Frey v. Pekoske

Decision Date21 April 2021
Docket NumberNo. 18-CV-7088 (CS),18-CV-7088 (CS)
PartiesMARK FREY, LAUREN CANNO, J.C-F., a minor by and through her parents, Mark Frey and Lauren Canno, and I.C-F., a minor by and through her parents, Mark Frey and Lauren Canno, Plaintiffs, v. DAVID PEKOSKE, in his official capacity as Administrator of the Transportation Security Administration, ALEJANDRO MAYORKAS, in his official capacity as Secretary of the United States Department of Homeland Security, and the UNITED STATES OF AMERICA, Defendants.
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
OPINION & ORDER

Appearances:

Michael V. Caruso

Michael V. Caruso, P.C.

Brewster, New York

Counsel for Plaintiffs

Danielle J. Levine

U.S. Attorney's Office

Southern District of New York

New York, New York

Counsel for Defendants

Seibel, J.

Before the Court is Defendants' Motion to Dismiss Plaintiffs' Third Amended Complaint. (Doc. 49.) For the following reasons, Defendants' motion is GRANTED in part and DENIED in part.

I. BACKGROUND

For the purposes of this motion, I accept as true the facts, but not the conclusions, set forth in the Third Amended Complaint. (Doc. 40 ("TAC").)

A. Facts

On August 25, 2016, Plaintiffs Mark Frey, Lauren Canno, and their minor daughters J.C-F. and I.C-F., were scheduled to take a commercial flight from Palm Beach International Airport to Westchester County Airport after visiting family in Florida. (TAC ¶ 22.) As with any commercial flight, Plaintiffs were required to enter the airport's Transportation Security Administration ("TSA") security checkpoint before proceeding to the gate to board their plane. (Id.) Plaintiff Frey alleges that when he entered the whole-body scanner, he triggered alarms requiring secondary screening. (Id. ¶ 24.) Frey indicated to the Transportation Security Officer ("TSO") on duty, later identified as Lito Marrero, that he had metal prosthetics in his neck that likely caused a positive screening result in the whole-body scanner. (Id. ¶ 26; see id. ¶ 18 n.4.)

Plaintiffs allege next that Frey was subject to a "rough, and violative enhanced pat down procedure," (id. ¶ 34), that involved TSO Marrero placing "his hands beneath Mark Frey's shorts repeatedly and roughly touching and groping his genitalia with his open hand and fingers," (id. ¶ 30), in full view of his minor daughters, before being taken to a second screening location, (see id. ¶¶ 30-41.) Frey alleges that after he was taken to a second location, he was "surrounded by approximately two or three older uniformed male TSOs where other air travelers were also being held." (Id. ¶ 45.) The TSOs near Frey then asked a much younger male TSO whether he was "ready to perform an enhanced pat-down procedure," to which this younger TSO replied in the affirmative. (Id. ¶ 46.) This TSO then conducted "a much rougher examination and search of Mark Frey including running his hands up and down his legs and inner thighs, waistband andgroin area, and repeatedly touching Mark Frey's genitals roughly," (id. ¶ 47), again in full view of Canno and his children, (id. ¶ 49).

The Original, First, and Second Amended Complaints - filed on August 7, December 3, and December 17, 2018, respectively - made no mention of this second search. Pursuant to my order of April 17, 2020, entered on consent, Defendants produced limited discovery to identify the previously unnamed TSOs involved in the initial screening and to determine their positions within the TSA, as relevant to this motion. (See Doc. 34.) This discovery included CCTV video of the screening by a TSO who the Government identifies as TSO Marrero. (Doc. 52 Ex. 2; see Doc. 52.) As explained below, the Court may consider this video in connection with Defendants' motion to dismiss for lack of subject matter jurisdiction. It shows that Plaintiff Frey enters the whole-body scanner at approximately timestamp 00:41 and is waved out by Marrero and directed to stand on the black and yellow mat in front of the scanner. Marrero gestures towards the scanner monitor and Frey rifles through the pockets of his shorts. Marrero then points at the monitor a second time, and Marrero and Plaintiff speak to a female TSO with blonde hair, and they appear to be together discussing what appears on the scanner monitor. The Government identifies the blonde TSO as Lead Transportation Security Officer ("LTSO") Elaine Blevins, and she is so named in the TAC. (See TAC ¶ 39; Doc. 51 ¶ 18-20; Doc. 52 ¶ 3.) Frey then lifts his arms to his sides with his feet apart at approximately 01:15. After further discussion between Marrero and LTSO Blevins, Frey turns around and Marrero begins frisking the back and sides of his shirt. At 1:35 Plaintiff lifts his shirt above his head, and Marrero begins frisking his buttocks, legs, and around his shorts, although the view of the TSO's hands is repeatedly momentarily obstructed by either the TSO or Frey standing with his back to the camera. Marrero then examines the front of Frey's shirt and shorts at approximately 02:07,again not fully in view of the camera, although at several points Frey and Marrero gesture to each other and appear to move the waistband of Frey's shorts. The view is further momentarily obstructed by one of Frey's daughters, who stands approximately two feet away and at eye level with Marrero's hands. It appears, however, that Marrero uses the back of his hands when near Frey's private area and moves them quickly up and down. At approximately 02:27, Frey becomes visibly upset, and although there is no sound in the video, he appears to be summoning someone else. His daughter hugs him around the waist before another TSO approaches. The Government identifies this individual as Supervisory Transportation Security Officer ("STSO") Kenneth Couto, and he is so named in the TAC. (See TAC ¶ 40; Doc. 51 ¶¶ 18, 21; Doc. 52 ¶¶ 1,3.) Frey then speaks with STSO Couto and Marrero, again gesturing and appearing to be upset. At 03:50, Plaintiff stretches his arms out again and Marrero again appears to frisk his legs and around his shorts, although Couto obstructs the camera's view. Frey's hands are then swabbed, and while Marrero goes to the computer, Frey again speaks to Couto. At 04:17, Couto releases the stanchion barrier and allows the seemingly frustrated Frey through. Frey pats the second officer's arm as he is leaving, and after speaking to Canno and his daughters and collecting his belongings, Frey walks off camera, and the video ends, at approximately 04:38.

Plaintiffs now bring this action for tort damages for battery and negligence, and for constitutional declaratory relief as a result of "the lingering trauma associated with this incident." (TAC ¶ 59.) Specifically, Plaintiffs "seek legal damages and ask this Court to declare Defendants' actions, administered through the TSA, and all standard operating procedures, rules, and regulations allowing unfettered and invasive searches without consent of air travelers within TSA checkpoints exceed the scope permitted by the Fourth and Fifth Amendments to the United States Constitution." (Id. ¶ 4.)

B. Procedural History

As noted, Plaintiffs filed their original complaint on August 7, 2018. (Doc. 1.) Defendants filed a pre-motion letter on November 12, 2018 in contemplation of a motion to dismiss. (Doc. 7.) Plaintiffs did not reply to the pre-motion letter as they had been directed, (see Doc. 8), but submitted an amended complaint on December 3, 2018, (Doc. 9). The Court held a pre-motion conference on December 5, 2018, at which I granted Plaintiffs leave to file another amended complaint. (Minute Entry dated December 5, 2018.) Plaintiffs filed their Second Amended Complaint on December 17, 2018, (Doc. 12), and, after a delay caused by the 2018-2019 federal government shutdown, as well as a series of extensions, Defendants filed a motion to dismiss on June 7, 2019, (Doc. 21). On October 22, 2019, I denied the motion without prejudice to renewal because the Second Circuit was considering a case presenting an issue central to the pending motion here - whether TSOs are covered by the "law enforcement proviso" of the Federal Tort Claims Act ("FTCA") - and the parties agreed that I should await that decision. (Doc. 32.) On March 25, 2020, the Second Circuit issued its decision in a summary order, but it did not address the relevant issue on the merits. See Leytman v. U.S. Dep't of Homeland Sec. Transp. Sec. Admin., 804 F. App'x. 78 (2d Cir. 2020) (summary order). Instead, the panel instructed the district court to conduct further proceedings to determine whether the officer at issue was a TSA "screener" (or TSO) or a specially designated "law enforcement officer," and "address in the first instance how the differing definitions and duties of TSA screeners and TSA law enforcement officers may affect the resolution of this dispute, if at all." Id. at 81.

In accordance with the Leytman decision and at the request of the parties, on April 17, 2020, I ordered the Government to provide limited discovery to identify the names and roles ofthe TSOs in the instant case and allowed Plaintiffs the ability to amend their complaint again after receiving this information. (Doc. 34.)1 Plaintiffs filed their Third Amended Complaint on May 29, 2020, (Doc. 40), and the instant motion followed.

II. LEGAL STANDARD
A. Motion to Dismiss for Failure to State a Claim

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than...

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