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POSR AMOJO POSR v. CITY OF NEW YORK

September 7, 1993

POSR AMOJO POSR, Plaintiff,
v.
CITY OF NEW YORK, a municipal entity; LEE BROWN, Police Commissioner City of New York, Defendants.


HAIGHT, JR.


The opinion of the court was delivered by: CHARLES S. HAIGHT, JR.

HAIGHT, District Judge:

 This case is before the court on defendants' motions to dismiss all claims and to impose sanctions against plaintiff. Additionally, the New York City Chapter of the National Congress of Puerto Rican Affairs seeks to intervene in this action. For the reasons set forth below, defendants' motion to dismiss is granted, and the motion to intervene is denied.

 BACKGROUND

 Plaintiff Posr was involved in an altercation with two New York City police officers, Kevin Doherty and Thomas Holihan, on February 14, 1987, during a march and demonstration protesting conditions for the homeless in New York City. Plaintiff then filed suit pursuant to 42 U.S.C. § 1983, alleging that he was unconstitutionally and unlawfully beaten, arrested, and jailed for forty hours. See Johnson *fn1" v. Doherty, 87 Civ. 6575 (RWS) ("Posr I "). Named in the complaint were the two police officers and the City of New York (the "City").

 Prior to trial, plaintiff entered into a stipulation agreeing to withdraw the claims against the City with prejudice. That stipulation was so ordered by Judge Sweet on July 18, 1988. Plaintiff then proceeded to trial against the two police officers. Following a jury trial presided over by Judge Sweet, the jury found both officers liable for using excessive force. The jury also found Holihan, but not Doherty, liable for false arrest. Doherty was also found not liable for malicious prosecution. The false arrest verdict against Holihan was reversed in a judgment N.O.V. granted by Judge Sweet.

 On appeal, the Second Circuit affirmed the verdicts with respect to excessive force, but remanded for a new trial on the false arrest claim as to Holihan and the malicious prosecution claim. In December, 1991, the parties reached a settlement which would avoid them having to retry the matter: the plaintiff received $ 75,000 in compensatory damages plus interest from the date of judgment, and plaintiff's counsel received over $ 143,000 in attorney's fees.

 In May, 1992, plaintiff filed this action ("Posr II "). Posr's complaint essentially alleges that the New York City Police Department failed to discipline Doherty and Holihan, even after a jury had found they used excessive force, in violation of Posr's constitutional rights.

 It is not easy to discern plaintiff's legal arguments. The pleadings and brief in opposition are more rhetorical than substantive. However, as best the Court can determine, plaintiff proffers two legal theories in support of his claim. First, he alleges that defendants' failure to discipline the two officers, after a jury finding of police brutality, is a municipal policy which encourages police officers to use excessive force (or fails to discourage them from doing so). *fn2" See Plaintiff's complaint, P 38. Second, Posr appears to allege that the judgment he won in the District Court vested him with a property right in seeing that the officers be appropriately disciplined. The defendants' failure to discipline the officers unconstitutionally deprives him of property without due process of law.

 Underlying both of plaintiff's arguments is his contention that once police officers are found to have acted wrongly by civil juries, the police commissioner and the City of New York have no discretion and must impose discipline.

 Defendants move to dismiss pursuant to Fed. R. Civ. P. 12(b), raising a number of legal arguments. First, defendants contend that plaintiff's claim is barred by the doctrine of res judicata, since it arises out of the same course of events as Posr I, where the plaintiff stipulated to a dismissal of his claims against the City with prejudice. Second, defendants allege that plaintiff lacks standing to maintain this action, in contravention of Article III of the Constitution. Third, defendants allege that plaintiff has failed to satisfy the reguirements of Monell, thereby precluding them from maintaining a § 1983 action against a municipality. Fourth, defendant alleges that plaintiff has failed to demonstrate any violation of either the Thirteenth or Fourteenth Amendments. Because I find that plaintiff lacks standing, and he fails to allege a violation of his constitutional rights, I need not reach the other defenses raised by defendants.

 DISCUSSION

 On a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the trial court's function is "to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered . . . ." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). The sole issue is whether the claimant is entitled to offer evidence in support of his claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). This Court should grant the motion "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984) (citing Conley v. Gibson, 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). On a motion to dismiss, a district court must accept the plaintiff's allegations as true. Papasan v. Allain, 478 U.S. 265, 283, 92 L. Ed. 2d 209, 106 S. Ct. 2932 (1986). The district court must construe the allegations favorably to the claimant. LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991). "In general, actions in civil rights cases should not be dismissed at the pleading ...


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