Randal Rosado v Village of Goshen, Ryan W Rich, Ken Kelleman, Robeert Nchols, Robert Foley, Michael Howard, Jillian Guererra, Michael Castner, John Farrell, Amended Complaint United States Southern District of New York, Case #CV16-6916(NSR)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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                                                                                                Case No.: 16CV6916

RANDAL ROSADO,                                               

 

                        Plaintiff,

                                                                                                 

            -against-                                                                     

 

 

VILLAGE OF GOSHEN, RYAN W. RICH,

KEN KELLEMAN, ROBERT NICHOLS,

ROBERT FOLEY, MICHAEL HOWARD,

JILLIAN GUERRERA, MICHAEL CASTNER,

AND JOHN FARELL,

 

                        Defendants.

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Plaintiff, RANDAL ROSADO, as and for his Amended Complaint, respectfully alleges upon information and belief:

PRELIMINARY STATEMENT

  1. Plaintiff brings this action for compensatory damages, punitive damages and attorney’s fees pursuant to 42 U.S.C. 1983 for violations of his civil rights, as said rights are secured by said statutes and the Constitution of the United States of America.

JURISDICTION

  1. Under 42 U.S.C. Section 1983, state or local officials can be sued for the “deprivation of rights, privileges, or immunities secured by the Constitution and federal laws”. Under Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), claims can be filed against federal officials for the violation of certain constitutional rights.
  2. Section 1983 allows defendants to be found liable when they have acted “under color of any statute, ordinance, regulation, custom, or usage, of any state or territory or the District of Columbia.
  3. This action is brought pursuant to 42 U.S.C. Section 1983, and the Fourth and Fourteenth Amendments to the United States Constitution.
  4. Jurisdiction is founded upon 28 U.S.C. Sections 1331, 1343 and 1367.

VENUE

  1. Venue is properly laid in the Southern District of New York under U.S.C. Section 1391(b), in that this is the District in which the claim arose.
  2. Plaintiff respectfully demands a trial by jury of all issues in this matter pursuant to Fed. R. Civ. P.38(b).
  3. Plaintiff, RANDAL ROSADO, was resident of the Village of Goshen and the State of New York on June 28, 2016.
  4. Defendant, VILLAGE OF GOSHEN, was and is a municipal corporation duly organized and existing under and by virtue of the law of the State of New York.
  5. Defendant, VILLAGE OF GOSHEN, maintains the Village of Goshen Police Department, a duly authorized public authority and/or police department, authorized to perform all functions of a police department as per the applicable sections of the New York State Criminal Procedure Law, acting under the direction and supervision of the aforementioned municipal corporation, VILLAGE OF GOSHEN.
  6. At all times hereinafter mentioned, the individually named Defendant RYAN W. RICH, was a duly sworn member of said department and was acting under the supervision of said department and according to his official duties. Defendant RYAN W. RICH is sued herein in his official and individual capacities.
  7. At all times hereinafter mentioned, the individually named Defendant KEN KELEMAN, was a sworn member of said department and was acting under the supervision of said department and according to his official duties. Defendant KEN KELEMAN is sued herein in his official and individual capacities.
  8. Each and all of the acts of the Defendants, RYAN W. RICH and KEN KELEMAN were done by said defendants while acting within the scope of their employment by Defendant VILLAGE OF GOSHEN.
  9. Each and all of the acts of Defendants, RYAN W. RICH and KEN KELEMAN alleged herein were done by said defendants while acting in furtherance of their employment by Defendant VILLAGE OF GOSHEN.
  10. At all times hereinafter mentioned, the individually named Defendant, ROBERT NICHOLS was a duly sworn member of Lee County State Attorney’s Office, and was acting under the supervision of said department and according to his official duties. Defendant ROBERT NICHOLS is sued herein in his official and individual capacities.
  11. At all times hereinafter mentioned, the individually named Defendant, ROBERT FOLEY, as a duly sworn member of the Federal Bureau of Investigation, and was acting under the supervision of said department and according to his official duties. Defendant ROBERT FOLEY is sued herein in his individual capacity.
  12. At all times hereinafter mentioned, the individually named Defendant, MICHAEL HOWARD, was a duly sworn member of the Federal Bureau of Investigation, and was acting under the supervision of said department and according to his official duties. Defendant MICHAEL HOWARD is sued herein in his individual capacity.
  13. At all times hereinafter mentioned, the individually named Defendant, JILLIAN

GUERRERA was a duly sworn member of the Federal Bureau of Investigation, and was acting under the supervision of said department and according to her official duties. Defendant JILLIAN GUERRERA is sued herein in her individual capacity.

  1. At all times hereinafter mentioned, the individually named defendant, MICHAEL CASTNER was a duly sworn member of the Federal Bureau of Investigation and was acting under the supervision of said department and according to his official duties. Defendant MICHAEL CASTNER is sued herein in his individual capacity.
  2. At all times hereinafter mentioned, the individually named defendant, JOHN FARELL was a duly sworn member of the Federal Bureau of Investigation and was acting under the supervision of said department and according to his official duties. Defendant JOHN FARELL is sued herein in his individual capacity.

FACTS

  1. On June 28, 2016, at approximately 6:00 a.m., Plaintiff RANDAL ROSADO was present and asleep inside of his residence located at 129 W. Main Street, in the Village of Goshen, County of Orange and the State of New York.
  2. At that time and place, Defendants, MICHAEL HOWARD, JILLIAN GUERRERA, MICHAEL CASTNER and JOHN FARELL arrived on duty armed and dressed in SWAT team gear. Defendants, RYAN W. RICH, ROBERT NICHOLS and ROBERT FOLEY arrived in plain clothes.
  3. While Plaintiff and his wife were asleep, the Defendants made a nonconsensual, warrantless entry into their residence for purposes of making a felony arrest and to execute a warrantless search and seizure. This operation is confirmed by a sworn affidavit from Defendant ROBERT NICHOLS on November 6, 2017, and referred to as a “knock, announce and arrest.”
  4. Defendants MICHAEL HOWARD, JILLIAN GUERRERA, MICHAEL CASTNER, JOHN FARELL and RYAN W. RICH had their weapons drawn on Plaintiff upon entering, and Plaintiff was awakened and startled by the commotion. Plaintiff was handcuffed and taken into custody.
  5. Plaintiff was asleep and not engaged in any violent or threatening behavior. No exigent circumstances existed.
  6. The FBI Defendants (HOWARD, GUERRERA, FARELL and CASTNER) removed Plaintiff from his 2nd floor apartment and led him to the street level on Main Street, where he was transferred from FBI custody to Defendants KEN KELEMAN and VILLAGE OF GOSHEN. Defendant KEN KELEMAN transported Plaintiff across the street to the Village of Goshen Police Department for booking.
  7. Defendants MICHAEL HOWARD, JILLIAN GUERRERA, MICHAEL CASTNER, and JOHN FARELL remained inside Plaintiff’s residence to execute the search. Defendants ROBERT NICHOLS and ROBERT FOLEY also remained in Plaintiff’s residence to participate in the search prior to the recorded interrogation of Plaintiff’s wife, Michelle Rosado.
  8. Plaintiff’s wife was unlawfully placed under arrest, and then un-arrested moments later and removed from the residence. This is confirmed in the transcript of the unlawful interrogation of Michelle Rosado in violation of her Fifth Amendment constitutional rights (page 8), as conducted by Defendants ROBERT NICHOLS, ROBERT FOLEY and RYAN W. RICH. The interrogation was video recorded by Defendants RYAN W. RICH and VILLAGE OF GOSHEN between 7:00 a.m. and 8:20 a.m. on June 28, 2016.
  9. In his sworn affidavit on November 6, 2017 (page 6, paragraph 16), Defendant ROBERT NICHOLS states that he and Defendant ROBERT FOLEY never entered Plaintiff’s residence due to lack of authority and jurisdiction, but on pages 42 and 43 of a sworn deposition taken on May 26, 2017, NICHOLS acknowledges participating in the execution of the search. During his video interrogation of Michelle Rosado, NICHOLS also confirms entering Plaintiff’s home and participating in the arrest and search, as seen on page 66 of the transcript. “You were disappointed that you’re living your life here in — in New York, and you’re doing your thing, and we, the law enforcement, are coming in and we’re invading your house during a search warrant, and arresting your husband.”
  10. Further evidence that no search warrant existed when the defendants entered Plaintiff’s home, arrested him, and began executing a search and seizure is also found in ROBERT NCHOLS’ sworn affidavit from November 6, 2017. on page 6, paragraph 17 he states that task force teams “were acquiring a search warrant to execute that same day.” On page 6, paragraph 19 he states they “instructed Ms. Rosado to leave the apartment while they conducted a search later that morning upon receipt of a pending search warrant.” On page 6 paragraph 20 he wrote, “Nothing was seized at this point, but the premises were secured pending receipt of the search warrant.” However, in the video recording by NICHOLS, FOLEY, RICH and VILLAGE OF GOSHEN, NICHOLS says, “They’re executing the search warrant over there. I know that when you were placed under arrest, and you were standing there talking, you wanted to use the bathroom and everything, I mean, I just happened to notice that there’s a computer sitting in the room.” Not only does this contradict sworn statements by Defendant NICHOLS on November 6, 2017 and May 26, 2017, it also provides evidence of the unlawful arrest of Plaintiff and his wife, and the unlawful search and seizure of their home.
  11. The transcript of the video interrogation of Michelle Rosado following Plaintiff’s arrest and the removal of Mrs. Rosado from her home, confirms that the personal items of Plaintiff and Mrs. Rosado were seized without a warrant. Pages 81, 82 and 88 of the transcript verify that their computers, phones and other personal items were already taken. Defendants NICHOLS, FOLEY and RICH are on video seeking password information and personal details from Mrs. Rosado. An exhibit from Leon County civil case 2016-CA-1546 provides photos of Mrs. Rosado’s identification, social security card, voter registration, credit card, banking information and other personal items. Mrs. Rosado was not even a party to the search warrant eventually produced after the search was executed.
  12. The property belonging to Plaintiff and Mrs. Rosado seized during the unlawful search of their home is in possession of the Lee County State Attorney’s Office. No chain of custody has been provided from Defendant MICHAEL HOWARD, whom signed the sized inventory list left on site following the search.
  13. Copies of the video interrogation of Michelle Rosado from June 28, 2016 is in possession of Defendants, ROBERT NICHOLS, ROBERT FOLEY, RYAN W. RICH and VILLAGE OF GOSHEN. On video Defendant RYAN W. RICH promises to make a copy of the video for Defendants NICHOLS and FOLEY prior to their departure from New York back to Florida. No chain of custody has been provided.
  14. On July 8, 2016, Plaintiff’s wife and power of attorney, Michelle Rosado, attempted to obtain a copy of the arrest report and affidavit for search warrant from June 28, 2016. She was informed by officers at the Village of Goshen Police Department that she could obtain a copy from DEFENDANT VILLAGE OF GOSHEN through the Village Hall. Mrs. Rosado went to VILLAGE OF GOSHEN and completed a Freedom of Information Act request as they required from her. Several days later on July 12, 2016, she was denied a copy of the requested information.
  15. As a result of the foregoing, Plaintiff RANDAL ROSADO, has suffered permanent damage to his professional career and private life. Defendant ROBERT NICHOLS has made numerous false and contradictory statements under oath and has used his resources, including his former employer, Florida Office of Financial Regulation, to spread lies and fabricated stories in reports broadcasted on the internet and repeated by major news outlets on a worldwide scale.
  16. As a result of the foregoing, Plaintiff RANDAL ROSADO, sustained inter alia, mental anguish, shock, fright, apprehension, humiliation, and deprivation of his constitutional rights.
  17. All of the aforementioned acts of the Defendants, their agents, servants and employees were carried out under color of state law.
  18. All of the aforementioned acts deprived Plaintiff of the rights, privileges and immunities guaranteed to citizens of the United States by the Fourth and Fourteenth Amendments to the Constitution of the United States of America, and were therefore in violation of 42 U.S.C. Section 1983.
  19. Defendants, collectively and individually, while acting under color of state law, engaged in conduct which constituted custom, usage, practice, procedure rule of respect municipality/authority, which is forbidden by the Constitution of the United States.

FIRST CLAIM FOR RELIEF FOR CONSPIRACY TO DEPRIVE OF

CIVIL RIGHTS UNDER 43 U.S.C. SECTION 1983

  1. Plaintiff, RANDAL ROSADO, repeats, reiterates, and realleges each and every allegation set forth above with the same force and effect as if fully set forth herein at length.
  2. Defendants, as verified in their own sworn statements, video evidence and documentation, have collectively and individually conspired, while acting under the color of state law, were directly and actively involved in violating the constitutional rights of Plaintiff.
  3. The acts complained of were carried out by the aforementioned individual Defendants in their capacities as police officers and officials, with all actual and/or apparent authority attendant thereto.
  4. All of the foregoing acts by Defendants deprived Plaintiff of federally protected constitutional rights, particularly his Fourth and Fourteenth Amendment rights to be free from unlawful arrest and illegal search and seizure.
  5. In a civil rights conspiracy action, the defendants’ liability arises from membership in conspiracy and from traditional notions that the conspirator is vicariously liable for act of his coconspirators, and liability does not arise solely because of the individual’s own conduct.

SECOND CLAIM FOR RELIEF FOR MUNICIPAL LIABILITY

UNDER 42 U.S.C. SECTION 1983

  1. Plaintiff, repeats, reiterates, and realleges each and every allegation set forth above with the same force and effect as if fully set forth herein and at length.
  2. The acts complained of were carried out by the aforementioned individual Defendants in their capacities as police officers and officials pursuant to the customs, policies, usages, practices, procedures, and rules of Federal Bureau of Investigation, VILLAGE OF GOSHEN and the Village of Goshen Police Department, all under the supervision of ranking officers and said departments.
  3. The foregoing customs, policies, usages, practices, procedures and rules of Federal Bureau of Investigation, VILLAGE OF GOSHEN and the Village of Goshen Police Department constitute a deliberate indifference to the constitutional rights of Plaintiff RANDAL ROSADO.
  4. The foregoing customs, policies, usages, practices, procedures and rules of Federal Bureau of Investigation, VILLAGE OF GOSHEN and the Village of Goshen Police Department were the direct and proximate cause of the constitutional violations suffered by Plaintiff as alleged herein.
  5. The foregoing customs, policies, usages, practices, procedures and rules of Federal Bureau of Investigation, VILLAGE OF GOSHEN and the Village of Goshen Police Department were the moving force behind the constitutional violations suffered by Plaintiff as alleged herein.

WHEREFORE, Plaintiff respectfully requests judgment against the Defendants individually and/or collectively on each of the foregoing causes, the unlawful incarceration, and permanent loss of income due to the irreparable damage to Plaintiff’s reputation, in the amount of Seven Million Five Hundred Thousand Dollars ($7,500,000.00).

Dated:  Fort Myers, Florida

December 18, 2017

 

Respectfully submitted,

 

______________________________

By:/s/Randal Rosado, Plaintiff

2501 Ortiz Avenue

Fort Myers, Florida 33905