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July 10, 1997

PAUL AMATO, Plaintiff,

The opinion of the court was delivered by: MCAVOY


 This action arises out of plaintiff Paul Amato's arrest and booking at defendant Saratoga Springs Police Department ("the Department") on May 26, 1994. Plaintiff alleges that while he was being booked, defendants Robert Flanagan and Lynn Thomas1 used excessive force on him, and then denied him medical treatment. Plaintiff's Second Amended Complaint, filed December 3, 1996, alleges that Flanagan and Thomas violated his rights to be free from the use of excessive force, deprived him of liberty without due process of law, and failed to provide him with adequate medical treatment.

 Plaintiff additionally alleges that the Department, defendants City of Saratoga Springs ("the City"), Kenneth King and Lewis J. Benton, III maintain a custom or policy of, inter alia, failing to discipline officers involved in such incidents, failing to investigate such incidents, covering up such incidents, and failing to train its officers. Plaintiff brings these claims against the defendants under 42 U.S.C. ยง 1983.

 Four motions are now pending before the Court: (1) Flanagan's motion for bifurcation; (2) Benton's motion for summary judgment; (3) King's motion for summary judgment; and (4) plaintiff's cross-motion for leave to amend and for a declaratory judgment.

 I. Background

 A. Facts

 Plaintiff was arrested by Flanagan and other officers of the Department on May 26, 1994, in connection with an incident that occurred at Pope's Pizza, a restaurant in Saratoga Springs, New York. (Benton Rule 7.1(f) Stat. at 4; Affidavit of Daniel J. Stewart ["Stewart Aff."], Ex. H). Plaintiff was alleged to have been causing a disturbance at the restaurant, and was subsequently charged with disorderly conduct and taken to the police station for booking. (Stewart Aff. Ex. H).

 Upon arriving at the police station, plaintiff was handcuffed to the booking counter, where Thomas began to book him. (Stewart Aff. Ex. H). Thomas claims that while he was looking through plaintiff's wallet for identification, plaintiff moved his hand in a manner that Thomas interpreted as an attempt to strike him. (Stewart Aff. Ex. H; Aff. of David Brickman ["Brickman Aff."] Ex. 2). Thomas thus asserts that he "instinctively" slapped plaintiff on the right side of his face with his left hand. *fn2" (Brickman Aff. Ex. 2).

 Meanwhile, Flanagan was approaching the booking desk from another room. (Flanagan Dep. at 97). According to Flanagan, plaintiff was trying to stop Thomas from ascertaining plaintiff's identity. (Id. at 101). Spotting plaintiff's hand moving over the booking desk, and allegedly fearing that plaintiff was going to strike Thomas, Flanagan grabbed plaintiff by the chin or neck *fn3" and pushed him back against the wall. Flanagan thereafter exchanged words with plaintiff, and eventually let him go. (Stewart Aff. Ex H). Plaintiff fell to the ground, allegedly unconscious, and arose a few minutes later. (Id. ; 2d Am. Compl. P 22). The booking apparently continued without incident. (Pl. Dep. at 41-42). *fn4"

 At the time of the incident, and since April of 1969, defendant Kenneth King was the Chief of the Saratoga Springs Police Department. (King Dep. at 20-21). Defendant Lewis Benton was the City's Commissioner of Public Safety, and had been since January of 1988. (Benton Aff. P 3). The Public Safety position is part-time only, and the Police Chief is directly responsible for the supervision and training of the police department. (Stewart Aff. Ex E at 4-5; Ex. E. at 6, 12; Ex. D at 7, 31). Neither Benton nor King was present during the incident involving plaintiff. (Benton Aff. P 14; Pl. Response to Interrogatories ["Pl. Resp."] at 12-16).

 Subsequent to the incident, plaintiff did not file a personnel complaint with the Department. (King Dep. at 63-67). In late June of 1994, however, plaintiff's criminal defense attorney requested a copy of a booking area videotape that contained the contents of the incident. (King Dep. at 63; Stewart Aff. Ex. J). As a result, King commenced an investigation of the matter. (Id.). As part of this investigation, King reviewed the reports of the individuals involved, spoke with the individuals, and required that further reports be filed. (Id. at 69-79). Specifically, King requested that each officer involved in the matter submit an "in-depth narrative report in the to/from format expanding on the incident which [he] observed on the tape[.]" (Id. at 70; see Brickman Aff. Ex. 2). Based upon such further reports and upon a review of the videotape, King concluded that no misconduct had occurred. (King Dep. at 70-73, 278).


 A. Bifurcation

 Flanagan argues that because of the difference between the type of claims asserted against he and Thomas on the one hand, and those asserted against the remaining defendants on the other, trial of the two sets of claims should be bifurcated. Under this scenario, plaintiff's claims against Flanagan and Thomas would be tried first. If either or both of those defendants are found liable, the Court would then proceed to try the so-called Monell claims against the remaining defendants.

 Fed.R.Civ.P. 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 a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues . . .

 The Court has broad discretion to order bifurcation to promote convenience, avoid prejudice to defendants, or to promote efficiency. West v. City of New York, 1996 WL 240161 (S.D.N.Y.); Ismail v. Cohen, 706 F. Supp. 243, 251 (S.D.N.Y. 1989), aff'd, 899 F.2d 183 (2d Cir. 1990). However, "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." Carson v. City of Syracuse, 1993 U.S. Dist. LEXIS 9508, 1993 WL 260676 at *2 (N.D.N.Y.) (McCurn, J.) (citing Ricciuti v. New York City Transit Auth., 796 F. Supp. 84, 86 (S.D.N.Y. 1992); Ismail, 706 F. Supp. at 251).

 Plaintiff himself asserts that discovery has revealed, inter alia, that Flanagan and other officers have a history of assaulting members of the public, and that lawsuits against Flanagan and others involving excessive force have been settled by the City. (Pl. Mem. in Opp. at 3-4). This Court agrees with Judge McCurn that the likelihood of unfair prejudice against the police officers resulting from the admission of such evidence on the Monell claim "would justify, if not compel, bifurcation[.]" Carson, 1993 U.S. Dist. LEXIS 9508, 1993 WL 260676 at *4; see also West v. City of New York, 1996 WL 240161 at *5 (S.D.N.Y.) (bifurcation appropriate where plaintiff's Monell claims would "require extensive evidence concerning the City's policies on the use of force that [was] largely irrelevant to plaintiff's claims against the individual defendants.").

 Concerns of efficiency additionally militate in favor of bifurcation. It is well-settled that a claim of negligent training or supervision under Monell lies against a municipality only where there is a finding of a constitutional violation by one of its officers. See City of Los Angeles v. Heller, 475 U.S. 796, 799, 89 L. Ed. 2d 806, 106 S. Ct. 1571 (1986); Pitchell v. Callan, 13 F.3d 545, 549 (2d Cir. 1994). Thus, a no-cause verdict against the individual defendants would obviate the necessity of a trial on plaintiff's Monell claim. See West, 1996 WL 240161 at *5; Ricciuti, 796 F. Supp. at 85.

 In opposing bifurcation, plaintiff argues conclusorily that "much of the evidence complained about by the Defendants will be admissible against Defendant Flanagan to prove habit, knowledge, intent, malice, etc." (Pl. Mem. in Opp. at 7). The Court flatly disagrees with the broad sweep of such a statement, and plaintiff has failed to explain how or why such evidence would be admissible for these purposes. In any event, ordering bifurcation does not amount to an in limine ruling that such evidence is inadmissible against the individual defendants for all purposes. Rather, the Court holds that to the extent that much of this evidence will likely be admissible only against the City defendants, it is likely to unfairly prejudice Flanagan and Thomas. If plaintiff maintains that particular evidence is relevant to prove any of the matters as to which prior act evidence is properly admissible under Rule 404(b), the Court can rule on such matters prior to or during trial.

 The remainder of plaintiff's opposition consists of irrelevant citations to criminal cases dealing with severance, and and a rather confusing argument on the issue of proximate cause. *fn5" These arguments also are unavailing. For the foregoing reasons, Flanagan's motion for bifurcation is granted, and the trial will proceed first with plaintiff's claims against defendants Flanagan and Thomas. If liability is found against either or both of these defendants, the Court will proceed with the Monell claims against the City defendants. In the ...

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