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Orange v. Burge

October 20, 2006

LEROY ORANGE PLAINTIFF,
v.
FORMER CHICAGO POLICE LT. JON BURGE, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: James F. Holderman, Chief Judge

MEMORANDUM OPINION AND ORDER

Before the court is defendant City of Chicago's ("the City") Amended Motion to Bar Discovery and Trial of "Policy" Claims Against It, or, in the Alternative, to Bifurcate Said Claims ("Amended Motion to Bar/Bifurcate" Dkt. No. 251-1), filed on August 16, 2006. For reasons stated below, the City's Amended Motion to Bar/Bifurcate is granted in part and denied in part.

PROCEDURAL HISTORY

The City originally filed its Motion to Bar Discovery and Trial on Monell Claims Against It ("2004 Motion to Bar" Dkt. No. 49) on December 14, 2004. On the same date, the City filed nearly identical motions in the three Burge companion cases: Hobley v. Burge (03 C 3678, Dkt. No. 386), Patterson v. Burge (03 C 4433, Dkt. No. 184), and Howard v. City of Chicago (03 C 8481, Dkt. No. 66). The parties to the current motion agree that further action was not taken before this court on the 2004 Motion to Bar, in part because the parties believed that an Order of the Executive Committee consolidated all Monell discovery matters before Judge Gottschall on September 24, 2004. (Dkt. No. 251-1 at 1, n.1; "Plaintiff's Response" Dkt. No. 293-1 at 17-18).

The 2004 Motion to Bar was thus never noticed for presentment and ruling by this court.

On August 2, 2005, Judge Gottschall denied the City's 2004 Motion to Bar. (03 C 4433, "Judge Gottschall's August 2, 2005 Order" Dkt. No. 298). However, in response to the City's Motion for Reconsideration (03 C 4433, Dkt. No. 299), Judge Gottschall later ordered the Monell claims in Patterson to be bifurcated from the claims against the individual defendants. (03 C 4433, "Judge Gottschall's April 11, 2006 Order" Dkt. No. 410). The parties in this case agree that Judge Gottschall's April 11, 2006 Order only applied to the Patterson case. ("City of Chicago's Reply" Dkt. No. 321-1 at 7; Dkt. No. 293-1 at 18).

A more difficult question arises as to whether Judge Gottschall's August 2, 2005 Order applied to this case as one of the four Burge companion cases. Plaintiff Leroy Orange ("Orange") asserts that "it was agreed after discussion in open court by counsel in all four cases with Magistrate Judge Brown that all four Plaintiffs would rely on a joint brief filed solely with Judge Gottschall and that her ruling would apply to all four cases." (Dkt. No. 293-1 at 18). Additionally, Orange describes "[a]fter a joint argument in which all four Plaintiff's counsel participated, and at which Judges Gottschall and Brown both sat, Judge Gottschall denied the City's motion to bar all Monell claims on August 2, 2005." Id. Orange's position is that the City's Motion for Reconsideration only applied to Patterson, and the City failed to timely file such a motion in the other three Burge cases. Id. Therefore, Orange argues, Judge Gottschall's August 2, 2005 Order remains in effect with respect to his case. Id. at 3.

The City does not deny that the parties discussed consolidation of the Monell claims before Magistrate Judge Brown; instead, the City notes, "Plaintiff references certain statements made in court but does not identify, cite, or attach the transcripts to which he is referring, making it difficult to respond to the assertions." (Dkt. No. 321-1 at 6). Indeed, Orange has not cited to any part of the record before this court which would indicate an agreement that Judge Gottschall's ruling on the 2004 Motion to Bar was to apply to any of the other three Burge companion cases, other than generally referencing the Order of the Executive Committee on September 24, 2004.*fn1 (Dkt. No. 293-1 at 1, 17). The City also notes that there are no indications in the 2004 Motion to Bar filed in Patterson, or in the subsequent response, reply, and ruling, that demonstrate any intent to include the three other Burge cases within the scope of these documents. (Dkt. No. 321-1 at 6).

The plain language of Judge Gottschall's April 11, 2006 Order demonstrates that that order applies to the Patterson case alone. (Dkt. No. 410 at 2 (referring to Hobley as "that case," in contrast to "this case")). Judge Gottschall's April 11, 2006 Order does not indicate any intent to overrule, amend, or alter any possible judgment that may have originally applied to Hobley, Howard, or Orange. (03 C 4433, Dkt. No. 410).

As noted above, however, there is nothing in the plain language of Judge Gottschall's August 2, 2005 Order to indicate that the parties or Judge Gottschall intended that order to apply to any case other than Patterson. Consequently, the court now finds that Judge Gottschall's August 2, 2005 Order did not resolve the Monell matters in thiscase involving plaintiff Orange. The court, therefore, will address the City's Amended Motion to Bar/Bifurcate, which has been properly noticed and fully-briefed before the court at this time.

THE CITY'S PROFFERED "WAIVER"

In Count VI of his First Amended Complaint, Orange asserts a § 1983 claim against the City based on allegations that the individual defendants' alleged misconduct was undertaken pursuant to a City policy, practice, or custom. (Am. Compl. ¶¶ 76-82). To succeed on his Monell claim, Orange must prove 1) that he suffered a constitutional injury, Thompson v. Boggs, 33 F.3d 847, 859 (7th Cir. 1998); 2) that this injury was the result of a municipal policy, widespread custom, or deliberate act of a decisionmaker for the City, Davis v. Carter, 452 F.3d 686, 691 (7th Cir. 2006); and 3) that there is a causal link between the City's policy, custom or practice and Orange's injury. Bd. of the County Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 403-04 (1997).

In an effort to avoid discovery and trial on Orange's "policy claims," the City has entered a "Waiver" along with its Amended Motion to Bar/Bifurcate. (Dkt. No. 251-1, Ex. A). The effect of the City's Waiver is to obviate Orange's need to prove two of the three Monell elements. Specifically, "the City agrees to entry of a judgment against it for compensatory damages based on the finding of the constitutional violation alone." (Dkt. No. 251-1 at 2). Orange vigorously opposes approval of the City's Waiver; thus, it cannot be viewed as a traditional stipulation. (Dkt. No. 293-1 at 4). Additionally, the City's Wavier expressly denies "that any 'custom, policy or practice' of the City directly caused the alleged violations that would give rise to liability under 42 U.S.C. § 1983." (Dkt. No. 251-2, Ex. A ¶ 4). Nevertheless, the City desires to waive its "right to demand proof of the alleged policy before any judgment in this action could be ...


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