UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

DAVID OTTEN and RENEE OTTEN, )

Plaintiffs, )

)

v. ) CAUSE NO.: 2:16-CV-82-PRC

)

LAKE COUNTY SHERIFF’S DEPARTMENT, )

SERGEANT BOSSE in his individual and official )

capacity, OFFICER B. ZABRECKY in his individual )

and official capacity, and SHERIFF JOHN BUNCICH )

in his individual capacity, )

Defendants. )

OPINION AND ORDER

This matter is before the Court on Defendant Lake County Sheriff’s Department Motion to

Bifurcate § 1983 Monell Claims and Stay Discovery and Trial on Those Claims [DE 35], filed by

Defendant Lake County Sheriff’s Department (“Sheriff’s Department”) on December 14, 2016.

Plaintiffs David and Renee Otten filed a response on December 20, 2016, and the Sheriff’s

Department filed a reply on December 27, 2016.

In their Amended Complaint, Plaintiffs seek to hold the individually-named Defendants

liable for illegal search and seizure, excessive force, false imprisonment, and false arrest under 42

U.S.C. § 1983, in addition to various state law claims, in relation to events taking place on or about

February 14, 2015. Plaintiffs also seek to hold the Sheriff’s Department liable under 42 U.S.C. §

1983 pursuant to Monell v. New York Department of Social Services, 436 U.S. 658 (1978), for the

alleged illegal search and seizure. Plaintiffs allege that the Sheriff’s Department had an

unconstitutional policy of obtaining identification from all persons who come into contact with Lake

County police officers and that this policy caused the violation of Plaintiffs’ constitutional rights.

There are also pending state law respondeat superior claims against the Sheriff’s Department. 
In the instant motion, the Sheriff’s Department seeks to bifurcate Plaintiffs’ Monell claims

against it and to stay discovery and trial on the Monell claims pending resolution of Plaintiffs’

federal § 1983 claims and state law claims against the individually-named Defendants. The Sheriff’s

Department does not ask that the state law respondeat superior claims against it be bifurcated. Rule

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. When ordering a separate trial, the court must preserve any federal right to a jury

trial.” Fed. R. Civ. P. 42(b). Bifurcation of claims may be appropriate if “the separation would

prevent prejudice to a party or promote judicial economy.” Chlopek v. Fed. Ins. Co., 499 F.3d 692,

700 (7th Cir. 2007) (citation omitted). “If one of these criteria is met, the district court may order

bifurcation as long as doing so will not prejudice the non-moving party or violate the Seventh

Amendment.” Id. Defendants argue that bifurcation will convenience all the parties, avoid prejudice,

expedite the matter, and economize resources for the Court and parties during the discovery process

and trial. 

The Monell claims brought by Plaintiffs against the Sheriff’s Department are based on

allegations of illegal search and seizure. These claims are well suited for bifurcation because, unless

one of the Plaintiffs proves that an officer violated his or her constitutional rights, the Monell claims

against the municipality will fail as a matter of law, and the litigation will be over without the need

for discovery or trial on the Monell claims.1 See City of Los Angeles v. Heller, 475 U.S. 796, 799

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 Although there can be no Monell liability without proof of a violation of constitutional rights, the Seventh

Circuit Court of Appeals has noted that it is possible that “a municipality can be held liable under Monell, even when

its officers are not, unless such a finding would create an inconsistent verdict.” Saunders v. City of Chicago, 146 F. Supp.

3d 957, 969 (N.D. Ill. 2015) (quoting Thomas v. Cook Cty. Sheriff’s Dep’t, 604 F.3d 293, 305 (7th Cir. 2010)). In

Saunders, the court noted that, “[p]resumably such a situation could arise . . . should Plaintiffs be unable to recover from

the Defendant Officers because of their qualified immunity, but Plaintiffs could still recover from the municipality, which

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(1986); see also Swanigan v. City of Chicago, 775 F.3d 953, 962 (7th Cir. 2015). Thus, it is more

efficient and convenient to first determine whether the individually-named Defendants violated

Plaintiffs’ constitutional rights before requiring the Court (and the parties) to expend resources

litigating the Monell claims against the Sheriff’s Department that may never be reached or otherwise

adjudicated.2 Bifurcating the Monell claims against the Sheriff’s Department will avoid prejudice

to the Sheriff’s Department and avoid spending taxpayer money to unnecessarily defend against the

Monell claims if Plaintiffs are unable to prove that an underlying constitutional violation occurred.

Plaintiffs object to the Sheriff’s Department’s motion solely on the basis that offensive

collateral estoppel should be used to find that the alleged constitutional violation by the individuallynamed Defendants has occurred. With the individually-named Defendants collaterally estopped from

arguing that there was no constitutional violation, Plaintiffs argue, bifurcation would not

convenience the parties, avoid prejudice, expedite the matter, or economize resources.

In a criminal case against Plaintiffs in Lake County, Indiana, Superior Court, that court

directed the verdict in favor of the defendants in that case—who are Plaintiffs David Otten and

Renee Otten in the instant matter. In directing the verdict, that court stated that Officer Zabrecky and

Sergeant Bosse—who are Defendants in the instant matter—did not obtain consent to enter the Otten

residence. Though the court did not explicitly state that this was a violation of the Fourth

lacks such a protection.” Id. at 969-70. Like the court in Saunders, the Court finds that any such concern is premature

and can be addressed at the close of the trial on the individual claims, if necessary.

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 In addition, the discovery of Monell claims “can add significant time, effort, and complications to the

discovery process.” Medina v. City of Chicago, 100 F. Supp. 2d 893, 895 (N.D. Ill. 2000); see also Readus v. Dercola,

09 C 4063, 2012 WL 1533167, at *3 (N.D. Ill. May 1, 2012) (quoting Moore v. City of Chicago, No. 02 C 5130, 2007

WL 3037121, at *9 (N.D. Ill. Oct.15, 2007)). Defendants argue that litigating Plaintiffs’ Monell claims will be

burdensome and time consuming, involving a significant amount of money that would include locating, compiling, and

producing documents and the time required for several depositions of fact witnesses in addition to Rule 30(b)(6) witness

depositions.

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Amendment to the United States Constitution, it excluded evidence as “fruit of the poisonous tree,”

and Plaintiffs infer that the court found Zabrecky and Bosse’s actions to be an illegal search in

violation of the Fourth Amendment. This is the finding Plaintiffs wish to use against Defendants

under the doctrine of offensive collateral estoppel.

Federal courts must “give preclusive effect to state-court judgments whenever the courts of

the State from which the judgments emerged would do so.” Allen v. McCurry, 449 U.S. 90, 96

(1980). Indiana courts will, in certain circumstances, permit a party to use collateral estoppel

offensively. First, the party must establish the traditional requirements of collateral estoppel. Tofany

v.NBS Imaging Sys., Inc., 616 N.E.2d 1034, 1038 (Ind. 1993). If the traditional requirements are met,

then, in order to decide whether collateral estoppel may be used offensively, Indiana courts

determine “whether the party in the prior action had a full and fair opportunity to litigate the issue”

and “whether it is otherwise unfair to apply collateral estoppel given the facts of the particular case.”

Id.

Under the traditional requirements, for a party to be able to invoke collateral estoppel, 

(1) the issue sought to be precluded must be the same as that involved in the prior

litigation, (2) the issue must have been actually litigated, (3) the determination of the

issue must have been essential to the final judgment, and (4) the party against whom

estoppel is invoked must be fully represented in the prior action.

Matrix IV, Inc. v. Am. Nat. Bank and Trust Co. of Chicago, 649, F.3d 539, 547 (7th Cir. 2011)

(internal quotation marks and citation omitted). The Sheriff’s Department argues that the fourth

element of collateral estoppel is not met.

Plaintiffs state that, in the Lake County proceeding, the named parties were the State of

Indiana, Renee Otten, and David Otten. Though none of Defendants are named in the Lake County

proceeding, Plaintiffs assert that Defendants are the same as the State of Indiana because Indiana

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courts “look[ ] beyond the nominal parties and treat[ ] those whose interests are involved as the real

parties.” Becker v. State, 992 N.E.2d 697, 700 (Ind. 2013).

In Becker, the State of Indiana and the defendant entered into an Agreed Order regarding the

defendant’s requirements under Indiana’s sex offender registry laws. Shortly thereafter, the Indiana

Supreme Court decided a case pertinent to the issue. In light of that Indiana Supreme Court decision,

Indiana’s Attorney General intervened on behalf of Indiana’s Department of Corrections and sought

to change defendant’s registration requirements from those in the Agreed Order. The defendant

argued that res judicata should bar the Department of Corrections’s effort.3 The Indiana Supreme

Court found that the Department of Corrections’ interests in keeping the defendant on the sex

offender registry under heightened requirements were represented by the local prosecutor and that,

under res judicata, the Department of Corrections was bound by the Agreed Order.

Though not identified by the Sheriff’s Department, several courts have found collateral

estoppel to be unavailable in circumstances similar to the instant matter. See, Kraushaar v. Flanigan,

45 F.3d 1040, 1051 (7th Cir. 1995) (finding no privity of defendant officers, jailer, and county in

civil rights litigation with the parties in the prior criminal proceeding); see also, e.g., McFarland v.

Childers, 212 F.3d 1178, 1185–86 (10th Cir.2000) (finding no privity between a state agent sued

in her individual capacity and the parties in a prior criminal case); Smith v. Holtz, 210 F.3d 186,

199-200 n.18 (3d Cir. 2000) (noting that there is no privity between a police officer sued in his

individual capacity in a civil action with the Government in a prior criminal prosecution).

3

 The Court notes that Becker is a decision about res judicata, and the issue in the instate case is collateral

estoppel, but because the two doctrines are related and the differences are not vital to the instant issue, the Court declines

to further analyze the distinction.

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Here, unlike in Becker, the State of Indiana did not represent the interest of the Defendants

in the instant litigation. The Defendants here seek to avoid civil liability for alleged constitutional

violations. In the state criminal matter, the State of Indiana sought to prosecute Mr. and Ms. Otten

for alleged criminal behavior. Though an evidentiary objection was raised and apparently decided

regarding the constitutionality of some of Zabrecky and Bosse’s actions, the State’s interest in this

narrower matter was to get evidence admitted, not to avoid civil liability. The Court finds the

circumstances presented in the instant litigation to be much more in line with the cases finding no

privity cited above. Plaintiffs have not shown that the traditional requirements of collateral estoppel

are met, so the Court need not proceed to consider whether offensive use of collateral estoppel

would be appropriate. Because Plaintiff’s sole objection raised to bifurcation is due to offensive

collateral estoppel, the Court grants the motion to bifurcate.

Plaintiffs’ federal right to a jury trial on the Monell claims is unaffected by bifurcation and

will be preserved, and there is no identified prejudice to Plaintiffs. Rather, Plaintiffs will be able to

pursue more efficiently and conveniently the relevant discovery pertaining to the illegal search and

seizure claims against the individual officer Defendants.

Finally, the Sheriff’s Department argues, without response from Plaintiffs, that, even if the

Monell claims survive summary judgment and are proven at a trial, Plaintiffs may not recover

duplicate compensatory damages on the Monell claims and the non-Monell claims. See Cadiz v.

Kruger, No. 06 C 5463, 2007 WL 4293976, at *8 (N.D. Ill. Nov. 29, 2007) (citing Spanish Action

Comm. of Chicago v. City of Chicago, 766 F.2d 315, 321 (7th Cir. 1985)). Moreover, the Sheriff’s

Department is not required to pay punitive damages under any circumstances; therefore, bifurcation

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would not prejudice Plaintiff’s ability to recover punitive damages. See City of Newport v. Fact

Concerts, Inc., 453 U.S. 247, 271 (1981).

Based on the foregoing, the Court finds that the interests of justice, convenience, economy,

expedience, and the avoidance of prejudice support bifurcation and hereby GRANTS Defendant

Lake County Sheriff’s Department Motion to Bifurcate § 1983 Monell Claims and Stay Discovery

and Trial on Those Claims [DE 35]. The Court ORDERS, pursuant to Fed. R. Civ. P. 42(b), that the

Monell claims against the Sheriff’s Department are bifurcated from the § 1983 claims against the

individually-named Defendants and the state law claims.

The Court ORDERS that all discovery on the Monell claims against the Sheriff’s

Department is stayed until resolution of the claims against the individual officer Defendants.

The Court ORDERS that there be separate trials, with the § 1983 claims against the

individually-named Defendants and the state law claims taking place first. The trial on the Monell

claims against the Sheriff’s Department is stayed until resolution of the claims against the individual

officer Defendants. The Court ORDERS that Plaintiff’s right to a jury trial on the Monell claims

is preserved.

SO ORDERED this 12th day of January, 2017.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

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