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Ronald Kitchen v. John Burge

November 2, 2012

RONALD KITCHEN, PLAINTIFF,
v.
JOHN BURGE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant City of Chicago's ("City") motion to bifurcate and stay trial and discovery of the plaintiff's claim against the City under Monell v. Department of Social Services, 436 U.S. 658 (1976). For the reasons set forth below, the City's motion is granted, contingent on the City's acceptance of certain modifications to the "Stipulation for Entry of Judgment against the Defendant City of Chicago" ("Stipulation") that it has offered in support of its motion.

I. Background

Plaintiff Ronald Kitchen filed this action against, inter alia, Defendants City, former Chicago Police Officers John Burge, Michael Kill, Thomas Byron, and John Smith, former Chicago Police Superintendents Leroy Martin and Terry Hillard, Gayle Shines, former Director of the Chicago Police Department's Office of Professional Standards, and Thomas Needham, former Chicago Police legal counsel.*fn1 His complaint asserts claims under 42 U.S.C. § 1983 premised on allegations that the defendant police officers violated his constitutional rights by physically coercing him to confess to a quintuple murder that he did not commit.*fn2 He alleges that the abuse he suffered was part and parcel of a pattern of police torture and physical abuse by officers under the supervision of Defendant Burge while he was a commander in the Area 2 and Area 3 police districts during the 1980's and early 1990's, and that defendants Martin, Hillard, Needham, and Shines share responsibility for the violations against him because they knew of, and concealed, the pattern of interrogation abuses by Burge and police officers under his command. Kitchen also asserts a Monell claim against the City on the grounds that (i) the City maintained a "code of silence" that amounted to a de facto policy facilitating the use of torture to obtain confessions and (ii) the concealment of a pattern of torture by senior police and city officials were actions by official policymakers that were binding on the City (and for which the City is therefore accountable).

Pursuant to Federal Rule of Civil Procedure 42(b), the City has moved to bifurcate Kitchen's Monell claim against the City from the claims against the individual police officer and municipal defendants, and to stay discovery and trial on the Monell claim until the claims against the individual defendants have been resolved. Attached to the motion to bifurcate is a Stipulation, offered by the City to mitigate any potential prejudice to the plaintiff resulting from bifurcation of the Monell claim. See Def. Mot., Ex. B (attached to this Opinion as Appendix).

II. Analysis

Rule 42(b) provides that, "[f]or convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims." Fed. R. Civ. P. 42(b). Accordingly, the Seventh Circuit has confirmed that "a district judge may separate claims or issues for trial if the separation would prevent [1] prejudice to a party or [2] promote judicial economy." Chlopek v. Federal Insurance Company, 499 F.3d 692, 700 (7th Cir. 2007) (citing Houseman v. U.S. Aviation Underwriters, 171 F.3d 1117, 1121 (7th Cir. 1999)). "If one of these criteria is met, the district court may order bifurcation as long as doing so will not prejudice the non-moving party or violate the Seventh Amendment." Id. (citing Krocka v. City of Chicago, 203 F.3d 507, 516 (7th Cir. 2000)). "District courts approach bifurcation motions with a pragmatic mindset," Cruz v. City of Chicago, No. 08 C 02087, 2008 WL 5244616, at *1 (N.D. Ill. Dec. 16, 2008), and have "considerable discretion to order the bifurcation of a trial." Treece v. Hochstetler, 213 F.3d 360, 364-65 (7th Cir. 2000) (citing Krocka, 203 F.3d at 516).

Motions to bifurcate Monell claims are not uncommon and courts in this district "have both granted and denied similar motions by the City." Ojeda-Beltran v. Lucio, No. 07 C 06667, 2008 WL 2782815, at *1 (N.D. Ill. July 16, 2008) (citing Medina v. City of Chicago, 100 F. Supp. 2d 893, 895 (N.D. Ill. 2000); Cadiz v. Kruger, No. 06 C 05463, 2007 WL 4293976, at *2 (N.D. Ill. Nov. 29, 2007); Elrod v. City of Chicago, No. 06 C 02505, 2007 WL 3241352, at *1-2 (N.D. Ill. Nov. 1, 2007)). "Thus, there is a growing body of precedent in this district for both granting and denying bifurcation in § 1983 cases." Terry v. Cook County Department of Corrections, No. 09 C 03093, 2010 WL 2720754, at *1 (N.D. Ill. July 8, 2010) (citing Elrod, 2007 WL 3241352, at *2). "Therefore, [this Court's] ruling on bifurcation 'will consider the principles in light of the facts of this case and the parties' arguments,'" Ojeda-Beltran, 2008 WL 2782815, at *1, and the result will turn on a "case-specific assessment of the advantages and disadvantages of bifurcation." Id.

A. Bifurcation

Rule 42(b) is founded on pragmatic concerns and the chief virtue offered by the City's motion is the prospect that the burdens and costs of litigating the Monell claim can be avoided altogether. The City maintains that bifurcation of the Monell claim, coupled with its willingness to stipulate to liability if any of the individual defendants are found to have violated the plaintiff's constitutional rights, will likely result in dismissal of the Monell claim no matter what the outcome of the case against the individual defendants. If one or more individual defendants are found to have violated plaintiff's constitutional rights, the City will stipulate to the entry of a judgment against it for the amount of damages caused by the violations (plus reasonable attorney's fees), giving the plaintiff every bit of the compensation that he would potentially receive if he were to prevail on the Monell claim (as the Monell damages would be the very same damages arising from the constitutional violations by the individual officers). And if none of the individual defendants are found to have violated the plaintiff's constitutional rights, the City argues, there will be no basis on which to impose liability on the City pursuant to Monell. See Treece, 213 F.3d at 364 ("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," citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)).

Generally, the potential for prejudice to the plaintiff caused by bifurcation stems from the possibility for delay caused if trial of the Monell claim proves necessary for the plaintiff to recover compensatory damages. See, e.g., Cruz, 2008 WL 5244616, at *2 ("[J]udges in this district have echoed Plaintiffs' concerns about delay of the case and possible prejudice to Plaintiffs from that delay."). For instance, if the finder of fact determined that the plaintiff's constitutional rights were violated, but the individual defendants were entitled to qualified immunity, the plaintiff would need to pursue his Monell claim in order to recover compensatory damages.

Mr. Kitchen's primary concern, however, appears to be vindication of his interest in obtaining a judgment against the City that is not derivative of liability of individual officers but rather reflects what he alleges is the City's own complicity in the alleged abuses suffered by himself and others. He therefore takes issue with what he characterizes as the City's premise that bifurcation will "extinguish" the Monell claim, asserting that he will still have the right to litigate the Monell claim whether or not he prevails against any of the individual defendants. He maintains that the City's stipulation does not moot his claim against the City even if it would yield no further legal or equitable relief. He further maintains that Heller does not preclude him from pursuing a Monell claim against the City even if the individual defendants are not found to be liable.

The latter argument does not bear scrutiny. While it is true that in Thomas v. Cook County Sherriff's Dept., 604 F.3d 293, 305 (7th Cir. 2010), the Seventh Circuit held that, when it would not create an inconsistent verdict, a Monell claim can be maintained against a municipality when no employee had been found liable for a violation of an individual's constitutional rights, that holding provides no help to the plaintiff in the factual context of this case. As the Thomas court recognized, municipal liability may or may not depend on individual officer liability. See Thomas, 604 F.3d at 305. Accordingly, "to determine whether the [City's] liability is dependent on its officers, [the Court looks] to the nature of the constitutional violation, the theory of municipal liability, and the defenses set forth." Id. at 305; see also Tanner v. City of Waukegan, No. 10 C 01645, 2011 WL 686867, at *3 (N.D. Ill. Feb. 16, 2011).

In Thomas, a case involving claims arising from a failure to provide necessary medical treatment, the court held that there was no inconsistency between a verdict absolving all of the individual County medical technicians of liability for an inmate's death while finding the County liable based on its failure to establish a system ensuring prompt review of inmate medical requests. The verdicts were not inconsistent, the court held, because the jury could have found that the medical technicians "were not deliberately indifferent to [the inmate's] medical needs, but simply could not respond adequately" because of the shortcomings of the County's policies and procedures for identifying inmate medical needs-shortcomings that the jury was entitled to find reflected deliberate indifference by the County itself. Thomas, 604 F.3d at 305.

Here, by contrast, there is no theory by which the City's alleged failures caused any injury to the plaintiff in the absence of violations by one or more of the individual defendants (or other City employees). The plaintiff's Monell claim is "based on two fundamental theories:" (1) the facilitation of torture and coerced confessions by a police "code of silence" which amounted to a de facto municipal policy and practice; and (2) "the concealment of the pattern of torture under Burge." Pl. Resp. at 2. Both of these theories of liability hinge on allegations that the plaintiff was, in fact, falsely arrested and imprisoned, tortured, and subjected to coercive interrogation. Am. Compl. at 31-35. Unlike Thomas, this is not a case where there is any possibility that a jury might conclude that well-intentioned municipal employees failed the plaintiff only because they were thwarted by the operation of impermissible municipal policies. Mr. Kitchen argues that he was beaten and tortured. If true, the individuals responsible violated his constitutional rights;*fn3 if not true, then the City's alleged practice of promoting and concealing beatings and torture, though reprehensible, is not actionable under § 1983. As the City notes in its reply, "if the named individual defendants did not coerce a confession from plaintiff through the use of torture, a City policy of encouraging/concealing the use of torture to coerce confessions is, to quote Heller, 'quite beside the point.'"

When asked to identify how the City could be liable under Monell absent a finding that any of the individual defendants violated plaintiff's constitutional rights, the only theory that plaintiff's able counsel could offer is the possibility that a jury might find, on the basis of the evidence to be presented, that some other city employee was responsible for the alleged coercion, and that the City's violation could be premised on that violation. The possibility that the evidence will permit a finding that the plaintiff was tortured by a City employee that the plaintiff did not see fit to name in the complaint, while also finding that none of the individuals that the plaintiff did name as defendants in the case participated in the torture, seems extraordinarily remote. But even accepting that possibility, this basis for liability still depends on a finding that one or more municipal employees abused the plaintiff. Absent such a finding, municipal liability under Monell would be an inconsistent verdict and therefore precluded under Heller and Thomas. As a consequence, if the jury finds that no constitutional violation was committed by an individual City employee (whether named as a defendant or not), bifurcation will allow the parties and the Court to avoid trial of the Monell claim, and its associated expenses, all together.

Mr. Kitchen's argument that his Monell claim will not be mooted by a damage award is, in the abstract, correct. Plaintiff may, for example, also seek equitable relief via Monell claims, see 436 U.S. at 690, but the amended complaint requests no equitable relief, and it is not clear in any event what equitable relief he could obtain at this point, even if successful. As the City points out, few, if any, of the police officers alleged to have engaged in the ongoing torture remain employed by the City. Burge, the alleged ringleader, was fired some 19 years ago. There are no allegations that the alleged pattern of torture and concealment still continues. A Monell claim, then, offers the plaintiff little, if any, relief that the City's stipulation would not provide in the event that he is successful.

But what the plaintiff wants from his Monell claim is not a remedy, but a verdict. His Monell claim "seeks a finding that the City itself was a 'moving force' of Mr. Kitchen's interrogation abuse and his ongoing unjust imprisonment over the ensuing decades. . .[because] completely independent of any direct financial benefit to Mr. Kitchen[,] there are vitally important objectives of deterrence and reform that would be furthered by a judgment holding the City liable for the misconduct of Burge and his associates." Pl. Resp. at 2, 5. Plaintiff points to a number of opinions from the Seventh Circuit affirming Monell liability even where the question of the City's liability "has little, probably no, practical significance" since the City is required by state law to indemnify its employees for damage awards made against them in respect of the torts they commit in the course of their employment. Jones v. City of Chicago, 856 F.2d 985, 995-96 (7th Cir. 1988).

None of the cases the plaintiff cites, however, address the question of whether, having obtained full compensation for constitutional violations caused by the acts of municipal employees, a plaintiff may still pursue a Monell claim against the municipality. Courts in this district have taken opposing views on this question. Compare, e.g., Castillo v. City of Chicago, No. 11 C 07359, 2012 WL 1658350, *6 (N.D. Ill. May 11, 2012) (Conlon, J.) (if defendant prevails against any individual defendant, he is not entitled to recover any additional compensatory-damages from the City by suing pursuant to Monell); Almaraz v. Haleas, 602 F. Supp. 2d 920, 924 (N.D. Ill. 2008) (Hart, J.) (stating that it would be "inappropriate" to permit a plaintiff to pursue a Monell claim in this circumstance); and Grant v. City of Chicago, No. 04 C 02612, 2006 WL 328265, *3 (N.D. Ill. Feb. 10, 2006) (Lefkow, J.) ("There is no case or controversy" between plaintiff and City where City's stipulation offers full compensation for the constitutional violations) with Ojeda-Beltran, 2008 WL 2782815, at *3 ("[B]ifurcation will not impinge on this right."); Cruz, 2008 WL 5244616, at *4 ("The City's Stipulation does not eliminate that right."); Parker v. Banner, 479 F. Supp. 2d 827, ...


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