 129 W. Main Street in the Village of Goshen, New York. (Am. Compl. ¶14.) Defendants Howard, Guerrera, Castner and Farrell, members of the Federal Bureau of Investigation's ("FBI") Hudson Valley Squad C-37 ("Hudson Valley Squad") entered the Plaintiff's residence while armed and wearing SWAT team gear. (Am. Compl. ¶ 15.) Defendant Robert Nichols, a member of the Lee County State Attorney's Office, and Robert Foley, another FBI agent¹, were present wearing plain clothes. (Id.) Plaintiff does not know if Nichols and Foley were armed. (Id.)

Surprised and in response to Defendants' shouts, the Plaintiff emerged from the bedroom and without warning or explanation, was met by Defendants Howard, Guererra, Castner and John Farrell, with their weapons drawn and shining flashlights in Plaintiff's face. (Am. Compl. ¶16.) The Plaintiff was forced into the kitchen by the armed Defendants and her husband, Randal Rosado, was taken into custody and removed from the premises. (Am. Compl. ¶17.) After her husband's arrest, the Plaintiff was held in the apartment against her will and humiliated by the Defendants. (Am. Compl. ¶18.) Plaintiff further alleges that when she requested that she be permitted to change her clothing, she was forced to undress in the presence of the Defendantsand when using the bathroom she was forced to leave the bathroom door open. Id. Plaintiff alleges that the Defendants did not provide the Plaintiff with an arrest or search warrant upon entering and remaining in her home. (Am. Compl. ¶19.) A search warrant was signed by Orange County Court Judge Robert H. Freehill ("Judge Freehill") several hours after Defendants entered and remained on the premises.² Id. Prior to Defendanats entering the home, Plaintiff and her husband were not engaged in any violent or threatening behavior. (Am. Compl. ¶20.) The Plaintiff alleges that Nichols and Foley forcibly removed her from home under duress and threat of being arrested and taken to the Village of Goshen Police Department for a forced interrogation. (Am. Compl. ¶22.)

During the interrogation, Nichols and Foley advised Plaintiff that they listened to her telephone calls for many months. (Am. Compl. ¶23.) Plaintiff alleges Nichols and Foley took her iPhone and purse, and forced her to provide the passcode to access the phone. (Am. Compl. ¶24.) Plaintiff alleges there was no warrant issued justifying the taking of her personal property. Id. Plaintiff was subsequently released and informed she could return home after 4 p.m., when the search of her apartment was completed. Id.

Without her phone, purse, wallet or the ability to drive, Plaintiff walked to a nearby eatery, Elsie's Luncheonette, in order to call her brother-in-law to ask for a ride out of the area. (Am. Compl. ¶25.) Plaintiff alleges that Nichols, Foley, Howard, Guerrera, Castner and Farrell were in the same luncheonette "apparently awaiting the judge to sign the search warrant." Id. While seated at a table waiting for her brother-in-law, Nichols approached, leaned in and whispered in Plaintiff's ear, "Who is Chris?," referring to the Plaintiff's brother-in-law. (Am.Compl. ¶26.) Plaintiff took that to mean that the defendants overheard her phone conversation and that Nichols was harassing her. Id.

The Plaintiff returned home and found the premises in a state of disarray. Plaintiff alleges that the Defendants left her deliberately vicious and nasty messages intended to harass, annoy, humiliate and cause her pain. Plaintiff. (Am. Compl. ¶28.) A copy of a search warrant and an FBI seized property list signed by Howard, file number 196D-TP-T310573, was left in her home. (Am. Compl. ¶27.) Plaintiff found photos of she and her husband together in their most special moments, such as wedding and honeymoon, left out in the open. (Am. Compl. ¶28.) In her bedroom on top of a pile of her belongings, Plaintiff discovered in open view items of a sexual nature, lingerie and a $20.00 bill on the bed to send a "degrading message." (Am. Compl. ¶29.) Plaintiff alleges Defendants removed an urn, containing her late mother's ashes from a box provided by the cremation company, used to safely maintain the item, and tossed it aside like a piece of trash. (Am. Compl. ¶30.) Plaintiff asserts these acts were intentionally meant to cause her mental anguish and emotional distress. Id.

Plaintiff alleges that despite the lack of a warrant and not being mentioned in any warrant, the Defendants entered her home, detained her, forcibly took her to the police station, and removed her property, which included a computer, iPhone, personal journal, bank debit card, safety deposit box key, birth certificate and other personal items. (Am. Compl. ¶¶31 -33.) Plaintiff alleges that Defendants Village of Goshen and Sgt. Rich, participated in the unlawful search and seizure of Plaintiff's home, person and property by allowing Nichols, Foley, Howard, Guerrera, Castner and Farrell to access to her home. (Am. Compl. ¶33.)

Finally, Plaintiff alleges that the Village of Goshen and Sgt. Rich instructed the Plaintiff to obtain details and documents concerning the arrest of her husband through the use of the Freedom of Information Acts ("FOIA"). (Am. Compl. ¶35.) Plaintiff attempted to obtain information and documents by making a FOIA request but was denied access to all of the requested documents and information. Id.

LEGAL STANDARD

Rule 12(b)(6)

Under Rule 12(b)(6), the inquiry for motions to dismiss is whether the complaint "contain[s] 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)). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679. The Court must take all material factual allegations as true and draw reasonable inferences in the non-moving party's favor, but the Court is "'not bound to accept as true a legal conclusion couched as a factual allegation,'" to credit "mere conclusory statements," or to accept "[t]hreadbare recitals of the elements of a cause of action." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

In determining whether a complaint states a plausible claim for relief, a district court must consider the context and "draw on its judicial experience and common sense." Id. at 679. A claim is facially plausible when the factual content pleaded allows a court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. In addition, although a court must interpret a pro se complaint liberally to "raise the strongest arguments that they suggest," the complaint must still "plead to relief that is plausible on its face." Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013) (quotation marks omitted). "[T]he liberal treatment afforded to pro se litigants does not exempt a pro se party from compliance with relevant rules of procedural and substantive law." Ndremizara v. Swiss Re. Am. Holding Corp., 93 F.Supp.3d. 301, 309-10 (S.D.N.Y. 2015).

Generally, a court is confined to the facts alleged in the complaint or petition for the purposes of considering a motion to dismiss pursuant to 12(b)(6). Cortec Indus. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991). A court may, however, consider documents attached to the complaint, statements or documents incorporated into the complaint by reference, matters of which judicial notice may be taken, public records, and documents that the plaintiff either possessed or knew about, and relied upon, in bringing the suit. See Kleinman v. Elan Corp., 706 F.3d 145, 152 (2d Cir. 2013); D/S Norden A/S, No. 16-cv-2274, 2017 WL 473913, at *2 (S.D.N.Y. Feb 3, 2017) (citing DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir. 2010)).

Rule 12(b)(1)

The standard for a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction is "substantively identical" to the standard for dismissal...