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RICCIUTI v. NEW YORK CITY TRANSIT AUTH.

June 4, 1992

ALFRED RICCIUTI & DANIEL RICCIUTI, Plaintiffs,
v.
NEW YORK CITY TRANSIT AUTHORITY, NEW YORK TRANSIT POLICE DEPT., N.Y.C.T.A. POLICE CHIEF VINCENT del CASTILLO, N.Y.C.T.A. P.D. LIEUT. R. L. WHEELER, N.Y.C.T.A. P.O. HENRY LOPEZ, THE CITY OF NEW YORK, N.Y.C. DEPT. OF CORRECTIONS, N.Y.C. CORRECTIONS COMM. R. KOEHLER, N.Y.C. CORRECTIONS OFFICER HARLICE WATSON, Defendants.


HAIGHT


The opinion of the court was delivered by: CHARLES S. HAIGHT, JR.

This case is before the Court on defendants' motion for separate trials and bifurcation of discovery pursuant to Fed. R. Civ. P. 42(b). For the reasons stated below, the motion is granted.

 BACKGROUND

 This action arises out of an altercation that occurred between the plaintiffs and several of the defendants on April 30, 1989, outside Yankee Stadium in the Bronx.

 According to their complaint, Alfred Ricciuti and his nephew Daniel Ricciuti were walking along 161st Street at approximately 5:00 p.m. when they encountered defendant Harlice Watson. Watson, a New York City Corrections officer not in uniform, allegedly assaulted Alfred Ricciuti, knocked him to the ground, and taunted him with a handgun. Watson then left the scene but returned with defendant Henry Lopez, a New York City Transit Police Officer from Transit Police District 11 at the River Avenue subway station. Officer Lopez allegedly threw Alfred Ricciuti against the building wall, searched him and placed him under arrest. Lopez, Watson and Alfred Ricciuti then began walking to the Transit Police Station located in the River Avenue subway station. Daniel Ricciuti followed. On the way there, according to the plaintiffs, Officer Lopez turned around and kicked Daniel Ricciuti in the legs, stating "you're following too close!" Plaintiffs' Amended Complaint at 12.

 Plaintiffs further allege that once at the Transit Police Station, defendant R. L. Wheeler, a Transit Authority Police lieutenant and the commanding officer on duty, refused to permit Alfred Ricciuti to make a complaint against Watson. Wheeler authorized Lopez to process the arrest and to lock Alfred Ricciuti in a holding pen. Watson then allegedly threw Daniel Ricciuti against the wall, placed him under arrest, and placed him in a holding pen. Plaintiffs claim that Watson swore out a felony complaint falsely charging both of them with felonious assault and aggravated harassment, and charging Alfred Ricciuti with using racial epithets against Watson. These charges were ultimately dismissed by the Bronx Criminal Court, and this civil rights action followed.

 Plaintiffs seek relief from the three individuals involved in the alleged incidents: Lopez, Wheeler, and Watson. In addition, plaintiffs name as defendants the New York City Transit Authority; the New York City Transit Authority Police Department ("TAPD"); Commissioner of the TAPD, Vincent del Castillo; the City of New York; the New York City Department of Corrections; and the former New York City Corrections Commissioner, Richard Koehler. Plaintiffs state claims under 42 U.S.C. § 1983 and § 1988, as well as under state common law.

 Defendants moved, by letters dated January 17, 1992 and January 29, 1992, for separate trials and bifurcation of discovery. *fn1" Plaintiffs opposed the motion in a letter dated February 21, 1992. A flurry of letters followed, the final one of which is dated May 13, 1992.

 DISCUSSION

 Rule 42(b), Fed. R. Civ. P., provides in pertinent part: "The 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 of any number of claims. . . ." Defendants claim that bifurcation would serve each of these interests -- convenience, economy, and justice.

 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. Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018, (1978). 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." Id. at 691. 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 trials so that the three individual officers are tried first. That way, the defendants assert, if the claims against the individuals are unsuccessful, the plaintiffs will no longer have any claims against the others. See, e.g., Deagle v. City of New York, et al., No. 90 Civ. 8203 (S.D.N.Y. Dec. 3, 1991) (Freeh, J.); Quick v. Short, et al., No. 87 Civ. 0695 (S.D.N.Y. Sept. 21, 1990) (Martin, J.). The Court would thus be spared significant time and effort.

 Although defendants argue convincingly that bifurcation may be an economical way of resolving this action, they overstate their case on one point. It is not true that a finding in favor of the officers necessarily disposes of the action. If the officers avoid liability by mounting a defense of qualified immunity -- arguing that they committed the constitutional violations in good faith -- the municipalities may still be liable. This is true because the qualified immunity defense is available to individuals but not to government bodies. Owen v. City of Independence, 445 U.S. 622, 63 L. Ed. 2d 673, 100 S. Ct. 1398, (1979); see also City of Los Angeles v. Heller, 475 U.S. 796, 798-99, 89 L. Ed. 2d 806, 106 S. Ct. 1571, (1985) (per curiam). As the Sixth Circuit put it recently:

 
A § 1983 claim against police officers who assert qualified immunity must be dismissed even if the officers violated the plaintiff's rights, so "long as their actions could reasonably have been thought consistent with the rights they are ...

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