Zencka v. Lake County IN et al

Filing 28

OPINION AND ORDER: DENYING 23 MOTION to Bifurcate § 1983 Monell Claims and Stay Discovery and Trial on Those Claims by Defendant John Buncich. Signed by Judge Rudy Lozano on 5/24/2016. (lhc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DENISE ZENCKA,
Plaintiff,
vs.
LAKE COUNTY, INDIANA,
et al.,

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CAUSE NO. 2:14-CV-371

Defendants.
OPINION AND ORDER
This matter is before the Court on the “Defendant Sheriff John
Buncich Motion to Bifurcate § 1983 Monell Claims and Stay Discovery
and Trial on Those Claims,” filed by Defendant, Sheriff John
Buncich, solely and in his official capacity as Lake County
Sheriff, on February 3, 2016 (DE #23).

For the reasons set forth

below, the motion (DE #23) is DENIED.

BACKGROUND
Plaintiff, Denise Zencka, filed a complaint in this case on
October 10, 2014 (DE #1).

Her claims stem from her arrest on

January 10, 2013, for an outstanding warrant issued in Plaintiff’s
name.
In 2012, Zencka was diagnosed with thyroid cancer.

(Compl. ¶

10.) She claims that due to her treatment, Zencka was unable to
work from June 2012 until September 2012, and was staying with her

parents in Florida where she was recovering from thyroid cancer
treatment.

The complaint also alleges that during that time,

Zencka was either unaware and/or unable to attend small claims
court hearings in Lake County, Indiana, which where claims largely
initiated due to her inability to pay medical bills incurred
because of her cancer treatment.

(Compl. ¶ 11.)

As a result of

missing court dates, warrants were issued for Zencka’s arrest and
placed with the Lake County Sheriff’s Department (“LCSD”) for
“failure to appear - small claims” and/or “contempt of court
civil.”

One of the warrants was issued in July 2012, and two were

issued in September 2012.

(See “Lake County Jail Arrest Record,”

Pl.’s Ex. 1.)
In October 2012, Zencka retained an attorney who initiated a
Chapter 7 bankruptcy filing on her behalf, and the attorney
forwarded notices to the LCSD to notify it of the bankruptcy filing
and the automatic stay on all collection proceedings, including the
civil arrest warrants issued in the Lake County small claims cases.
(Compl. ¶¶ 13-17.)
Despite being notified of the bankruptcy and automatic stay of
the civil warrants, the LCSD dispatched officers to Zencka’s home
to arrest her on January 9, 2013.

(Compl. ¶ 19.)

Zencka told the

officers that the warrants were related to outstanding medical
bills, and there was an automatic stay in place due to her
bankruptcy filing.

(Compl. ¶¶ 22, 23.)

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Zencka, still dressed in

pajamas, was taken into custody in the presence of her 8 year old
autistc son, 4 year old son, and 12 year old daughter. (Compl. ¶
24.)
Zencka alleges mistreatment in the Lake County Jail during her
overnight incarceration, including she was verbally abused, denied
medicine, because she was unable to climb the stairs to the women’s
section, she was held in a men’s unit with glass walls which
exposed her toilet use and everything she did to the other male
inmates, and she was denied feminine hygiene products.

(Compl. ¶¶

28-39.)
Plaintiff defines “Defendants” in her complaint as “Lake
County, Indiana; Lake County Board of Commissioners; Sheriff John
Buncich, solely in his official capacity as Lake County Sheriff;
Willie Stewart, solely in his official capacity as Lake County Jail
Administrator; Officers John Doe, Jeff Doe, Jack Doe, and other
Unknown Parties; Jointly, Severally, and Individually.” (Compl., p.
1.)

Plaintiff asserts multiple claims against Officers John Doe,
Jeff Doe, Jack Doe, Jane Doe, and other unknown parties, jointly,
severally,

and

individually

(herein

after

referred

to

as

“individually-named Defendant officers”). The allegations include:

- Count I – Section 1983 claim of unlawful and malicious
arrest, detention, and confinement of Plaintiff in violation of the
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Fifth and Fourteenth Amendments.
- Count II – Section 1983 claim of failure to track and recall
warrant in violation of the Fourth and Fourteenth Amendments.
- Count III- Section 1983 claim of unlawful service and
enforcement of invalid bench warrant in violation of the Fourth and
Fourteenth Amendment.
- Count IV – Section 1983 claim alleging policy of deliberate
indifference to medical needs in violation of Eight Amendment.1
- Count V- 42 U.S.C. 12132 American with Disabilities Act &
Eighth Amendment claim.
- Count VI- Section 1983 claim of lack of proper supervision
and control in violation of Fourth and Fourteenth Amendments.
- Count VII- A section 1983 claim of cruel and unusual
punishment in violation of the Eight Amendment.
- Count VII (misnumbered by Plaintiff within her Complaint) –
Violation of Indiana Bill of Rights/Indiana Constitution.
- Count IX – State Law Torts/Common Law Torts.
(DE #1.)
To

the

extent

Plaintiff

seeks

damages

against

Defendant

Sheriff John Buncich in his official capacity, her claim is, in
effect, an action against the Lake County Sheriff’s Department, a
municipality.

Monell v. Department of Soc. Servs., 436 U.S. 658,

690 (1978); Smith v. County of Kosciusko, No. S91-5(RDP), 1991 WL
261766, at *2 (N.D. Ind. Nov. 15, 1991). Plaintiff also seems to

1

Plaintiff titles this claim as a violation of the Eighth Amendment, but
states in paragraph 46 of her Complaint that the actions alleged violated the
Fourth and Fourteenth Amendments and does not mention the Eighth Amendment
within the body of Count IV.

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assert

section

1983

Monell

claims

against

Defendant,

Sheriff

Buncich, and the Sheriff’s Department within all of the section
1983 counts by stating that “the need for more or different
policies and customs is so obvious and the inadequacy is so likely
to result in a violation of constitutional rights.”
I ¶ 41,
¶ 53;

Count II ¶ 43;

Count III ¶ 45;

(Compl. Count

Count IV ¶ 47;

Count VI

Count VII ¶ 59.)
Defendant, Sheriff John Buncich, requests that the Court

bifurcate all of Plaintiff’s claims against the individually-named
Defendant officers from Plaintiff’s section 1983 Monell claims
against Defendant Sheriff John Buncich and the Sheriff’s Department
and to stay discovery and trial on the Monell claims until and
unless the Plaintiff first proves an underlying constitutional
violation against any of the individually-named Defendant officers.

DISCUSSION
Federal Rule of Civil Procedure 42(b) states, in relevant
part, that “[f]or convenience, to avoid prejudice, or to expedite
and economize, the court may order a separate trial of one or more
separate issues, claims, crossclaims, counterclaims, or third-party
claims.” Fed. R. Civ. P. 42(b). Bifurcation may be appropriate if
one or more of the Rule 42(b) criteria is met.

See, e.g., Treece

v. Hochstetler, 213 F.3d 360, 365 (7th Cir. 2000).

Courts have

broad discretion in deciding whether to bifurcate issues presented

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in a case or to try them separately.
203 F.3d 507, 516 (7th Cir. 2000).

Krocka v. City of Chicago,
Indeed, the district court’s

exercise of its discretion to bifurcate will be set aside on appeal
“only upon a clear showing of abuse.”

Treece, 213 F.3d at 364-65.

Federal Rule of Civil Procedure 26(d) also permits a court to stay
discovery on Monell claims.

Fed. R. Civ. P. 26(d); see also Carr

v. City of N. Chicago, 908 F.Supp.2d 926, 927 (N.D. Ill. 2012).
The decision of whether to bifurcate is a case-specific analysis.
Cadiz v. Kruger, No. 06 C 5463, 2007 WL 4293976, at *3 (N.D. Ill.
Nov. 29, 2007).
Defendant Buncich argues that bifurcation will be convenient
for the parties, it will avoid prejudice, expedite the matter, and
economize resources for the Court and parties during the discovery
process and trial. (DE #23 at 4.)

However, in response, Plaintiff

argues that bifurcation would be highly prejudicial and highly
impractical.

(DE #24 at 5.)

Defendant Buncich first argues that the Fourth Amendment
claims are particularly suited to bifurcation, citing Illinois
district court cases.

See, e.g., Carr, 908 F.Supp.2d at 932 (“In

the Fourth Amendment context of false arrest and excessive force
claims, courts in this District tend to grant bifurcation of Monell
claims where the municipality offers a certification of entry of
judgment.”); Medina v. City of Chicago, 100 F.Supp.2d 893, 894
(N.D. Ill. 2000) (“There is no question that a district court has

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the discretion to sever a Monell claim against a municipality from
claims against individual police officers and stay litigation of
the Monell claim until the rest of the case is resolved” and see
Illinois cases cited therein).

Clearly, there are many Illinois

district court cases undertaking this analysis, and a number order
bifurcation, but “[n]othing in these cases, however, requires
bifurcation in every case.

The issue is whether this Court should

exercise its discretion to bifurcate the claims in this particular
case.”

Medina, 100 F.Supp.2d at 894-95 (emphasis in original).

Defendant argues bifurcation is appropriate in the context of
the Fourth Amendment because “[i]f there is no excessive force,
there is no injury to constitutional rights” and “Section 1983
actions are well suited for bifurcation because unless a plaintiff
proves an officer violated his constitutional rights, the Monell
claim against the municipality will fail as a matter of law, and
the litigation will be over without the need for discovery or trial
on the Monell claims.”

(DE #23 at 5.)

It is true that Fourth

Amendment claims are evaluated under the standard of objective
reasonableness and require no culpable mind set. Graham v. Connor,
490 U.S. 386, 397 (1989).
claims,

including

under

However, Plaintiff has stated other
the

Fifth,

Eighth,

and

Fourteenth

Amendment, and state law claims, and the Seventh Circuit has stated
that municipal liability may be found even in the absence of
underlying

individual

liability.

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See

Thomas

v.

Cook

Cnty.

Sheriff’s Dep’t, 588 F.3d 445, 456 (7th Cir. 2009) (holding “a
municipality can be held liable under
officers

are

not,

unless

such

a

Monell, even when its

finding

would

create

an

inconsistent verdict.”).
In

the

complaint,

Plaintiff

asserts

Fourth,

Fifth,

and

Fourteenth Amendment claims, alleging her constitutional rights
were violated by and through the actions of the Lake County
Sheriff’s Department and Sheriff John Buncich and alleges:
The need for more or different procedures and
customs is so obvious and inadequacy so likely to
result in the violation of constitutional rights,
that Lake County policymakers, including the Lake
County Board of Commissioners, Lake County Sheriff,
John Buncich, and Lake County Jail Administrator,
Willie Stewart, can reasonably be said to have been
deliberately indifferent to the constitutional
rights of citizens, including Plaintiff.
(Compl. Count I ¶ 41,
47;

Count VI ¶ 53;

Count II ¶ 43;

Count III ¶ 45;

Count VII ¶ 59.)2

Count IV ¶

In response to the

allegations in the complaint, Defendant Buncich and the individual
officers set forth the affirmative defense of immunity.

(Buncich

Answer, DE #12 at 19; Individual Defs.’ Answer, DE #9, at 29.)
2

Defendant Buncich claims these are “run-of-the-mill
allegations of failure to train and/or supervise,” which differ
from the specific allegations in Miller v. City of Plymouth, No.
2:09-CV-205-JVB-PRC, 2010 WL 1754028, at *3 (N.D. Ind. Apr. 29,
2010) (declining to bifurcate discovery at the early stage of the
proceedings). It is true that Plaintiff’s claims here are not as
detailed as those in Miller, but they are not totally generic
when read with the entire complaint, and the Miller court denied
bifurcation for other reasons as well, including that Defendant
did not show how complying with discovery requests would be
unduly burdensome or costly. Id.
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Therefore, an adverse finding as to Plaintiff’s individual claims
does not necessarily dispose of the Monell claims.
As the Court stated in McIntosh:
At this early stage of litigation, prior to
depositions of any individual defendants and the
production of policy and training documents, it is
premature to unequivocally state that there can be
no municipal liability in the absence of underlying
individual liability.
Based on the parties’
current positions, however, it is plausible to
understand a situation in which differing verdicts
on these claims would be compatible - namely based
on
the
Defendants’
assertion
of
immunity.
Individual public employees are entitled, where
applicable, to the defense of qualified immunity,
but municipalities are not.
McIntosh v. City of Chicago, No. 15 C 1920, 2015 WL 5164080, at *8
(N.D. Ill. Sept. 2, 2015)(citations omitted).

Indeed, Plaintiff

argues that on an individual level, a patrolman could assert he was
acting in good faith when he took Plaintiff into custody because
his orders showed he was serving an active warrant per the LCSD
documentation.

(DE #24 at 6.)

As noted in McIntosh, “[a]s such,

bifurcation may not avoid a second trial if the officers are
immune, and the second trial (of the Monell claim) would likely
duplicate the first trial against the individual officers.”

Id.

See, e.g., Clarett v. Suroviak, No. 09 C 6918, 2011 WL 37838, at
*1-3 (N.D. Ill. Jan. 3, 2011) (denying bifurcation because if the
officers were found not liable based on their qualified immunity
defense, “there would still be a need for a second duplicative
trial as to the Village’s liability”); Medina, 100 F.Supp.2d at 896

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(denying bifurcation because, among other things, the individual
officers asserted qualified immunity).3
The Court is well aware of case law finding that discovery of
Monell claims “can add significant time, effort, and complications
to the discovery process.”

Medina, 100 F.Supp. 2d at 895; see also

Readus v. Dercola, 09 C 4063, 2012 WL 1533167, at *3 (N.D. Ill. May
1,

2012).

However,

bifurcation

at

unnecessary complexity and confusion.

this

stage

may

also

add

“A stay of Monell discovery

could, and often does, give rise to arguments about whether
Plaintiffs discovery requests relate to his Monell claim or to his
other claims.”

Cadle v. City of Chicago, No. 15 C 4725, 2015 WL

6742070, at *2 (N.D. Ill. Nov. 2, 2015).

The Court agrees with

Plaintiff’s concern that if bifurcation was granted, it would be
possible that questions asked of individuals in which departmental
policy,

procedure,

or

protocol

would

be

discussed,

could

be

objected to, and that costly discovery disputes could ensue. (DE

3

In response to Thomas and the concern of qualified
immunity, Defendant Buncich cites to Saunders v. City of Chicago,
No. 12-CV-9158, 2015 WL 7251938, at *9 (N.D. Ill. Nov. 2015)
(granting bifurcation even though recognizing “such a situation
could arise in this case should Plaintiffs be unable to recover
from the Defendant Officers because of their qualified immunity,
but Plaintiffs could still recover from the municipality, which
lacks such a protection.”) However, in Saunders, the Court
specifically stated it was “not persuaded in either direction on
this issue” because it believed the concern was premature. Id.
There are, of course, other district courts that have been swayed
by this argument in denying bifurcation. See, e.g., McIntosh,
2015 WL 5164080, at *8; Clarett, 2011 WL 37838, at *1-3; Medina,
100 F.Supp.2d at 896.
10

#24 at 10-11.)

Plaintiff contends the systemic and departmental

issue regarding the tracking and removal of warrants, and the
alleged false arrest based upon the failure to remove the warrant,
the failure to supervise the tracking and removal of warrants, and
the claims of public cruel and unusual punishment are intertwined
with the claims against the individuals.
While Defendant Buncich claims litigating the Monell claims
will be burdensome and time consuming, and “an extraordinary amount
of money must be spent in order to prepare for such claims,” (DE
#23 at 6) “[h]yperbolic words used to characterize an unspecified
burden are not enough.

This sort of non-specific assertion of

burden routinely is rejected as a basis to deny or limit discovery
under Federal Rule of Civil Procedure 26(b)(2)(C)(iii).”

Cadle,

2015 WL 6742070, at *2 (citations omitted). Moreover, as the Court
noted in Cadiz, “[t]o the extent that plaintiff’s Monell discovery
requests are overly broad or would impose undue burden and expense,
the court can and will tailor them as necessary, as other courts
have done.”

Cadiz, 2007 WL 4293976, at *3.

Defendant

Buncich’s

claims

that

the

individually-named

officers will suffer prejudice at trial are premature.

As other

courts have noted, “judges often address and can mitigate potential
prejudice that might arise from a unitary trial involving multiple
defendants

and

multiple

claims

through

the

use

of

limiting

instructions, motions in limine and the Federal Rules of Evidence.”

11

Id. (citing Giles v. City of Chicago, No. 12-CV-6746, 2013 WL
6512683, at *2 (N.D. Ill. Dec. 6, 2013); Elrod v. City of Chicago,
Nos. 06 C 2505, 07 C 203, 2007 WL 3241352, at *7 (N.D. Ill. Nov. 1,
2007); Medina, 100 F. Supp. 3d at 897; see also Awalt v. Marketti,
No. 11 C 6142, 2012 WL 1161500, at *13 (N.D. Ill. Apr. 9, 2012)
(“The Court has at its disposal an[y] number of tools to properly
order and organize a trial that will not be unfairly prejudicial to
any of the Defendants”).

These tools should be sufficient to

address issues of potential prejudice at trial and if not, the
Court may still order a bifurcation of trial at a later stage.
Ultimately, Defendant Buncich has not clearly showed that he
would be prejudiced if bifurcation is denied.

Here, whatever

efficiencies that might be gained by bifurcation are offset by the
potential for confusion of issues and discovery, and inefficiency
in delaying the case and possibly prejudicing Plaintiff during that
delay.

See, e.g., Miller, 2010 WL 1754028, at *3 (quoting Cadiz,

2007 WL 4293976, at *5) (stating a “stay of Monell discovery will
achieve cost savings only if one assumes that the parties are never
required to go back and conduct Monell discovery at some later
date”). Finally, the Court recognizes that Plaintiff is the author
of her complaint, and she has the right to select the claims she
brings, including Monell claims.
For all of these reasons, “Defendant Sheriff John Buncich
Motion to Bifurcate § 1983 Monell Claims and Stay Discovery and

12

Trial on Those Claims,” filed by Defendant, Sheriff John Buncich,
solely and in his official capacity as Lake County Sheriff, on
February 3, 2016 (DE #23), is DENIED.

CONCLUSION
For the reasons stated above, the “Defendant Sheriff John
Buncich Motion to Bifurcate § 1983 Monell Claims and Stay Discovery
and Trial on Those Claims,” filed by Defendant, Sheriff John
Buncich, solely and in his official capacity as Lake County
Sheriff, on February 3, 2016 (DE #23), is DENIED.

DATED: May 24, 2016

/s/ RUDY LOZANO, Judge
United States District Court

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