Savory v. Cannon

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOHNNIE LEE SAVORY, )

)

Plaintiff, ) 17 C 204

)

vs. ) Judge Gary Feinerman

)

WILLIAM CANNON, SR., as Special Representative )

of the Estate of Charles Cannon, MARCELLA )

BROWN TEPLITZ, BETH BELL, as Special )

Representative of Russell Buck, Peter Gerontes, and )

John Timmes, JOHN FIERS, CHARLES EDWARD )

BOWERS, JOHN STENSON, GEORGE PINKNEY, )

E. HAYNES, WALTER JATKOWSKI, GLEN )

PERKINS, ALLEN ANDREWS, HAROLD )

MARTENESS, MARY ANN DUNLAVEY, CARL )

TIARKS, and CITY OF PEORIA, ILLINOIS, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Johnnie Lee Savory brings this suit under 42 U.S.C. § 1983 against the City of Peoria and

several of its police officers, alleging that they framed him for the 1977 murders of James

Robinson and Connie Cooper. Doc. 1. The court recently granted in part and denied in part

Defendants’ Civil Rule 12(b)(6) motion to dismiss. Docs. 170-171 (reported at 532 F. Supp. 3d

628 (N.D. Ill. 2021)). Before the court is the City’s motion under Rule 42(b) to bifurcate

Savory’s claim against the City—brought pursuant to Monell v. Department of Social Services,

436 U.S. 658 (1978)—and to stay discovery and trial on that claim until his remaining claims

against the officers are resolved. Doc. 186. The motion is granted.

Background

The complaint’s factual allegations are detailed in the court’s prior opinion, familiarity

with which is assumed. In brief, Savory was arrested in January 1977 for the rape and murder of

Connie Cooper and the murder of James Robinson, and he was convicted later that year. Doc. 1

at ¶¶ 1, 76. In this suit, Savory alleges that the officer defendants coerced his confession,

fabricated evidence, and destroyed and withheld exculpatory evidence. Id. at ¶¶ 5-7. Savory’s

§ 1983 claims against the officers are: Fifth and Fourteenth Amendment coerced and false

confession claims, id. at ¶¶ 88-98; a Fourth Amendment unlawful detention claim, id. at

¶¶ 99-103; a Fourteenth Amendment wrongful conviction claim, id. at ¶¶ 104-110, 112-113; and

a failure to intervene claim, id. at ¶¶ 114-118. Savory’s Monell claim against the City alleges

that its unlawful policies, practices, and customs led to his wrongful prosecution, conviction, and

imprisonment. Id. at ¶¶ 119-130. Those claims survived Defendants’ Rule 12(b)(6) motion.

532 F. Supp. 3d at 632-40.

To support his Monell claim, Savory seeks extensive discovery from the City, including:

written policies and procedures of the City and its police department, in place from 1972 through

2015, addressing the documentation of investigations, the collection and preservation of

evidence, and the interrogation and interviewing of suspects and witnesses, as well as each

policymaker responsible for those policies, Doc. 186-4 at 9-10; each instance from 1972 through

2015 in which a policymaker reviewed any of those policies, as well as any steps taken in

response to the review, id. at 10; and “any and all changes” made from 1987 through 2012 to the

City’s and its police department’s policies, practices, and training programs relating to any of the

foregoing policies or procedures, including how those changes were communicated to

employees, ibid. In addition, Savory seeks all the City’s and its police department’s written

policies and procedures, from 1970 through the present, related to investigations. Doc. 186-3 at

5-6; Doc. 186-2 at 16.

Discussion

“The ultimate decision to bifurcate under Rule 42(b) is at the [district] court’s discretion

and will be overturned only upon a clear showing of abuse.” Houseman v. U.S. Aviation

Underwriters, 171 F.3d 1117, 1121 (7th Cir. 1999); see also Krocka v. City of Chicago, 203 F.3d

507, 516 (7th Cir. 2000) (same). Although bifurcation typically cleaves liability from damages,

“there is no rule that if a trial is bifurcated, it must be bifurcated between liability and damages.

The judge can bifurcate (or for that matter trifurcate, or slice even more finely) a case at

whatever point will minimize the overlap in evidence between the segmented phases or

otherwise promote economy and accuracy in adjudication.” Hydrite Chem. Co. v. Calumet

Lubricants Co., 47 F.3d 887, 891 (7th Cir. 1995).

Bifurcation may be ordered if three conditions are met: “First, the trial judge must

determine whether separate trials would avoid prejudice to a party or promote judicial economy.

Only one of these criteria—avoidance of prejudice or judicial economy—need be met before a

court can order separation. Next, the court must be satisfied that the decision to bifurcate does

not unfairly prejudice the non-moving party. Finally, separate trials must not be granted if doing

so would violate the Seventh Amendment.” Houseman, 171 F.3d at 1121 (internal citations

omitted); see also Chlopek v. Fed. Ins. Co., 499 F.3d 692, 700 (7th Cir. 2007) (same). All three

conditions are satisfied here.

I. Judicial Economy

The City argues that bifurcating the Monell claim will promote efficiency because

discovery on that claim will be far broader and more burdensome than discovery on the claims

against the officer defendants. Doc. 186 at 8-11. The City’s argument rests on the premise that

Savory cannot prevail on his Monell claim unless at least one officer is found to have committed

a constitutional violation. Id. at 5-8. If that premise is correct, bifurcating the Monell claim has

the potential to save the parties and the court the time, effort, and expense of litigating that claim,

for if all the officer defendants prevail, then the Monell claim would be dismissed.

As a general rule, “a municipality cannot be liable under Monell when there is no

underlying constitutional violation by a municipal employee.” Sallenger v. City of Springfield,

630 F.3d 499, 504 (7th Cir. 2010); see also Swanigan v. City of Chicago, 775 F.3d 953, 962 (7th

Cir. 2015) (“If the plaintiff fails to prove a violation of his constitutional rights in his claim

against the individual defendants, there will be no viable Monell claim based on the same

allegations.”); Petty v. City of Chicago, 754 F.3d 416, 424 (7th Cir. 2014) (“[I]f no constitutional

violation occurred in the first place, a Monell claim cannot be supported.”). An exception holds

that “a municipality can be held liable under Monell, even when its officers are not,” if that

outcome would not “create an inconsistent verdict.” Thomas v. Cook Cnty. Sheriff’s Dep’t, 604

F.3d 293, 305 (7th Cir. 2010). In Thomas, the plaintiff alleged that the Cook County Jail’s

failure to respond to a detainee’s medical requests caused his death and violated his due process

rights. Id. at 299-300. The Seventh Circuit ruled that Cook County could be liable under Monell

even if no county employee violated the constitution because the detainee’s death could have

been caused by “the well-documented breakdowns in the County’s policies for retrieving

medical request forms” rather than by any employee’s deliberate indifference. Id. at 305.

Savory argues that this case likewise presents a circumstance where a plaintiff’s verdict

on his Monell claim would not be inconsistent with defense verdicts on his claims against the

officer defendants. Doc. 188 at 5-7. In so arguing, Savory does not suggest he could prevail

against the City if no officer violated his constitutional rights. That stands to reason, as a

municipality’s “alleged practices of coercing false testimony, creating false or misleading

investigative reports, and failing to preserve and produce exculpatory evidence … depend on

individual Officer actions.” Williams v. City of Chicago, 315 F. Supp. 3d 1060, 1080 (N.D. Ill.

2018); see also Harris v. City of Chicago, 2016 WL 3261522, at *3 (N.D. Ill. June 14, 2016)

(“The nature of the alleged constitutional violations, fabricating a confession and coercing

Plaintiff into making that confession, depends on the individual officers’ actions.”); Taylor v.

Kachiroubas, 2013 WL 6050492, at *4 (N.D. Ill. Nov. 15, 2013) (holding that because “the

actions of the individual officers in collecting and fabricating evidence against [the plaintiffs] are

the source of the alleged harm to the[m],” Monell liability depended on the officers’ actions).

Here, any practice, policy, or failure to train on the City’s part could have harmed Savory only if

one or more officers violated his constitutional rights by coercing his confession, fabricating

evidence, and/or destroying or withholding exculpatory evidence.

Instead, Savory notes that if the officers prevail on their qualified immunity defense, they

could be relieved of liability even if they violated his constitutional rights in a way that could

predicate Monell liability. Doc. 188 at 6. That argument is unpersuasive, at least at this juncture.

Qualified immunity is “an immunity from suit rather than a mere defense to liability,” and is

“effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S.

511, 526 (1985). Given its nature, qualified immunity is raised before trial, often at summary

judgment. See Scott v. Harris, 550 U.S. 372, 376 n.2 (2007) (noting that the Supreme Court

“‘repeatedly ha[s] stressed the importance of resolving immunity questions at the earliest

possible stage in litigation.’”) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)). Thus, if the

court bifurcates the Monell claim now, and later determines at summary judgment that one or

more officers may have violated Savory’s rights but are entitled to qualified immunity, the court

at that point would revisit the bifurcation question. See Taylor, 2013 WL 6050492, at *4

(reaching the same conclusion).

Savory also contends that discovery might reveal a “yet-to-be identified” Peoria Police

Department employee who violated his constitutional rights, making it possible that the City’s

Monell liability could rest on that employee’s conduct even if none of the named officer

defendants are liable. Doc. 188 at 6-7. While theoretically possible, it is extraordinarily unlikely

that another, more culpable individual will be newly discovered given that Savory’s claims, in

one form or another, have been litigated in state and federal court for decades. See Savory v.

Cannon, 338 F. Supp. 3d 860, 862 (N.D. Ill. 2017) (listing Savory’s related state and federal

court litigation from 1987 onward), rev’d on other grounds, 947 F.3d 409 (7th Cir. 2020). Still,

if that circumstance arises, Savory of course may ask the court to reconsider bifurcation.

In sum, as matters now stand, there is very little chance that Savory could prevail on his

Monell claim against the City without securing a verdict against at least one of the officer

defendants. With that premise established, the next question is whether efficiency would be

served by bifurcating the Monell claim and staying Monell-related discovery until the claims

against the officer defendants are resolved. The City maintains that bifurcation would

“significantly decrease the overall number of documents required to be produced and depositions

conducted,” avoid the need for Monell experts, and reduce the number of discovery disputes

requiring court resolution. Doc. 186 at 8-11. Savory retorts that discovery on his claims against

the officers would include “much of the same discovery” that the City erroneously describes as

related solely to his Monell claim. Doc. 188 at 7-11.

Savory’s written discovery requests call for details of the City’s and its police

department’s policies, procedures, and practices spanning up to a fifty-year period. Doc. 186-3

at 5-6 (No. 26) (request for production seeking all written policies and procedures related to

investigations, without time limit); Doc. 186-2 at 17 (stating that, “[i]n the spirit of compromise,

Plaintiff proposes limiting his Request [No. 26] to the period of 1970 to the present”);

Doc. 186-4 at 9-10 (interrogatories seeking details about policies and procedures from

1972-2015). At the hearing on this motion, the City stated that it had produced certain general

orders, personnel rules, and some policy and training documents from 1970 through 1997, and

Savory suggested that he might be amenable to limiting discovery to somewhat narrower

timeframes.

While the exact details of the parties’ positions on the temporal and substantive scope of

Savory’s written discovery requests are unclear, his requests indisputably are wide-ranging and

voluminous. Savory contends that his case against the officer defendants will “require much of

the same discovery even if his Monell claim is bifurcated,” reasoning that the City’s policies and

procedures are necessary for possible impeachment purposes because the officer defendants

“may claim that they have no knowledge of the underlying facts of the case apart from their

written reports and usual practices.” Doc. 188 at 9. But Savory does not explain, and the court

does not understand, how policies that post-date the timeframe of the murder investigation and

trial, not to mention the defendant officers’ tenure with the Peoria police, have any bearing on

the veracity of their testimony or their investigation of Savory.

Savory similarly contends that “[f]acts relating to the claims against the individual

defendants overlap with facts relating to Plaintiff’s Monell claims,” making it inefficient for the

same witnesses to travel from Peoria to Chicago to testify twice. Id. at 10. But he does not

explain which facts overlap or why the same witnesses would testify regarding the officers’

involvement in Savory’s arrest and prosecution, on the one hand, and the City’s general policies,

practices, and training concerning fabrication and destruction of evidence, falsification of

witness testimony, and failure to maintain and disclose investigative files to prosecutors and

criminal defendants, on the other. And Savory’s point rests on the disputed premise that,

ultimately, this case will be tried in Chicago rather than in Peoria. Doc. 67 (denying without

prejudice to renewal Defendants’ motion under 28 U.S.C. § 1404(a) to transfer the suit to the

Central District of Illinois).

Thus, much of Savory’s discovery requests for documents and detailed information about

the City’s and its police department’s policies and procedures spanning up to fifty years likely

have no bearing on his claims against the officer defendants. In addition, as the City notes,

Doc. 186 at 10, litigating Savory’s Monell claim would entail expert discovery regarding the

City’s general policies and training. The prospect of avoiding all that burdensome additional

discovery weighs heavily in favor of bifurcating the Monell claim. See Taylor, 2013 WL

6050492, at *3 (“Courts have frequently noted the heavy burdens of discovery related to Monell

claims.”); Ojeda-Beltran v. Lucio, 2008 WL 2782815, at *2 (N.D. Ill. July 16, 2008) (“We agree

with the City that it is more efficient to resolve Plaintiffs’ claims against Defendant Officers

before turning to the more burdensome and time-consuming task of litigating the Monell claim.”)

(internal quotation marks omitted); Moore v. City of Chicago, 2007 WL 3037121, at *9 (N.D. Ill.

Oct. 15, 2007) (“[C]laims of municipal liability require an extensive amount of work on the part

of plaintiff’s attorneys and experts, and an extraordinary amount of money must be spent in order

to prepare and prove them.”).

Asserting that the City has not “made an actual inquiry into the burden of complying”

with Monell discovery, Savory submits that it might not be so burdensome to identify changes

the City and its police department made in fifty years’ worth of policies and procedures because

“it may be that those documents did not change often, certainly not every year, between 1981

and 2015.” Doc. 188 at 8. That argument fails to persuade. The City has already begun

producing written policies sought by Savory, at least those from 1972 through 1982, Doc. 186-2

at 17-18 (No. 8.4), allowing it to assess the difficulty of complying with his discovery requests.

And even if Savory’s speculation that the policies changed infrequently is accurate, his requests

for fifty years’ worth of policies addressing a wide range of practices indisputably will result in

voluminous and burdensome document searches and production.

Finally, Savory asserts that the appropriate avenue for the City to dispute the appropriate

scope of his Monell-related discovery requests is a Local Rule 37.2 conference and motion

practice, not a motion to bifurcate. Doc. 188 at 8. Yet the Seventh Circuit has endorsed stays of

Monell claims to “achieve[] the goal of avoiding unnecessary complexity and effort.” Swanigan,

775 F.3d at 963. That complexity and effort surely includes the burden of engaging in discovery

conferences and litigating discovery motions.

II. Prejudice

The City argues that the introduction at trial of its allegedly improper “policies, practices,

and customs” may lead the jury to unfairly assume that the officer defendants acted improperly

as well. Doc. 186 at 11-12. Savory responds that introduction of the City’s policies and

practices could not be prejudicial because they are “relevant to claims against an individual

Defendant who will likely claim to have acted in conformity with citywide policy,” and that the

City fails to identify any prejudice resulting from Monell-related discovery. Doc. 188 at 11.

Savory also argues that a bifurcation and discovery stay on his Monell claim will prejudice him

by unnecessarily prolonging the litigation, increasing his burden of recovery, and delaying

institutional reform by the City. Id. at 12-13.

The City has the better of the argument. The officer defendants face a risk of unfair

prejudice from the prospect that the jury would attribute to them the “various acts of alleged

police misconduct committed by numerous non-party officers [admitted] to establish a policy or

practice.” Lopez v. City of Chicago, 2002 WL 335346, at *2 (N.D. Ill. Mar. 1, 2002); see also

Veal v. Kachiroubas, 2014 WL 321708, at *6 (N.D. Ill. Jan. 29, 2014) (“Presenting evidence to

the jury regarding a village-wide policy, practice or custom involving multiple improper police

actions poses a danger of undue prejudice to the defendant officers by creating the perception

that the police department routinely acts improperly, even if the officers acted properly in this

case.”); Carr v. City of N. Chicago, 908 F. Supp. 2d 926, 934-35 (N.D. Ill. 2012) (“If admitted as

part of the case against Municipal Defendants, such [policy and practice] evidence could

prejudice the Defendant Officers’ ability to distinguish their own actions from those of other

non-party officers. This strongly favors bifurcation of the Monell claims … .”); Jones v. City of

Chicago, 1999 WL 160228, at *3 (N.D. Ill. Mar. 10, 1999) (holding that “a substantial risk exists

that the introduction of Monell evidence would severely prejudice the individual officers,” as the

plaintiff’s Monell evidence included “various acts of alleged police misconduct and excessive

force committed by numerous non-party officers over the past twelve years”). Moreover, it is

immaterial that the City does not identify any prejudice stemming specifically from

Monell-related discovery, as bifurcation is appropriate so long as judicial economy is promoted

or prejudice is avoided. See Chlopek, 499 F.3d at 700 (holding that bifurcation is warranted

under Rule 42(b) so long as it would “prevent prejudice to a party or promote judicial economy,”

and that only “one of these criteria” must be met). Although the prejudice from trying Savory’s

claims against the officer defendants together with his Monell claim could be avoided by

bifurcating the trials without staying Monell-related discovery, staying discovery until the officer

defendants’ culpability is resolved is by far the most efficient course.

Savory’s arguments as to why bifurcation and a discovery stay will prejudice his interests

similarly fail to persuade. Bifurcation will not “unnecessarily prolong litigation,” Doc. 188 at

12—rather, it will allow the parties to more quickly resolve the officer defendants’ liability and

likely will make the overall litigation far more efficient. Savory additionally submits that any

extra delay in allowing discovery on the Monell claim could “severely prejudice [him] given that

the underlying facts took place in 1977 and many Defendants are already elderly and deceased.”

Ibid. But Savory can depose the officer defendants in connection with his claims against them,

and those depositions will likely cover whatever testimony would be pertinent to his Monell

claim.

Savory next asserts that bifurcation will “make the burden of recovery greater by

requiring [him] to participate in two trials” and “could prevent [him] from making a full financial

recovery.” Ibid. That argument fails, as Savory can recover only once for the constitutional

violations he alleges. See Swanigan v. City of Chicago, 881 F.3d 577, 582 (7th Cir. 2018)

(“Federal common law prevents § 1983 plaintiffs from recovering twice for the same injury.

That means [the plaintiff] cannot recover from the City for the prolonged detention because he

was compensated for that constitutional violation in his suit against the officers.”) (citation

omitted). If the officer defendants prevail at trial, Savory’s Monell claim against the City almost

certainly will be dismissed, as shown above. And if one or more officer defendant is liable,

Savory can recover his damages in full and will not be entitled to any further recovery against

the City. Thus, staying litigation of the Monell claim will not impact Savory’s ability to make a

full financial recovery.

Finally, Savory argues that delaying litigation of his Monell claim will prejudice his

interests in achieving institutional reform. Doc. 188 at 12-13. But any judgment against one or

more officer defendants would reflect poorly on the City, and any additional marginal benefit

from obtaining a Monell judgment against the City for events that took place decades ago is

outweighed by the costs and prejudice to the officer defendants of not bifurcating the Monell

claim. See Ojeda-Beltran, 2008 WL 2782815, at *4 (finding that any prejudice against the

plaintiffs resulting from the delay of potential non-economic relief from their Monell claim did

not outweigh “party convenience, judicial economy, [and] prejudice against Defendant

Officers”).

In sum, bifurcating Savory’s Monell claim and staying Monell-related discovery will

avoid unfair prejudice to the officer defendants and does not unfairly prejudice Savory.

III. Seventh Amendment

The Seventh Amendment states that “no fact tried by a jury[] shall be otherwise

reexamined.” U.S. Const. amend. VII. A district court accordingly “must not divide issues

between separate trials in such a way that the same issue is reexamined by different juries.”

Matter of Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1303 (7th Cir. 1995). “While both juries

can examine overlapping evidence, they may not decide factual issues that are common to both

trials and essential to the outcome.” Houseman, 171 F.3d at 1126.

Savory contends that separate trials of his claims against the officer defendants and his

Monell claim against the City will violate the Seventh Amendment by requiring two juries to

“consider whether and how each Plaintiff’s constitutional rights were violated by the suppression

of evidence—the first to assess whether the individual Defendants violated their right to due

process, and the second to assess whether the City’s policies were the cause.” Doc. 188 at 13.

The City responds that the two trials will entail distinct factual and legal inquiries, as the “Monell

claim involves inquiries into the City’s policies, practices, and customs,” while the “claims

against the Individual Defendants involve[] inquiries into the actions by the Individual

Defendants.” Doc. 186 at 13.

Again, the City has the better of the argument. Savory’s Monell claim centers on the

City’s allegedly “widespread practice[s] and custom[s]” of coerced confessions, fabrication and

destruction of evidence, falsification of witness testimony, and failure to maintain and disclose

investigative files to prosecutors and criminal defendants. Doc. | at §§ 124-125. That claim, if

tried, would require evaluation of the City’s policies, practices, and procedures over several

decades. Savory’s claims against the officer defendants focus on their specific actions during a

discrete period. /d. at J] 31-68, 88-98, 104-118. It follows that trying those claims separately

would not violate the Seventh Amendment. See Houseman, 171 F.3d at 1128 (“[T]hat much of

the evidence presented in the first trial would have been re-examined in the second ... does not

raise constitutional concerns. ... Because the two juries were asked to decide distinct questions,

and because the second jury could not have re-examined the conclusions of the first, the Seventh

Amendment was not offended by the bifurcation order.”); Treadwell v. Salgado, 2022 WL

267988, at *8 (N.D. Ill. Jan. 28, 2022) (holding that bifurcating the plaintiff's Monel! claim

“would not raise a Seventh Amendment concern” because, although the plaintiffs “claims

against the Defendant Officers and the City are based on some overlapping facts, they involve

different theories of liability”).

Conclusion

The City’s motion to bifurcate and stay discovery on Savory’s Monell claim is granted.

The Monell claim is bifurcated from the claims against the officer defendants, and discovery that

pertains exclusively to the Monell claim is stayed absent further court order.

March 14, 2022

United States District Judge

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