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Ronita v. County of

May 4, 2012

RONITA MCCOLLEY, PLAINTIFF,
v.
COUNTY OF RENSSELAER; INVESTIGATOR MICHAEL RILEY, INDIVIDUALLY AND AS AN AGENT, SERVANT AND/OR EMPLOYEES OF THE COUNTY OF RENSSELAER; CITY OF TROY; AND TROY POLICE OFFICERS MOE DOE AND JOE DOE, WHOSE TRUE NAMES ARE PRESENTLY UNKNOWN, INDIVIDUALLY AND AS AGENTS, SERVANTS AND/OR EMPLOYEES OF THE CITY OF TROY, DEFENDANTS.



MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Plaintiff commenced this action on October 23, 2008, bringing civil rights claims pursuant to 42 U.S.C. § 1983 and alleging causes of action, inter alia, for false arrest, false imprisonment, assault and battery, and trespass. Dkt. No. 1 ("Complaint"). On February 10, 2010, Plaintiff filed an Amended Complaint, raising the same claims against Defendants County of Rensselaer; Rensselaer Investigator Michael Riley ("Defendant Riley"); City of Troy; and unknown Troy Police Officers Moe Doe and Joe Doe. Dkt. No. 23 ("Amended Complaint").*fn1

Presently before the Court is a Motion to dismiss and for summary judgment filed by Defendants City of Troy and Troy Police Officers Moe Doe and Joe Doe (collectively, "Troy Police Defendants") (collectively with the City of Troy, "Troy Defendants"). Dkt. No. 32 ("Troy Motion"). Also before the Court is a Motion for summary judgment, submitted by the County of Rensselaer and Defendant Riley (collectively, "Rensselaer Defendants"). Dkt. No. 34 ("Rensselaer Motion"). Both Motions for summary judgment were filed on September 15, 2010. Troy Mot.; Rensselaer Mot. On October 18, 2010, Plaintiff Ronita McColley ("Plaintiff") filed a Response to the Rensselaer Motion along with a Cross-Motion for summary judgment. Dkt. No. 43. On October 19, 2010, Plaintiff filed a Response to the Troy Motion along with a Cross-Motion for summary judgment and a Motion to amend the Complaint. Dkt. No. 46. On October 25, 2010, the Troy Defendants and the Rensselaer Defendants each filed a Reply. Dkt. Nos. 53, 54.

For the reasons that follow, the Court: (1) grants the Troy Motion for summary judgment in its entirety; (2) grants in part and denies in part the Rensselaer Motion for summary judgment;

(3) denies Plaintiff's Cross-Motions for summary judgment; and (4) denies Plaintiff's Motion to amend.

II. BACKGROUND

This action involves a search of Plaintiff's Troy apartment executed -- pursuant to a warrant and via forced entry -- at 6:00 a.m. on July 2, 2008. Renssaelaer Defendants' statement of material facts (Dkt. No. 34-19) ("Rens. S.M.F.") ¶¶ 3, 41; Plaintiff's response to Renssaelaer Defendants' statement of material facts (Dkt. No. 43-1) ("Pl.'s S.M.F.") ¶¶ 3, 41.

A. Criminal investigation

Defendant Michael Riley is an Investigator with the Rensselaer County District Attorney's Office assigned to the Rensselaer County Drug and Gang Task Force ("Task Force"). Rens. S.M.F. ¶ 4; Pl.'s S.M.F. ¶ 4.*fn2 On or about June 23, 2008, Defendant Riley was contacted by a confidential informant ("CI") who had worked with the Task Force in the past. Rens. S.M.F. ¶¶ 11, 13; Pl.'s S.M.F. ¶¶ 11, 13. This CI had made four prior controlled buys for the Task Force and had previously provided information that resulted in two search warrants and in the seizure of illegal drugs and contraband. Rens. S.M.F. ¶¶ 14-15; Pl.'s S.M.F. ¶ 15. According to Defendant Riley, the CI stated that the CI could purchase crack cocaine from a specified individual in the city of Troy. Rens. S.M.F. ¶ 12.

Defendant Riley then met with the CI, along with members of the City of Troy Special Operations Section, to discuss how the CI could make this purchase. Rens. S.M.F. ¶ 16; Pl.'s S.M.F. ¶ 16. Defendant Riley arranged a controlled buy on June 23, 2005, in which the CI was provided with a transmitter and surveillance was put in place while the CI attempted to make a drug purchase. Rens. S.M.F. ¶¶ 17-20; Pl.'s S.M.F. ¶¶ 17-20. Upon making the purchase, the CI returned to an agreed upon location and gave Investigator Riley a small bag filled with a white powdery substance, which was determined to be crack cocaine. Rens. S.M.F. ¶¶ 20, 22-23; Pl.'s S.M.F. ¶¶ 20, 22-23.

The CI later contacted Defendant Riley and informed him that he had been taken to a "stash house" located at 396 1st Street, First Floor Front Apartment, Troy, New York.*fn3 Rens. S.M.F. ¶¶ 24-25; Pl.'s S.M.F. ¶¶ 24-26. According to Defendant Riley, the CI stated that upon arrival at 396 1st Street, the CI was shown approximately seven grams of powder cocaine, and the cocaine was cut with a King of Hearts playing card on top of an ironing board. Affidavit of Michael Riley sworn to September 15, 2010 (Dkt. No. 34-18) ("Sept. 2010 Riley Aff.") ¶ 20. In addition to Plaintiff's apartment at 396 1st Street, the CI told Defendant Riley about three additional locations in the City of Troy that were "maintained by two drug dealers known to the CI" and "involved in illegal drug activities." Rens. S.M.F. ¶ 26; Pl.'s S.M.F. ¶ 26. On June 25, 2008, Defendant Riley, along with members of the City of Troy Police Department's Special Operations Section, interviewed the CI in more detail about the drug activities the CI had identified. Sept. 2010 Riley Aff. ¶ 22. Also on June 25, 2008, Defendant Riley had the CI bring him to each of the four locations the CI had identified. Rens. S.M.F. ¶ 28; Pl.'s S.M.F. ¶ 28.

Defendant Riley took the CI on "two separate drive-bys to confirm the location of each address provided by the CI as being involved in illegal drug activity." Sept. 2010 Riley Aff. ¶ 25. Defendant Riley, along with his supervisor, conducted surveillance of each residence using undercover officers and unmarked vehicles between June 25, 2008 and July 3, 2008. Id. No narcotics activity was witnessed during this surveillance. Affidavit of Michael Riley sworn to October 25, 2010 (Dkt. No. 54-8) ("Oct. 2010 Riley Aff.") ¶ 17. At some point following the CI's identification of 396 1st Street, First Floor Front Apartment, Defendant Riley determined that Plaintiff Ronita McColley was the resident at that address, that she had no criminal history, and that she had a young child. Deposition of Michael S. Riley (Dkt. No. 36) ("Riley Deposition") 42:4-45:7 (filed under seal).*fn4

On June 25, 2008, the CI entered a voluntary statement describing the illegal drug activity that he had witnessed and the locations at which it had occurred. Dkt. No. 43-9 ("First Voluntary Statement"). On July 1, 2008, the CI entered a second voluntary statement explaining that he had initially failed to identify Seventeen 101st Street -- one of the residences in question -- because he was not from the city of Troy and was therefore somewhat unfamiliar with the area. Dkt. No. 43-10 ("Second Voluntary Statement").

B. Warrant application

On June 27, 2008, Defendant Riley submitted an application for a search warrant for 396 1st Street, First Floor Front Apartment, in the City of Troy to Judge Turner with the City of Troy Criminal Court. Rens. S.M.F. ¶ 32; Pl.'s S.M.F. ¶ 32. Defendant Riley identified as the basis for the application information that the CI had provided about several residences involved in illegal drug activities. Rens. S.M.F. ¶ 33; Pl.'s S.M.F. ¶ 33. In his search warrant application, Defendant Riley stated the CI had "given information in the past that has proven to be both accurate and reliable and which has led to five previous drug purchases and two search warrants, which resulted in the seizure of illegal drugs and contraband." Dkt. No. 32-5 at 1-5 ("Warrant Application"); Rens. S.M.F. ¶ 35 (quoting Warrant Application); Pl.'s S.M.F. ¶ 35.*fn5

In the warrant application, Defendant Riley described the four residences and the two men -- "Stink" and "Sport" -- involved in the drug transactions. Warrant Application at 2-3. Defendant Riley identified 520 Second Avenue Apartment #5 as "Sport's" residence and stated that "Sport" dealt crack cocaine from the apartment. Id. at 2. Further, Defendant Riley stated that the CI had engaged in a "controlled police drug purchase" at this address. Id.

Defendant Riley also stated that "[a]pproximately one hour after the CI made the controlled cocaine purchase from 'Sport', the CI advised [Defendant Riley] that 'Sport' brought the CI to 396 1st Street First Floor Front Apartment, City of Troy, Rensselaer County, New York State, to [show] the CI where 'Sport' gets his cocaine from." Rens. S.M.F. ¶ 34 (quoting Warrant Application). See Pl.'s S.M.F. ¶ 34. Attached to the warrant application was a photograph of the building, which the CI had identified. See Dkt. No. 34-18 at 22. According to the application, the CI told Defendant Riley that the building's "exterior doors were yellow, the front of the building was made of unpainted brick and the apartment door was on the right side as you enter the front exterior doors." Rens. S.M.F. ¶ 34 (quoting Warrant Application at 3); see Pl.'s S.M.F. ¶ 34. Defendant Riley next recounted the CI's description of his interaction with "Stink" and "Sport" inside of 396 1st Street First Floor Front Apartment:

The CI advised your deponent that upon entering the apartment, the CI observed, "Stink" scraping off approximately 7 grams of cocaine from a scale and place the cocaine in a baggie. The CI advised you (sic) Deponent that "Stink" used a "King of Hearts" playing card to scrape the cocaine into the baggie. The CI advised your Deponent that another black male, not known to the CI, was in the apartment and gave "Sport" a sandwich sized baggie filled with small black zip-loc baggies of crack cocaine. The CI advised your Deponent that the small black zip-lock baggies were the same style baggies that the CI purchased from "Sport".

Rens. S.M.F. ¶ 34 (quoting Warrant Application at 3); see Pl.'s S.M.F. ¶ 34.

Next, Defendant Riley identified two other residences for which searches were requested. Warrant Application at 3. First, Defendant Riley stated that the CI told him that he had visited Building #5 Apartment 17 of Griswold Heights "twenty to thirty times over the past six months with 'Stink'" and that "Stink" had made drug deals on each visit. Id. According to the CI, Tanisha Bruce, "the registered adult tenant" who resided at this address with her mother, two young children, and sometimes her sister, sold "approximately one hundred grams of marijuana per week," which was provided to her by "Stink." Id. Defendant Riley also stated that the CI had told him that "'Stink' come[s] and goes as he pleases and occasionally stays at the apartment and also has custody and control over the drug activity from the apartment." Id. Second, Defendant Riley stated that the CI had identified Seventeen 101st Street First Floor Apartment as "Stink's" residence and had confirmed this address when the CI and Defendant Riley drove by together. Id. The CI stated that he had been to the apartment twice in the previous two weeks and that "Stink" had made crack cocaine sales from the apartment on both occasions. Id.

Finally, Defendant Riley stated that those involved in drug trafficking often possess firearms and other weapons and that, for purposes of officer safety, it was critical that officers be able to execute the warrant at a time that would minimize the risk of violence. Id. Defendant Riley further requested that officers be allowed to execute the warrant without giving notice, so as to minimize the chance of violence or of drugs being hidden or destroyed. Id. at 5. On June 27, 2008, Judge Turner issued the requested no-knock warrant. Dkt. No. 32-5 at 6 ("Search Warrant").

C. Warrant execution

The search warrant for Plaintiff's apartment at 396 1st Street, First Floor Apartment in Troy was executed on July 3, 2008 at approximately 6:00 a.m. Rens. S.M.F. ¶ 41; Pl.'s S.M.F. ¶ 41. The warrant was executed by Defendant Riley and Patrick Rosney of the City of Troy Special Operations Section, as well as other officers and agents from the DEA, ATF, Troy Police Department's K-9 unit, New York State Division of Parole, and the City of Troy Special Crimes Unit. Rens. S.M.F. ¶ 42; Pl.'s S.M.F. ¶ 42. The officers made a forced entry, breaking through the front door of Plaintiff's home and throwing a "flashbang grenade" through her window. Rens. S.M.F. ¶ 46, 50; Transcript of McColley's 50-h Testimony (Dkt. No. 43-5) ("McColley 50-h Testimony") at 5-7; Search Warrant.

Before the officers entered her apartment, Plaintiff had been asleep in the living room wearing only a T-shirt and underwear. McColley 50-h Test. at 5. Plaintiff was ordered to lie on the floor of her bedroom, but there was not enough room. Id. at 7-8. Plaintiff was then told to get on her bed, and the officers handcuffed Plaintiff behind her back. Id. at 9-10; Rens. S.M.F. ¶ 48. Plaintiff asked numerous times if she could get dressed or cover up. Affidavit of Ronita McColley (Dkt. No. 43-4) ("McColley Affidavit") ¶ 9. After the initial search of the apartment -- approximately one hour, by Plaintiff's estimate -- Plaintiff's handcuffs were removed and Plaintiff was allowed to put a skirt on. McColley 50-h Test. at 11-12. The total time for this search is disputed by the parties. Compare Rens. S.M.F. ¶ 49 ("[t]he search lasted approximately an hour to an hour and [a] half"), with Pl.'s S.M.F. ¶ 49 ("[t]he search lasted almost three hours").

According to Plaintiff, at one point an officer asked her if the apartment was "398," and she replied that her apartment number was "396." McColley Aff. ¶ 15. Plaintiff claims that there seemed to be confusion among some of the officers as to whether they were in the right apartment. Id. No drugs were found in the search of Plaintiff's apartment. Rens. S.M.F. ¶ 55; Sept. 2010 Riley Aff. ¶ 32. According to Plaintiff, the officers left her apartment with only two pieces of paper: a National Grid bill and a paper from "Hudson Valley." McColley Aff. ¶ 21.

Plaintiff was not physically injured during the search. Rens. S.M.F. ¶ 52; Pl.'s S.M.F. ¶ 52. However, Plaintiff claims that she suffers from headaches and other emotional and psychiatric pain as a result of this incident, and that she feels anxious, nervous and fearful in everyday situations. McColley Aff. ¶ 25. Plaintiff also suffered personal property damage during the search, including a broken windows and doors, a broken bookshelf, broken picture frames, burn marks on her rug and wall, and broken dishes and knick-knacks. McColley Aff. ¶ 23.

III. STANDARD OF REVIEW

The Troy Defendants seek dismissal of Plaintiff's Complaint pursuant to Rule 12 of the Federal Rules of Civil Procedure or for summary judgment pursuant to Federal Rule 56. Rule 12(d) provides that if, on a motion pursuant to 12(b)(6), "matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." FED. R. CIV. P. 12(d). The Troy Defendants have annexed several affidavits and exhibits to their Motion, which refer to matters beyond those addressed in Plaintiff's Complaint and which the Court has considered. Rule 12(d)'s requirement that "all parties . . . be given a reasonable opportunity to present all the material that is pertinent to the motion" is also satisfied here, as Plaintiff had adequate notice that the Troy Motion would be converted to one for summary judgment, and in her response does not appear to contest that conclusion. FED. R. CIV. P. 12(d); In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985); Dkt. No. 46-4. The Troy Motion is thus most appropriately treated as one seeking summary judgment; the Rensselaer Motion also seeks summary judgment.

Rule 56 instructs a court to grant summary judgment if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). Although "[f]actual disputes that are irrelevant or unnecessary" will not preclude summary judgment, "summary judgment will not lie if . . . the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991).

The party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party claims will demonstrate the absence of a genuine issue of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, if the moving party has shown that there is no genuine dispute as to any material fact, the burden shifts to the non-moving party to demonstrate "the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. This requires the non-moving party to do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Corp., 475 U.S. 574, 586 (1986).

At the same time, the Court must resolve all ambiguities and draw all reasonable inferences in favor of the non-moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). The Court's duty in reviewing a motion for summary judgment is "carefully limited" to finding genuine disputes of ...


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