Etere v. Nassau County

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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EMMANUEL ETERE,

Plaintiff, MEMORANDUM AND

ORDER

-against- CV 17-3113 (AYS)

NASSAU COUNTY, NASSAU COUNTY

POLICE DEPARTMENT, NASSAU COUTY

TAXI & LIMOUSINE COMMISSION,

PATRICK RYDER, GREGORY MAY,

OFFICER RYABN FAIS and OFFICER

SODANO

Defendants.

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SHIELDS, Magistrate Judge:

Plaintiff Emmanuel Etere (“Plaintiff” or “Etere”), is an Uber driver who commenced this

action pursuant to 42 U.S.C. 1983 (“Section 1983”) against Defendants alleging that their

conduct in connection with the issuance of three tickets and search of the trip history on his Uber

App violated the Constitution of the United States. Named as Defendants are the County of

Nassau (“Nassau” or the “County”), the Nassau County Police Department (the “NCPD”), the

Nassau County Tax and Limousine Commission (the “NCTLC”), Patrick Ryder, who is the

Nassau County Police Commissioner (“Ryder” or “Commissioner Ryder”), Gregory May, who is

the Commissioner of the NCTLC (“May” or “Commissioner May”), Nassau County Police

Officer Ryan Fais (“Fais” or “Officer Fais”) and NCTLC Officer Sodano (“Sodano” or “Officer

Sodano”). All individual defendants are alleged to be sued in their individual and official

capacities.

Presently before the Court is Defendants’ motion for judgment on the pleadings, pursuant

to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons that follow the motion is

granted in part and denied in part.

BACKGROUND

I. The Parties

Although he appears pro se, Plaintiff is a law school graduate. See Am. Compl., herein

appearing as Docket Entry (“DE”) [49] at 12. At all times relevant to this matter, Plaintiff was

an employee of New York City and self-employed as a part-time driver for the ride-share app

Uber. Am. Compl. at 2. Uber matches drivers and prospective passengers over a smart phone

app. Passengers pay for rides automatically through the app. By switching on his Uber app

Plaintiff makes himself available to accept passengers by tapping on his phone. After accepting a

proposed ride Plaintiff drives to the requested location to pick up the passenger and the drives to

the requested destination. Id.

Defendant Nassau County is a municipal corporation. It is alleged through its agencies,

including the NCPD, to enforce the law, and through the NCTLC to regulate taxis and “for hire”

vehicles. Plaintiff alleges generally that “[s]enior officials” of the County and its agencies “are

aware of and tolerate practices by subordinate employees, including those that are inconsistent

with formal policies.” These practices are alleged to be “widespread and deeply embedded in the

culture of the department, [and] constitute unwritten departmental policies.” Am. Compl. at 13.

The County is alleged to be “responsible for the appointment, training, supervision and conduct

of all NCPD and NCTLC personnel” including all of the individual defendants. Id.

The NCPD is a law enforcement agency that, in addition to being responsible for law

enforcement is stated to be “responsible for appointment, training and conduct of all NCPD

personnel, including Officer Fais. Am. Compl. at 14.

The NCTLC is stated to be a law enforcement agency, “responsible for the registration

and enforcement of all laws regulating” taxis and for hire vehicles in the County. The NCTLC is

stated to be responsible for the “appointment, training, supervision and conduct of all NCTLC

personnel” including Officer Soldano. Am. Compl. at 15.

Defendant Ryder is the Nassau County Commissioner of Police. As such, he is alleged to

be responsible for the management and control of the NCPD. Ryder is alleged to be aware of and

to tolerate practices by employees that are “inconsistent with formal policies. Such practices are

alleged to be widespread and deeply embedded in the culture” of the NCPD and “constitute

unwritten policy.” Am. Compl. at 16.

Defendant May is the Commissioner of the NCTLC. He is alleged to be responsible for

the management and control of the NCTLC, which duties are alleged to include the “selection,

supervision, promotion, training and discipline of all NCTLC officers.” Plaintiff alleges, upon

information and belief, that May “is provided on a daily basis with reports of regulation” of taxis

and for hire vehicles in Nassau County. May is further alleged to be responsible for the conduct

of his subordinate, Officer Sodano. Am. Compl. at 18.

Defendants Fais and Sodano are, as noted, officers of the NCPD and the NCTLC

respectively. See Am. Compl. at 17; 19. The facts regarding their interactions with Plaintiff, as

alleged in the Amended Complaint, are set forth below.

II. The Tickets Issued to Plaintiff

The facts forming the basis of Plaintiff’s amended complaint arise out of his separate and

unrelated interactions with Officers Fais and Sodano. The interaction with Officer Fais took

place on July 14, 2016 and resulted in the issuance of one ticket. The interaction with Officer

Sodano took place on February 17, 2017 and resulted in the issuance of two tickets.

A. The July 14, 2016 Ticket

On July 14, 2016, Plaintiff was working as an Uber driver. The car he was driving at the

time was leased from a New York City certified leasing company that was in compliance with all

required state and city regulations. At approximately 7:15 P.M. on that date Plaintiff was pulled

over on Hook Creek Boulevard in Queens County, New York. Am. Compl. at 20. Prior to being

pulled over Plaintiff received and accept a request to pick up a passenger at a Target store in

Green Acres Mall, which is located in Nassau County near the New York City border. While en

route to the pickup location, Plaintiff’s passenger communicated that she had left the mall and

was instead at a Dunkin Donuts on Sunrise Highway by Hook Creek Boulevard in Queens

County. Plaintiff picked up the passenger at the new location, and was then proceeding to

Flushing, Queens. He states that as he was driving away with his passenger when he noticed a

Nassau County Police Cruiser in his rear-view mirror with flashing lights, signaling Plaintiff to

pull over. Plaintiff complied, pulling over at the intersection of Hook Creek Boulevard and

Sunrise Highway, in Queens County. Am. Compl. at 20.

The officer who pulled over Plaintiff was Officer Fais. Fais approached Plaintiff’s car

and asked for his license and registration, which Plaintiff produced. When asked for the reason

he was pulled over Fais told Plaintiff that Plaintiff’s license plate was illegally obscured by a

cover. After detaining Plaintiff for fifteen minutes Fais returned to Plaintiff’s car and issued him

a ticket for driving with a covered license plate (the “2016 Ticket”). Am. Compl. at 20.

After issuance of the ticket, Plaintiff was beginning to drive away when Fais asked

Plaintiff to wait. Fais then asked Plaintiff to hand over his cell phone so that Fais could access

Plaintiff’s Uber trip history to find out if Plaintiff was illegally operating in Nassau County.

Plaintiff told Fais that he was operating in Queens County - which is where his vehicle was

located at the time when Fais pulled him over. Am. Compl. at 22. Plaintiff also told Fais that he

had no right to access his cell phone. Fais then threatened Plaintiff with arrest for “obstruction of

governmental administration” if he continued to refuse to hand over his cell phone. Plaintiff

explained to Fais that to access the trip history Plaintiff would have to end his current trip -

which would cause him to lose the fare - which Plaintiff was not willing to do. After Fais again

threatened Plaintiff with arrest, Plaintiff handed over his cell phone. Fais ended the trip and

proceeded to access and search through the trip history on Plaintiff’s phone. Finding nothing

incriminating in the phone, Fais handed it back to Plaintiff and Plaintiff left. He drove his

passenger to her destination but was not paid in full for the trip.

On September 26, 2016, Plaintiff appeared at Nassau County Traffic Court to answer the

2016 Ticket. Plaintiff pleaded not guilty. He was offered a reduced fine, but declined the offer

and requested a hearing. While waiting for his hearing Plaintiff received an affidavit sworn to by

Fais stating that “I did observe [Plaintiff] operating a motor vehicle on public roadway” in

disregard of “VTL (referring to the New York State Vehicle and Traffic Law) 4021 - Covered

License Plate.” DE 24. On May 1, 2018, Plaintiff made a second appearance on the 2016 Ticket.

At that appearance, the ticket was dismissed. That dismissal followed the presentation of no

evidence by the prosecution.

B. The February 17, 2017 Tickets

On February 17, 2017 at 8:41 P.M. “plaintiff was sitting in his car alone and eating

breakfast at the parking lot of Nordstrom Store, in Roosevelt Field Mall in Garden City, New

York.” Am. Compl. at 26. Garden City, New York is in Nassau County. Plaintiff states that he

was in the parking lot, eating his breakfast, while waiting for the store to open so that he could

“check out the clothing rack, in the store.” Id. at 19; 26. While Plaintiff was sitting in his car he

was “accosted” by Officer Sodano who asked Plaintiff for his license and registration. When

Plaintiff asked Sodano if he had done anything wrong, Sodano said that he needed to investigate

whether Plaintiff was picking up passengers in Nassau County without authorization, and asked

Plaintiff for his license to operate in Nassau County. Plaintiff replied that he did not have such a

permit. Id. at 26. Sodano then asked to access Plaintiff’s trip history on his Uber app. Plaintiff

told Officer Sodano that he needed a warrant to search Plaintiff’s phone and that he would

neither turn over the phone nor voluntarily consent to a search of its content. Sodano told

Plaintiff that he did not need a warrant to access the trip history of a for-hire vehicle driver’s cell

phone in Nassau County. Plaintiff asked Sodano about the legal standard for searching a cell

phone and Sodano replied that “any car with a New York City ‘TLC’ license plate was liable to

be stopped anywhere in Nassau county, to investigate if the driver was picking up passengers in

Nassau county without authorization.” Id. Plaintiff reiterated that Sodano needed a warrant and

that his position was inconsistent with the requirement for a warrantless search. Sodano

threatened that the consequence of a refusal to hand over the cell phone in Nassau County would

be “severe” including “the issuance of multiple tickets and impounding of plaintiff’s vehicle.” Id.

Plaintiff said that he would not voluntarily consent to hand over his phone, but that he would

hand it over. After Plaintiff handed his phone to Sodano with the Uber app opened to the trip

history page, Sodano scrolled through and searched the page. He then issued two tickets to

Plaintiff which appear to address the same conduct. The separate tickets issued were for violation

of a Nassau County Ordinance, and for violation of the NCTLC’s Rules and Regulations. One

ticket carried a $1500 fine, and the other carried a $250 fine (the 2017 Tickets”).

On March 13, 2017, Plaintiff appeared at the Nassau County Taxi and Limousine

Commission to answer the 2017 Tickets, pleading not guilty to both. Plaintiff refused an offer of

a reduced fine and requested a hearing. The requested hearing was held on April 25, 2018 where

Plaintiff argued that issuance of the tickets violated his Fourth Amendment constitutional rights.

Plaintiff was found guilty of the charges in both tickets and was fined $600.00. Plaintiff has not

paid that fine.

III. Plaintiff’s Claims

Plaintiff’s complaint contains six causes of action. The first two claims are alleged

pursuant to Section 1983 and arise out of issuance of the July 2016 Ticket. The third claim is

alleged pursuant to Section 1983 and arises out of issuance of the February 2017 Tickets. The

fourth and fifth claims are based upon state common law. The sixth claim is alleged pursuant to

the New York State Constitution. Each claim is discussed in further detail below.

The First Claim is alleged against the County, the NCPD, Commissioner Ryder and

Officer Fais. It states that these Defendants violated the Fourth and Fourteenth Amendments

when Plaintiff was pulled over in Queens County in 2016 without probable cause or reasonable

suspicion. In addition to stating that Fais lacked any cause for accessing his trip information

Plaintiff alleges that, as a Nassau County police officer, Fais had no jurisdiction to issue a ticket

within Queens County which is adjacent to Nassau County. Plaintiff alleges that Officer Fais

stopped Plaintiff in violation of his Fourth Amendment rights to be free from an unreasonable

stop, search and seizure. Am. Compl. at 17.

The Second Claim is alleged against the County, the NCPD, Commissioner Ryder and

Officer Fais. It states that these Defendants violated the Fourth and Fourteenth Amendments

when Plaintiff’s cell phone was searched without probable cause to believe that Plaintiff had

committed a crime.

The Third Claim is alleged against the County, the NCTLC, Commissioner May and

Officer Soldano. It states that these Defendants violated the Fourth and Fourteenth Amendments

when Plaintiff was stopped and his cell phone was searched in connection with the February

2017 tickets.

The Fourth Claim is alleged against the County, the NCPD, Commissioner Ryder and

Officer Fais. It sets forth a state law claim of malicious prosecution based on the issuance of the

2016 Ticket.

The Fifth Claim is alleged against the County, the NCPD, Commissioner Ryder and

Officer Fais. It sets forth a state law claim of interference with contract. This claim alleges that

defendants interfered with Plaintiff’s contract to transport a passenger to her destination by

forcing Plaintiff to end a trip on his Uber app on July 14, 2016, in the middle of an ongoing trip,

in order to search Plaintiff’s phone. The interruption, which took place after Plaintiff told Fais

that he would not be paid, resulted in Plaintiff not being paid for the trip.

Plaintiff’s Sixth Claim is alleged against all Defendants. It is alleged pursuant to Article

1, Section 12 of the New York State Constitution, which is stated to supplement the Fourth and

Fourteenth Amendments to the United States Constitution, which secures Plaintiff’s rights to be

free from unreasonable search and seizure of his phone and electronic devices without a warrant.

Plaintiff seeks judgment on all claims in the amount of $2 million and a permanent

injunction against defendants “to stop them from conducting illegal searches of all taxi and for

hire vehicle drivers cell phones, to access their trip history or for any other untoward reasons.”

Am. Compl. at 52-53.

IV. The Motion to Dismiss

Defendants seek dismissal of all claims. Dismissal of all claims against both the NCPD

and the NCTLC is sought on the ground that neither of these defendants is a suable entity.

Dismissal of all Federal Constitutional claims against Commissioners Ryder and May is sought

on the ground that they lack the personal involvement necessary to hold them liable under

Section 1983. Dismissal of any claim against Ryder is also sought on the ground that he did not

assume the position of Commissioner until 2018 - well after the events that form the basis of

Plaintiff’s claims.

Dismissal on the merits of Plaintiff’s Fourth and Fourteenth Amendment claims is sought

on the ground that because the searches of Plaintiff’s phone were allowed under the NCTLC

Rules and Regulations in effect at the time of the searches they cannot be unlawful. Dismissal of

Plaintiff’s malicious prosecution claims (to the extent that they are based upon the tickets as to

which Plaintiff was found guilty) is sought because Plaintiff cannot show the necessary favorable

termination of proceedings required to state a claim. Dismissal of the malicious prosecution

claim based upon issuance of the July 2016 Ticket (which did not result in a judgment of guilt) is

sought on the ground that Officer Fais had probable cause to stop Plaintiff. Defendants similarly

seek dismissal of Plaintiff’s interference with contract claim because Officer Fais’ probable

cause to stop Plaintiff’s car justified any interference with Plaintiff’s contract with his passenger.

Finally, dismissal of Plaintiff’s New York State Constitutional claims is sought on the same

grounds as the Federal Constitutional claims.

ANALYSIS

I. Legal Standards: Rule 12(c)

A motion under Rule 12(c) is properly granted where, upon consideration of the

pleadings, in plaintiff’s favor, plaintiff fails to state a claim upon which relief can be granted.

The Court may consider those documents annexed to the complaint and those integral to that

pleading, as well as those documents as to which judicial notice is appropriate. In the context of

a Rule 12(c) motion a court may consider all undisputed allegations of fact, but may not weigh

those facts. Where, as here, a defendant moves for judgment on the pleadings the Court may not

consider the allegations of the answer in defendant’s favor. Instead, the legal standard to be

applied is the same as that which applies to motions under Rule 12(b)(6). See generally Lively v.

WAFRA Investment Advisory Grp., Inc., 6 F.4th 293, 306 (2d Cir. 2021).

Application of these standards allows the Court to consider the allegations of the

Amended Complaint as well as the tickets issued to Plaintiff. The Court takes judicial notice of

the locations referred to in the Amended Complaint and described above, as well as decisions

rendered in the state court proceedings that followed issuance of the three tickets that form the

basis of the claims herein.

II. The Motion is Granted with Respect to the Claims Against the NCPD and the NCTLC

Neither the NCPD nor the NCTLC is a suable entity. As administrative arms of a

municipality, these entities do not possess a legal identity separate from the County and cannot

therefore sue or be sued. See Davis v. Lynbrook Police Dep’t., 224 F. Supp.2d 463, 477

(E.D.N.Y. 2002). Plaintiff’s claims are properly pursued here against the Officers and the

municipality which in this case is the County of Nassau. Accordingly, the Court dismisses all

claims against both the NCPD and the NCTLC.

III. The Motion is Granted With Respect to Claims Against Defendants May and Ryder

Both Defendants May and Ryder are high ranking officials in the agencies that they

supervise. As such, they can be liable for the claims herein only to the extent that Plaintiff can

show their personal involvement in the Constitutional violation forming the basis of the

Amended Complaint, i.e., their own actions in the allegedly unlawful stop of Plaintiff’s car, and

the search of his cell phone. See Tangreti v.Bachman, 983 F.3d 609 (2d Cir. 2020). Plaintiff’s

Amended Complaint contains only generalized allegations which do not rise to the level to allege

a plausible claim of personal involvement. The Court therefore grants the motion to dismiss

Defendants May and Ryder. However, the dismissal is without prejudice in the event that

discovery herein reveals evidence showing the personal involvement necessary to impose

liability.

IV. The Motion is Otherwise Denied

Defendants’ motion to dismiss Plaintiff’s claims on the merits hinges on the argument

that Officers Fais and Soldano had probable cause to pull Plaintiff over and search the contents

of his cell phone. They argue that the existence of the ordinances for which Plaintiff was ticketed

gave Officers Fais and Sodano probable cause to stop Plaintiff’s vehicle and search his cell

phone as a matter of law. The Court disagrees. Traffic stops, such as the stops of Plaintiff’s

vehicle, which preceded the searches of his cell phone, are reasonable so long as the officer has

probable cause to believe that a traffic infraction has occurred. Harper v. Town of Newburgh,

2020 WL 1140858, at *7 (S.D.N.Y. March 6, 2020). When an officer observes a traffic

infraction - however minor - that officer is deemed to have probable cause to pull over the

vehicle committing the offense. Like the stop of his vehicle, the legality of the warrantless search

of Plaintiff’s cell phone turns on the question of probable cause. Whether or not such probable

cause existed when the tickets were issued to Plaintiff turns on questions of fact that cannot be

determined in the context of the present motion. See Brandon v. City of New York, 705 F. Supp.

2d 261, 270 (S.D.N.Y. 2013) (probable cause is question of fact precluding summary judgment).

Carniol v. NewYork State Taxi and Limousine Commission, 42 Misc.3d 199, 206 (N.Y.

County), aff’d, 126 A.D.2d 409 (1st Dep’t 2015), relied upon heavily by Defendants does not

compel a different result. That case involved the search of a GPS device required to be installed

in New York City taxis. The importance of collecting the limited geographic data in that case

(for which there was a low, if any, expectation of privacy) was clear. Here, the governmental

interest in searching Plaintiff’s cell phone, the reasonableness of any expectation of privacy, and

the facts that preceded the traffic stops at issue have yet to be determined. Presently, the stops of

Plaintiff’s vehicle and the searches of his cell phone without a warrant, as alleged in the

Amended Complaint and presumed true, are distinguishable from the facts in Carniol. That case

is therefore not controlling precedent in the context of the present motion to dismiss.

Additionally, the Court observes that Carniol pre-dates United States Supreme Court

precedent establishing the requirement for a warrant to search the contents of a cell phone, which

the Court presumes, (for purposes of this motion at least), was the type of search performed here.

See Carpenter v. United States, 585 U.S. (2018). While Carpenter and its progeny may be

relevant to a motion for summary judgment based on qualified immunity, those cases are not

relevant here, where the lack of discovery makes consideration of that defense premature.

V. Discovery Schedule and Deadlines

In view of the foregoing, the case shall proceed to discovery. In lieu of rulings usually

made after an initial conference the Court enters the following discovery order and schedule.

Within one week of the date of this order all parties shall identify witnesses to the events forming

the basis of the Amended Complaint. To the extent known to Plaintiff he shall identify the

passenger who was in his vehicle when it was stopped by Officer Fais. All parties shall produce

any documents in their possession showing the location of Plaintiff’s vehicle just prior to and at

the time of the issuance of the tickets herein

Defendants shall produce all documents in their possession generated in connection with

issuance of the 2016 and 2017 tickets at issue herein. Defendants shall also produce the

ordinances and rules relied upon to stop Plaintiff’s vehicle and search his cell phone, as well as

all legislative history preceding the enactment of such measures. Defendants shall indicate, in a

form of a sworn interrogatory response, whether the measures in effect at the time of the

issuance of the tickets at issue herein are still in effect. In the event that such measures are no

longer in effect, Defendants shall produce current legislation.

Plaintiff shall produce all documents supporting any position that he was not guilty of the

conduct charged in the 2016 and/or 2017 Tickets. He shall also produce all documents

supporting any claim that the vehicle he was driving at the time of the 2016 and 2017 Tickets

was leased by a “certified leasing company, called American Lease” and that vehicle was in

compliance with “all required state and city regulations” as set forth in the Amended Complaint.

Plaintiff shall also produce documents supporting any claim of lost wages. To the extent that

Plaintiff claims physical and/or emotional harm he shall produce, within two weeks of this order,

medical authorizations directed to all relevant providers.

The documentary discovery described above is to be completed within 60 days of the

date of this Memorandum and Order. Any additional documentary discovery shall take place

and precede depositions only upon a showing of good cause.

Depositions shall proceed in the following order: Plaintiff shall be deposed first. The

depositions of Officers Fais and Sodano shall follow Plaintiff’s deposition. Finally, Nassau

County shall produce a representative witness with knowledge of the County and NCTLC

ordinances at issue herein. In the event that no one witness possesses such knowledge, the

County shall produce separate witnesses with knowledge. The parties may agree to depose

Defendants in a different order. In any event, all discovery, including any expert discovery shall

be complete within nine months of the date of this Memorandum and Order. The deadline for the

making of any dispositive motion is hereby set at September 29, 2022.

CONCLUSION

In view of the foregoing the motion to dismiss, appearing as Docket Entry 67 herein, is

granted in part and denied in part. The motion is granted with respect to dismissal of all claims

against the NCPD and the NCTLC with prejudice. The motion is also granted with respect to

dismissal of all claims against Commissioners Ryder and May without prejudice. The motion is,

in all other respects, denied.

SO ORDERED:

Dated: Central Islip, New York

November 29, 2021 /s/ Anne. Y. Shields

ANNE Y. SHIELDS

United States Magistrate Judge