Lluberes et al v. City of Troy et al

Filing 76

MEMORANDUM-DECISION and ORDER granting in part and denying in part 60 Motion for Summary Judgment; denying 62 Motion for Summary Judgment. ORDERED that plaintiffs' 62 motion for summary judgment is DENIED in its entirety. It is further ORDERED that defendants' 60 motion for summary judgment is GRANTED in part and DENIED in part. ORDERED that all claims against Anderson, Castle, Dean, Hoffman, Pirro, Negron, Evangelista, Salvatore, Sarris, Tutunjian, Troy PD, John and Jane Doe defendants, and individual defendants in their official capacities be dismissed from this action. ORDERED that Gillette's trial will proceed as scheduled on 4/28/2014 at 9:30 a.m. Upon the conclusion of that trial, the Court will set a dat e for Llubere's trial. Signed by Magistrate Judge Christian F. Hummel on 3/21/2014. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O) (dpk)

Carson v. City of Syracuse, Not Reported in F.Supp. (1993)

1993 WL 260676
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Ida M. CARSON and Bobby Carson, Plaintiffs,
v.
CITY OF SYRACUSE, Syracuse Police Department
and Christopher De Vito, Defendants.
No. 92–CV–777.

|

July 7, 1993.

Attorneys and Law Firms
Falco Falco & Sobolevsky, Syracuse, NY (Andre R.
Sobolevsky, of counsel), for plaintiffs.
C. Frank Harrigan, Corp. Counsel, City of Syracuse,
Syracuse, NY (John V. Sylvester, IV, Asst. Corp. Counsel),
for defendants.
Opinion
MEMORANDUM–DECISION AND ORDER

Ms. Carson's husband, plaintiff Bobby Carson, arrived at the
scene. Id. ¶ 10. Mr. Carson contends that he approached
DeVito to inquire about the status of DeVito's investigation.
Id. DeVito allegedly responded that the accident was none
of Carson's business and that Carson should leave the area
or he would be arrested. Id. ¶ 11. Carson allegedly informed
DeVito that his wife was involved in the accident and that the
other party involved in the accident appeared to be under the
influence of alcohol, after which DeVito allegedly exited his
police vehicle and arrested him. Id. ¶¶ 12–13. When Carson
asked why he was under arrest, DeVito allegedly “answered
by taking out his police baton and striking [Carson] repeatedly
about his arms, legs and body.” Id. ¶ 14.
When Ms. Carson screamed for help, DeVito allegedly
pushed her to the ground with such force that she suffered
broken bones in both arms. DeVito then allegedly resumed
beating Mr. Carson, even while Mr. Carson attempted to
shield himself and retreat from DeVito's barrage. Id. ¶¶ 15–
17. Plaintiffs contend that they suffered serious injuries as a
result of DeVito's activity, and attribute some of the fault to
the City defendants' policy of keeping DeVito on the police
force despite their purported knowledge of his allegedly
notorious reputation.

McCURN, Senior District Judge.
*1 Plaintiffs Ida and Bobby Carson commenced this action
on June 17, 1992, pursuant to 42 U.S.C. § 1983 and
state common law. They seek recovery for injuries they
allegedly sustained during a confrontation with defendant
Christopher DeVito. At the time of the alleged incident,
DeVito was on duty as a police officer for defendants
Syracuse Police Department and the City of Syracuse
(hereinafter “City defendants”). This court has jurisdiction
over plaintiffs' claims pursuant to 28 U.S.C. §§ 1331, 1343
(1988). Presently before the court is defendants' motion
pursuant to Fed.R.Civ.P. 42(b) to bifurcate the trials of
DeVito and the City defendants.

The Carsons subsequently retained their present counsel and
sued the City of Syracuse on January 4, 1991, in New York
State Supreme Court, Onondaga County. Their state court
suit asserted causes of action for common law torts and for
civil rights violations pursuant to 42 U.S.C. § 1983, all arising
from their confrontation with DeVito on October 5, 1987.
More than seventeen months later, plaintiffs commenced this
federal suit against the City and DeVito, also asserting causes
of action under common law and 42 U.S.C. § 1983. This
federal complaint is more expansive than the state complaint,
however, in that while the state complaint asserts claims
only against the City for negligent training and supervision,
this federal complaint additionally asserts claims directly
against DeVito based upon his own alleged constitutional
violations. 1

I. BACKGROUND
On October 5, 1989, plaintiff Ida Carson was involved in
an automobile accident in Syracuse, New York. Complaint ¶
9. Upon receiving notification of the accident, the Syracuse
Police Department dispatched to the accident scene one of its
officers, defendant DeVito, apparently to investigate, render
assistance, and perform other police functions that might
be necessary. Id. Sometime after Officer DeVito arrived,

*2 On December 22, 1992, defendants moved to dismiss the
complaint pursuant to the common law abstention doctrine
set forth in Colorado River Water Conserv. Dist. v. United
States, 424 U.S. 800 (1976). Relying in part upon the virtual
dormancy of the state litigation and the relative progress
of the instant case, this court found that abstention would
be inappropriate and therefore denied defendants' motion to

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Carson v. City of Syracuse, Not Reported in F.Supp. (1993)

dismiss. See Order, Carson v. City of Syracuse, No. 92–CV–
777 (N.D.N.Y. Dec. 31, 1992) (dkt. entry # 15).

II. DISCUSSION
The defendants move pursuant to Fed.R.Civ.P. 42(b) for a
bifurcation of the claims asserted against DeVito and the City
defendants. Rule 42(b) provides that the court, “in furtherance
of convenience or to avoid prejudice, or when separate trials
will be conducive to expedition and economy,” may order
separate trials of any claims or issues. District Courts in
the Second Circuit enjoy broad discretion in determining
whether to bifurcate a trial. E.g. Smith v. Lightning Bolt
Productions, Inc., 861 F.2d 363, 370 (2d Cir.1988); Katsaros
v. Cody, 744 F.2d 270, 278 (2d Cir.), cert. denied, 469 U.S.
1072 (1984). In exercising its discretion, however, the court
must consider—as the rule indicates—whether bifurcation
would (1) avoid unfair prejudice to a party, (2) provide for
convenience, and (3) expedite the proceedings and be more
economical. E.g. Ricciuti v. New York City Transit Auth., 796
F.Supp. 84, 86 (S.D.N.Y.1992); Ismail v. Cohen, 706 F.Supp.
243, 251 (S.D.N.Y.1989), aff'd in part and rev'd in part on
other grounds, 899 F.2d 183 (2d Cir.1990). These factors do
not represent a rigid test for determining whether separate
trials are necessary; to the contrary, the court could order
bifurcation upon a showing of merely one of these factors.
Ricciuti, 796 F.Supp. at 86; Ismail, 706 F.Supp. at 251.
Defendants have satisfied this court that bifurcation of
plaintiffs' claims against the City defendants and their
claims against DeVito is warranted. In fact, although they
are required to show the presence of only one of the
aforementioned factors to justify bifurcation, defendants have
convinced the court that all three factors weigh heavily in
favor of bifurcation. Not surprisingly, numerous other federal
courts visiting the identical issue presented herein—whether
to bifurcate a plaintiff's claim against a police officer from
his claim against a municipality—have similarly concluded
that bifurcation is appropriate. See, e.g., Grant v. City of New
York, 92 Civ. 2614, 1993 WL 5834, 1993 U.S.Dist. LEXIS
14 (S.D.N.Y. Jan. 4, 1993); Santiago v. New York, No. 90
Civ. 5233, 1992 WL 116605, 1992 U.S.Dist. LEXIS 6731
(S.D.N.Y. May 15, 1992); Marryshow v. Bladensburg, 139
F.R.D. 318, 319–20 (D.Md.1991), aff'd, 986 F.2d 689 (4th
Cir.1993); see also Myatt v. Chicago, 816 F.Supp. 1259, 1264
n. 6 (N.D.Ill.1992) (citing cases).

Consideration of the first factor, avoidance of unfair prejudice
to the moving party, would by itself justify bifurcation of the
trial. As mentioned above, plaintiffs' claim against the City
defendants is that they were unconstitutionally negligent in
their training and supervision of DeVito, a claim cognizable
under section 1983 pursuant to the Supreme Court's ruling in
Monell v. Department of Social Servs., 436 U.S. 658 (1978).
Defendants attest (and plaintiffs do not dispute) that plaintiffs
will seek to present in their case against the City defendants
evidence indicating the City defendants' knowledge of,
and disregard for, DeVito's extensive disciplinary record.
See Sylvester Aff. (5/17/93) at 7 (reference to eighteen
disciplinary and Internal Affairs files pertaining to DeVito).
In fact, plaintiffs made their intentions in this regard known in
their complaint, wherein they specifically asserted, inter alia:
*3 [The City defendants] had prior notice of the vicious
propensities of defendant, Christopher DeVito, but took
no steps to train him, correct his abuse of authority, or to
discourage his unlawful use of authority....
[The City defendants] authorized, tolerated as
institutionalized practices, and ratified the misconduct
hereinbefore described by: (a) failing to properly
discipline, restrict, and control employees, including
defendant Christopher DeVito, known to be irresponsible
in his dealings with citizens of the community; [and]
(b) failing to take adequate precautions in the hiring,
promotion and retention of police personnel, including
specifically defendant, Christopher DeVito....
Complaint ¶¶ 25–26.
Evidence of DeVito's past misconduct would certainly be
admissible against the City defendants to prove that they
were negligent, especially in light of their knowledge of
DeVito's alleged “vicious propensities,” in their training and
supervision of him. Cf., e.g., Marryshow, 139 F.R.D. at
320. According to plaintiffs, knowledge of DeVito's eighteen
disciplinary and Internal Affairs files should have put the
City defendants on notice that DeVito needed additional
training and supervision; plaintiffs maintain that DeVito
would not have acted as he did on October 5, 1989, had the
City defendants fulfilled their obligation to more properly
train and supervise him. To be sure, several courts have
acknowledged that a municipality's knowledge of a police
officer's past misconduct may be admissible to show that the
municipality negligently trained and supervised that officer.
See, e.g., Spell v. McDaniel, 824 F.2d 1380, 1390–91 (4th
Cir.1987) (“[c]constructive knowledge [by the municipality]

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Carson v. City of Syracuse, Not Reported in F.Supp. (1993)

may be inferred from the widespread extent of the practices,
general knowledge of their existence, manifest opportunities
and official duty of responsible policymakers to be informed,
or combinations of these”), cert. denied, 484 U.S. 1027
(1988); Marryshow, 139 F.R.D. at 320. This court similarly
concludes that evidence of DeVito's past misconduct, in the
form of his disciplinary and Internal Affairs files, would
likely be admissible to prove the City defendants' liability for
negligent hiring and supervision under Monell, supra, and its
progeny. 2
The same evidence, however, would most likely be
inadmissible against DeVito. The evidence would be
irrelevant and highly prejudicial, as the trier of fact would
be tempted to consider proof of DeVito's past misconduct as
an indication of his propensity to be violent and conclude
that he acted in conformity with his character when dealing
with plaintiffs on October 5, 1989. Admission of DeVito's
past misconduct to prove his character and propensities is
inadmissible under Fed.R.Evid. 404(a) and likely would
also be excluded pursuant to Fed.R.Evid. 403 due to its
unfair prejudice and inflammatory effect upon the jury. See
Hopson v. Fredericksen, 961 F.2d 1374, 1379 (8th Cir.1992).
Moreover, plaintiffs have proffered no alternative, legitimate
purpose for which this same evidence could be admitted.
Thus, this court would follow the numerous other courts
which have excluded from similar trials evidence of a police
officer's past misconduct to prove that he acted in a similar
manner on the occasion in question. See, e.g., id.; Fisher v.
New York, 90 Civ. 8163, 1992 WL 77606, 1992 U.S.Dist.
LEXIS 3436 (S.D.N.Y. Mar. 20, 1992); Otero v. Jennings,
698 F.Supp. 42, 47 (S.D.N.Y.1988).

involving issues remarkably similar to those presented here.
In Marryshow, the plaintiff brought suit against three police
officers and their superiors pursuant to section 1983, alleging
that the officers arrested him without a valid reason to do so
and used excessive force in making the arrest. 139 F.R.D. at
318. In his complaint, the plaintiff alleged that the officers'
superiors failed to properly train and supervise the defendant
officers. Id. The defendants together moved to bifurcate the
superiors' trial from the officers' trial on several grounds,
including the unfair prejudice that would result from a single
trial in which evidence would be introduced showing the
superiors' failure to train and supervise the officers. The
court agreed that the danger of unfair prejudice compelled
bifurcation, explaining:
In the case at bar, as alleged in the Amended Complaint,
Plaintiff will seek to prove liability on the part of the
[superiors] by proof of “ongoing complaints of police
brutality against the black members of the county as a
whole ...,” “increasing amounts of brutality against black
individuals by the police officers since the initiation of a
drug task force,” a “failure to train,” a “failure to investigate
the matter,” and that “efforts by the Federal Bureau of
Investigations to investigate the matter were rebuffed.”
Much (and possibly all) of this custom, practice or policy
evidence would be both irrelevant to the jury's decision
as to the events [in question], and highly prejudicial to
the [officers]. Bifurcation facilitates a trial in which the
Court can allow in evidence only that portion, if any, of
the Plaintiff's custom, practice, or policy evidence that
is relevant and admissible with respect to the events [in
question]. This results in a fairer trial.
Id. at 320 (emphasis added) (footnote omitted).

*4 Thus, the problem develops that evidence of DeVito's
disciplinary and Internal Affairs files would be relevant
—indeed, important—in plaintiffs' case against the City
defendants yet inadmissible as unduly prejudicial in their
case against DeVito. The method that the other courts cited
above have used to resolve this conflict is to separate the
trial of the individual officer from that of the municipal
defendant, so that evidence admissible only against the
municipality does not unfairly taint the trial of the individual
officer. As indicated above, this reason alone would justify,
if not compel, bifurcation of plaintiffs' case against the City
defendants and their case against defendant DeVito.
In finding that bifurcation of Officer DeVito's and the
City defendants' trials is warranted, this court follows the
sound reasoning set forth in Marryshow, supra, a case

This court similarly concludes that the unfair prejudice that
would be inherent in a single trial for both the City defendants
and Officer DeVito justifies bifurcation of the trial. See also,
e.g., Fisher, 1992 U.S.Dist. LEXIS 3436; Otero, 98 F.Supp.
at 47.
*5 Even without the danger of unfair prejudice, this
court's interest in promoting judicial efficiency, economy, and
convenience independently would justify bifurcation of this
trial. The basis for this conclusion lies in the settled rule that
“[a] claim of inadequate training under section 1983 cannot
be made out against a supervisory authority absent a finding
of a constitutional violation on the part of the person being
supervised.” Temkin v. Frederick Cty. Comm'rs, 945 F.2d
716, 724 (4th Cir.1991), cert. denied, 112 S.Ct. 1172 (1992).

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Carson v. City of Syracuse, Not Reported in F.Supp. (1993)

As the City defendants correctly point out, they cannot be
held liable for negligent training and supervision unless the
trier of fact first concludes that DeVito acted improperly. Cf.,
e.g., id.; de Feliciano v. de Jesus, 873 F.2d 447, 449–50 (1st
Cir.) (citing Los Angeles v. Heller, 475 U.S. 796 (1986)), cert.
denied, 493 U.S. 850 (1989). Thus, if the trier of fact were to
conclude in a “non-bifurcated” trial, i.e., after trying DeVito
and the City defendants together, that DeVito acted properly
(or at least does not find that DeVito acted improperly),
then it could not consider the question of whether the City
defendants improperly trained and supervised him, and all of
the time and resources spent litigating the City defendants'
liability would have been wasted. By instead bifurcating the
trial and first adjudicating DeVito's individual liability, the
trier of fact's verdict as to DeVito will dictate whether the
court needs to adjudicate the City defendants' liability as
well. Cf. Barnell v. Paine Webber Jackson & Curtis Inc.,
577 F.Supp. 976, 978 (S.D.N.Y.1984) (“a significant savings
of time and money may follow from a separate trial on this
issue”); Marryshow, 139 F.R.D. at 320; cf. also, e.g., Myatt,
816 F.Supp. at 1264. Not surprisingly, many other courts
have relied upon this rationale to justify their decisions to
adjudicate a police officer's liability before considering the
municipality's liability. See, e.g., Grant v. New York, No.
92 Civ. 2614, 1993 WL 5834, 1993 U.S.Dist. LEXIS 14
(S.D.N.Y. Jan. 4, 1993); Myatt, 816 F.Supp. at 1264 & n. 6
(citing cases); Santiago, 1992 WL 116605, 1992 U.S.Dist.
LEXIS 6731; Marryshow, 139 F.R.D. at 319–20.
The rationale articulated by the Southern District of New
York in Ricciuti, supra, is particularly instructive of this
point. Ricciuti arose from an altercation between plaintiffs
and several New York City law enforcement personnel at
Yankee Stadium. 796 FSupp. at 84. The plaintiffs essentially
alleged that the officers arrested and assaulted them without
just cause a “non-bifurcated” trial, i.e., after trying DeVito
and the City defendants together, that DeVito acted properly
(or at least does not find that DeVito acted improperly),
then it could not consider the question of whether the City
defendants improperly trained and supervised him, and all of
the time and resources spent litigating the City defendants'
liability would have been wasted. By instead bifurcating the
trial and first adjudicating DeVito's individual liability, the
trier of fact's verdict as to DeVito will dictate whether the
court needs to adjudicate the City defendants' liability as
well. Cf. Barnell v. Paine Webber Jackson & Curtis Inc.,
577 F.Supp. 976, 978 (S.D.N.Y.1984) (“a significant savings
of time and money may follow from a separate trial on this
issue”); Marryshow, 139 F.R.D. at 320; cf. also, e.g., Myatt,

816 F.Supp. at 1264. Not surprisingly, many other courts
have relied upon this rationale to justify their decisions to
adjudicate a police officer's liability before considering the
municipality's liability. See, e.g., Grant v. New York, No.
92 Civ. 2614, 1993 WL 5834, 1993 U.S.Dist. LEXIS 14
(S.D.N.Y. Jan. 4, 1993); Myatt, 816 F.Supp. at 1264 & n. 6
(citing cases); Santiago, 1992 WL 116605, 1992 U.S.Dist.
LEXIS 6731; Marryshow, 139 F.R.D. at 319–20.
*6 The rationale articulated by the Southern District of
New York in Ricciuti, supra, is particularly instructive of this
point. Ricciuti arose from an altercation between plaintiffs
and several New York City law enforcement personnel at
Yankee Stadium. 796 FSupp. at 84. The plaintiffs essentially
alleged that the officers arrested and assaulted them without
just cause for doing so; indeed, the Bronx Criminal Court
dismissed all of the charges brought against the plaintiffs. Id.
at 85. The plaintiffs subsequently brought a civil rights action
pursuant to section 1983 against the allegedly offending
officers as well as the officers' superiors and the municipal
entities by which the officers were employed. The defendants
moved for bifurcation of the trials and discovery in part
on grounds that such bifurcation would further many of the
interests listed in Fed.R.Civ.P. 42(b), to wit promotion of
convenience, economy, and justice.
The court agreed that bifurcation was appropriate under Rule
42(b). The court reasoned:
Convenience and economy are
served, the defendants argue, because
bifurcation could lead to an earlier and
less costly disposition. They correctly
point out that for plaintiffs to prevail
on their § 1983 claim against the
municipal entities, they must show that
these entities implemented a policy or
custom that caused plaintiffs' injuries.
But as defendants also observe, in
order to trigger Monell liability,
plaintiffs must show that their injuries
rise to the level of a constitutional
tort.” Monell therefore creates an order
of proof that, the defendants argue,
favors bifurcation. Because plaintiffs
must show that their constitutional
rights were violated during the April
30, 1989 incident before they even
address the “pattern and practice”
claim against the municipalities, it

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Carson v. City of Syracuse, Not Reported in F.Supp. (1993)

makes sense to sever the trial so that
the three individual officers are tried
first. That way, he defendants assert,
if the claims against the individuals
are unsuccessful, the plaintiffs will no
longer have any claims against the
others. The Court would thus be spared
significant time and effort.
Riccciuti, 796 FSupp. at 85 (citations omitted); but see id.
at 86 (noting that economic benefit of bifurcation would be
diminished if officers successfully claim qualified immunity).
Accord, e.g., Myatt, 816 F.Supp. at 1264 & n. 6 (citing cases);
for doing so; indeed, the Bronx Criminal Court dismissed all
of the charges brought against the plaintiffs. Id. at 85. The
plaintiffs subsequently brought a civil rights action pursuant
to section 1983 against the allegedly offending officers as
well as the officers' superiors and the municipal entities by
which the officers were employed. The defendants moved
for bifurcation of the trials and discovery in part on grounds
that such bifurcation would further many of the interests
listed in Fed.R.Civ.P. 42(b), to wit promotion of convenience,
economy, and justice.
*7 The court agreed that bifurcation was appropriate under
Rule 42(b). The court reasoned:
Convenience and economy are
served, the defendants argue, because
bifurcation could lead to an earlier and
less costly disposition. They correctly
point out that for plaintiffs to prevail
on their § 1983 claim against the
municipal entities, they must show that
these entities implemented a policy or
custom that caused plaintiffs' injuries.
But as defendants also observe, in
order to trigger Monell liability,
plaintiffs must show that their injuries
rise to the level of a constitutional
tort.” Monell therefore creates an order
of proof that, the defendants argue,
favors bifurcation. Because plaintiffs
must show that their constitutional
rights were violated during the April
30, 1989 incident before they even
address the “pattern and practice”
claim against the municipalities, it
makes sense to sever the trial so that

the three individual officers are tried
first. That way, he defendants assert,
if the claims against the individuals
are unsuccessful, the plaintiffs will no
longer have any claims against the
others. The Court would thus be spared
significant time and effort.
Riccciuti, 796 FSupp. at 85 (citations omitted); but see id.
at 86 (noting that economic benefit of bifurcation would be
diminished if officers successfully claim qualified immunity).
Accord, e.g., Myatt, 816 F.Supp. at 1264 & n. 6 (citing cases);
Ismail, 706 F.Supp. at 251.
One may be tempted to argue that bifurcation, and the
resulting two trials, would impose an unfair hardship upon
plaintiffs, who do not have the support of a public tax
base to finance separate trials. The hardship of a bifurcated
trial, however, would not be materially greater than that
of a single trial; in the event of an adverse verdict for
plaintiffs on DeVito's liability, the bifurcation would actually
save plaintiffs (albeit to their dismay) the burden of having
to litigate the municipality's liability. Cf. Marryshow, 139
F.R.D. at 320 (“a substantial degree of economy in the
litigation may also be achieved by bifurcation in this case”).
This court can (and hereby does) mitigate the financial
hardship upon plaintiff of a bifurcation by ordering that the
trials occur “back-to-back” with the same jury, so that proof
need not be repeated in the trial (if any) of the City defendants.
In the event that the trier of fact returns a verdict against
DeVito, the case immediately will proceed to consideration
by the same jury of the City defendants' liability. Cf., e.g.,
Myatt, 816 F.Supp. at 1264 n. 9 (“if the individual defendants
are held liable, the trial will proceed against the City on the
Monell policy claims).

III. CONCLUSION
Defendants' motion pursuant to Fed.R.Civ.P. 42(b) for an
order directing a bifurcated trial is granted. Trial on the merits
of this suit shall be conducted such that trial of the causes of
action asserted against defendant DeVito shall be held first; if
plaintiffs establish liability against DeVito, then the trial shall
continue regarding the causes of action asserted against the
City defendants.
*8 IT IS SO ORDERED.

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Carson v. City of Syracuse, Not Reported in F.Supp. (1993)

Footnotes

1

2

The federal complaint further differs from the state complaint in that the federal complaint also names “Syracuse Police Department”
as a defendant. The federal claim against the Syracuse Police Department is a distinction without a difference, however, since the
Police Department is not an independent entity but rather is part of the City of Syracuse. Thus, by naming the City of Syracuse as a
defendant, plaintiffs had already asserted a claim against the Police Department.
The court does not finally rule on the admissibility of such evidence at this time; rather, the court will entertain any objections to
admission of this evidence at the time of its introduction. The court merely finds that the City defendants' knowledge of DeVito's
past misconduct is likely admissible at the trial on plaintiffs' claims of negligent training and supervision.

End of Document

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