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Posr A. Posr v. P.O. Ueberacher

January 4, 2012

POSR A. POSR, PLAINTIFF,
v.
P.O. UEBERACHER, POLICE DEPARTMENT OF THE CITY OF NEW YORK, RAYMOND KELLY, CITY OF NEW YORK, MICHAEL BLOOMBERG, DEFENDANTS.



The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.

OPINION & ORDER

On September 22, 2011, Plaintiff Posr A. Posr, pro se, ("Posr" or "Plaintiff") filed a motion to compel discovery under Federal Rules of Civil Procedure ("Fed. R. Civ. P.") 56(d) and (e). For the following reasons, Plaintiff's motion to compel is granted.

I. Background

On March 4, 2010, Plaintiff filed a complaint ("Complaint") against the New York City Police Department ("NYPD"), NYPD Officer Peter Ueberacher*fn1 ("Ueberacher"), Police Commissioner Raymond Kelly ("Kelly"), the City of New York, Mayor Michael Bloomberg ("Bloomberg"), the State of New York, and Governor David Patterson ("Patterson"). The Complaint alleges that, at approximately 11:03 a.m. on Monday, March 9, 2009, Plaintiff, who is of African ancestry, was walking on 123rd Street, between Marcus Garvey Park West and Malcolm X Boulevard and carrying a red bag. (Compl. ¶¶ A, 5.) Officer Ueberacher approached Plaintiff and asked him where he had come from. (Id. ¶ 8.) Ueberacher then asked Plaintiff for identification, and Plaintiff responded by asking if a crime had been committed. (Id. ¶¶ 11, 11.5.) Ueberacher told Plaintiff that he had seen Plaintiff put his bag down at 10 West 123rd Street and put something in the bag, and informed Plaintiff that there had been a lot of burglaries in the area, and that he was investigating a burglary. (Id. ¶¶ 12, 15, 17.) Plaintiff asked Ueberacher if he was free to go, to which Ueberacher responded "no." (Id. ¶¶ 20, 21.) Plaintiff then said, "if this were a white neighborhood, this wouldn't be happening," to which Ueberacher responded "do you want me to stop a white guy?" (Id. ¶¶ 22, 23.) Plaintiff replied that he did, and pointed out a white person. (Id. ¶¶ 24, 25.) Ueberacher refused to stop the white person that Plaintiff had pointed out, saying "but he has a clipboard." (Id. ¶ 26.) Plaintiff once again asked Ueberacher if he was free to leave. (Id. ¶ 27.) Plaintiff then asked to see Ueberacher's supervisor, and made a phone call to 911. (Id. ¶¶ 29, 29.5.) Within five minutes, four uniformed police officers arrived on the scene. (Id. ¶¶ 30, 34.) Again, Plaintiff asked if he was free to leave, and was told by one of the officers that he was not. (Id. ¶¶ 31, 32.) Soon thereafter, Ueberacher's supervisor arrived, and spoke briefly with Ueberacher. (Id. ¶¶ 33-35.) He then spoke with Plaintiff, and told Plaintiff he was free to leave. (Id. ¶¶ 35-37.)

In his Complaint, Posr alleges a number of federal law causes of action stemming from this encounter pursuant to 42 U.S.C. §§ 1981("section 1981") and 1983 ("section 1983"). Specifically, Plaintiff claims that he was discriminated against on the basis of his race in violation of section 1981, and that Defendants violated his right to be free from unreasonable seizures under the Fourth Amendment, his rights to due process and equal protection under the Fourteenth Amendment, and his right to be free from an assault on his dignity under the Ninth Amendment. (See Compl. ¶¶ 52.1-57.) The Complaint also contains a number of state law claims, brought under the New York State Constitution.

On November 15, 2010, Defendants NYPD, Ueberacher, Kelly, the City of New York, and Bloomberg filed an answer to the Complaint. On November 29, 2010, Defendants State of New York and Patterson moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff failed to submit opposition papers or otherwise respond to the motion. By endorsed letter dated February 9, 2011, the Court granted those Defendants' motion to dismiss and ordered that the action be closed.

On February 24, 2011, Plaintiff moved to re-open the case against Defendants NYPD, Ueberacher, Kelly, the City of New York, and Bloomberg (collectively, "Defendants"). By letter dated March 1, 2011, Defendants opposed that request and, alternatively, requested a briefing schedule for its summary judgment motion. The Court granted Plaintiff's request to re-open the case and endorsed Defendants' proposed briefing schedule.

On April 15, 2011, Defendants moved for summary judgment and attached an affidavit from Deputy Inspector Rodney Harrison, the commanding officer at the 28th Precinct, who attested to a recent spike in residential burglaries in the vicinity of Plaintiff's stop prior to March 9, 2009, based on his review of certain "NYPD records" including "crime statistics and documents regarding burglaries." (Decl. of Brian J. Farrar dated April 15, 2011, ECF No. 20, Ex. D ("Harrison Aff.")) On April 29, 2011, Plaintiff moved to compel the production of the underlying data and statistics referred to in Harrison's affidavit. Defendants initially sought a protective order prior to disclosing said information and the Court permitted Defendants to move for such an order on or before July 8, 2011. After further review, Defendants instead requested permission to withdraw certain portions of the summary judgment motion, including the April 15, 2011 Declaration of Brian J. Farrar. This request was granted, and Defendants withdrew their summary judgment motion with leave to file a revised version by July 22, 2011.

On July 22, 2011, Defendants submitted a revised motion for summary judgment pursuant to Fed. R. Civ. P. 56. Therein, Defendants moved for summary judgment on the grounds that: (1) Plaintiff has failed to state a cognizable section 1983 claim; (2) Defendant Ueberacher is entitled to qualified immunity; (3) Plaintiff has failed to state a claim for racial discrimination; (4) Defendants Kelly and Bloomberg had no personal involvement in the incident alleged in the Complaint; (5) Plaintiff has failed to state a Monell claim; (6) the NYPD is not a suable entity; and (7) the Court should decline to exercise jurisdiction over any remaining state law claims. (Defs.' Mem. in Supp. of their Mot. for Summ. J. dated July 22, 2011, ECF No. 27 ("Defs.' Summ. J. Mem.") at 3.)

Attached to the motion was an affidavit from Ueberacher, who attested to the events taking place on March 9, 2011.*fn2 Therein, Ueberacher states, in relevant part:

On May [sic] 9, 2009 at approximately 11:00 a.m., I was on patrol in a marked police vehicle when I observed plaintiff, Posr A. Posr standing in the courtyard of 6 West 123rd Street in Manhattan. The front door of that location was open and I observed plaintiff placing unidentified objects into a red duffle bag. I had been advised by my command that there had been a recent spike in burglaries in that location. I was further advised that suspects committing these burglaries often strike during the midday hours and steal items that can easily be concealed in bags and knapsacks. (Decl. of Brian J. Farrar dated July 22, 2011, ECF No. 28, Ex. C ("Ueberacher Aff.") ¶ 2.) After providing an account of his stop of Posr, Ueberacher states, "[w]hile I was on the radio, plaintiff dialed 911 from his personal cell phone and also requested that a sergeant respond to the scene." (Id. ¶ 5.)

On September 22, 2011, Posr submitted a motion to compel the production of (1) the source of Ueberacher's knowledge that there had been a recent spike in burglaries within the confines of the 28th precinct; (2) the source of Ueberacher's information that the suspects committing these burglaries would often strike during midday hours and steal items that could be easily concealed in bags and knapsacks; and (3) the audio-tape and SPRINT report of the 911 call made by Posr to the NYPD during the incident in question. In the alternative, Posr moved to strike references to these subjects from the Defendants' motion for summary judgment.

On October 24, 2011, Defendants submitted a letter to the Court requesting that Plaintiff's motion be denied for failing to confer with Defendants prior to seeking judicial intervention with respect to discovery issues, as required by Local Rule 37.3, or in the alternative, that the motion be denied on substantive grounds. Therein, Defendants assert that Posr's request for the audio-tape and SPRINT report of the 911 call made on March 9, 2009 is moot, as they provided him with the SPRINT report on or about October 14, 2011, and informed him that the audio recording of such call no longer exists. With respect to the remaining request for documents concerning Officer Ueberacher's knowledge of prior burglaries in the area, Defendants contend that it should be denied on the grounds that it seeks documents that are immaterial to the main issues raised in Defendants' summary judgment motion.

On November 1, 2011, Posr submitted a sur-reply in response to Defendants' letter. Therein, Posr asserts that "the NYPD has intentionally and unlawfully destroyed the audio-tape of the 911 call." (Pl.'s Sur-Reply to Pl.'s Mot. to Compel 56.1 Docs., ECF No. 32 ("Pl.'s Sur-Reply") at 2.) As evidence of this, Posr submitted a Freedom of Information Act ("FOIA") request dated March 12, 2009, requesting production of the audio-tape of the 911 call. (Id., Ex. A.) Posr requests that the court "compel the defendants to provide (1) the 911 tape, (2) the entire Sprint report, and (3) the statistics or documents upon which Ueberacher's 'high-crime-area' claims are ...


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