Opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Martine MacDonald,

Plaintiff,

2:22-cv-188

-v- (NJC) (AYS)

County of Suffolk; Suffolk County Police Department;

Brandon Rieber, in his individual and official capacity as a

police officer; Jeff Michaels, in his individual and official

capacity as a police officer; John Does 1–10, in their

individual and official capacities as police officers,

Defendants.

OPINION AND ORDER

NUSRAT J. CHOUDHURY, United States District Judge:

Plaintiff Martine MacDonald filed this action on January 12, 2022, bringing claims

against the County of Suffolk (the “County”), the Suffolk County Police Department, and the

following individual defendants, in their individual and official capacities as Suffolk County

police officers: Brandon Rieber and Jeff Michaels (the “Defendant Officers”), as well as John

Does 1–10. (Compl. ¶¶ 6–9, ECF No. 1.) The Complaint brings claims for racial discrimination

under 42 U.S.C. § 1981 (“Section 1981”) against the Defendant Officers and the County. (Id. at ¶

¶ 95–101.) It also brings claims under 42 U.S.C. § 1983 (“Section 1983”) to enforce rights under

the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution against the

Defendant Officers and equal protection claims against the County under Section 1983

and Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). (Id. ¶¶ 71–79 (Monell claim); id. ¶¶ 95–

101 (claims against Defendant Officers).) The Complaint also brings claims under Section 1983

challenging false arrest, use of unreasonable force, abuse of process, malicious prosecution,

fabrication of evidence, and failure to intervene in violation of various rights protected by the

Fourth, Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution, and claims under

New York state law for negligence, false arrest, intentional infliction of emotional distress, and

false imprisonment. (Id. ¶¶ 60–70, 80–94, 102–133.)

Before the Court is a Motion for Summary Judgment (the “Motion”) by the County and

Defendant Officers seeking summary judgment on all claims. (Mot., ECF No. 30.)1 In his

opposition brief, MacDonald withdrew his claims for false arrest, use of unreasonable force,

malicious prosecution, fabrication of evidence, and failure to intervene under Section 1983 and

various provisions of the U.S. Constitution, as well as his claims under New York law for false

imprisonment, false arrest, and intentional infliction of emotional distress. (See Mem. in Opp.

ECF No. 30-12 at 6 fn.1 and 8.) Further, MacDonald failed to oppose Defendants’ arguments for

summary judgment on the state law negligence claim and is therefore deemed to have abandoned

that claim. See Bryant v. Steele, 462 F. Supp. 3d 249, 270 (E.D.N.Y. 2020) (“A party abandons a

claim in the context of a summary judgment motion when she does not respond to arguments

concerning that claim.”) aff’d sub nom. Bryant v. Iheanacho, 859 F. App’x 604 (2d Cir. 2021);

Williams v. Suffolk Cty., 284 F. Supp. 3d 275, 284 (E.D.N.Y. 2018) (applying this principle).

1 Defendant Suffolk County Police Department has not moved for summary judgment or

otherwise appeared in the action. It is well-establish that the Suffolk County Police Department

is an administrative arm of Suffolk County and therefore lacks an independent legal identity such

that it can be sued. See Carthew v. Cnty. of Suffolk, 709 F. Supp. 2d 188, 195 (E.D.N.Y. 2010)

(“It is well settled that an entity such as the Suffolk County Police Department is an

‘administrative arm’ of the same municipal entity as Suffolk County and thus lacks the capacity

to be sued.”); Brooks v. Suffolk Cnty. First Precinct, No. 21-cv-4546, 2021 WL 5139075, at *2

(E.D.N.Y. Nov. 4, 2021) (holding that the Suffolk County Police Department First Precinct “is a

non-suable entity because it is an administrative arm, which does not have a legal identity

separate and apart from the municipality.” (quoting Spagnuolo v. Suffolk Cnty., No. 12-CV-4327,

2017 WL 4326510, at *2 (E.D.N.Y. Sept. 28, 2017))).

Finally, during the March 24, 2026 oral argument, MacDonald voluntarily withdrew his claims

against Defendants under Section 1983 and the Fourteenth Amendment for abuse of process.

(Apr. 24, 2026 Argument Tr. (“Tr.”) at 5:15–16.) He also confirmed that he had previously

withdrawn any claims under Section 1981 by letter and that any allegations in the Complaint

supporting such claims were intended to support the Section 1983 equal protection claims. (Id. at

2:24–3:7; ECF No. 26 at 3.)

Remaining before me are Defendants’ requests for summary judgment on MacDonald’s

racial discrimination claims under Section 1983 and the Fourteenth Amendment Equal

Protection Clause. These consist of equal protection claims against the Defendant Officers on

theories of intentional racial discrimination and selective enforcement, and against the County

for municipal liability under Monell.

For the reasons explained below, numerous material questions of fact preclude a grant of

summary judgment to Defendants on MacDonald’s Section 1983 claims against the Defendant

Officers for violation of his right to equal protection on a theory of intentional racial

discrimination. Moreover, in light of these disputes of material fact, the Defendant Officers are

not entitled to qualified immunity on MacDonald’s equal protection claim at the summary

judgment stage. However, Defendants have met their burden for summary judgment on

MacDonald’s Section 1983 claims against the Defendant Officers for violation of his right to

equal protection on a selective prosecution theory and on his equal protection claims against

Suffolk County under Section 1983 and Monell on a custom theory.

BACKGROUND

On the evening of January 12, 2021, MacDonald was driving eastbound on Tulip Street

in Greenlawn, New York, near the intersection of Tulip and Broadway Greenlawn. (See

Defendants’ Rule 56.1 Statement in Opposition (“CSMF”), ECF No. 30-15 ¶¶ 2–3; Mot., Ex. B

(“MacDonald Dep.”), ECF No. 30-5 at 18:25–19:23.) At the same time, the Defendant Officers

were driving southbound on Broadway, near the same intersection. (MacDonald Dep. at 16:22–

17:12.) The Defendant Officers proceeded to turn left onto Tulip Street, bringing their vehicle

parallel to MacDonald’s, which was on the other side of the street. (Id.) MacDonald testified that

he and Rieber made eye contact when the Defendant Officers turned onto Tulip Street (id. at

20:7–17), but Rieber disputes this and testified that he only observed MacDonald’s vehicle, not

MacDonald himself. (Mot., Ex. C (“Rieber Dep.”), ECF No. 30-6 at 42:11–23.) After seeing

Rieber, MacDonald feared that he would eventually be pulled over based on what other

community members told him about Rieber’s policing reputation. (MacDonald Dep. at 21:2–18;

id. at 26:15–25.) As a result, he turned onto Stuyvesant Street, where some members of his

family live a few blocks from his own home. (Id. at 21:6–18.) A few minutes later, the

Defendant Officers approached by car and signaled to MacDonald to pull over near the

intersection of Stuyvesant Street and Crown Avenue. (Opp’n, Ex. E (“SCPD Internal Affairs

Report Part 1”), ECF No. 31-1 at 3, 6, 9.)

Rieber approached the driver’s side of MacDonald’s vehicle and asked MacDonald for

his license and registration. (Rieber Dep. at 29:23–30:3.) MacDonald responded by asking

Rieber for his name and the reason the officers had pulled him over, to which Rieber replied that

MacDonald had failed to stop at a stop sign. (MacDonald Dep. at 33:8–15; Rieber Dep. at 30:18–

21.) Upon hearing this, MacDonald told Rieber that he was lying. (MacDonald Dep. at 34:19–

20.) At some point during the traffic stop, Rieber requested that additional police officers come

to the scene, and eventually multiple police vehicles arrived. (SMF ¶ 16; SCPD Internal Affairs

Report Part 1 at 3–4.) Rieber and Michaels testified in deposition that, as Rieber continued to ask

MacDonald questions, they observed that MacDonald’s eyes were bloodshot and potentially

jaundiced, and that MacDonald slurred at least one word when responding to Rieber. (Mot., Ex.

D (“Michaels Dep.”), ECF No. 30-7 at 20:11–21, 22:2–9; Rieber Dep. at 32:2–11.) As a result,

Rieber suspected that MacDonald may have been intoxicated and asked him to step out of his

vehicle so he could be tested for his sobriety. (Rieber Dep. at 32:1–11; id. at 36:11–15.)

MacDonald initially refused to step out of the vehicle. (MacDonald Dep. at 36:6–9.) However,

after observing that a number of additional police vehicles and personnel had arrived on the

scene, MacDonald exited his vehicle. (Id. at 40:3–7.) Rieber informed MacDonald that he

wanted to conduct a field sobriety test, and MacDonald repeatedly refused. (Rieber Dep. at

36:11–15.) Although Rieber never conducted the field sobriety test, as he continued to speak

with MacDonald, he came to the conclusion that MacDonald was not intoxicated. (Id. at 36:15–

16.)

At some point during the police stop, Michaels ran a check of MacDonald’s license plate

number, which yielded a bench-warrant for MacDonald’s arrest that had been issued by Judge

Swenson of the Suffolk County Third District Court. (Michaels Dep. at 22:18–25; Mot., Ex. H

(“Warrant”), ECF No. 30-11.) The Defendant Officers arrested MacDonald pursuant to the

bench warrant and transported him to the police precinct. (Rieber Dep. at 29:4–8; Michaels Dep.

at 16:8–12.) At the police precinct, a supervising officer learned of MacDonald’s arrest and

ordered his release from custody because of his history working as a community liaison with the

Suffolk County Police Department. (Michaels Dep. at 29:12–31:12.) MacDonald was released

from police custody later that evening. (Id. at 30:6–14.) The Defendant Officers never issued

MacDonald a summons, ticket, or warning for failure to stop at a stop sign. (Rieber Dep. at 52:8–

15.)

PROCEDURAL HISTORY

MacDonald filed the Complaint in this action on January 12, 2022. (Compl.) The

Complaint brings forth the following claims against the Defendant Officers: (1) Section 1983

claims for false arrest, use of unreasonable force, abuse of process, malicious prosecution,

fabrication of evidence, and failure to intervene, alleging violations of the Fourth, Fifth, Sixth,

and Fourteenth Amendments; (2) a Section 1981 claim for racial discrimination; and (3) claims

under New York law for negligence, false arrest, intentional affliction of emotional distress, and

false imprisonment. (See Compl.) The Complaint also brings a claim under Section 1983 and

Monell against the County for violation of MacDonald’s rights to equal protection. (Id.)

The case was originally assigned to Judge Denis R. Hurley. (Elec. Order, Jan. 13, 2022.)

On July 12, 2022, it was reassigned to Judge Diane Gujarati. (Elec. Order, Jul. 12, 2022.) Around

one year later, on July 7, 2023, the case was reassigned to Judge Orelia E. Merchant. (Elec.

Order, Jul. 7, 2023.) A few months later, on October 16, 2023, this action was reassigned to my

docket, where it has remained. (Elec. Order, Oct. 16, 2023.)

On February 29, 2024, Defendants filed a letter seeking a pre-motion conference in

anticipation of filing a motion for summary judgment. (ECF No. 25.) MacDonald filed a letter in

opposition on March 8, 2024. (ECF No. 26.) In his opposition letter, MacDonald stated that his

“§ 1981 claim is included in the § 1983 claim and is respectfully withdrawn” and that his “claims

commenced under § 1981 are subsumed in the § 1983 claim[.]” (Id. at 3.) Furthermore, at oral

argument, MacDonald conceded that he does not pursue any Section 1981 claims. (See Tr. 2:24–

3:7.) As a result, I construe any allegations concerning Section 1981 claims for racial

discrimination set forth in the Complaint as supporting MacDonald’s Section 1983 claims to

enforce his rights under the Fourteenth Amendment Equal Protection Clause. After reviewing the

parties’ submissions, I waived Defendants’ request for a pre-motion conference and set a briefing

schedule on their anticipated motion for summary judgment. (Elec. Order, Apr. 24, 2024.)

Pursuant to the briefing schedule and the Court’s recommended bundling practice, the

parties filed their submissions on Defendants’ Motion for Summary Judgment on July 12, 2024.

(Not. Mot., ECF No. 30-1; Mem. Supp. Mot. Summ. J. (“Mot.”), ECF No. 30-12; Mem. L.

Opp’n Defs’. Mot. Summ. J. (“Opp’n”), ECF No. 30-14; Reply Mem. Supp. Defs’. Mot. Summ.

J. (“Reply”), ECF No. 30-25.)

Along with their Motion, Defendants filed a Rule 56.1 Statement of Material Facts

(“SMF”) (SMF, ECF No. 30-2), the declaration of their counsel, Callan W. Tauster, and the

following attached exhibits:

• the operative Complaint (ECF No. 30-4);

• transcripts of the depositions of MacDonald (MacDonald Dep.); Rieber (Rieber

Dep.); and Michaels (Michaels Dep.);

• a redacted Arrest Report issued by the Suffolk County Police Department

detailing MacDonald’s arrest on January 12, 2021 ((“Arrest Report”), ECF No.

30-8);

• a redacted Suffolk County Police Department Prisoner Activity Log, dated

January 12, 2021 (ECF No. 30-9);

• a redacted Suffolk County District Court Certification of Order Vacating District

Court Warrant(s), dated January 13, 2021 (ECF No. 30-10); and

• a redacted copy of the bench warrant seeking MacDonald’s arrest issued by Judge

Swenson of the Suffolk County Third District Court, dated July 24, 2019

((“Bench Warrant”), ECF No. 30-11).

MacDonald filed a brief in opposition, along with a declaration from his counsel Cobia

Powell (ECF No. 30-16), a Rule 56.1 Statement of Disputed Facts and Counterstatement of Facts

((“CSMF”), ECF No. 30-15), and the following attached exhibits:

• the operative Complaint (ECF No. 30-17);

• transcripts of the depositions of MacDonald (ECF No. 30-18), Defendant Rieber

(ECF No. 30-19), and Defendant Michaels (ECF No. 30-20);

• copies of Suffolk County Police Department Internal Correspondence regarding

Internal Affairs Bureau Cause # 21-176i, which pertains to MacDonald’s Notice

of Claim and lawsuit against Defendants (“SCPD Internal Affairs Report Part 1”),

ECF No. 31-1; (“SCPD Internal Affairs Report Part 2”), ECF No. 31-2; (“SCPD

Internal Affairs Report Part 3”), ECF No. 31-3; (“SCPD Internal Affairs Report

Part 4”), ECF No. 31-4); and

• video footage documenting the interactions between MacDonald, Rieber, and

Michaels after the Defendant Officers pulled MacDonald over on January 12,

2021 (ECF Nos. 30-22–30-24).2

Defendants filed a reply in support of their Motion for Summary Judgment, a second

declaration from Tauster (ECF No. 30-26), and the following attached exhibits:

• a copy of MacDonald’s requests for discovery pursuant to Rule 34 of the Federal

Rules of Civil Procedure (“Fed. R. Civ. P.”) (ECF No. 30-27); and

• a copy of Defendants’ response to MacDonald’s Rule 34 request (ECF NO. 30-

28).

Defendants’ Motion is therefore fully briefed.

Following the close of briefing, I heard argument on the Motion on March 7, 2025, and

referred the case to mediation. (Min. Entry, Mar. 7, 2025; Elec. Order, Mar. 7, 2025.) On March

14, 2025, Defendants filed a motion, with MacDonald’s consent, requesting a settlement

conference. (ECF No. 34.) On March 31, 2025, the parties participated in a settlement

conference in front of Magistrate Judge Anne Y. Shields but were unable to resolve the action.

(ECF No. 36.) As such, Defendants’ Motion is therefore ripe for review.

2 MacDonald sent the Court a copy of the video footage on a USB flash drive.

On April 24, 2026, I heard additional argument on the Motion, during which MacDonald

voluntarily withdrew the Section 1983 abuse of process claim, as noted above. (Min. Entry, Apr.

24, 2026.) MacDonald also conceded during argument that he pursues the equal protection claim

against Suffolk County under Section 1983 and Monell under only a custom theory, and not

other theories, such as failure to train or failure to supervise. (Tr. at 39:23–40:5.) Accordingly,

the only claims remaining in this action are MacDonald’s equal protection claims under Section

1983 against Rieber and Michaels under theories of intentional discrimination and selective

prosecution and equal protection claims against Suffolk County for municipal liability under

Section 1983 and Monell on a custom theory.

JURISDICTION

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331

and 1343 because the Complaint alleges violations of federal law under 42 U.S.C. § 1983.

(Compl. ¶ 4.). Venue in the Eastern District of New York is proper under 28 U.S.C. § 1391(b)(2)

because the Complaint alleges that a substantial part of the events that gave rise to MacDonald’s

claims occurred in this District. (Compl. ¶ 5.)

LEGAL STANDARDS

Summary judgment is appropriate where “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(a). “The

movant bears the burden of ‘demonstrat[ing] the absence of a genuine issue of material fact.’”

Nick’s Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107 (2d Cir. 2017) (quoting Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986)).3 “A fact is material if it ‘might affect the outcome of

3 Unless otherwise indicated, case quotations omit all internal quotation marks, alterations,

brackets, and citations.

the suit under the governing law.’” Cunningham v. Cornell Univ., 86 F.4th 961, 980 (2d Cir.

2023), rev’d on other grounds, 604 U.S. 693 (2025) (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986)). A dispute of “material fact is genuine if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Id.

In order to defeat summary judgment, the non-moving party must set forth sufficient facts

showing that there is a genuine dispute for trial. See Fed. R. Civ. P. 56(c). Under this standard, if

the movant meets its burden, the nonmoving party “must come forward with admissible evidence

sufficient to raise a genuine issue of fact for trial” in order to avoid summary judgment.

McKinney v. City of Middletown, 49 F.4th 730, 745–46 (2d Cir. 2022) (quoting CILP Assocs.,

L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 124 (2d Cir. 2013)). The non-moving party

“may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a

motion for summary judgment.” Fed. Trade Comm’n v. Moses, 913 F.3d 297, 305 (2d Cir.

2019); see also Daly v. Westchester Cnty. Bd. of Legislators, No. 23-cv-1220, 2024 WL

3264125, at *2 (2d Cir. July 2, 2024) (summary order). Nor may it rely on “conclusory

statements or mere allegations . . . .” Moll v. Telesector Res. Grp., Inc., 94 F.4th 218, 228 (2d

Cir. 2024).

A court considering whether summary judgment is appropriate “must construe the facts

in the light most favorable to the non-moving party and must resolve all ambiguities and draw all

reasonable inferences against the movant.” Cunningham, 86 F.4th at 980; see also Woods v.

Centro of Oneida, Inc., 103 F.4th 933, 939 (2d Cir. 2024) (“We may find for the movant

defendant only if we conclude that on the record presented, considered in the light most

favorable to the non-movant plaintiff, no reasonable jury could find in the plaintiff’s favor.”). If

“the party opposing summary judgment propounds a reasonable conflicting interpretation of a

material disputed fact,” summary judgment must be denied. Schering Corp. v. Home Ins. Co.,

712 F.2d 4, 9 (2d Cir. 1983); see also Jones v. City of New York, 603 Fed. App’x. 13, 14 (2d Cir.

2014) (holding that summary judgment must be denied “if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.”).

DISCUSSION

As noted, the sole remaining claims in the case are MacDonald’s equal protection claims

under Section 1983 against Rieber and Michaels under theories of intentional discrimination and

selective prosecution and his equal protection claims against Suffolk County for municipal

liability under Section 1983 and Monell on a custom theory.

Defendants move for summary judgment on MacDonald’s equal protection claims,

arguing that “[t]here is no evidence that Plaintiff was the victim of biased policing, other than his

own conclusory allegations” and hearsay statements from two individuals who were never

deposed and never submitted affidavits supporting their assertions. (Mot. at 16.) Defendants also

rely on Rieber’s deposition testimony to assert that Rieber did not know MacDonald’s race prior

to pulling him over and therefore could not have stopped him on the basis of his race. (Id.)

In opposition, MacDonald argues that his deposition testimony creates a question of

material fact as to whether Rieber knew MacDonald’s race prior to pulling him over, as

MacDonald testified that he and Rieber made eye contact prior to the traffic stop. (Opp’n at 5.)

Further, MacDonald argues that the traffic stop itself was pretextual because he did not violate

any traffic laws, despite the Defendant Officers’ claim that they stopped him for failing to stop at

a stop sign. (See id. at 5–7.)

For the reasons set forth below, the record gives rise to numerous questions of material

fact pertaining to whether the Defendant Officers’ decision to subject MacDonald to a traffic

stop was motivated by MacDonald’s race, rather than a genuine effort to enforce traffic laws.

Thus, MacDonald’s equal protection claims based on a theory of intentional racial discrimination

survive summary judgment. However, MacDonald’s equal protection claims against the

Defendant Officers on a selective enforcement theory do not survive summary judgment because

MacDonald has failed to identify any arguably similarly situated individual of a different race

who was treated differently.

Further, in light of the genuine disputes of material fact regarding whether the Defendant

Officers’ decision to subject MacDonald to a traffic stop was motivated by his race, the

Defendant Officers are not entitled to qualified immunity at the summary judgment stage.

Indeed, during oral argument, Defendants conceded this point.

Although Defendants did not move for summary judgment on MacDonald’s claims

against Suffolk County for municipal liability under Section 1983 and Monell, MacDonald

himself raised these claims in his opposition to Defendants’ Motion. (See Opp’n at 10–12.)

There, MacDonald argues that Rieber has a reputation for subjecting Black motorists to traffic

stops solely on the basis of their race and has never been disciplined by the County for this

practice, which supports the existence of an alleged, de facto Suffolk County policy or custom by

which police subject Black motorists to unlawful traffic stops. (Id. at 11.) On reply, Defendants

contend that MacDonald’s argument relies solely on inadmissible hearsay, and that he has thus

failed to identify any admissible evidence in the record giving rise to a genuine dispute of

material fact as to whether the County has a policy, custom, or practice of biased policing.

(Reply at 7.) Although it is unclear under which equal protection theory MacDonald seeks to

advance his Monell claim, I need not reach this issue because MacDonald pursues these claims

solely on a custom theory but has not identified any evidence in the record to support a genuine

dispute of material fact as to whether the County has a widespread custom of subjecting Black

motorists to unlawful traffic stops. Accordingly, Defendants’ motion for summary judgment is

granted on MacDonald’s Monell claim.

I. Legal Standards for Equal Protection Claims Under Section 1983

The Fourteenth Amendment Equal Protection Clause prohibits states from “deny[ing] to

any person within [their] jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV,

§ 1. Its “central purpose is to prevent the States from purposefully discriminating between

individuals on the basis of race.” Chinese Am. Citizens All. of Greater New York v. Adams, 116

F.4th 161, 170 (2d Cir. 2024) (quoting Shaw v. Reno, 509 U.S. 630, 642 (1993)). As such, “the

Equal Protection Clause requires that the government treat all similarly situated people alike.”

Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (citing City of Cleburne

v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)).

“To prove a violation of the Equal Protection Clause, for example, a plaintiff must

demonstrate that he was treated differently than others similarly situated as a result of intentional

or purposeful discrimination.” Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005). There are

three types of equal protection claims, which are partially overlapping: (1) intentional

discrimination; (2) selective enforcement; and (3) class of one. Randolph v. DOCCS, No. 17-cv-

0700, 2018 WL 4374006, at *5 (S.D.N.Y. Sept. 13, 2018). As for the first type of claim,

intentional discrimination may be shown through: (1) “a facially discriminatory law”; (2) “a

facially neutral statute that was adopted with a discriminatory intent and applied with a

discriminatory effect”; and (3) “a facially neutral law that is enforced in a discriminatory

manner.” Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, NY, 945 F.3d 83,

111 (2d Cir. 2019).

A “plaintiff alleging an equal protection claim under a theory of discriminatory

application of the law, or under a theory of discriminatory motivation underlying a facially

neutral policy or statute, generally need not plead or show the disparate treatment of other

similarly situated individuals.” Pyke v. Cuomo, 258 F.3d 107, 108–09 (2d Cir. 2001). Instead,

under these two theories of intentional discrimination, a plaintiff will “be required to substantiate

their claim that the [challenged action] was motivated by racial discrimination.” Id. at 110; see

also Indig v. Vill. of Pomona, No. 18-cv-010204, 2024 WL 4008231, at *9 (S.D.N.Y. Aug. 30,

2024) (holding that a plaintiff who “alleges that a facially neutral law or policy has been applied

in an intentionally discriminatory manner . . . must demonstrate that the application of the law

was motivated by discrimination”). Moreover, a plaintiff bringing an intentional discrimination

claim must show that “the decisionmaker . . . selected or reaffirmed a particular course of action

at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects on an identifiable group.”

Pers. Adm'r of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979); see also Hayden v. Paterson,

594 F.3d 150, 163 (2d Cir. 2010) (same); Floyd v. City of New York, 959 F. Supp. 2d 540, 662

(S.D.N.Y. 2013) (“To establish discriminatory intent, plaintiffs must show that those responsible

for the profiling did so at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects

upon the profiled racial groups.”).

Nevertheless, in the context of an equal protection claim premised on any of the

intentional discrimination theories, a “plaintiff need not prove that the challenged action rested

solely on racially discriminatory purposes.” Hayden, 594 F.3d at 163 (emphasis added). Rather, a

plaintiff need only to show “that race was a motivating factor.” United States v. City of Yonkers,

96 F.3d 600, 612 (2d Cir. 1996); see also Louis v. Metro. Transit Auth., 145 F. Supp. 3d 215, 226

(E.D.N.Y. 2015) (recognizing that a plaintiff needs to “only show that the alleged discrimination

was a ‘substantial or motivating factor’ for the . . . action”).

Discriminatory motivation may be proven by “circumstantial or direct evidence,

including, for example, the historical background of the challenged decision, antecedent events,

departures from normal procedures, and contemporary statements by decisionmakers.” Louis,

145 F. Supp. 3d at 226. However, “a non-moving party’s self-serving statement, without direct

or circumstantial evidence to support the charge, is insufficient to defeat a motion for summary

judgment” Adler v. Penn Credit Corp., No. 19-cv-7084, 2022 WL 744031, at *9 (S.D.N.Y. Mar.

11, 2022). Similarly, “secondhand allegations are insufficient to establish intentional

discrimination where there is no evidence directly connecting” the discriminatory allegations

with defendants’ action against plaintiffs. Indig, No. 18-cv-10204, 2024 WL 4008231, at *11. As

such, to prove an equal protection violation, a plaintiff “must prove that the decisionmakers

in his case acted with discriminatory purpose.” McCleskey v. Kemp, 481 U.S. 279, 292 (1987);

see also Knight v. Conn. Dep’t of Pub. Health, 275 F.3d 156, 166 (2d Cir. 2001) (same).

On the other hand, to prevail on an equal protection claim under a theory of selective

prosecution, a plaintiff must prove that: (1) “compared to others similarly situated, [he or she]

was selectively treated,” and (2) “such selective treatment was based on impermissible

considerations such as race, religion, intent to inhibit or punish the exercise of constitutional

rights, or malicious or bad faith intent to injure a person.” Hu v. City of New York, 927 F.3d 81,

91 (2d Cir. 2019). “[A] plaintiff alleging a claim of selective prosecution in violation of the

Equal Protection Clause must plead and establish the existence of similarly situated individuals

who were not prosecuted . . . because courts grant special deference to the executive branch in

the performance of the core executive function of deciding whether to prosecute.” Pyke, 258

F.3d at 109. Thus, to prevail on a selective prosecution theory, the plaintiff “must identify [at

least one] similarly situated” individual who does not share plaintiff’s race and who serves as a

comparator. Savino v. Town of Se., 983 F. Supp. 2d 293, 305 (S.D.N.Y. 2013), aff’d, 572

F. App’x 15 (2d Cir. 2014). “Similarly situated” does not mean identical, but rather “a

reasonably close resemblance of the facts and circumstances of plaintiff’s and comparator’s

cases.” Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)).4 Indeed, a plaintiff

pursuing an equal protection claim on a selective prosecution theory “must identify comparators

whom a prudent person would think were roughly equivalent.” Abel v. Morabito, No. 04-cv-

07284, 2009 WL 321007 (S.D.N.Y. Feb. 10, 2009).

MacDonald pursues equal protection claims for racial discrimination under two separate

theories: (1) selective prosecution, and (2) intentional discrimination based on a discriminatory

application of facially neutral traffic laws. Defendants seek summary judgment on both theories.

II. Selective Enforcement

Defendants argue for summary judgment on MacDonald’s equal protection claims

against the Defendant Officers, arguing that the factual record does not support a finding of

biased policing and that Rieber did not know MacDonald’s race prior to pulling him over. (Mot.

at 15–16.) In opposition to the Motion, MacDonald argues the undisputed proposition that the

“Constitution prohibits selective enforcement of the law based on considerations such as race.”

(Opp’n at 4–5 (citing Whren, 517 U.S. at 813).)

4 Although Graham’s articulation of the standards for determining whether an individual is

“similarly situated” was made in the context of a Title VII claim, the Second Circuit has since

used this standard “in a variety of contexts,” including in the equal protection context, “to

determine whether a plaintiff’s disparate treatment raises an inference of discrimination.” Hu,

927 F.3d at 96 (2d Cir. 2019).

MacDonald’s equal protection claims premised on a selective enforcement theory fail as

a matter of law because MacDonald does not identify any similarly situated person of a different

race who arguably serves as a comparator for an assessment of whether Defendants selectively

enforced the law against him. Indeed, nowhere in the Complaint or MacDonald’s opposition

submissions is there any mention of a comparator. (See generally Compl.; Opp’n.) Similarly,

MacDonald’s counsel could not identify any similarly situated person compared to whom

MacDonald was selectively treated when asked to do so during oral argument. (See Tr. at 10:8–

13:5 (MacDonald’s counsel stating, “I don’t think there is [a comparator] in the record outside of

Mr. MacDonald’s testimony going against the officer’s testimony”).)

Rather, in opposition to Defendants’ summary judgment motion on the equal protection

claims brought under a selective enforcement theory, MacDonald relies only on his own

testimony that he did not fail to stop at a stop sign and that the Defendant Officers’ purported

enforcement of traffic laws was pretext for racial discrimination. (Opp’n 4–7.) While pertinent to

the determination of whether MacDonald’s equal protection claims pursued on an intentional

racial discrimination theory survive summary judgment, this argument, and MacDonald’s

opposition submissions as a whole, fail to raise a material question of fact as to whether

Defendants selectively treated MacDonald in subjecting him to a traffic stop when “compared to

others similarly situated . . . .” Hu, 927 F.3d at 91. Accordingly, MacDonald’s equal protection

claims on a selective enforcement theory do not survive Defendants’ summary judgment motion.

See, e.g. Gonzalez v. City of New York, No. 99-cv-9128, 2000 WL 1678036, at *4 (S.D.N.Y.

Nov. 8, 2000), aff’d, 38 F. App’x 62 (2d Cir. 2002) (granting summary judgment to Defendants

because “the mere fact that [non-white Plaintiffs] were stopped by white police officers does not

constitute evidence of selective enforcement”); McDaniels v. Mertens, No. 3:21-cv-441, 2022

WL 356738, at *3 (N.D.N.Y. Feb. 7, 2022), aff’d, No. 22-451, 2023 WL 5662751 (2d Cir. Sept.

1, 2023) (“The failure to allege a comparator requires the dismissal of Plaintiff’s [equal

protection] claim.”).

III. Intentional Discrimination

The Complaint also pleads equal protection claims against Defendants on the basis of an

intentional racial discrimination theory. Of the three iterations of such claims, the factual

allegations of the Complaint allege that MacDonald was subject to intentional racial

discrimination through Defendants’ enforcement of a facially neutral law—the traffic law

requiring motorists to stop at a stop sign—in a discriminatory manner. See Congregation

Rabbinical Coll. of Tartikov, Inc., 945 F.3d 83, 111 (2d Cir. 2019).

Although there is “overlap” between an equal protection claim based on the

discriminatory application of a facially neutral policy and an equal protection claim based on a

selective enforcement theory, the “chief difference” is that the latter theory requires a plaintiff to

“identify comparators” whereas the former does not. Chinese Am. Citizens All. of Greater New

York, 2025 WL 2753551 at *30; see also White v. City of New York, 206 F. Supp. 3d 920, 930

(S.D.N.Y. 2016) (same). Moreover, to demonstrate an equal protection violation on the basis of

the discriminatory application of a facially neutral law, the plaintiff must show that the

application of the law was motivated, at least in part, by discrimination. See Pyke, 258 F.3d at

108–09; see also Chinese Am. Citizens All. of Greater New York, 802 F. Supp. 3d at 531 (same);

Feeney, 442 U.S. at 279 (holding that a plaintiff must show that “the decisionmaker . . . selected

or reaffirmed a particular course of action at least in part ‘because of,’ . . . its adverse effects on

an identifiable group”).

Defendants make three arguments in moving for summary judgment on MacDonald’s

equal protection claims premised on an intentional race discrimination theory. First, they argue

that “there is no evidence that Plaintiff was the victim of biased policing, other than his own

conclusory allegations.” (Mot. at 16.) Defendants contend that MacDonald cites only to

allegations in the Complaint, rather than evidence in the record to support the assertion in his

Rule 56.1 Counterstatement of Material Facts that he “was pulled over due to race

pretext.” (Reply at 4–5 (citing CSMF ¶ 26).) Second, Defendants argue that MacDonald

“baselessly asserted that Defendant Rieber has a reputation in the black community for biased

policing,” but “presents no evidence other than hearsay statements from two individuals” who

were not deposed and who did provide any sworn statements to support MacDonald’s

claims. (Mot. at 16.) Third, Defendants argue that MacDonald lacks evidence for his equal

protection claims because it is undisputed that the Defendant Officers did not engage in any

name-calling or use any racial slurs during their interactions with him. (Id. (citing SMF ¶ 51); see

also MacDonald Dep. at 76:23 (“No name calling, no. No racial slurs, no.”).)

In opposition, MacDonald argues that he was driving lawfully when the Defendant

Officers pulled him over, which gives rise to a material question of fact as to whether the

Defendant Officers’ assertion that he had failed to stop at a stop sign was pretext for racial

profiling. (Opp’n at 5.) MacDonald further argues that the Defendant Officers’ post-stop

conduct—including Rieber’s accusation that MacDonald was intoxicated, which Rieber

subsequently withdrew, and the fact that the Defendant Officers never gave MacDonald a ticket

or warning for failing a stop at a stop sign—raise material questions of fact as to whether the

Defendant Officers stopped him because of his Black race. (Id. at 5–7.)

MacDonald seeks to rely on hearsay statements regarding Rieber’s reputation in the

Black community to raise a material question of fact as to whether the Defendant Officers’

decision to subject MacDonald to a traffic stop was racially motivated. During his deposition,

MacDonald testified that “people have specifically come to me as well as other community

leaders and expressed complaints about Officer Rieber. I myself have taken those complaints to

the inspector in community meetings.” (MacDonald Dep. at 26:17–21.) He added

that community members would complain to him that Officer Rieber “would violate their rights,

pull them over for no reason, shake them down, pull them over in the hopes of finding

something, a law being broken,” and listed the names of two particular individuals whom he

asserts approached him with such complaints. (Id. 27:3–25.)

However, MacDonald has not shown that these vague references to out-of-court

complaints from two individuals and otherwise unnamed community members are admissible at

trial. It is well-established in the Second Circuit that “a party ‘cannot rely on inadmissible

hearsay in opposing a motion for summary judgment absent a showing that admissible evidence

will be available at trial.” Wekenmann v. Biegasiewicz, No. 24-1181, 2025 WL 831201, at *3 (2d

Cir. Mar. 17, 2025) (summary order) (quoting Burlington Coat Factory Warehouse Corp. v.

Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985)). In Patterson v. Cnty. of Oneida, N.Y., 375

F.3d 206, 222 (2d Cir. 2004), the Second Circuit held that hearsay statements that were “neither

reaffirmed in an affidavit [by the declarant] stating, for example, that he would give the same

testimony at trial” nor supported by any showing that the statements would be otherwise

admissible at trial could not be considered on a motion for summary judgment. Here, MacDonald

has not identified any admissible evidence concerning complaints that Rieber has a history of

biased policing, whether in the form of deposition testimony, affidavits, or other sworn

statements. See Weinberg v. Vill. of Clayton, New York, No. 5:17-cv-00021, 2018 WL 5777292,

at *3 (N.D.N.Y. Nov. 2, 2018) (holding that “the Court cannot infer . . . animus based on

speculative opinions of community members.”) As such, MacDonald’s testimony regarding the

complaints of two community members about Rieber and vague allusions to other

complaints does not give rise to a genuine dispute of material fact as to whether race was a

substantial or motivating factor in Rieber’s decision to subject MacDonald to a traffic stop.

Nonetheless, the record gives rise to numerous, genuine disputes of material fact

regarding whether the Defendant Officers’ traffic stop of MacDonald was motivated by race. In

their depositions, Rieber and Michaels both testified that they pulled MacDonald over because

he failed to stop at a stop sign. (Rieber Dep. at 30:18–20; Michaels Dep. at 19:8–11.)

MacDonald, on the other hand, disputes the Defendant Officers’ testimony and testified he did

not fail to stop at any stop sign. (See MacDonald Dep. at 35:2–16.) He further testified that he

was “aware that [no traffic violation] occurred” and that he was “cautious about not going over

the speed limit,” “cautious about using his signals,” and that “anything that could be used against

him, [he] was aware of not doing.” (Id. 23:13–16.) According to MacDonald, after he was pulled

over, he immediately told Rieber that Rieber was lying when he stated that MacDonald failed to

stop at a stop sign. (MacDonald Dep. at 34:19–20 (“Then he gave [the reason] to me and I told

him he was lying. I told him he was being untruthful.”); id. at 36:2–3 (“I told him he was

lying”).) This contradictory testimony gives rise to numerous genuine disputes regarding facts of

consequence at trial, including whether the Defendant Officers had reasonable suspicion that

MacDonald had failed to stop at a stop sign before they pulled him over and whether the

Defendant Officers used traffic enforcement as a pretext to stop MacDonald because of his

race. See Reyes-Herrera v. Flaitz, 539 F. Supp. 3d 290, 304 (W.D.N.Y. 2021) (denying summary

judgment where conflicting deposition testimony from defendant police officers and the

plaintiff “would require the Court to resolve disputed issues of fact in favor of Defendants, in

complete contravention of the standard to be applied on a motion for summary judgment”).

Moreover, the record also features genuine disputes of material fact as to whether the

Defendant Officers were aware of MacDonald’s race prior to pulling him over. MacDonald

testified that he and Rieber made eye contact while driving past each other. (See MacDonald

Dep. at 17:2–4 (“That vehicle proceeded—at that point myself and the officer in this vehicle

looked at each other.”); id. at 20:9–11 (“The police car made a right onto Tulip. I looked at him.

He looked at me.”); id. 18:25–3 (“So, it wasn’t until the point where we are parallel on Tulip that

I looked and understood who he was.”).) By contrast, Rieber testified that he did not see who

was driving the vehicle or observe the driver’s race prior to conducting the traffic stop. (See

Rieber Dep. at 40:6–21; id. at 42:14 (“I observed the vehicle [not the driver].”); id. at 42:24–

43:3 (answering “Yes” to the question of whether it would be accurate to say that he never made

eye contact with MacDonald prior to pulling him over). The parties’ conflicting accounts of

precisely what transpired in the lead up to the traffic stop raise several genuine disputes of

material fact that foreclose summary judgment for the Defendant Officers on MacDonald’s equal

protection claims. See Reyes-Herrera, 539 F. Supp. 3d at 304; Ali v. Connick, 136 F. Supp. 3d

270, 280 (E.D.N.Y. 2015) (“Defendants deny that Plaintiff was subjected to any racial slurs or

physical abuse, but this is typically the type of credibility determination that must be left to a

jury.”); cf. Davis v. City of Seattle, No. 13-cv-0895, 2014 WL 3810574, at *9 (W.D. Wash. Aug.

1, 2014) (granting summary judgment for Defendants despite the parties’ dispute about whether

the officers were aware of plaintiff’s race prior to the traffic stop where plaintiff’s traffic

violation itself was undisputed).

Moreover, facts in the record regarding the Suffolk County Police Department Internal

Affairs Bureau’s investigation into the traffic stop contribute to the existence of genuine disputes

of material fact as to whether the Defendant Officers’ proffered reasons for stopping

MacDonald—the neutral enforcement of traffic laws—was pretext for stopping him on the basis

of his race. The investigation report details that “both Rieber and Michaels were initially unsure

about the exact location where MacDonald disobeyed the stop sign. They were also unsure about

how they managed to get behind MacDonald’s vehicle prior to stopping him.” (SCPD Internal

Affairs Report Part 1 at 11.) The investigation report also recognizes that the Defendant Officers’

inability to identify exactly where MacDonald allegedly failed to stop is unusual: “While officers

cannot be expected to remember every detail of every traffic stop, it would be reasonable to

expect [the Defendant Officers] to remember the location and circumstances surrounding a

confrontational stop, such as the one in this case.” (Id.) Accordingly, the contradictions between

MacDonald’s testimony and that of the Defendant Offices regarding the parties’ conduct leading

up to the traffic stop along with the findings of the Suffolk County Police Department Internal

Affairs Bureau that the Defendant Officers were unable to recall the location or circumstances of

the traffic stop and that such an inability to recall is unusual all contribute to the existence of

genuine disputes of material fact regarding whether the Defendant Officers’ enforcement of

traffic laws was a pretext for stopping MacDonald on the basis of his race.

Accordingly, MacDonald’s Section 1983 equal protection claims brought on an

intentional discrimination theory survives Defendants’ motion for summary judgment.

IV. Qualified Immunity

The Defendant Officers argue that they are entitled to qualified immunity with respect to

MacDonald’s Section 1983 claims. (Mot. at 19–20.) “A decision dismissing a claim based on

qualified immunity at the summary judgment stage may only be granted when a court finds that

an official has met his or her burden demonstrating that no rational jury could conclude (1) that

the official violated a statutory or constitutional right, and (2) that the right was clearly

established at the time of the challenged conduct.” Coollick v. Hughes, 699 F.3d 211, 219 (2d

Cir. 2012) (quoting Ashcroft v. Al-Kidd, 563 U.S. 731, 735 (2011)).

However, here where there are numerous genuine disputes of material fact as to whether

the Defendant Officers intentionally discriminated against MacDonald on the basis of his race by

subjecting him to a traffic stop, the Defendant Officers have not shown that no rational jury

could conclude that they violated MacDonald’s right to equal protection of the laws.

Accordingly, their qualified immunity argument is premature and cannot be resolved on

summary judgment. See Dufort v. City of New York, 874 F.3d 338, 343 (2d Cir. 2017) (reversing

the district court’s grant of summary judgment on plaintiff’s false arrest and malicious

prosecution claims as “premature” due to disputed questions of material fact as to whether there

was a constitutional violation). At oral argument, Defendants conceded this point. (See Tr. 44:2–

7 (“Assuming that the court finds there is a question of fact in terms of the basis of the stop, then

qualified immunity may be later for the jury. I don’t know that it would really be necessary at

this point now depending on if that threshold question is answered.”).)

Accordingly, Defendants’ motion for summary judgment on qualified immunity grounds

is denied.

V. Monell Claim

Defendants did not move for summary judgment on MacDonald’s equal protection

claims against Suffolk County under Section 1983 and Monell in the opening brief in support of

their Motion. Rather, MacDonald raised his Monell claim in opposition, and Defendants

responded on reply. “Arguments newly raised in reply briefs generally are not considered

because the opposing party may not have an adequate opportunity to respond. However, the

Second Circuit has made clear that district courts have discretion to consider a belatedly raised

argument, and a judge’s decision to countenance such an argument is reviewed only for abuse of

discretion.” Escobar v. Correa, No. 22-cv-08434, 2024 WL 4042122, at *5 (S.D.N.Y. Sept. 4,

2024) (citing Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 252 (2d Cir. 2005)); see also

Compania Del Bajo Caroni (Caromin), C.A. v. Bolivarian Republic of Venez., 341 F. App’x 722,

724 (2d Cir. 2009) (“A district court enjoys broad discretion . . . to consider arguments made for

the first time in a reply brief.”). Accordingly, although Defendants failed to address the Monell

claims in their opening brief in support of their Motion for Summary Judgment, I consider their

arguments raised in reply given that MacDonald has had an adequate opportunity to be heard on

this issue by raising these claims in his opposition and by addressing them during oral argument.

In Monell v. Department of Social Services, the Supreme Court established that

“municipalities and other local government units” are “persons” who may be liable under

Section 1983. 436 U.S. at 690. Still, “a municipality cannot be held liable under [Section] 1983

on a respondeat superior theory.” Id. at 691. In other words, the plaintiff must show that,

“through its deliberate conduct, the municipality was the ‘moving force’ behind the injury

alleged.” Agosto v. N.Y.C. Dep’t of Educ., 982 F.3d 86, 98 (2d Cir. 2020). Accordingly, in order

to bring a Monell claim against a municipality or other local government unit, the plaintiff must

allege facts supporting: “(1) a municipal policy or custom that (2) causes the plaintiff to be

subjected to (3) the deprivation of a constitutional right.” Friend v. Gasparino, 61 F.4th 77, 93

(2d Cir. 2023). A plaintiff may establish the existence of a municipal policy giving rise to Monell

liability in four different ways:

(1) a formal policy endorsed by the municipality . . . ; (2) actions directed by the

government’s authorized decisionmakers or those who establish governmental policy . . . ;

(3) a persistent and widespread practice that amounts to a custom of which policymakers

must have been aware . . . ; or (4) a constitutional violation resulting from policymakers’

failure to train municipal employees.

Deferio v. City of Syracuse, 770 F. App’x 587, 589–90 (2d Cir. 2019); see also Savarese v. City

of New York, 547 F. Supp. 3d 305, 354 (S.D.N.Y. 2021).

The Complaint appears to allege several different theories in support of the claims against

Suffolk County under Section 1983 and Monell through the following allegations:

(1) that the County “has permitted and tolerated a pattern and practice of unjustified,

unreasonable and illegal abuses and arrests of Black persons by police officers of the

County of Suffolk” (Compl. ¶ 72);

(2) that “the County has “failed to maintain a proper system for investigation of all

incidents of unjustified arrests, improper detentions, beatings and excessive use of force

by police officers” (id. ¶ 73);

(3) that the County has “failed to respond to the continuing and urgent need to prevent,

retrain and discipline police officers who deprive civil rights of, and abuse, minorities”

(id. ¶ 74);

(4) that the County has “failed to properly review unjustified behavior and excessive use

of force by police officers” (id. ¶ 75); and

(5) that the County “has failed to identify the improper abuse, misuse, violative acts and

brutality by police officers and subject officers who lie, mistreat, violate rights, and

beat/brutalize to discipline, closer supervision or restraint to the extent that it has become

the custom of the County to tolerate improper beatings, illegal arrests by police officers”

(id.).

However, in opposition to Defendants’ Motion, MacDonald only argues that the County “has a

de facto policy of targeting, harassing and pulling over Black individuals through Terry stops.”

(Opp’n at 11 (emphasis added).)

When questioned at oral argument about the claims against Suffolk County under Section

1983 and Monell, MacDonald’s counsel clarified that these claims are based solely on the theory

that Suffolk County has a widespread practice and custom by which police officers subject Black

motorists to Terry stops on the basis of their race. (Min. Entry, Apr. 24, 2026; Tr. at 39:24–40:5.)

Accordingly, I evaluate whether Defendants have met their burden to secure summary judgment

on MacDonald’s claims against Suffolk County, which are brought on a custom theory.

In order to prove Monell liability based on a custom theory, the plaintiff

must establish “an unwritten practice that is so widespread as to have the force of law.” Agosto,

982 F.3d at 98. Such a theory does not require “an express rule or regulation that embodies the

alleged unconstitutional practice among subordinate municipal employees.”  Hu, 927 F.3d at

106. However, the plaintiff must show a “practice by a subordinate municipal employee (or

employees) other than a policymaker” that is “so manifest as to imply the constructive

acquiescence of senior policy-making officials.” Lucente v. Cnty. of Suffolk, 980 F.2d 284, 297–

98 (2d Cir. 2020). In other words, there must be a “longstanding practice or custom

which constitutes the ‘standard operating procedure’ of the local government entity.” Jett v.

Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989); see also Tieman v. City of Newburgh, No. 13-

cv-4178, 2015 WL 1379652, at *16 (S.D.N.Y. Mar. 26, 2015). Under this standard, “instances

of reprehensible and at times illegal and unconstitutional conduct by individual [government

officials]” are not enough absent evidence that such conduct was “so widespread as to support an

inference that it must have been known and tolerated by supervisors.” Jones v. Town of E.

Haven, 691 F.3d 72, 82 (2d Cir. 2012) (emphasis added).

For example, in considering a Monell claim against the East Haven Police Department for

an alleged custom of discriminatory police abuse in Jones, the Second Circuit held that “two

instances [of unlawful conduct], or at the most three, over a period of several years, in which a

small number of officers abused the rights of [B]lack people” fell short of establishing conduct

“so persistent” as to constitute a custom. Id. at 85. Likewise, in Hu, the Second Circuit affirmed

the dismissal of a Monell claim alleging a custom of discriminatory enforcement of New

York City’s building codes by the City’s Assistant Chief Inspector and other Department of

Building (“DOB”) employees because the amended complaint “only identifie[d] four instances

in which the plaintiffs were alleged to have been unfairly sanctioned by DOB.” Hu, 927 F.3d at

106. In doing so, the Second Circuit found critical that the amended complaint “did not allege

how many DOB employees were involved in the scheme, whether these accomplices represented

a large or small share of DOB inspectors or personnel, the frequency with which [they] assisted

in discriminatory enforcement actions, or any other facts that might indicate the extent to which

DOB personnel helped [the Assistant Chief Inspector] carry out” the challenged conduct. Id. The

Second Circuit reasoned that this made it “entirely unclear whether” the challenged conduct was

“the product of a few rogue officials, a department-wide effort, or something in between.” Id.

Defendants argue that MacDonald’s Monell claim must fail because he did not submit

any evidence—outside of his own deposition testimony—to support the existence of any Suffolk

County custom of subjecting Black people to pretextual Terry stops. In opposition, MacDonald

contends that “there is no evidence to support the allegation that Defendant Officers had any

probable cause to pull over Mr. MacDonald” and no evidence “to show that Mr. MacDonald ever

committed a traffic infraction,” and that Rieber is known by the nickname “Tattoo” and has a

reputation for “shaking down, pulling over and tormenting the Black and Brown populations in

the community.” (Opp’n at 11.) He also argues that the County allows discriminatory Terry stops

“to continue unabated and for officers face no discipline for conducting discriminatory stops,”

but he does not cite any facts in the record to support this proposition. (Id.)

MacDonald’s experience of being subjected to a traffic stop by the Defendant Officers is

the only instance in the factual record of an allegedly unlawful traffic stop. Accordingly, the

record does not give rise to a material question of fact as to whether racially

motivated Terry stops are “an unwritten practice that is so widespread as to have the force of

law” in Suffolk County. Agosto, 982 F.3d at 98 (emphasis added).

Moreover, Rieber’s nickname does not shed any light on whether Suffolk County has a

widespread practice of conducting racially discriminatory Terry stops, as it is undisputed that the

nickname itself refers to the tattoos visible on Rieber’s body. (See MacDonald Dep. at 18:13–14

(“The community refers to him as Tattoo. Apparently he has a sleeve, a tattoo sleeve.”); Rieber

Dep. at 10:6–15 (acknowledging that members of the community call him “Tattoo”).) Further,

as stated above, MacDonald’s argument that Rieber is “known for shaking people down” is

based on inadmissible hearsay from community members who have “expressed complaints about

Officer Rieber” to MacDonald. See MacDonald Dep. at 26:17–21; see Wekenmann, 2025 WL

831201, at *3. But even if these hearsay statements were admissible, they still do not create a

genuine dispute of material fact that Suffolk County as a whole has a widespread practice of

conducting racially discriminatory Terry stops because they concern just a single officer’s

conduct. See Jones, 691 F.3d at 82 (holding that even six “unquestionabl[e] . . . instances of

reprehensible and at times illegal and unconstitutional conduct by individual officers” is “not a

sufficient basis for imposing liability on the municipality” on a custom theory).

During oral argument, MacDonald argued that the statements from community members

are not hearsay because they are “not being offered for the truth of the matter asserted.” (Tr.

27:24–28:3.) MacDonald has not identified an exception to the rule against hearsay that applies

to MacDonald’s recounting of community complaints about Rieber. Further, if the hearsay

statements from community members regarding Rieber’s reputation for biased policing are “not

being offered for the truth of the matter asserted,” as MacDonald asserted during oral argument,

then his Monell claim premised on the theory that Suffolk County has such a widespread and

longstanding practice by which Black people are subjected to racially motivated Terry stops is

still left without any factual support in the record.

MacDonald’s argument that “no matter how many constitutional violations of the

community Defendant [Rieber] commits, he has never been disciplined or retrained,” thereby

showing that the “County condones the discriminatory behavior of Defendant Rieber” is also

without support. For this proposition, MacDonald relies upon paragraph 23 of the

Counterstatement of Material Facts, which consists of citations to the Complaint and Rieber’s

deposition. But allegations in an unverified complaint are “not competent summary judgment

evidence.” Millennium Tr. Co., LLC v. Tr. for Benefit of William E. Kassar III, No. 23-cv-05094,

2025 WL 1017517, at *4 n.3 (E.D.N.Y. Apr. 4, 2025); see also Caro Cap., LLC v. Koch, 653 F.

Supp. 3d 108, 132 (S.D.N.Y. 2023) (“It is blackletter law that an unverified complaint is not

evidence that can be relied upon at summary judgment.”). Additionally, MacDonald relies on

Rieber’s deposition testimony that he has never been disciplined by the County but does not

identify evidence in the record showing that Rieber has engaged in a pattern of misconduct that

warrants discipline. (CSMF ¶ 23; Rieber Dep. at 18:3–5.) To be sure, based on the Court’s close

review of the record, Rieber does recount that he was the subject of a Suffolk County Internal

Affairs investigation in 2020 arising out of an allegation that he used excessive force on a

protestor while making an arrest. (Rieber Dep. at 18:6– 24:7.) Additionally, although MacDonald

does not cite to it, Michaels also recounted at least four civilian complaints filed against him

dating back to 2014. (Michaels Dep. at 35:9–37:9, 42:20–46:4, 63:20–80:8.)

Nevertheless, a single investigation regarding Rieber and four civilian complaints against

Michaels over twelve-year period are not sufficient to raise a genuine dispute of material fact as

to whether Suffolk County has a custom by which its police officers engage in racially

discriminatory traffic stops that is so widespread and longstanding that it has become a de facto

County policy. See Jones, 691 F.3d at 82. Therefore, Defendants’ motion for summary judgment

is granted on the equal protection claims against Suffolk County based on a custom theory.

CONCLUSION

For the reasons set forth above, Defendants’ Motion for Summary Judgment (ECF No.

30) is granted in part and denied in part as follows. Defendants are denied summary judgment

with respect to MacDonald’s equal protection claims against the Defendant Officers under

Section 1983 that are premised on a theory of intentional racial discrimination, specifically the

alleged discriminatory application of a facially neutral law. However, summary judgment is

granted to the Defendant Officers on MacDonald’s equal protection claims under Section 1983

that are premised on a selective enforcement theory. Summary judgment is also granted to

Suffolk County on MacDonald’s equal protection claims for municipal liability under Section

1983 and Monell. Moreover, the Defendant Officers’ motion for summary judgment on qualified

immunity is denied as premature at this time.

Dated: Central Islip, New York

May 22, 2026

/s/ Nusrat J. Choudhury

NUSRAT J. CHOUDHURY

United States District Judge