# Opinion

> District Court, E.D. New York · May 22, 2026

URL: https://www.frixlaw.com/law-library/cases/11361438

## Case

- **Full name:** Martine MacDonald v. 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
- **Court:** District Court, E.D. New York
- **Decided:** May 22, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11361438. Public record. Not legal advice.