ALVAREZ et al v. TROPICANA HOTEL AND CASINO et al

Filing 79

OPINION. Signed by Judge Noel L. Hillman on 6/19/2018. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

NORMA ALVAREZ and TIFFANY
BAEZ,
1:15-cv-02061-NLH-JS
Plaintiffs,
OPINION
v.
CITY OF ATLANTIC CITY and
OFFICER JOSE GONZALEZ,
Defendants.

APPEARANCES:
DAVID R. CASTELLANI
CASTELLANI LAW FIRM, LLC
450 TILTON ROAD
SUITE 245
NORTHFIELD, NJ 08225
On behalf of Plaintiffs
MORRISON KENT FAIRBAIRN
MICHAEL A. ARMSTRONG & ASSOCIATES, LLC
79 MAINBRIDGE LANE
WILLINGBORO, NJ 08046
On behalf of Defendant City of Atlantic City
TRACY L. RILEY
RACHEL M. CONTE
LAW OFFICES OF RILEY & RILEY
100 HIGH STREET
SUITE 302
MT. HOLLY, NJ 08060
On behalf of Defendant Officer Jose Gonzalez
HILLMAN, District Judge
This matter concerns claims by Plaintiff Tiffany Baez 1 of
excessive use of force by Defendant Jose Gonzalez, an Atlantic

1

Plaintiff Norma Alvarez settled her claims with Defendants.

City police officer, at an Atlantic City casino nightclub, and
claims of municipal liability against the City of Atlantic City
for having a policy and custom of condoning the use of excessive
force.

Presently before the Court is the motion of the

Defendants to sever the trial of Baez’s claims against Gonzalez
and Atlantic City.

For the reasons expressed below, Defendant’s

motion will be granted.
BACKGROUND
In the early morning hours of March 23, 2013, Plaintiff and
a group of female friends went to the Providence nightclub in
the Tropicana Hotel and Casino in Atlantic City, New Jersey.

An

incident took place in the women’s restroom between one of the
members of Baez’s group and the ladies’ room attendant.

As a

result of that incident, a Providence security guard and
Gonzalez, an Atlantic City police officer who was working a
special detail at the nightclub, told the entire group to leave
the club.

The women left the club without incident, but a few

minutes later, Baez and the rest of the group returned.

Within

minutes Gonzalez approached them to again escort them from the
club.

An altercation ensued between Plaintiff and Gonzalez,

which is the basis for Plaintiff’s claims. 2

2

Plaintiff contends

For a more detailed recitation of the parties’ versions of what
occurred, see the Court’s July 24, 2017 Opinion, which denied
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that Gonzalez violated her Fourth Amendment rights by using
excessive force.

Plaintiff also contends that Atlantic City

violated her Fourth Amendment rights due to its policies and
customs which condone its officers’ use of excessive force. 3
Gonzalez moved for summary judgment, which the Court
denied. 4

(Docket No. 64, 65.)

The Court found that the evidence

in the record, most of which was in dispute in light of the two
very different accounts of what occurred, prevented the
determination of whether Gonzalez’s use of force was objectively
reasonable.

(Docket No. 64 at 11.)

The Court also found that a

video of the incident must be assessed by a jury because it
could support various outcomes depending on how the jury viewed
the video in combination with all the other evidence.

(Id. at

12.)

Gonzalez’s motion for summary judgment.

(Docket No. 64.)

3

Baez’s claims against Atlantic City are premised on Monell v.
New York City Dep’t of Social Services, 436 U.S. 658, 690
(1978), which provides that local governments cannot be held
liable for the actions of their employees solely based on the
doctrine of respondeat superior, but rather, in order to
successfully state a claim for municipal liability, a plaintiff
must allege that the employees’ actions were pursuant to a
policy or custom of the municipality itself.
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Atlantic City did not file a motion for summary judgment.
3

The matter is set for trial, and Defendants have moved to
sever the trial into two parts.

Defendants request that

Plaintiff’s claims against Gonzalez be tried first, and then
only proceed with Plaintiff’s municipal liability claims against
Atlantic City if Plaintiff prevails on her excessive force claim
against Gonzalez.

Defendants argue that courts routinely order

bifurcation in this type of case to expedite and economize the
trial to save the court’s, jury’s, and the parties’ time and
resources.
Defendants further contend that severing the excessive
force claim from the municipal liability claim will prevent
unfair prejudice to the individual officer defendant, where
evidence of a policy and custom of the municipality will include
unrelated internal affairs records and other excessive force
incidents.

Defendants also argue that bifurcation will not

prejudice Plaintiff, and in fact will benefit Plaintiff because
she will avoid presenting evidence that will be meaningless if
the jury finds that Gonzalez did not use excessive force.
Plaintiff does not see it that way.

Plaintiff points out

other courts do not bifurcate similar cases because they do not
view bifurcation as promoting quicker or more efficient trials.
Plaintiff also argues that a viable municipal liability claim is

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not dependent upon her first proving that Gonzalez violated her
Fourth Amendment rights.
A motion for separate trials is governed by Fed. R. Civ. P.
42(b), which provides:
For 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. When ordering a separate trial, the
court must preserve any federal right to a jury trial.
Fed. R. Civ. P. 42(b).

The district court is given broad

discretion in reaching its decision whether to order separate
trials.

Thabault v. Chait, 541 F.3d 512, 529 (3d Cir. 2008).

The Court finds that bifurcating the trial into two parts
is appropriate here, but not entirely for the reasons argued by
Defendants.

Recently, this Court in two other cases ordered the

plaintiffs’ excessive force claims and municipal liability
claims to be tried separately.

See Harrison v. City of Atlantic

City, et al., 1:14-cv-06292-NLH-AMD; Norman v. Haddon Township,
et al., 1:14-cv-06034-NLH-JS.

In Harrison, the Court explained:

[T]he Court questions whether Plaintiff’s Monell claims
should not be decided until after Plaintiff’s excessive
force claims are resolved. In City of Los Angeles v.
Heller, 475 U.S. 796, 799 (1986), the Supreme Court stated,
Neither Monell v. New York City Dept. of Social
Services, 436 U.S. 658 (1978), nor any other of our
cases authorizes the award of damages against a
municipal corporation based on the actions of one of
its officers when in fact the jury has concluded that
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the officer inflicted no constitutional harm. If a
person has suffered no constitutional injury at the
hands of the individual police officer, the fact that
the departmental regulations might have authorized the
use of constitutionally excessive force is quite
beside the point.
The Third Circuit has affirmed the application of
Heller in § 1983 cases where the plaintiff alleged
constitutional violations against individual police
officers and also asserted a claim for municipality
liability against the city under Monell. See, e.g., Smith
v. Gransden, 553 F. App’x 173, 178 (3d Cir. 2014) (“Because
we will not disturb the jury's verdict that Frampton is not
liable for any constitutional violations, there can
accordingly be no derivative municipal claim based on
Frampton's actions. Further, to the extent that Smith
argues that Camden is nevertheless liable under § 1983
because its unwritten policy caused a constitutional
violation through officers on the scene other than
Frampton, her argument is similarly unavailing, as it
requires proof that a CPD officer on the scene violated
Kashon Smith's constitutional rights by being deliberately
indifferent to his medical needs. Here, the jury found
Smith did not prove any officer violated Kashon Smith's
rights and thus, Camden could not be found liable and we
will not disturb the District Court's ruling in favor of
Camden.” (internal citations and quotations omitted));
Reiff v. Marks, 511 Fed. App’x 220, 222–23 (3d Cir. 2013)
(affirming the district court’s dismissal of the
plaintiff’s failure-to-train municipal liability claim
against West Reading Borough after a jury trial determined
that the defendant officer’s use of a TASER on the
plaintiff was reasonable use of force because a
municipality may not be held liable on a failure to train
theory when a jury has found that the plaintiff has
suffered no constitutional violation).
In this case, if, after a jury has answered its
special interrogatories as to Plaintiff’s excessive force
claims, the Court concludes that none of the defendant
officers violated Plaintiff’s Fourth Amendment rights and
they are entitled to qualified immunity, the principle
announced in Heller and applied by the Third Circuit would
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appear to warrant the dismissal of Plaintiff’s municipal
liability claims against Atlantic City. It would seem to
be, at a minimum, a waste of judicial resources to assess
Plaintiff’s Monell claims against Atlantic City now if such
claims ultimately may not be viable.
Harrison, 1:14-cv-06292-NLH-AMD, Docket No. 186 at 19-22.
The Court directed the parties to show cause as to why the
trial should not be bifurcated, and ultimately concluded that
“bifurcation of Plaintiff’s claims against Atlantic City is the
proper course because it may ultimately conserve judicial
resources and allow the Court a fuller and clearer assessment of
Plaintiff’s Monell claims after the jury resolves outstanding
factual disputes involving the individual defendant officers’
alleged wrongdoing.”

Harrison, 1:14-cv-06292-NLH-AMD, Docket

No. 195 at 1-2.
That decision in Harrison cited to Norman, where the Court
elaborated on the propriety of severing a plaintiff’s claims
against an individual officer from the plaintiff’s claims
against the municipality.

In Norman, the Court made the same

observations in support of bifurcation as in Harrison, see
Norman, 1:14-cv-6034, Docket No. 97 at 34-35, and further noted:
[I]f a jury concludes that the positioning of Norman in the
police vehicle did not cause his death, then Haddon
Township cannot be held liable for Norman’s death based on
its policies or training regarding a detainee’s positioning
in a police vehicle. Conversely, if a jury determines that
Norman’s death was caused by how he was placed in the
police vehicle, Haddon Township could be liable if an
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infirm policy or training program on that issue is found to
exist. This is true even if Benham and Sullivan are
ultimately entitled to qualified immunity, because a jury
may find that they properly followed Haddon Township’s
policy or training on detainee positioning, but that the
policy or training itself was so inadequate that it
violates the constitution. Haddon Township would not be
liable under Monell, however, if Benham and Sullivan are
found to have harmed Norman by how they positioned him in
the police vehicle because they failed to follow a
constitutionally appropriate policy or training on detainee
positioning. These various scenarios - and there are many
more depending on how the jury views the evidence illustrate that a jury’s resolution of the facts is a
necessary prerequisite to Haddon Township’s liability under
Monell. See, e.g., Fagan v. City of Vineland, 22 F.3d
1283, 1292 (3d Cir. 1994) (in a case where a high-speed
police pursuit of a car attempting to evade police officers
crashed into an innocent bystander’s vehicle, killing three
people and injuring three people, and the survivors of the
innocent bystanders brought § 1983 claims for substantive
due process violations against the officers for their
recklessness and the town for its lack of proper training
on high-speed pursuits, the court noted that a finding of
municipal liability did not depend automatically or
necessarily on the liability of any police officer because,
in a substantive due process case arising out of a police
pursuit, an underlying constitutional tort can still exist
even if no individual police officer violated the
constitution so long as it could be shown that the
plaintiff suffered the deprivation of life or liberty
because the officer was following a city policy reflecting
the city policymakers' deliberate indifference to
constitutional rights, thus making the city directly liable
under § 1983 for causing a violation of the plaintiff's
Fourteenth Amendment rights – in other words, where “[t]he
pursuing police officer is merely the causal conduit for
the constitutional violation committed by the City”).
Norman, 1:14-cv-6034, Docket No. 97 at 35 n.7.
The Court finds that the considerations expressed in
Harrison and Norman are equally applicable to the case here.

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Contrary to Defendants’ argument, Atlantic City is not
automatically off the hook for Plaintiff’s municipal liability
claims if Gonzalez is afforded qualified immunity for his
actions.

Even so, trying Plaintiff’s excessive force claim

against Gonzalez first, and having a jury resolve all the
disputed facts so that the Court may make the qualified immunity
determination, is a prerequisite to deciding whether Plaintiff’s
municipal liability claims against Atlantic City should proceed
thereafter and on what basis.

Thus, because the factors of Fed.

R. Civ. P. 42(b) are met – separate trials would be more
convenient for the parties and Court, avoid prejudice, and
potentially expedite and economize the case - the Court finds
that trying Plaintiff’s excessive force claim against Gonzalez
first, and separate from, Plaintiff’s Monell claim against
Atlantic City is warranted. 5
An appropriate Order will be entered.

Date:
June 19, 2018
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

5

If the Court determines that Plaintiff’s claim against Atlantic
City shall proceed, the jury which heard Plaintiff’s excessive
force claim against Gonzalez will remain empaneled to hear
Plaintiff’s municipal liability claim, with no break in between
the two phases.
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