Schoolcraft v. The City Of New York et al

Filing 439

MEMORANDUM OF LAW in Support re: 438 MOTION to Bifurcate for Trial Plaintiff's Monell Claim Against the City of New York. MOTION for Reconsideration of the Court's May 5 2015 Order Concerning Summary Judgment. . Document filed by Christopher Broschart(Tax Id. 915354 in his official capacity), Timothy Caughey(Tax Id. 885374 Individually), Kurt Duncan(Shield No. 2483, Individually), William Gough(Tax Id. 919124, Individually), Elise Hanlon(in her official capacity as a lieutenant with the New York City Fire Department), Shantel James(Shield No. 3004 in his official capacity), Theodore Lauterborn(Tax Id. 897840 in his official capacity), Michael Marino, Gerald Nelson(Assistant Chief Patrol Borough Brooklyn North, Tax Id. 912370 in his official capacity), Frederick Sawyer(Shield No. 2576 in his official capacity), The City Of New York. (Scheiner, Alan)

10-CV-6005 (RWS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ADRIAN SCHOOLCRAFT,
Plaintiff,
-againstTHE CITY OF NEW YORK, et al.,
Defendants.

MEMORANDUM OF LAW IN SUPPORT OF CITY
DEFENDANTS’
MOTION
FOR
RECONSIDERATION AND FOR BIFURCATION
OF PLAINTIFF’S MONELL CLAIM

ZACHARY W. CARTER
Corporation Counsel of the City of New York
Attorney for Defendants
100 Church Street
New York, N.Y. 10007
Of Counsel: Alan Scheiner
Tel: [phone]
James Horton
Tel: [phone]
Matter #: 2010-033074

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................................... ii
PRELIMINARY STATEMENT .................................................................................................... 1
ARGUMENT
POINT I
THE COURT SHOULD AMEND THE ORDER
TO
HOLD
THAT
THE
COLLECTIVE
KNOWLEDGE
DOCTRINE
ALLOWS
INFORMATION AVAILABLE TO POLICE
OFFICERS TO BE COMBINED FOR THE
PURPOSES OF DETERMINING PROBABLE
CAUSE, WHETHER OR NOT THE SPECIFIC
INFORMATION
WAS
ACTUALLY
COMMUNICATED BETWEEN THE OFFICERS ................................... 3
POINT II
THE COURT SHOULD DISMISS ALL CLAIMS
AGAINST
DEFENDNANT
TIMOTHY
CAUGHEY BECAUSE THE COURT FOUND
CAUGHEY TO BE PERSONALLY INVOLVED
ONLY IN PLAINTIFF’S FIRST AMENDMENT
CLAIM, AND THE COURT PROPERLY
GRANTED QUALIFIED IMMUNITY TO ALL
INDIVIDUAL DEFENDANTS FOR THE FIRST
AMENDMENT CLAIM ............................................................................. 9
POINT III
THE
COURT
SHOULD
BIFURCATE
PLAINTIFF’S MONELL CLAIM FOR TRIAL ....................................... 10
A. The scope of plaintiff’s Monell claim calls for
bifurcation to avoid the possibly unnecessary,
significant costs of a series of mini-trials on
unrelated instances of purported ‘other bad
acts’ by the NYPD. ............................................................................ 13

Page
B. The Court should bifurcate plaintiff’s Monell
claim in order to avoid undue and substantial
prejudice to the defendants, and jury confusion,
arising from the introduction of Monell
evidence concerning unrelated allegations of
misconduct. ........................................................................................ 18
CONCLUSION ............................................................................................................................. 21

- ii -

TABLE OF AUTHORITIES
Cases

Pages

Amato v. City of Saratoga Springs,
170 F.3d 311 (2d Cir. 1999)..................................................................................................... 14
Barnell v. Paine-Weber Jackson & Curtis, Inc.,
577 F. Supp. 976 (S.D.N.Y. 1984) .......................................................................................... 12
Berkovich v. Hicks,
922 F.2d 1018 (2d Cir. N.Y. 1991) .......................................................................................... 19
Bombard v. Volp,
44 F. Supp. 3d 514 (D. Vt. 2014)............................................................................................. 14
Busch v. City of New York,
00 CV 5211 (SJ), 2002 U.S. Dist. LEXIS 18337 (E.D.N.Y. Sept. 9, 2002)............................ 15
Carson v. City of Syracuse,
92-CV-777, 1993 U.S. Dist. LEXIS 9508 (N.D.N.Y. 1993) ............................................. 11, 19
City of Canton v. Harris,
489 U.S. 378 (1989) ................................................................................................................. 13
City of Los Angeles v. Heller,
475 U.S. 796 (1986) ................................................................................................................. 14
City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981) ............................................. 13
Colon v. City of New York,
11-CV-0173 (MKB), 2014 U.S. Dist. LEXIS 46451 (E.D.N.Y. Apr. 2, 2014) ..................... 8-9
Crawford v. City of New York,
477 Fed. Appx. 777 (2d Cir. 2012) ............................................................................................ 7
Daniels v. Loizzo,
178 F.R.D. 46 (S.D.N.Y. 1998) ................................................................................... 11, 12, 19
DiSorbo v. Hoy,
343 F.3d 172 (2d Cir. 2003)..................................................................................................... 12
Doe v. Yorkville Plaza Assocs.,
92 Civ. 8250 (JGK), 1997 U.S. Dist. LEXIS 10103 (S.D.N.Y. July 11, 1997) ....................... 15
Duke v. County of Nassau,
97-CV-1495 (JS), 2000 U.S. Dist. LEXIS 22415 (E.D.N.Y. Oct. 26, 2000) ..................... 14-15

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Cases

Pages

Fisher v. City of New York,
90 Civ. 8163 (LJF), 1992 U.S. Dist LEXIS 3436 (S.D.N.Y. 1992) ......................................... 19
Hollins v. City of New York,
10 Civ. 1650 (LGS), 2014 U.S. Dist. LEXIS 183076 (S.D.N.Y. Mar. 3, 2014) ..................... 14
Illinois v. Andreas,
463 U.S. 765 (1983) ............................................................................................................... 4, 5
Ismail v. Cohen,
706 F. Supp. 243 (S.D.N.Y. 1989),
rev’d on other grounds and aff’d in part, 899 F.2d 183 (2d Cir. 1990) ....................... 11, 19, 20
Martinez v. Simonetti,
202 F.3d 625 (2d Cir. 2000)....................................................................................................... 8
Masi v. City of New York,
98 Civ. 6802 (MBM), 1999 U.S. Dist. LEXIS 13488 (S.D.N.Y. Sept. 2, 1999)..................... 15
Matthews v. City of New York,
No. 13-2915-cv, 2015 U.S. App. LEXIS 3016 (2nd. Cir. Feb. 26, 2015) ............................... 17
Mineo v. City of New York,
2013 U.S. Dist. LEXIS 46953, 2013 WL 1334322 (E.D.N.Y. Mar. 29, 2013) ....................... 14
Monell v. Dep’t of Social Services,
436 U.S. 658 (1978) ............................................................................................ 1, 2, 13, passim
Morales v. Irizarry,
95 Civ. 5068(AGS) (HBP), 1996 U.S. Dist. LEXIS 15613 (S.D.N.Y. 1996) ......................... 15
Ortiz v. Vill. of Monticello,
06 Civ. 2208, 2012 U.S. Dist. LEXIS 158428 (S.D.N.Y. Nov. 2, 2012) .................................. 8
Padilla v. City of New York,
1993 U.S. Dist. LEXIS 17 (S.D.N.Y. Jan. 4, 1993)........................................................... 17, 18
Ricciuti v. New York City Transit Auth.,
796 F. Supp. 84 (S.D.N.Y. 1992) .................................................................... 11, 12, 13, 19, 20
Santiago v. New York,
1992 U.S. Dist. LEXIS 6731 (S.D.N.Y. May 15, 1992).......................................................... 12
Sarus v. Rotundo,
831 F.2d 397 (2d Cir. 1987)..................................................................................................... 13

- iv -

Cases

Pages

Savino v. City of N.Y.,
331 F.3d 63 (2d Cir. 2003)......................................................................................................... 4
Schoolcraft v. City of New York,
10 Civ. 6005 (RWS), 2015 U.S. Dist. LEXIS 58831 (S.D.N.Y. May 5, 2015) ....... 1, 2, 3, 4, 6,
7, 8, 9, 10, 13, 14, 15, 16, 17
Sharapata v. Islip, 56 N.Y.2d 332, 339 (1982) ........................................................................... 13
Toliver v. City of New York,
No. 10 Civ. 3165, 2012 U.S. Dist. LEXIS 187196 (S.D.N.Y. Dec. 10, 2012),
report and recommendation adopted, 2013 U.S. Dist. LEXIS 39894
(S.D.N.Y. Mar. 21, 2013) .......................................................................................................... 6
United States v. Canieso,
470 F.2d 1224 (2d Cir. 1972)..................................................................................................... 7
United States v. Colon,
250 F.3d 130 (2d Cir. 2001)....................................................................................................... 5
United States v. Cruz,
834 F.2d 47 (2d Cir. 1987)................................................................................................. 4, 5, 6
United States v. Hensley,
469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985) ............................................................. 5
United States v. Valez,
796 F.2d 24 (2d Cir. 1986)................................................................................................. 5, 6, 7
Vives v. City of New York,
02 Civ. 6646 (JSM)(HBP), 2003 U.S. Dist. LEXIS 1833 (S.D.N.Y. Feb. 10, 2003).............. 14
Williams v. Blvd. Lines, Inc.,
10 Civ. 2924 (DF), 2013 U.S. Dist. LEXIS 149707 (S.D.N.Y. Sept. 30, 2013) ..................... 11
Williams v. City of New York,
CV-07-5362 (NG)(VVP), 2008 U.S. Dist. LEXIS 104730 (E.D.N.Y. Dec. 29, 2008) ............ 14
Zellner v. Summerlin,
494 F.3d 344 (2d Cir. 2007).............................................................................................. 4, 5, 6

-v-

Statutes

Pages

Fed. R. Civ. P. 42(b) ................................................................................................................. 1, 11
Fed. R. Civ. P. 56 ............................................................................................................................ 1
Fed. R. Civ. P. 60 ............................................................................................................................ 1
Fed. R. Civ. P. 403 ........................................................................................................................ 18
Local Rule 6.2 ................................................................................................................................. 1

- vi -

PRELIMINARY STATEMENT
City defendants respectfully submit this memorandum of law in support of their motion
pursuant to Fed. R. Civ. P. 60 and Local Rule 6.2 for partial reconsideration of the Court’s Order
of May 5, 2015, granting in part and denying in part the parties’ motions for partial summary
judgment pursuant to Fed. R. Civ. P. 56, Schoolcraft v. City of New York, 10 Civ. 6005 (RWS),
2015 U.S. Dist. LEXIS 58831 (S.D.N.Y. May 5, 2015) (the “Order,” cited as “Schoolcraft”) 1 and
their motion for bifurcation of the plaintiff’s claim against the City of New York under Monell v.
Dep’t of Social Services, 436 U.S. 658 (1978) for the purposes of trial, pursuant to Fed. R. Civ.
P. 42(b).
The City defendants respectfully request reconsideration of the Order in two limited
respects:
First, the Court discussed the collective knowledge doctrine in considering whether
probable cause existed for entry in Schoolcraft’s apartment, but suggested that the collective
knowledge doctrine may require that the specific knowledge at issue – in this case the statements
by Dr. Catherine Lamstein-Reiss to Capt. Theodore Lauterborn – have been expressly
communicated to the other individual defendants.

Schoolcraft at *82.

The applicable

authorities, however, including those relied on by the Court, do not so require. Indeed, that
requirement would obviate the need for the collective knowledge doctrine. Rather, authorities
require only that the officers be involved in the investigation or in communication in some
respect in order for their information to be combined. Accordingly, in order to avoid prejudice
in further proceedings with respect to this issue, the City defendants respectfully request that the

1

All references to the Order are to the LEXIS published version cited as “Schoolcraft at *__,”
using the LEXIS pagination of the order.

Court correct the Order with regard to the requirements of the collective knowledge doctrine to
make clear that communication of the specific knowledge at issue is not required. 2
Second, the Court granted all individual defendants qualified immunity for Schoolcraft’s
claims based on the First Amendment. Schoolcraft at *112. But the Court also ruled that the
claims against defendant retired Lt. Timothy Caughey should not be dismissed from the case for
lack of personal involvement because he was personally involved in conduct falling within
Schoolcraft’s First Amendment claim. Schoolcraft at *155. The City defendants respectfully
submit that the Court correctly applied qualified immunity to all individual defendants on the
First Amendment claim, including Caughey, and therefore all claims against Caughey should be
dismissed.
Third, the City defendants move for bifurcation of the plaintiff’s claim against the City of
New York under Monell v. Dep’t of Social Services, 436 U.S. 658 (1978). 3 The City defendants’
motion for summary judgment dismissing the Monell claim was denied, but the City reserved its
right to move at a later time to bifurcate any Monell claim that survived such motion. City
defendants’ Reply Memorandum of Law in Support of Summary Judgment at 37, n. 14, No 411
(“City Reply”). The main issue in this case, which the jury must decide before reaching any
Monell claim, is whether the plaintiff’s constitutional rights were violated as he alleges.

2

The Court found independent bases for declining to dismiss the Fourth Amendment claims, and
therefore correcting the collective knowledge ruling would not alone alter the result of the
motion. The City defendants do not agree with the Court’s alternative bases for its ruling (or
other aspects of the Order). Nevertheless, in order to avoid rehashing prior arguments and
mindful of the limited scope of a motion for reconsideration, the City defendants have focused
this motion on select issues, and reserve all of their objections and arguments with respect to the
Order for later proceedings.
3

The City defendants advised plaintiff’s counsel by email of their intent to move to bifurcate at
this juncture and asked plaintiff’s counsel by email whether they would consent to bifurcation;
plaintiff’s counsel has so far not responded.
-2-

Bifurcation of the Monell claim is necessary to promote judicial economy, avoid a potentially
costly trial on issues that could be rendered moot, and avoid undue prejudice to the City in the
trial of the main issue. The motion should be decided at this stage in order to guide the parties in
their preparation for the trial scheduled for October 19, 2015.
ARGUMENT
POINT I
THE COURT SHOULD AMEND THE ORDER
TO HOLD THAT THE COLLECTIVE
KNOWLEDGE
DOCTRINE
ALLOWS
INFORMATION AVAILABLE TO POLICE
OFFICERS TO BE COMBINED FOR THE
PURPOSES OF DETERMINING PROBABLE
CAUSE, WHETHER OR NOT THE SPECIFIC
INFORMATION
WAS
ACTUALLY
COMMUNICATED
BETWEEN
THE
OFFICERS
The Court should amend its Order with respect to the collective knowledge doctrine
applicable to probable cause questions because the Order incorrectly suggests that that specific
information must be communicated between officers in order for that information to be
considered in the collective knowledge considered in determining probable cause.

As the

authorities cited by the Court, as well as others, make clear, in fact specific communication of
the facts are not required; at most it is only required that the officers be involved with the
investigation, or that there is some communication between them, for their knowledge to be
combined.
The City argued on summary judgment that information known to one officer –
specifically, the statements of Dr. Lamstein-Ross to Captain Theodore Lauterborn about
Schoolcraft – need not have been shared by Lauterborn with other officers. City Defs.' Mem. in

-3-

Opp'n4 at 7-8; see Savino v. City of N.Y., 331 F.3d 63, 74 (2d Cir. 2003) (“The collective
knowledge doctrine provides that, for the purpose of determining whether an arresting officer
had probable cause to arrest, ‘where law enforcement authorities are cooperating in an
investigation, … the knowledge of one is presumed shared by all.’” (quoting Illinois v. Andreas,
463 U.S. 765, 772 (1983))).
The Court held that there was a factual dispute about the substance of Dr. LamsteinRoss’s statements to Lauterborn. Schoolcraft at *78. As an alternative ground for denying
summary judgment, the Court also suggested that it could not determine on summary judgment
whether the collective knowledge doctrine would apply to those statements because:
[T]he record does not establish whether other officers were aware of
Dr. Lamstein's warning to Captain Lauterborn. See Facts ¶¶ 92, 123.
Consequently, whether Dr. Lamstein made the statement to Captain
Lauterborn, and whether Captain Lauterborn in turn communicated
that information to his colleagues such that the collective knowledge
doctrine may apply, present questions of fact barring summary
judgment for the City defendants.
Schoolcraft at *82.
This portion of the Court’s opinion is contrary to settled law because, as the authorities
cited by the Court, and many others, make clear, the specific information at issue need not be
communicated among the officers for collective knowledge to apply. Rather, the most that is
required is that the officers be “in communication with each other,” United States v. Cruz, 834
F.2d 47, 51 (2d Cir. 1987) – i.e., they had some communication with other officers – or were
otherwise “involved with the investigation.” Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir.
2007); see Schoolcraft at *81.

4

References to submissions relating to the parties’ summary judgment motions that were cited in
the Order use the Order’s form of abbreviations for such submissions.
-4-

The collective knowledge doctrine was recognized by the Supreme Court in Illinois v.
Andreas, 463 U.S. 765 (U.S. 1983), which held that facts known to customs officers, but not
observed by an arresting other from another agency, would be considered for the purposes of
probable cause, because “where law enforcement authorities are cooperating in an investigation,
as here, the knowledge of one is presumed shared by all.” Id., 463 U.S. at 771 n.5.
As the Second Circuit explained in Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir.
2007), the collective knowledge doctrine applies precisely where “the actual arresting or
searching officer lacks the specific information to form the basis for probable cause” (emphasis
added):
The existence of probable cause need not be assessed on the basis
of the knowledge of a single officer.
“[A]n arrest . . . is permissible where the actual arresting or
searching officer lacks the specific information to form the basis
for probable cause or reasonable suspicion but sufficient
information to justify the arrest or search was known by other law
enforcement officials initiating or involved with the investigation.”
United States v. Colon, 250 F.3d 130, 135 (2d Cir. 2001); see, e.g.,
United States v. Hensley, 469 U.S. 221, 230-33, 105 S. Ct. 675, 83
L. Ed. 2d 604 (1985). This principle, known as the collective or
imputed knowledge doctrine, recognizes that, “in light of the
complexity of modern police work, the arresting officer cannot
always be aware of every aspect of an investigation; sometimes his
authority to arrest a suspect is based on facts known only to his
superiors or associates.” United States v. Valez, 796 F.2d 24, 28
(2d Cir. 1986) [additional citations omitted]
Id.
In Cruz, cited by the Court in the Order, the Second Circuit applied information known to
DEA agents who had surveilled a suspect to the probable cause inquiry for a highway stop and
subsequent arrest conducted by New Jersey state troopers at the request of the DEA
investigators. 834 F.2d at 48-49, 51. The Second Circuit said nothing to indicate that the DEA

-5-

agents had communicated the specific facts they observed to the troopers, only that the DEA had
asked the state police “to assist them in stopping [the suspect’s] truck. Id. at 49. Thus, Cruz
shows that the information known by some officers is not required to be communicated to
arresting officers for the information to be combined, at least where the officers were “in
communication with each other.” Id. at 51.
In Toliver v. City of New York, cited by the Court (Schoolcraft at *81) the Magistrate
Judge summarized the law in this area as follows:
“The existence of probable cause need not be assessed on the basis
of the knowledge of a single officer." Zellner, 494 F.3d at 369.
Under the collective or imputed knowledge doctrine, “an arrest . . .
is permissible where the actual arresting or searching officer lacks
the specific information to form the basis for probable cause or
reasonable suspicion but sufficient information to justify the arrest
or search was known by other law enforcement officials initiating
or involved with the investigation.” Id. “The rule exists because,
in light of the complexity of modern police work, the arresting
officer cannot always be aware of every aspect of an investigation;
sometimes his authority to arrest a suspect is based on facts known
only to his superiors or associates.” United States v. Valez, 796
F.2d 24, 28 (2d Cir. 1986).
Toliver v. City of New York, No. 10 Civ. 3165, 2012 U.S. Dist. LEXIS 187196, *18-19
(S.D.N.Y. Dec. 10, 2012) (emphasis added), report and recommendation adopted, 2013 U.S.
Dist. LEXIS 39894, *6-7 (S.D.N.Y. Mar. 21, 2013). Toliver quoted United States v. Valez,
which described the collective knowledge doctrine as a “rule that permits courts to assess
probable cause to arrest by looking at the collective knowledge of the police force . . . .” 796 F.2d
24, 28 (2d Cir. N.Y. 1986) (emphasis added). All these decisions make clear that the collective
knowledge doctrine applies to facts that are unknown to the arresting officer, and known “only to
his superiors or associates.” Id.
The Toliver decision also notes the limitation that: “The doctrine applies if the officers
involved are in communication with each other.” Id., at *19 (citations omitted). This refers only
-6-

to the question of whether the officers whose knowledge should be imputed communicated at all
with the arresting officers. See Id. at *21. Thus, the District Court in Toliver, in adopting the
Magistrate Judge’s ruling, stated: “Probable cause is determined objectively by the facts known
to the arresting officer, or through the collective knowledge of the officer and other law
enforcement officials involved with the investigation.” Toliver v. City of New York, 2013 U.S.
Dist. LEXIS 39894 at *6-7.
In some cases, the Second Circuit has omitted any requirement even that the officers be
in communication with one another.
If one officer in a police department has knowledge of facts that
establish probable cause to arrest a suspect, the suspect suffers no
constitutional deprivation if he is arrested by a different officer
who lacks such knowledge. See United States v. Valez, 796 F.2d
24, 28 (2d Cir. 1986) (discussing "[t]he rule that permits courts to
assess probable cause to arrest by looking at the collective
knowledge of the police force—instead of simply looking at the
knowledge of the arresting officer").
Crawford v. City of New York, 477 Fed. Appx. 777, 779 (2d Cir. 2012); see also United States v.
Canieso, 470 F.2d 1224, 1230 n. 7 (2d Cir. 1972) (“[I]n a large metropolitan police
establishment the collective knowledge of the organization as a whole can be imputed to an
individual officer when he is requested or authorized by superiors or associates to make an
arrest.” (citations omitted)). Arguably, therefore, no communication at all is required between
officers for the collective knowledge of the NYPD to be considered, but the Court need not reach
that question here.
There is no dispute that Capt. Lauterborn was “in communication” and “involved with
the investigation” with the other officers involved in the events at Schoolcraft’s apartment on
October 31, 2009; he was with the other officers before and during the entire incident and

-7-

conferred with them during that time. See Schoolcraft at *34-45. That level of communication
is clearly sufficient to apply the collective knowledge doctrine to Lauterborn’s knowledge.
Indeed, had Lauterborn relayed Dr. Lamstein-Reiss’ specific statements to his fellow
officers at the scene, then the collective knowledge doctrine would be redundant. The officers
then could have relied on Lauterborn’s statements to them for the knowledge he conveyed,
without resort to collective knowledge. See Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir.
2000) (“[P]olice officers, when making a probable cause determination, are entitled to rely on the
victims' allegations that a crime has been committed. They are also entitled to rely on the
allegations of fellow police officers.” (citations omitted)). In other words, in that case the other
officers would have had the same knowledge as Lauterborn.
Reliance on another officers’ statements is different than the collective knowledge
doctrine, although the two are sometimes discussed together in the case law. For example, in
Ortiz v. Vill. of Monticello, the District Court made clear that the two doctrines are two
independent bases for probable cause.
An assessment of whether probable cause exists at the time of
seizure “is to be made on the basis of the collective knowledge of
the police, rather than on that of the arresting officer alone.”
[citation omitted] Additionally, police officers are “entitled to rely
on the allegations of fellow police officers.” [citation omitted].
Ortiz v. Vill. of Monticello, 06 Civ. 2208 (ER), 2012 U.S. Dist. LEXIS 158428, *26-27
(S.D.N.Y. Nov. 2, 2012) (emphasis added) (holding that all information available to the
Monticello police department could be considered in support of probable cause where arresting
officers acted upon arrest directives issued over department radio). 5
5

A district court opinion relied on by the Court discusses the collective knowledge and
reasonable reliance concepts together, but that decision also notes that the collective knowledge
doctrine requires “some communication between the officers involved” for the collective
knowledge doctrine to apply, not communication of all the knowledge at issue. Colon v. City of
-8-

Accordingly, the Court should correct the Order to state that Lauterborn’s knowledge
could be considered in determining whether there was probable cause to enter Schoolcraft’s
apartment or place him in custody as an emotionally disturbed person.
POINT II
THE COURT SHOULD DISMISS ALL
CLAIMS
AGAINST
DEFENDNANT
TIMOTHY CAUGHEY BECAUSE THE
COURT FOUND CAUGHEY TO BE
PERSONALLY
INVOLVED
ONLY
IN
PLAINTIFF’S FIRST AMENDMENT CLAIM,
AND THE COURT PROPERLY GRANTED
QUALIFIED
IMMUNITY
TO
ALL
INDIVIDUAL DEFENDANTS FOR THE
FIRST AMENDMENT CLAIM
In ruling upon the City defendants’ motion for summary judgment dismissing the
plaintiff’s First Amendment claim, the Court held that in light of changes in law in the Second
Circuit the plaintiff could maintain a claim for workplace retaliation occurring prior to his
suspension on October 31, 2009, for internal complaints that he made to IAB and QAD (but not
for the appeal of his performance evaluation). 6 Schoolcraft at *102-09. In so holding, the Court
reversed its prior 2012 decision in this case on the same issue. In light of the change in the law,
however, the Court properly ruled that the individual defendants were entitled to qualified
immunity on that claim. Schoolcraft at *112-13. 7

New York, 11-CV-0173 (MKB), 2014 U.S. Dist. LEXIS 46451, *14 (E.D.N.Y. Apr. 2, 2014)
(emphasis added).
6

The Court also ruled that plaintiff’s pending First Amendment claim for prior restraint due to
alleged harassment at his home upstate should be dismissed, due to the undisputed fact that there
was no chilling effect on plaintiff’s speech. Schoolcraft at *109-10.
7

The Court did not conclude that any part of Schoolcraft’s First Amendment claim was
established as a matter of law; only that a claim for pre-suspension workplace retaliation could
survive for trial. Schoolcraft at *98, *108. In ruling on the motion, the Court deemed plaintiff to
have adduced sufficient facts to assert a First Amendment claim for workplace retaliation, which,
-9-

Nevertheless, in ruling on defendant Caughey’s motion to dismiss all claims against him
for lack of personal involvement, the Court held that the motion was denied because of
Caughey’s personal involvement in conduct that was actionable as part of plaintiff’s purported
First Amendment claim. Schoolcraft at *155. The Court stated:
Plaintiff . . . contend[s] that Caughey issued retaliatory command
disciplines against him, referred him to the Early Intervention Unit,
confiscated and kept Schoolcraft's memo book for several hours,
menaced Schoolcraft with his gun during his October 31, 2009
shift, and conspired with Mauriello to retaliate against Schoolcraft.
See generally Pl.'s Mem. in Opp'n 32-38.
As discussed above, Schoolcraft's First Amendment claim extends
to his pre-suspension speech, and therefore so too do his
allegations with respect to Caughey's alleged 'retaliatory' conduct.
Therefore, Caughey remains a defendant.
Id. The Court gave no reason why Caughey should not be entitled to qualified immunity for the
First Amendment claim along with all other defendants, and there is none.
Accordingly, City defendants respectfully request that the Court amend the Order to
dismiss all claims against defendant Caughey.
POINT III
THE
COURT
SHOULD
BIFURCATE
PLAINTIFF’S MONELL CLAIM FOR TRIAL
The Court should bifurcate plaintiff’s Monell claim against the City from the trial of all
other issues in the case. Bifurcation is called for in order to avoid the significant time, expense
and burden of a trial on whether a municipal policy or custom caused a constitutional violation

the Court held, does not require a chilling effect on speech as one of its elements. Schoolcraft at
*107. As the City Defendants previously noted, the Third Amendment Complaint (“TAC”) does
not allege a workplace retaliation claim (City Reply at 24 n.8), and the Court did not discuss the
omission of the claim from the TAC. Whether plaintiff had pled or could prove all of the
elements of such a claim was not briefed by the parties. The City defendants reserve all
arguments regarding any purported workplace retaliation claim for later proceedings in this case.
- 10 -

alleged by plaintiff, should the jury’s determination on the main issue – whether Schoolcraft
suffered a constitutional violation– render the Monell claim fully or partially moot. Bifurcation
would also obviate the prejudice and jury confusion that would arise if the evidence of other
alleged misconduct not involving Schoolcraft, proffered by plaintiff to support his Monell claim,
were heard by the jury when determining whether plaintiff’s own constitutional rights were
violated in the events at issue here.
Federal Rule of Civil Procedure 42(b) provides that “[t]he court, in furtherance of
convenience or to avoid prejudice, or when separate trials will be conducive to expedition and
economy, may order a separate trial of any claim … or of any separate issue or any number of
claims, or issues . . . .” Fed. R. Civ. P. 42(b). “A district court has broad discretion under Rule
42(b) of the Federal Rules of Civil Procedure to order separate trials of separate claims, to
promote convenience, to avoid prejudice, and/or to expedite the proceedings.” Williams v. Blvd.
Lines, Inc., 10 Civ. 2924 (DF), 2013 U.S. Dist. LEXIS 149707, *23-24, 28 (S.D.N.Y. Sept. 30,
2013) (bifurcating negligent training and supervision claim from claim for negligence, applying
authority for the bifurcation of Monell claims) (citations omitted); see also Daniels v. Loizzo, 178
F.R.D. 46, 48 (S.D.N.Y. 1998) (bifurcating Monell claim at trial to avoid prejudice and promote
efficiency); Ricciuti v. New York City Transit Auth., 796 F. Supp. 84, 86 (S.D.N.Y. 1992)
(same); Ismail v. Cohen, 706 F. Supp. 243, 251 (S.D.N.Y. 1989), rev’d on other grounds and
aff’d in part, 899 F.2d 183 (2d Cir. 1990) (same). Accordingly, a separate trial is justified if any
one of these three conditions has been satisfied. See Williams, 2013 U.S. Dist. LEXIS 149707 at
*24; Ricciuti, 796 F. Supp. at 86; Ismail, 706 F. Supp. at 251; see also Carson v. City of
Syracuse, 92-CV-777, 1993 U.S. Dist. LEXIS 9508 at *6 (N.D.N.Y. 1993) (bifurcating Monell
claim in order to avoid prejudice, and promote convenience and judicial economy).

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Separate trials are appropriate where, as here, the issues to be separated are distinct,
involve different types of proof, and where separation will not engender duplication of testimony
and evidence. See DiSorbo v. Hoy, 343 F.3d 172, 179 (2d Cir. 2003) (trial court bifurcated
Monell claim into a second trial back-to-back with the same jury, in order to avoid prejudice
from evidence of other bad acts by other police officers and to promote efficiency). When a
single issue may be dispositive of a case, and if resolution of that issue may make it unnecessary
to try the other issues –here, if there is no constitutional violation then a Monell trial is not
needed – a separate trial is desirable in order to save the court’s and jurors’ time and reduce all
parties’ expenses. 8 See Santiago v. New York, 1992 U.S. Dist. LEXIS 6731, *8-9 (S.D.N.Y.
May 15, 1992) (Sweet, J.) (bifurcating Monell claim for trial for judicial efficiency); see also
Ricciuti, 796 F. Supp at 85-86; Barnell v. Paine-Weber Jackson & Curtis, Inc., 577 F. Supp. 976,
978 (S.D.N.Y. 1984) (granting defendant’s motion to bifurcate when the issue of timely filing
may obviate the need for any further proceedings). Another factor that courts consider – and
which weighs heavily in favor of bifurcation in this case (see infra at 18-21) – is whether having
just a single trial will prejudice one or more defendants due to the nature of the evidence which
must necessarily be introduced. See, e.g., Ricciuti, 796 F. Supp. at 86; Daniels, 178 F.R.D. at 48.
As set forth below, all of these factors call for the bifurcation of plaintiff’s Monell claim,
to be tried only after all other issues have been determined by the jury.

8

Here, the several hospital and doctor defendants have no interest in the Monell aspects of this
case, which solely concern the City, and bifurcation would allow those parties to avoid costs
associated with attending the Monell phase of the trial, which otherwise they could not avoid.
- 12 -

A.

The scope of plaintiff’s Monell claim calls for bifurcation to avoid the
possibly unnecessary, significant costs of a series of mini-trials on unrelated
instances of purported ‘other bad acts’ by the NYPD.

The Monell aspect of this case concerns only the question of whether the City will be
held directly liable for compensatory damages and attorneys’ fees. 9 As the Court found, the
parties agree that a valid claim for municipal liability under § 1983 exists under Monell if a plaintiff
can show, inter alia: (1) “the existence of an unlawful practice by subordinate officials so permanent
and well settled to constitute ‘custom or usage,’ with proof that this practice was so manifest as to
imply the acquiescence of policy-making officials; or (2) a failure to train or supervise that amounts
to ‘deliberate indifference’ to the rights of those with whom the municipality's employees interact.”
Schoolcraft, at *113-14 (citations omitted). Additionally, Schoolcraft must demonstrate that the
municipality's policy or custom caused the deprivation of the injured Plaintiff's federal or
constitutional rights. Id.; see, e.g., Monell, 436 U.S. 658 at 690-91; Sarus v. Rotundo, 831 F.2d 397,
400 (2d Cir. 1987). The plaintiff must prove that the policy or custom was the “moving force”
behind the specific constitutional violations that he claims to have suffered. City of Canton v.
Harris, 489 U.S. 378, 385 (1989) (holding that plaintiff must show “a direct, casual link”
between a municipality’s “policy” or “custom” and the constitutional deprivation). The Court
ruled that the plaintiff could proceed to trial only on the basis of a claim of a widespread “custom
and usage” to which the City was deliberately indifferent, not a failure to train. Schoolcraft at
*121-23.
9

The City of New York is immune from punitive damages under Section 1983 or state law. City
of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981); Sharapata v. Islip, 56 N.Y.2d 332,
339 (1982) (state and its political subdivisions are exempt from punitive damages under state law
as under Section 1983).
.

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But, if the plaintiff fails to first prove any violation of his constitutional rights, then there
cannot be Monell liability and the court and jury need not hear evidence on these complex and
time-consuming matters of policy, custom and causation. See City of Los Angeles v. Heller, 475
U.S. 796, 799 (1986) (holding in case where Monell claims were bifurcated that there can be no
finding of municipal liability in the absence of some individual liability for the alleged
constitutional deprivation).
For that reason, Courts in the Second Circuit generally “favor bifurcating Monell claims.”
Mineo v. City of New York, 2013 U.S. Dist. LEXIS 46953, 2013 WL 1334322, *1 (E.D.N.Y.
Mar. 29, 2013) (citations omitted)); accord Bombard v. Volp, 44 F. Supp. 3d 514, 528 (D. Vt.
2014) (granting motion to bifurcate to avoid jury hearing evidence of five years of excessive
force claims against other officers, where Monell issue may be mooted by the first trial); see,
e.g., Hollins v. City of New York, 10 Civ. 1650 (LGS), 2014 U.S. Dist. LEXIS 183076, *38-39
(S.D.N.Y. Mar. 3, 2014) (bifurcating Monell case into second phase of jury trial “in the interest
of efficiency and to avoid possible prejudice to the individual [d]efendants”); Williams v. City of
New York, CV-07-5362 (NG) (VVP), 2008 U.S. Dist. LEXIS 104730, *8 (E.D.N.Y. Dec. 29,
2008) (noting that bifurcation of civil rights trials is a common practice in this Circuit; citing
Amato v. City of Saratoga Springs, 170 F.3d 311, 316 (2d Cir. 1999)); Vives v. City of New York,
02 Civ. 6646 (JSM) (HBP), 2003 U.S. Dist. LEXIS 1833, *2-3 (S.D.N.Y. Feb. 10, 2003); Busch
v. City of New York, 00 CV 5211 (SJ), 2002 U.S. Dist. LEXIS 18337, *9-10 (E.D.N.Y. Sept. 9,
2002); Duke v. County of Nassau, 97-CV-1495 (JS) (ETB), 2000 U.S. Dist. LEXIS 22415, *2-3

- 14 -

(E.D.N.Y. Oct. 26, 2000); Masi v. City of New York, 98 Civ. 6802 (MBM), 1999 U.S. Dist.
LEXIS 13488, *1-2 (S.D.N.Y. Sept. 2, 1999)). 10
Defendants do not yet know all of the evidence that plaintiff intends to proffer on Monell
issues, but even just the material pled in plaintiff’s TAC and cited by plaintiff in defending
against summary judgment is sufficient to show why bifurcation is crucial. Plaintiff purports to
prove Monell liability with a potpourri of alleged ‘other bad acts’ by NYPD personnel – much of
it far removed in time and space from the events of this case – purporting to demonstrate three
different policies and customs: (i) quotas for police activity; (ii) downgrading or suppression of
criminal complaints to manipulate statistics; (iii) retaliation against officers who report
misconduct. Defendants contest the admissibility and probative value of this evidence, 11 even
with respect to a Monell claim. Nevertheless, such proffered evidence 12 includes at least:
•

Statements in the Mollen Commission report in 1994 reporting on reputed
hostility to police officers who made complaints of misconduct. Schoolcraft at
*116.

10

See also, e.g., Doe v. Yorkville Plaza Assocs., 92 Civ. 8250 (JGK), 1997 U.S. Dist. LEXIS
10103 at *1-2 (S.D.N.Y. July 11, 1997); Morales v. Irizarry, 95 Civ. 5068(AGS) (HBP), 1996
U.S. Dist. LEXIS 15613, *3-4 (S.D.N.Y. 1996) (“[t]he overwhelming weight of authority holds
that . . . the most prudent course is to try the Monell claims separately and to stay discovery
concerning those claims . . . .”).

11

As the Court held, the City defendants’ objections to the admissibility of the Monell evidence
were reserved for motions in limine and for trial. Schoolcraft at *119.

12

Defendants reserve the right to move to exclude and/or object to the admission of all of this
evidence at trial.
- 15 -

•

Statements in an undated report on police corruption relating concerns expressed
in anonymous focus groups about retaliation for reporting misconduct. Id.; POX
38. 13

•

Excerpts of former Commissioner Kelly’s testimony before the Mollen
Commission in the early 1990s, regarding the prior investigation of criminal acts
by certain police officers and the NYPD’s efforts to fight corruption and improve
its processes. Schoolcraft at *116; POX 37.

•

Purported expert testimony from plaintiff’s expert describing conditions and
reports occurring in 1994, media reports of similar misconduct, and so-called
“survey” evidence from anonymous sources indicating alleged “pressure” to use
quotas and downgrading during unspecified time-periods and unspecified portions
of the NYPD. Schoolcraft at *115-16; POX 1 at 14.

•

A labor arbitration finding of an alleged traffic summons quota in 2005, involving
the 75th precinct and defendant retired Deputy Chief Michael Marino, who was
then the Commanding Officer of that precinct. TAC, ¶¶ 77-85.

•

An appeal by an officer in the 75th precinct of his 2005 evaluation, which the
officer alleged was based on quotas for police activity. TAC, ¶ 78.

•

Alleged “similar wrongful conduct” claimed by Adhyl Polanco, who says he was
retaliated against in the 41st precinct for complaining about quotas and who was
placed on restricted duty after a psychological evaluation. TAC ¶¶ 307, 364;
Schoolcraft at *117; POX 40.

13

References to exhibits filed by the parties on summary judgment follow the style of the Order.
“POX” refers to a “Plaintiff’s Opposition Exhibit.”
- 16 -

•

Alleged “similar wrongful conduct” claimed by Frank Pellestro, who allegedly
experienced an IAB leak of his complaints in the 42nd precinct in 2009. TAC ¶¶
307, 363.

•

Pedro Serrano’s claim that he was retaliated against after complaining about
quotas at the 40th Precinct (Bronx) in 2007. Schoolcraft at *117-18; POX 41.

•

Craig Matthews’ claim that he was retaliated against for complaining about
quotas in in the 42nd precinct (Bronx) in 2008. Schoolcraft at *118; see
Matthews v. City of New York, No. 13-2915-cv, 2015 U.S. App. LEXIS 3016, at *2
(2nd. Cir. Feb. 26, 2015).

•

Joseph Ferrara’s claim that he was personally reluctant to report unrelated
misconduct because he feared retaliation. Schoolcraft at*118.

In addition to the plaintiff’s proffered evidence, defendants are entitled to defend against these
allegations – whether made through an expert or percipient witnesses – including through
additional witnesses and documents relating only to these events and reports. Thus plaintiff’s
Monell case, if the proffered evidence is admitted, will turn an already lengthy trial about
Schoolcraft’s experiences into a series of mini-trials on several unrelated incidents and the
meaning of statements made over 20 years ago. The Monell case will become the proverbial tail
wagging the dog, as much as doubling (or more) the trial time of the jury, the Court, the parties
and counsel.
Thus, bifurcation is called for here because it will save substantial time and costs in the
trial of plaintiff’s main claim, and postpone the substantial costs of a Monell trial until it is
absolutely necessary, which may be never. In Padilla v. City of New York, the Honorable
Michael B. Mukasey noted that:

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[I]t is possible that if the case is tried only on the issue of
individual defendant liability, there may be no need to consider the
issue of municipal liability regardless of the outcome of such a
trial. If the verdict is in favor of the individual defendants, that
ends the case; if the verdict is in favor of plaintiff, the City has a
substantial incentive to settle the case.
Padilla v. City of New York, 1993 U.S. Dist. LEXIS 17 at *2 (S.D.N.Y. Jan. 4, 1993). 14 This
Court’s statement in Santiago v. New York is equally applicable:
Whereas evidence regarding [the individual defendant’s] conduct
may speak to the Municipal Defendants' policies or customs, the
reciprocal is not true. The potentially voluminous evidence of the
Municipal Defendants' policies or customs will simply not be
probative of whether Olan inflicted a constitutional injury. [citation
omitted.] At the same time, separate trials would entail little waste.
1992 U.S. Dist. LEXIS 6731 at *8-9. With bifurcation, there is no need for the lengthy and
complex mini-trials on collateral matters to delay and derail the jury’s consideration of the
central question in the case: whether Schoolcraft’s constitutional rights were violated.
B.

The Court should bifurcate plaintiff’s Monell claim in order to avoid undue
and substantial prejudice to the defendants, and jury confusion, arising from
the introduction of Monell evidence concerning unrelated allegations of
misconduct.

In addition, the raft of Monell evidence that plaintiff proffers is irrelevant and highly
prejudicial to the jury’s determination of the central question here: whether Schoolcraft himself
suffered a constitutional deprivation. Absent a Monell claim, the evidence offered by plaintiff of
unrelated events and alleged misconduct would be inadmissible under Rules 402, 403 and
404(b), at the least. 15 Like any ‘other bad act’ evidence, it will be severely prejudicial to the

14

Plaintiff also has a strong incentive to resolve the case if he prevails in the first phase, given
the costs involved in trying the Monell claim, with little to no economic benefit to the plaintiff.
15

Defendants contend that the proffered evidence is inadmissible even with a Monell claim in
the trial and will address those arguments in motions in limine and at trial. Should bifurcation
not be granted, even if evidence is admissible as to Monell alone, the evidence should be
excluded from a trial involving other issues under Fed. R. Civ. P. 403, because the likelihood of
- 18 -

defendants on the central question of whether Schoolcraft’s rights were violated in this case. The
City and the numerous individual police officer defendants are entitled to a fair trial on that
question based on evidence of the officers’ own conduct towards Schoolcraft not events
occurring in other precincts involving other people at other times.
Separate trials should be ordered where, as here, there is a danger that evidence
admissible on one issue will contaminate the minds of the jury in considering liability on other
issues. See Ricciuti, 796 F. Supp. at 86; see also Fisher v. City of New York, 90 Civ. 8163 (LJF),
1992 U.S. Dist. LEXIS 3436, *9-10 (S.D.N.Y. 1992) (“[g]iven the substantial possibility that
defendants may be prejudiced by a consolidated trial . . . bifurcation of the ‘Monell claims’
against the City is appropriate here”); Carson v. City of Syracuse, 1993 U.S. Dist. LEXIS 9508 at
*14 (N.D.N.Y. 1993) (noting that the unfair prejudice which would be inherent in a single trial
justifies bifurcation); Ismail, 706 F. Supp. at 251;
If the trial is not bifurcated, plaintiff would have the jury hear evidence of quotas
allegedly enforced by defendant Marino in 2005 in another precinct; multiple instances of quotas
and retaliation in other precincts, in another borough, by other officers; alleged “downgrading”
in another precinct; alleged pressure reported by anonymous survey respondents; alleged threats
of retaliation by unnamed officers occurring decades before the events at issue here. All of this
is the sort of evidence from which the jury could readily make the impermissible inference that
because the alleged wrongdoing happened somewhere else to someone else, it happened here to
Schoolcraft. See Daniels, 178 F.R.D. at 48 (“[I]f the jury considers the past misconduct evidence
severe prejudice outweighs any probative value on Monell issues. See Berkovich v. Hicks, 922
F.2d 1018, 1022 (2d Cir. N.Y. 1991) (“[I]t seems unlikely that this type of propensity evidence
could have been introduced to establish the Monell claim. In a combined trial, such evidence
could not have been admitted without compromising the rights of Hicks.”). Bifurcation would
obviate the need for Rule 403 balancing of prejudice against relevance to Monell, since all
questions but Monell would already have been decided before the evidence is offered.
- 19 -

against Municipal Defendant in a consolidated trial, there exists a substantial danger of unfair
prejudice to the Individual Defendants. Courts, faced with this dilemma, have separated the trial
of individual police officers from that of the municipality so that evidence admissible only
against the municipality does not unfairly taint the trial of the individual officer[s].” (quotation
and citation omitted)). 16
Bifurcation also protects against jury confusion. In Ismail v. Cohen, Judge Leisure
explained why:
As to the § 1983 claim against the City, this claim would involve a
great deal of evidence which is entirely unnecessary to the
resolution of all of the other claims in the case. The claims
involved require proof of different facts and the Monell claim
would involve the introduction of quite broad evidence
unnecessary to claims to be heard in the first trial. [citation
omitted] The presentation of divergent standards and factual
evidence in one trial could lead to jury confusion. The § 1983
claim against the City would present different and far more
complicated standards of liability and causation for the jury,
would greatly expand the length and scope of the trial and would
add to the expense of the parties. Separate trials in this instance
would be of further convenience and be conducive to expedition
and economy.
Ismail, 706 F. Supp. at 251-52; see also Ricciuti, 796 F. Supp. at 85-86. Indeed, in this case
there is an enhanced danger of juror confusion – as well as the attendant costs to the parties –
because each individual instance of misconduct that plaintiff intends to present is a matter as to
which the defendants are entitled to present a defense, embroiling the jury in several distracting
mini-trials on collateral matters.
Consequently, for all these reasons, plaintiff’s Monell claim should be bifurcated for the
purposes of trial.
16

Given the heavy costs to both parties of trying a Monell case which might be avoided in a
bifurcated trial, it may be that the substantial prejudice to defendants provides much of the
plaintiff’s motivation for not consenting to bifurcation.
- 20 -

CONCLUSION
For the foregoing reasons, the City defendants respectfully request that the Court grant
their motions for reconsideration and bifurcation.
Dated: New York, New York
June 2, 2015
Respectfully submitted,
ZACHARY W. CARTER
Corporation Counsel of the City of New York
Attorneys for City defendants
100 Church Street, Room 3-174
New York, New York 10007
[phone]
By:

- 21 -

/s/
Alan Scheiner
Senior Counsel
James Horton
Assistant Corporation Counsel