IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

MOHAMAD ELMUSA, )

)

Plaintiff, )

) CAUSE NO. 2:13-CV-315

vs. )

)

LAKE COUNTY INDIANA )

SHERIFF’S DEPARTMENT, )

et al., )

)

Defendants.

OPINION AND ORDER

This matter is before the Court on “Defendant Lake County

Sheriff’s Motion to Bifurcate § 1983 Monell Claims and Stay

Discovery and Trial on Those Claims,” filed by the defendant, Lake

County Indiana Sheriff, John Buncich, on December 14, 2015 (DE

#65). For the reasons set forth below, the motion is GRANTED. 

Pursuant to Federal Rule of Civil Procedure 42(b), the Monell

claims against the Sheriff’s Department are BIFURCATED from the 42

U.S.C. section 1983 and state law claims against the individuallynamed Officer Defendants for both discovery and trial. All

discovery and trial of the Monell claims is STAYED pending

resolution of the claims against the individually-named Officer

Defendants. The Court ORDERS that Plaintiff’s right to a jury

trial on the Monell claims is preserved. 
BACKGROUND

The plaintiff, Mohamad Elmusa (“Plaintiff”), filed a complaint

in this case on September 9, 2013. (DE #1). Plaintiff was granted

leave to file an amended complaint on August 4, 2014, and the first

amended complaint was docketed on August 14, 2014. (DE #36 & DE

#37.) This action is brought pursuant to 42 U.S.C. section 1983. 

According to the first amended complaint, Plaintiff called the St.

John Police Department on August 24, 2013, believing that a trailer

he had leased had been stolen. Plaintiff was subsequently arrested

because the officers who arrived on the scene determined that

Plaintiff had an outstanding warrant for a failure to appear in

court. He was transported to the custody of the Lake County

Indiana Sheriff’s Department (the “Sheriff’s Department”), where he

was placed in an interview room with Officer Kevin Knight (“Officer

Knight”). After Plaintiff refused to answer Officer Knight’s

questions, he was told to exit the room where he was cuffed at both

his hands and feet. Plaintiff walked two to three feet before he

was attacked by Officer Knight and several other officers. The

alleged attack included Plaintiff being grabbed and thrown to the

ground, punched in his left eye, kicked and beaten in his knee and

leg, and being forced to raise his cuffed hands above his head. 

Plaintiff alleges that he was placed in isolation for six or seven

hours following the attack without a mattress, food, water, or his

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medication. As a result of the attack, Plaintiff suffered a broken

nose, a fractured shoulder, a bruised knee, a bruised leg, and

other physical and emotional injuries. At the time this occurred,

Plaintiff claims that he was unarmed, cuffed at his feet and hands,

approximately five feet six inches tall, two hundred pounds, and

sixty-eight years old.

Plaintiff lists the defendants in his first amended complaint

as “Lake County Indiana Sheriff John Buncich officially” (“Sheriff

Buncich”) and the following parties “individually and in his [or

her] official Capacity as an officer of the Lake County Indiana

Sheriff’s Department” – Kevin Knight, Mitchell McGuire, Andrew

Berglund, Jeremy Cary, Lt. Pete Fotinos, Richard Borchert, Brian

Kolodziej, David May, and Jennifer Matthews (collectively,

“individually-named Officer Defendants”). 

Based on the actions described above, Plaintiff brings five

separate claims: 

Count I - 42 U.S.C. § 1983 - Excessive Force

in violation of the Fourth and Fourteenth

Amendment Against Officer Knight

Count II - 42 U.S.C. § 1983 - Excessive Force

(and/or a Failure to Intervene) in violation

of the Fourth and Fourteenth Amendment Against

Officers Knight, McGuire, Berglund, Cary,

Fotinos, Borchert, Kolodziej, May, and

Matthews1

1

 The title of Count II only lists Officer Knight, but it is clear from

the text of the first amended complaint that this count is brought against all

of the individually-named Officer Defendants.

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Count III - 42 U.S.C. § 1983 - Monell Claim -

Against Lake County Sheriff John Buncich’s

Department

Count IV - 42 U.S.C. § 1983 - Failure to

Provide Adequate Medical Care Against Officers

Knight, McGuire, Berglund, Cary, Fotinos,

Borchert, Kolodziej, May, and Matthews

Count V - Battery (Pursuant to Indiana Law)

Against Officers Knight, McGuire, Berglund,

Cary, Fotinos, Borchert, Kolodziej, May, and

Matthews

To the extent Plaintiff seeks damages against Sheriff Buncich

in his official capacity, his claim is, in effect, an action

against the Sheriff’s Department, a municipality. Monell v.

Department of Soc. Servs., 436 U.S. 658, 690 (1978); Smith v.

County of Kosciusko, No. S91-5(RDP), 1991 WL 261766, at *2 (N.D.

Ind. Nov. 15, 1991).

In the instant motion, Sheriff Buncich requests that the Court

bifurcate all of Plaintiff’s claims against the individually-named

Officer Defendants from Plaintiff’s section 1983 Monell claims

against the Sheriff’s Department and to stay discovery and trial on

the Monell claims until and unless Plaintiff first proves an

underlying constitutional violation against any of the

individually-named Officer Defendants. Plaintiff has not filed a

response. 

DISCUSSION

Federal Rule of Civil Procedure 42(b) states, in relevant

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part, 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. When ordering a separate trial, the court must preserve

any federal right to a jury trial.” Fed. R. Civ. P. 42(b). 

Bifurcation may be appropriate if one or more of the Rule 42(b)

criteria is met. See, e.g., Treece v. Hochstetler, 213 F.3d 360,

365 (7th Cir. 2000). Courts have broad discretion in deciding

whether to bifurcate issues presented in a case or to try them

separately. Krocka v. City of Chicago, 203 F.3d 507, 516 (7th Cir.

2000). Indeed, the district court’s exercise of its discretion to

bifurcate will be set aside on appeal “only upon a clear showing of

abuse.” Treece, 213 F.3d at 364-65. Federal Rule of Civil

Procedure 26(d) also permits a court to stay discovery on Monell

claims. Fed. R. Civ. P. 26(d); see also Carr v. City of N.

Chicago, 908 F.Supp.2d 926, 927 (N.D. Ill. 2012). The decision of

whether to bifurcate is a case-specific analysis. Cadiz v. Kruger,

No. 06 C 5463, 2007 WL 4293976, at *3 (N.D. Ill. Nov. 29, 2007). 

Sheriff Buncich argues that bifurcation will be more

convenient and efficient for the parties, it will avoid prejudice,

expedite the matter, and economize resources for the Court and

parties during the discovery process and trial. Sheriff Buncich

states that Plaintiff will not be prejudiced by bifurcation. 

Plaintiff does not dispute any of these assertions. 

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In this case, the Monell claims center around allegations of

excessive force, a failure to intervene, and a denial of medical

care. Specifically, Plaintiff alleges that the Sheriff’s

Department “directly encourages, and is therefore, the moving force

behind, the constitutional violations at issue here by”: 

[1] failing to adequately train, supervise,

and control its officers, such that its

failure to do so manifests deliberate

indifference[;] . . .

[2] failing to adequately investigate, punish,

and discipline this and prior instances of

constitutional violations, thereby leading the

[Sheriff’s] Department’s officers to believe

that their actions will never be scrutinized

and therefore directly encouraging future

abuses of the constitutional rights enjoyed by

Plaintiffs[; and] . . .

[3] assisting, aiding, and abetting in the

cover-up and concealment of the identities of

the [Sheriff’s] Department officers who engage

in abuses of the constitutional rights of

others, thereby leading [the] officers to

believe that their actions will never be

scrutinized and, as such, directly encouraging

future constitutional violations.

(DE #37, pp. 9-10.) The Court finds that these types of claims are

well suited for bifurcation. This is so because “[i]f 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.” City of Los Angeles v. Heller, 475 U.S.

796, 799 (1986) (emphasis in original). See also Swanigan v. City

of Chicago, 775 F.3d 953, 962 (7th Cir. 2015) (“If the plaintiff

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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.”). Furthermore, “there

can be no liability under Monell for failure to train when there

has been no violation of the plaintiff’s constitutional rights.” 

Jenkins v. Bartlett, 487 F.3d 482, 492 (7th Cir. 2007).2 Thus, the

Court agrees with Sheriff Buncich when he argues that it is more

efficient and convenient to determine whether the individuallynamed Officer Defendants violated Plaintiff’s constitutional rights

before requiring the Court (and the parties) to expend resources

litigating the Monell claims against the Sheriff’s Department that

might never be reached or adjudicated. In the event that the

individually-named Officer Defendants are found not to have

committed the constitutional violations, bifurcating the Monell

claims would serve to avoid prejudice to the Sheriff’s Department

for unnecessarily defending these claims.

Efficiency, convenience, and economy also weigh in favor of

bifurcation. As Sheriff Buncich points out, “discovery relating to

the municipality’s policies and practices, which (depending on the

size of the police department) can add significant time, effort,

2

 While the Seventh Circuit has left the door open for the possibility

that, when questions of qualified immunity are at play, a municipality could

be found liable under Monell even if its officers are not, such a hypothetical

concern is premature at this stage and could be appropriately determined at

the conclusion of a trial on individual liability. See Saunders v. City of

Chicago, 146 F. Supp. 3d 957, 969-70 (N.D. Ill. 2015) (citing Thomas v. Cook

Cnty. Sheriff’s Dep’t, 604 F.3d 293, 305 (7th Cir. 2010)). 

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and complications to the discovery process.” Medina v. City of

Chicago, 100 F. Supp. 2d 893, 895 (N.D. Ill. 2000); see also Price

v. Kraus, No. 2:15-CV-331-PRC, 2016 WL 36982, at *2-3 (N.D. Ind.

Feb. 1, 2016). Judges throughout the circuit have recognized that

oftentimes, “claims 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.” Moore v. City of Chicago, No. 02 C 5130,

2007 WL 3037121, at *9 (N.D. Ill. Oct. 15, 2007); see also Cruz v.

City of Chicago, No. 08 C 2087, 2008 WL 5244616, at *2 (N.D. Ill.

Dec. 16, 2008) (convenience and efficiency would be best served

through bifurcation, in part, because of “extensive amount of work”

associated with Monell claims). In this case, Sheriff Buncich

argues that discovery related to Plaintiff’s Monell claims would be

a burdensome, time consuming, expensive task because the Sheriff’s

Department would have to “locate, compile, and produce numerous

documents” and engage in a “detailed investigation.” (DE #65, p.

5.) The Court agrees that this is likely, especially given the

rather general nature of the policies, procedures, and/or customs

described above3

 that led to the alleged constitutional violations. 

See Price, 2016 WL 36982 at *3 (distinguishing general policy

allegations from specifically detailed ones and granting

bifurcation). 

3

 Pages 5-6, supra & First Amended Complaint (DE #37, pp. 9-10). 

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Based on the foregoing, and in light of the fact that

Plaintiff has not responded to the instant motion in any way, the

Court finds that the avoidance of prejudice and the interests of

justice, efficiency, convenience, and economy support bifurcation. 

 

CONCLUSION

For the reasons set forth above, “Defendant Lake County

Sheriff’s Motion to Bifurcate § 1983 Monell Claims and Stay

Discovery and Trial on Those Claims” (DE #65) is GRANTED. Pursuant

to Federal Rule of Civil Procedure 42(b), the Monell claims against

the Sheriff’s Department are BIFURCATED from the 42 U.S.C. section

1983 and state law claims against the individually-named Officer

Defendants for both discovery and trial. All discovery and trial

of the Monell claims is STAYED pending resolution of the claims

against the individually-named Officer Defendants. The Court

ORDERS that Plaintiff’s right to a jury trial on the Monell claims

is preserved. 

DATED: September 9, 2016 /s/ RUDY LOZANO, Judge

United States District Court

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