Readus v. Dercola et al

Filing 90

WRITTEN Opinion entered by the Honorable Joan H. Lefkow on 5/1/2012: The City of Chicago's motion to bifurcate § 1983 claims and postpone trial on those claims [#85] is granted as stated herein. Status hearing is set for 5/22/2012 at 8:30 a.m. See statement section of this order for details. Mailed notice(mad, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Joan H. Lefkow

CASE NUMBER

09 C 4063

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

5/1/2012

Readus vs. Dercola

DOCKET ENTRY TEXT

The City of Chicago’s motion to bifurcate § 1983 claims and postpone trial on those claims [#85] is granted
as stated herein. Status hearing is set for 5/22/2012 at 8:30 a.m. See statement section of this order for
details.

O[ For further details see text below.]

Notices mailed by Judicial staff.

STATEMENT
Defendant, the City of Chicago, has moved to bifurcate plaintiff’s claim against the City arising under Monell
v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), from plaintiff’s §
1983 and state law claims against the defendant officers, and to postpone the trial on plaintiff’s Monell
claim.1 Because the City must indemnify the officers if they violated plaintiff’s constitutional rights, the
City contends that bifurcation would avoid a great deal of time and expense which ultimately gains nothing
for the plaintiff. Indeed, the City will stipulate to entry of judgment against it if any of the officers is found
liable. (See Def.’s Mot. to Bifurcate, Ex. A.) Plaintiff, on the other hand, contends that bifurcation is not in
the interest of the litigation and would not promote judicial economy because, under Thomas v. Cook County
Sheriff’s Department, 604 F.3d 293, 305 (7th Cir. 2009), a municipality may be held liable under Monell
even when its officers are not, unless such a finding would create an inconsistent verdict. Moreover, states
plaintiff, any possible prejudice to the defendant officers as a result of a joint trial can be addressed by the
court via a limiting instruction.
Background2
Plaintiff alleges that on or about October 16, 2008, he was a passenger in a car heading eastbound on 117th
Street between State Street and Michigan Avenue when officers Matt Dercola and Fortino Garibay pulled
over the vehicle. Plaintiff exited the vehicle from the passenger side and the officers forced him to the
ground where each officer violently lodged a knee into plaintiff’s back and repeatedly punched him in the
face causing him to suffer a cracked upper tooth and severe pain and bleeding from his mouth. Plaintiff was
arrested and charged with battery and resisting arrest, but these charges were later dropped. Plaintiff filed the
instant lawsuit seeking to recover against the individual officers on claims of excessive force, false arrest,
battery, conspiracy and spoliation of evidence.

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STATEMENT
The City was not a named defendant in plaintiff’s original complaint. Plaintiff later moved to amend his
complaint to add a Monell claim against the City after officer Dercola indicated at his deposition that he was
found liable for excessive force by a jury in 2010 and he was never disciplined by the City, nor was he
suspended, subjected to additional training, or made to discuss his actions with supervising officers as a
result of the verdict or earlier complaints for excessive force. (See Dkt. #69.) In its reply to the present
motion, the City admits that there were two previous excessive force cases brought against officer Dercola;
the first case settled in 2008 without a finding of liability against officer Dercola, and the second resulted in a
jury verdict against officer Dercola in 2010, after plaintiff was arrested. (Def.’s Reply at 4.) On August 30,
2011, the court allowed plaintiff to amend his complaint to bring a Monell claim against the City. (Dkt. #72.)

Plaintiff alleges that the City, through its police department, officers, agents and deputies, maintained an
express or implied policy, practice or custom that proximately caused plaintiff to suffer a constitutional
violation. Plaintiff’s Monell claim against the City includes allegations of (1) failure to train; (2) a police
“code of silence”; (3) arrestee abuse; (4) failure to intervene; and (5) failure to investigate. The City now
moves to bifurcate this claim from those asserted against the individual officers.
Legal Standard
Federal Rule of Civil Procedure 42(b) allows the court to order a separate trial of one or more separate issues
or claims “[f]or convenience, to avoid prejudice, or to expedite and economize.” Fed. R. Civ. P. 42(b); see
Krocka v. City of Chicago, 203 F.3d 507, 516 (7th Cir. 2000). “Only one of [these] criteria need be satisfied
for a court to order a separate trial.” Berry v. Deloney, 28 F.3d 604, 610 (7th Cir. 1994) (internal quotation
marks and citation omitted). The district court exercises “considerable discretion” when ordering bifurcation
of a trial, which can only be overturned for “clear abuse.” Krocka, 203 F.3d at 516. Should the court decide
that bifurcation is warranted, Federal Rule of Civil Procedure 26(d) allows the court to stay discovery on a
Monell claim. Fed. R. Civ. P. 26(d)(2); Jones v. City of Chicago, No. 98 C 5418, 1999 WL 160228, at *3
(N.D. Ill. Mar. 10, 1999).
Analysis
In Thomas v. Cook County Sheriff’s Department, the Seventh Circuit held that “a municipality can be held
liable under Monell even when its officers are not, unless such a finding would create an inconsistent
verdict.” 604 F.3d at 305. Thomas interpreted City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S. Ct.
1571, 89 L. Ed. 2d 806 (1986), which held that municipal liability is foreclosed when an officer defendant is
found not guilty of a constitutional violation and the officer declines to assert an affirmative defense, such as
qualified immunity, that would allow a jury to find a violation but prevent liability against the officer. The
rule from Heller, as interpreted by the Seventh Circuit, is not that a municipal liability under Monell
necessarily requires a finding of officer liability but, rather, that municipal liability is foreclosed only when
such a finding would not result in an inconsistent verdict. Thomas, 603 F.3d at 305. Thus, the court must
look to the nature of the constitutional violation, the theory of municipal liability and the defenses set forth to
determine whether a municipality’s Monell liability is dependent upon that of its officers. Id.
Plaintiff cites a number of cases in support of his position that bifurcation is inappropriate in this case. The
majority of these cases, however, concern situations where the plaintiff was in custody and the officer failed
to attend to his medical needs or otherwise protect him from harm. See, e.g., Martinez v. Cook Cnty., No. 11
C 1794, 2011 WL 4686438, at *1 (N.D. Ill. Oct. 4, 2011) (inmate battered by other inmates because officer
was “cross-watching,” a policy authorized by the Sheriff); Carter v. Dart, No. 09 C 956, 2011 WL 1466599,
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STATEMENT
at *1 (N.D. Ill. Apr. 18, 2011) (officers denied inmate medical treatment because jail pharmacy did not
provide necessary drug); see also Nessel v. City of Northlake, No. 93 C 6176, 1994 WL 685508, at *2 (N.D.
Ill. Dec. 5, 1994) (city officials could be found not liable for First Amendment violation because they could
be successful in their qualified immunity defense). In each of these cases, the court found that the plaintiff’s
claims against the individual officer and the governmental unit left open the possibility that the governmental
unit could be found liable to the plaintiff, while the officer could be found not liable, or qualifiedly immune.
Plaintiff, however, has failed to demonstrate if and how each of his individual claims poses the risk of an
inconsistent verdict against the City, instead arguing generally that bifurcation is inappropriate because (1)
the defendant officers have pleaded qualified immunity as a defense; and (2) it is possible that the jury could
find that plaintiff’s constitutional rights were violated but could not determine which of the officers was
liable. Qualified immunity is only available as a defense if the officers’ conduct “does not violate clearly
established statutory or constitutional rights that a reasonable person would know about,”3 Mustafa v. City of
Chicago, 442 F.3d 544, 548 (7th Cir. 2006), and the probability that this defense will foreclose officer
liability on all of plaintiff’s claims is low. See, e.g., Elrod v. City of Chicago, Nos. 06 C 2505, 07 C 203,
2007 WL 3241352, at *5 (N.D. Ill. Nov. 1, 2007) (“the likelihood of defendant prevailing on [a qualified
immunity] defense in the context of an excessive force claim has not been a persuasive argument against
bifurcation”); Tanner v. City of Waukegan, No. 10 C 1645, 2011 WL 686867, at *6 (N.D. Ill. Feb. 16, 2011)
(collecting cases); see also Sallenger v. City of Springfield, Ill., 630 F.3d 499, 504 (7th Cir. 2010)
(recognizing that “a municipality cannot be liable under [a] Monell [failure to train claim] when there is no
underlying constitutional violation by a municipal employee.”).4 Indeed, the notion that such a defense
would be asserted in an excessive force case is questionable under Federal Rule of Civil Procedure 11. In
short, unlike the cases plaintiff cites, here the City can only be liable if plaintiff proves that excessive force
was used on him. If excessive force was used, then it was inflicted by at least one of the officers. There is a
theoretical possibility that the jury could find excessive use of force but not be able to decide which officer
used excessive force. That unlikely possibility could be managed with a special interrogatory: “We the jury
find that excessive force was used on plaintiff, but we cannot determine that either defendant used excessive
force.” Even in this instance, if damages are assessed, the court understands that the City’s stipulation would
require it to pay the judgment. If this is correct, there cannot be an inconsistent verdict in which the City is
liable but an officer is not.
In addition, a review of the complaint leads the court to conclude that judicial economy favors bifurcation.
Typically, “claims of municipal liability require an extensive amount of work on the part of plaintiff’s
attorneys and experts, and an extraordinary amount of money must be spent in order to prepare and prove
them.” Moore v. City of Chicago, No. 02 C 5130, 2007 WL 3037121, at *9 (N.D. Ill. Oct. 15, 2007). The
“the willingness of many judges to grant [motions to bifurcate Monell claims] stems in large part from [this]
recognition.” Terry v. Cook Cnty. Dept. of Corrs., No. 09 C 3093, 2010 WL 2720754, at *2 (N.D. Ill. July 8,
2010). The question of whether the City maintains a citywide practice, policy or custom concerning issues
(1) through (5) described above is an onerous one, and although officer Dercola received no discipline after
his 2010 case, this shortcoming occurred after plaintiff was arrested and likely has little bearing on the merits
of his claims.
Moreover, presenting evidence to the jury regarding a citywide policy, practice or custom involving multiple
improper police actions poses a danger of undue prejudice to the defendant officers by creating the
perception that the police department routinely acts improperly, even if the officers acted properly in this
case. See, e.g., Lopez v. City of Chicago, No. 01 C 1823, 2002 WL 335346, at *2 (N.D. Ill. Mar. 1, 2002)
(“Without bifurcation, the jury would likely hear evidence against the City of various acts of alleged police
misconduct committed by numerous non-party officers to establish a policy or practice. Such evidence can be
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STATEMENT
prejudicial to the individual defendants.”). Finally, the City has stipulated to entry of judgment against it if
any of the officers is found liable. This type of stipulation has been found to support bifurcation in other
cases. See Elrod, 2007 WL 3241365, at *5 (“To the extent that a successful Monell claim serves to ensure
payment of the damages to Plaintiffs, that goal is achieved by the Stipulation.”) (collecting cases). For the
foregoing reasons, the City’s motion to bifurcate the Monell claim against the City and postpone discovery
on the Monell claim pending resolution of plaintiff’s claims against the individual officers is granted.
1. The City’s motion is titled “motion to bifurcate § 1983 claims and to postpone trial on those claims.”
(Dkt. #85.) After reading the motion, the court understands the City’s request to include postponement of
trial on the Monell claim, not the § 1983 claims. Moreover, the City seeks to postpone trial, but does not
ask the court to stay discovery, although it discusses the benefits of doing so in its motion. (See Def.’s
Mot. to Bifurcate at 3–4.) Given that a trial date has not been set in this case, the court believes that the
City may have mislabeled its motion and will treat its request as one to stay discovery not simply to delay
trial.
2. The following facts are taken from the amended complaint. The City sets forth a number of facts in its
reply brief, relying on testimony from officer Dercola’s deposition and the deposition of third-party
witness Tameka Ruth. The City did not attach these depositions as exhibits to its brief, and because these
facts were raised for the first time in reply, plaintiff has not had an opportunity to respond to them. The
court therefore declines to consider the additional facts set forth by the City.
3. “A plaintiff seeking to defeat this defense in a Section 1983 action must show, first, that the plaintiff’s
rights were violated. Second, the plaintiff must show that the law concerning the plaintiff’s asserted right
was clearly established at the time the challenged conduct occurred. Finally, the court must determine
whether a reasonably competent official would know that the conduct was unlawful in the situation he
confronted.” Mustafa, 442 F.3d at 548 (internal citation omitted).
4. The City states that “[b]ased upon the factual scenario of this case, it seems unlikely that a qualified
immunity defense would be applicable.” (Def.’s Reply at 6.)

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