Pearce v. City of Portland

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DEXTER PEARCE, No. 3:22-cv-00518-HZ

Plaintiff, OPINION & ORDER

v.

CITY OF PORTLAND; ANTHONY

WHITMORE; GARRET HEMMERLEIN;

TYLER BRUNELLE; MICHAEL RAINS;

and CRAIG DOBSON,

Defendants.

HERNÁNDEZ, District Judge:

Before the Court is Defendants’ motion to bifurcate under Federal Rule of Civil

Procedure 42(b). Defendants move to separate discovery and litigation of Plaintiff’s claims

against the individual Defendants Anthony Whitmore, Garret Hemmerlein, Tyler Brunelle, and

Michael Rains1 from Plaintiff’s supervisory liability claim and Monell claims against Defendant

1 At the time of this Opinion & Order, Defendant Rains has not been served and has not waived

service. Thus, at this time, Defendant Rains is not a proper party to this case.

Craig Dobson and the City of Portland (“City”). For the reasons state below, the Court denies

Defendants’ motion.

BACKGROUND

Plaintiff’s claims stem from events that occurred on the night of July 4, 2020. Second

Am. Compl. (“SAC”) ¶ 44, ECF 20. On that evening, Plaintiff participated in a protest against

police violence in downtown Portland, Oregon. SAC ¶ 44. Plaintiff claims that sometime

between 11:45 PM on July 4 and 12:10 AM on July 5, as he was walking away, a Portland Police

Bureau (“PPB”) officer shot him in the calf with a 40mm impact munition. SAC ¶ 46. Plaintiff

did not see who shot him, but PPB Officers Whitmore, Hemmerlein, Brunelle, and Rains were

all present and firing 40 mm launchers at the crowd of protestors. SAC ¶ 47. According to

Plaintiff, the decision to fire “less lethal” weapons at the protestors came from Defendant

Dobson, who was the incident commander that evening. SAC ¶ 50.

Plaintiff asserts four claims under 42 U.S.C.§ 1983 and one state-law battery claim

against Defendants. Plaintiff brings Claims One and Three against all individual Defendants,

alleging unlawful seizure in violation of the Fourth Amendment and unlawful retaliation against

protected speech in violation of the First Amendment. Claims Two and Four allege municipal

liability against the City for unlawful pattern and practice causing the constitutional violations.

Claim Five is the state-law battery claim against the City based on the actions of the individual

Defendants.

Defendants move under Rule 42(b) to bifurcate litigation of the claims against individual

PPB Officers Whitmore, Hemmerlein, Brunelle, and Rains from the claims against Defendant

Dobson and the City. Defendants seek separate discovery and trial in order to first litigate to

conclusion the “threshold” claims for relief against the individual officers. Defendants propose to

litigate the claims for “supervisory liability” against Defendant Dobson and the Monell claims

for municipal liability against the City in a subsequent proceeding. Plaintiff opposes bifurcation.

STANDARDS

Federal Rule of Civil Procedure 42(b) provides: “For 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.” Under Rule 42(b), a district court “has

broad discretion to bifurcate a trial to permit deferral of costly and possibly unnecessary

proceedings pending resolution of potentially dispositive preliminary issues.” Jinro Am. Inc. v.

Secure Invs., Inc., 266 F.3d 993, 998 (9th Cir. 2001); see Danjaq LLC v. Sony Corp., 263 F.3d

942, 961 (9th Cir. 2001) (citation omitted) (“The trial court’s decision to bifurcate is reviewed

for an abuse of discretion.”). A court may bifurcate and try certain claims first to “avoid [] a

difficult question by first dealing with an easier, dispositive issue.” Est. of Diaz v. City of

Anaheim, 840 F.3d 592, 601 (9th Cir. 2016) (quoting Danjaq LLC, 263 F.3d at 961). Because

one purpose of bifurcation under Rule 42(b) is to avoid costs and unnecessary proceedings, “the

court also has the power to limit discovery to the segregated issues.” Ellingson Timber Co. v.

Great N. Ry. Co., 424 F.2d 497, 499 (9th Cir. 1970).

In the Ninth Circuit, “bifurcation is the exception rather than the rule of normal trial

procedure.” Benson Tower Condo. Owners Ass’n v. Victaulic Co., 105 F. Supp. 3d 1184, 1208

(D. Or. 2015) (citation omitted). The moving party has the burden of proving that bifurcation is

appropriate. Id.

DISCUSSION

I. Individual Claims Against Defendant Dobson

Unlike his Monell claims against the City, Plaintiff’s claims against Defendant Dobson

are embedded in his claims against the other individual Defendants. Plaintiff names Defendant

Dobson as one of the individual Defendants on his First Amendment and Fourth Amendment

claims. Although Plaintiff does not allege that Defendant Dobson was one of the officers who

may have shot him, he claims that Defendant Dobson directly participated in causing his injury

by “failing to supervise and discipline” the other individual Defendants “and/or by directing

[individual Defendants] to fire upon Plaintiff.” SAC ¶ 58.

Section 1983 provides no mechanism to recover damages for supervisory liability. See

City of Canton v. Harris, 489 U.S. 378, 385 (1989) (“Respondeat Superior or vicarious liability

will not attach under § 1983.”). Thus, liability must be premised on the defendant’s individual

actions that caused the plaintiff’s injury. Plaintiff brings individual claims against Defendant

Dobson and asserts that his injuries were directly caused by Defendant Dobson’s actions.

Plaintiff asserts that “the decision to fire on all protestors—including Plaintiff—came from

Defendant [] Dobson[.]” SAC ¶ 50. In his First and Third Claims, Plaintiff names Defendant

Dobson as one of the individual Defendant Officers responsible for his injury based on the single

incident of Plaintiff being shot with non-lethal impact munition. As such, Plaintiff’s claims

against all individual Defendants are intertwined, and his claims against Defendant Dobson are

not easily severable.

In a case with similar facts, the Ninth Circuit held that a district court abused its

discretion by bifurcating litigation of claims against a police chief’s liability from those claims

against the individual officers that the police chief supervised. De Anda v. City of Long Beach,

7 F.3d 1418, 1421 (9th Cir. 1993). In De Anda, the district court had bifurcated trial on the

plaintiff’s civil rights claim against the individual officers from his Monell claim against the city.

Id. The claims against the police chief were to be tried during the municipal liability phase rather

than during the trial on liability for the individual officers. Id. According to the Ninth Circuit,

“because [the plaintiff] alleged that all of the defendants were individually liable for the same

constitutional injury, there was no reason to try the issue of [the police chief’s liability] in a

separate phase.” Id. And because the municipal liability phase of that trial was rendered moot

after the jury returned a verdict for the individual defendant officers, the plaintiff never had the

opportunity to present evidence of the police chief’s individual liability. Id. at 1420-21.

As was the case in De Anda, Plaintiff here alleges that along with the other individual

Defendants, Defendant Dobson participated in and was directly responsible for the act that

caused Plaintiff’s constitutional injury. Thus, the Court finds no benefit to a separate proceeding

on the claims against Defendant Dobson. Defendants’ motion to bifurcate discovery and

litigation on the claims against Defendant Dobson from the claims against the other individual

Defendants is denied.

II. Municipal Liability

Defendants contend that litigation of the claims against the City should be bifurcated (1)

for judicial economy and efficiency and (2) to prevent undue prejudice to the individual Officer

Defendants. Each of Defendants’ arguments in favor of bifurcation is discussed in turn.

A. Judicial Economy

Defendants first argue that the claims for municipal liability should be litigated separately

because Plaintiff can only succeed on his Monell claim if he first prevails on his claims against

the individual Defendants. Thus, according to Defendants, judicial resources will be preserved

by bifurcation because if the individual Defendants are found not liable, there will no need to

proceed on the municipal liability claims against the City.

For a municipality to be liable under § 1983, a plaintiff must show that a municipal

custom or policy caused the violation of their constitutional rights. Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 690 (1978). But a municipality may not be held liable under § 1983 simply

for having unconstitutional policies. Quintanilla v. City of Downey, 84 F.3d 353, 355 (9th Cir.

1996). For a city to be liable, a plaintiff must show that the actions of individuals acting under an

unconstitutional municipal custom or policy caused a constitutional injury. Id. Thus, if Plaintiff

suffered no constitutional violation at the hands of the individual Defendants, the City cannot be

found liable under Monell. Id. For this reason, Defendants argue that in the interest of efficiency

and judicial economy, Plaintiffs claims against the individual Defendants should be tried first.

See Banks v. Mortimer, No. 18-CV-07391-HSG, 2021 WL 1599266, at *2 (N.D. Cal. Apr. 23,

2021) (“When Monell claims are asserted in conjunction with claims against individual

defendants, courts often bifurcate them in the interests of convenience and judicial economy.”);

Est. of Lopez v. Suhr, No. 15-cv-01846-HSG, 2016 WL 1639547, at *6 (N.D. Cal. Apr. 26,

2016) (citation and brackets omitted) (“[B]ifurcation is conducive to expedition and economy

because a finding that the individual officers did not deprive the plaintiff of his constitutional or

statutory rights . . . is dispositive of plaintiffs’ claims against the City[.]”).

But Defendants’ argument fails for two reasons. First, Defendants ignore the converse

situation. If Plaintiff succeeds on his claims against the individual Defendants, significantly more

time and judicial resources would be expended litigating the related municipal liability claims in

a separate, subsequent proceeding. See Ryan v. City of Salem, No. 3:16-cv-0565-AC, 2017 WL

2426868, at *2 (D. Or. June 5, 2017) (noting that if a jury finds a constitutional violation in the

first phase of a bifurcated trial, “the second phase of the trial would likely result in a longer

aggregate time for trial than would a single trial on both claims”). As here, where evidence of

individual defendants actions and what a city’s policies allow may overlap, “a judicial efficiency

argument does not support bifurcation[.]” Id.

Second, Defendants erroneously assume that a judgment in favor of the individual

Defendants necessarily equates to a finding that Plaintiff suffered no constitutional violation. The

individual Defendants may be found to have caused a constitutional injury to Plaintiff but still be

shielded from liability through qualified immunity. See Chew v. Gates, 27 F.3d 1432, 1439 (9th

Cir. 1994) (explaining that when an individual defendant succeeds on a qualified immunity

defense, “the city’s liability has not been actually and necessarily decided”). Thus, even if

Plaintiff does not prevail on his claims against the individual Defendants, he could potentially

still proceed with his claim against the City. And because the issues of individual liability and

municipal liability are intertwined and not easily separable in this case, bifurcation would not

promote efficiency or preserve judicial economy.

B. Undue Prejudice

Defendants next argue that bifurcating litigation of Plaintiff’s claims for individual

liability from their Monell claims will avoid a risk of unfair prejudice to the individual

Defendants. In their discretion and when appropriate, “courts may order separate trials where the

evidence supporting the Monell claim is likely to cause undue prejudice to the individual

defendants.” Ryan, 2017 WL 2426868, at *2. But it is Defendants burden to show that the

individual Defendants will be prejudiced if the Court maintains the status quo and adjudicates all

of Plaintiff’s claims together. See Benson Tower Condo. Owners Ass’n, 105 F. Supp. 3d at 1208.

Defendants cannot make that showing at this stage of the proceedings.

Defendants argue that evidence that the City maintains an unconstitutional policy or

practice would “have a high likelihood of influencing and tainting the jury’s decision about

whether [individual Defendants] had used excessive force against Plaintiff.” Def. Mot. to

Bifurcate 11, ECF 45. But at this stage, the Court cannot determine whether or not evidence

relevant to the claims against the City would also be relevant to claims against the individual

Defendants. For example, determining whether the individual Defendants acted pursuant to or

outside of a City policy may be important to establish their liability on Plaintiff’s claims.

Thus, bifurcation is not warranted at this time. As Plaintiff concedes, Defendants’

argument in favor of bifurcation “would likely benefit from further discovery and argument at a

later date.” Pl. Resp. 5, ECF 46. The Court agrees. Defendants are not precluded from raising

these issues and seeking bifurcation of the proceedings after discovery has been completed and

dispositive motions have been resolved.

CONCLUSION

Defendants’ Motion to Bifurcate [45] is DENIED.

IT IS SO ORDERED.

DATED:___F_e_b_r_u_a_r_y_ _2_1_, _2_0_2_3_____.

____________________________________

MARCO A. HERNÁNDEZ

United States District Judge