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Posr v. City of New York

United States District Court, Second Circuit

June 4, 2013

POSR A. POSR, Plaintiff,
THE CITY OF NEW YORK; MAYOR MICHAEL BLOOMBERG, in his individual and official capacity; the NEW YORK POLICE DEPARTMENT; NEW YORK POLICE COMMISSIONER RAYMOND KELLY, in his individual and official capacity; NEW YORK POLICE OFFICER PETER UEBERACHER, in his individual and official capacity; NEW YORK POLICE OFFICER PEDRO RIVERA, in his individual and official capacity; and POLICE OFFICER CHRISTINE PIMENTEL, in her individual and official capacity, Defendants.


ROBERT P. PATTERSON, Jr., District Judge.

Pursuant to 42 U.S.C. § 1981, § 1983, and New York State law, pro se plaintiff Posr A. Posr brings this action against the City of New York (the "City"), New York City Mayor Michael Bloomberg, the New York City Police Department ("NYPD"), NYPD Commissioner Raymond Kelly, and NYPD Officers Peter Ueberacher, Pedro Rivera, and Christine Pimentel (collectively, Defendants). (See Am. Compl. at 1, April 2, 2012, ECF No. 42.) Defendants move for dismissal of several of Plaintiff's claims under Rule 12(c) of the Federal Rules of Civil Procedure and for summary judgment under Rule 56 on all of Plaintiff's remaining claims. (See Mot. to Dismiss Am. Compl., ECF No. 46; see also Mem. in Supp. of Mot. to Dismiss ("Dismiss Mem."), ECF No. 47 (incorporating arguments raised in Mem. in Supp. of Mot. for Summ. J. ("Summ. J. Mem."), ECF No. 27).) For the reasons stated below, the Court grants Defendants' motions, dismisses Plaintiff's claims, and enters summary judgment in favor of Defendants.


A. The Incident at West 123rd Street on March 9, 2009

Describing himself as "a male of Black African ancestry, " (Am. Compl. 1), Plaintiff alleges that, at approximately 11:03 a.m. on Monday, March 9, 2009, he emerged from the Pelham Fritz Recreation Facility in Marcus Garvey Park, walked one block north, turned onto 123rd Street, and started walking west, (id. ¶¶ 1-2); that he then stopped walking at 10 West 123rd Street, [1] where he put his gym bag down on "a 1.5 foot concrete cube, " which he viewed as marking "the boundary between the public sidewalk... and the courtyard of [a] private property;" and that he next unzipped his gym bag, retrieved his wallet from inside his bag, zipped the bag closed, lifted the bag, and proceeded west towards his residence at 136 West 123rd Street. (Id. ¶¶ 3, 5-7.)

In his response declaration, Officer Ueberacher stated that, on March 9, 2009, he was on 123rd Street, driving west in a marked patrol car, when he observed Plaintiff as follows:

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.

(Ueberacher Decl. ¶ 2; see also Am. Compl. ¶¶ 9-12.) After observing Plaintiff pick up his bag and start walking, Officer Ueberacher pulled his car over and approached Plaintiff. (Ueberacher Decl. ¶ 3; Am. Compl. ¶¶ 12-15.)

Officer Ueberacher declared that, after he approached Plaintiff, the following interaction ensued:

I asked Plaintiff whether he lived at 6 West 123rd Street and he informed me that he did not. I then asked Plaintiff why he was standing in front of that location and he refused to answer. I asked Plaintiff for his identification but he also refused. I explained to Plaintiff that I was asking these questions because there ha[d] been a high incidence of burglaries in that particular area.

(Ueberacher Decl. ¶ 4.)

In his Amended Complaint, Plaintiff alleges that Officer Ueberacher observed him "put his bag down, bend over his bag, move his arms about his bag, pick up the bag, and proceed west, " (Am. Compl. ¶ 12); that Officer Ueberacher then approached and asked Plaintiff where he had come from, (id. ¶¶ 14-15); that Plaintiff did not respond to the question, and instead asked "why [Officer Ueberacher] wanted to know, or was there a problem, or some such question;" (id. ¶ 16); that Officer Ueberacher thereafter asked him for identification, (id. ¶ 20), but that, rather than turning over any identification, Plaintiff asked if a crime had been committed, (id. ¶ 21); that Officer Ueberacher responded to the question by stating Plaintiff had been observed putting a duffel bag down and putting something into the bag, (id. ¶ 22); that Plaintiff asked Officer Ueberacher if doing so was a crime, (id. ¶ 23); and that Officer Ueberacher replied, "it was not a crime, " (id. ¶ 24), but that "there had been a lot of burglaries in the area, " (id. ¶ 25).

Next, Plaintiff alleges that he inquired "if a burglary at 10 West 123rd Street had been reported, " (id. ¶ 27); that Officer Ueberacher responded that "he was investigating a burglary." (id. ¶ 29); that Plaintiff queried if he "fit the description of a burglar, " (id. ¶ 31); but that Officer Ueberacher "did not say Plaintiff fit the description of a burglar, " (id. ¶ 33); that he told Officer Ueberacher "if this were a white neighborhood, this wouldn't be happening, " (id. ¶ 36); that Officer Ueberacher responded, "Do you want me to stop a white guy?" (id. ¶ 37); that Plaintiff replied yes, and pointed out a white person whom he thought Officer Ueberacher should stop, (id. ¶¶ 38, 40); and that Officer Ueberacher refused to stop this white person because the person was carrying a clipboard, (id. ¶ 41).

Plaintiff further alleges that, after Officer Ueberacher allegedly refused to stop the white passerby, Plaintiff asked to speak with Officer Ueberacher's supervisor, (id. ¶ 45; see also Ueberacher Decl. ¶ 5); that Officer Ueberacher placed a call on the radio for his sergeant, Yolanda Cuadrado, to respond, (id.); that while Officer Ueberacher was on the radio, Plaintiff called 911 on his cell phone, (Am. Compl. ¶ 48); that, within minutes of Plaintiff's 911 call, four uniformed police officers arrived on the scene, (id. ¶ 49); that these officers stood around him in a threatening semi-circle, (id. ¶ 51); that Sergeant Cuadrado arrived shortly thereafter and spoke with Officer Ueberacher and then with Plaintiff, (Am. Compl. ¶¶ 53-57; Ueberacher Decl. ¶¶ 5-6); and that she then spoke with Plaintiff and told him that he "was free to go;" and that, as soon as she did so, he left the scene, (Am. Compl. ¶ 57).

Plaintiff alleges, however, that prior to Sergeant Cuadrado telling him that he was free to go, he twice asked Officer Ueberacher if he could go, (id. ¶¶ 34, 43); that he also asked the four responding 911 officers if he could go (id. ¶ 50); and that, each time he asked, he was told that he was not free to go. (Id. ¶¶ 35, 44, 51). Officer Ueberacher disputed this contention, stating:

The entire interaction with Plaintiff lasted less than ten minutes. Plaintiff was not handcuffed during this encounter. No physical force was used on Plaintiff, no threats were made, and Plaintiff was free to leave at any time.

(Ueberacher Decl. ¶ 7.)

Following the March 9, 2009 incident on West 123rd Street, Officer Ueberacher completed a report for the NYPD Stop, Question & Frisk System (the "Stop & Frisk Report"). (See Letter from Defs. to the Court dated Nov. 16, 2012, Ex. B, ECF No. 62.) In the report, Officer Ueberacher wrote that he had stopped a person, whose name was listed as "Unknown, " after observing that person for two minutes. (Id.) The report indicated that the stop had lasted for seventeen minutes and included the following notes:

Circumstances Leading to Stop
- Suspects, Actions - Fits Description;
- Suspects, Actions - Other - At location putting unknown objects in duffle bag.
Additional Factors
- Report from Victim/Witness/Officer;
- Area has high incidence of reported offense;
- Evasive, false, or inconsistent responses to officers' questions;
- Other: Door to 6 West 123rd Street left open where subject 1st observed.


B. Plaintiff's Freedom of Information Law ...

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