United States District Court, E.D. California
MORRISON C. ENGLAND UNITED STATES DISTRICT JUDGE.
their Second Amended Complaint (“SAC”), Plaintiff
Adolfo Lemus and Noel Lemus allege violations of their
federal civil rights pursuant to 42 U.S.C. § 1983 by
Defendant County of Merced (“County”) and
Defendant Officer Paul Barile (“Officer Barile”).
By Memorandum and Order filed May 19, 2016 (ECF No. 29) the
Court found, inter alia, that Officer Barile was not
entitled to qualified immunity for the actions he took in
entering and searching Plaintiff Adolfo Lemus' residence
without a warrant.
16, 2016, Officer Barile filed an interlocutory appeal with
the Ninth Circuit Court of Appeals with respect to the
Court's rejection of his qualified immunity claim.
Presently before the Court is Defendant County's Motion
to Bifurcate and Stay the present action pending a decision
on that appeal. ECF No. 46. Plaintiffs have filed a Statement
of Non-Opposition with respect to the County's request.
ECF No. 47. Moreover, Officer Barile has joined in the
request, stating that imposition of a stay would assist in
resolving the matter through mediation. ECF No. 48. For the
reasons set forth below, Defendant County's Motion is
GRANTED as to its stay request, but DENIED with regard to
bifurcation of these proceedings.
case arises from an incident that occurred on March 8, 2013,
during a social gathering at the residence of Plaintiff
Adolfo Lemus (“Adolfo”) in Merced, California.
The Merced County Sheriff's Department was dispatched to
investigate a noise and gunshot complaint at or near
Adolfo's residence. Officer Barile, a Merced County
Sheriff's Officer employed by the County, responded to
Officer Barile arrived, he gained access to Adolfo's
residence by climbing over a gated entrance at the front of
the property and entering the residence. After making contact
with Adolfo, Officer Barile began searching the residence.
During that search, he encountered the locked door of a
bedroom where Plaintiff Noel Lemus (“Noel”) was
sleeping. Officer Barile applied force to gain entry to the
bedroom, awakening Noel. According to Noel, as he attempted
to comply with Officer Barile's command to get on the
ground, Officer Barile forcibly kicked him in the back. Noel
impacted the ground, resulting in personal injury. Noel was
subsequently placed in handcuffs and taken out of
claim that the entry and search of Adolfo's property and
dwelling were made without a warrant, without probable cause,
consent, or invitation, and were not subject to any
privilege. SAC, ¶ 60. They allege that Officer
Barile's conduct consequently violated their
constitutional rights. In addition, Plaintiffs contend that
Officer Barile restrained Noel in violation of his Fourth
Amendment rights. Id. at 57, p. 11.
to Plaintiffs, these purported constitutional violations were
made possible because the County has a policy and custom of
permitting “sergeant shopping, ” a practice that
permits officers to search for a superior to approve
questionable and/or improper conduct even in the face of
another sergeant recommending otherwise. Plaintiffs claim
this policy and custom has created a system where an officer
feels safe in overstepping the bounds of the law. More
specifically, if an officer meets resistance from one
supervising sergeant, he need only “shop” for
another who is more likely to approve the particular police
tactics involved. According to Plaintiffs, “[t]his
knowledge and power was a moving force behind the
constitutional violations” they suffered. Id.
further allege that the County is liable for Plaintiffs'
injuries because- despite being told by retired Sgt. Mike
Harris (“Harris”), the sergeant who responded to
the scene, that Officer Barile could not pursue charges
against Noel under the circumstances-Barile overstepped that
recommendation and sought consent to do so from Captain
Jones, the patrol operations commander. Plaintiffs allege
that Captain Jones, a final policymaking authority in this
regard, ratified the decision of Officer Barile by reading
and reviewing his report, and recommending that criminal
charges for negligent discharge of a firearm be pursued
the SAC reports Harris as stating that Officer Barile was
known to “embellish” reports and would frequently
write long reports to cover his actions when those actions
were subject to question. Id. at 50, p. 8. Harris
claims that higher ranking officers within the organization
reviewed and authorized these reports even though they knew
they were used to cover questionable arrests. Id.
According to the SAC, Harris also indicated that Officer
Barile had sergeant shopped in the past and that the practice
was tolerated by department supervisors and managers.
indicated above, irrespective of whether Officer Barile's
actions in writing up reports and recommending charges were
somehow condoned and/or ratified by the de facto policies of
the Merced County Sheriff's Department, Officer Barile
contends that he was entitled to qualified immunity with
respect to his actions in searching Adolfo's residence
and taking Noel into custody in the first place. He has filed
an interlocutory appeal with the Ninth Circuit challenging
this Court's denial of his qualified immunity claim.
Through the present motion, the County seeks to stay the
proceedings against it, arguing that if Officer Barile is
successful in invoking qualified immunity by way of his
appeal, there will be no underlying constitutional violation.
According to the County, without such an underlying violation
it necessarily cannot face so-called Monell
liability, which makes a municipal entity like the County
liable for a constitutional violation if the violation was
facilitated by the County's own policy or custom. The
County also appears to argue that even if Officer
Barile's qualified immunity argument fails, its
participation in this lawsuit should be bifurcated so as to
require Plaintiffs to establish Officer Barile's own
culpability at trial before any potential liability by the
County for such culpability is assessed.
may stay proceedings pending before it where interests of
judicial economy make a stay appropriate. Landis v. North
Am. Co., 299 U.S. 248, 254 (1936). This power stems from
the court's inherent ability to control the disposition
of cases on its docket. Fernandez v. Obesity Research
Inst., LLC., 2013 WL 4587005 at *6 (E.D. Cal. Aug. 28,
2013). A stay can be indicated where resolution of another
case “may have a substantial impact” on the
pending matter. Doyle v. OneWest Bank, N.A., 2015 WL
4605776 at *3 (C.D. Cal. May 21, 2015). In determining the
propriety of such a stay, courts look to issues of judicial
economy and the prejudice to either party that may result if
the stay is granted or denied. CMAX, Inc. v. Hall,
300 F.2d 265, 268 (9th Cir. 1962). Whether to issue a stay in
this regard is a decision necessarily relegated to the
court's discretion. Nken v. Holder, 556 U.S.
418, 433-34 (2009).
of proceedings is also a matter subject to the court's
discretion. Danjaq LLC v. Sony Corp., 263 F.3d 942,
961 (9th Cir. 2001). Under Federal Rule of Civil Procedure
42(b), “[f]or convenience, to avoid prejudice, or to
expedite and economize, the court may order a separate trial
of one ...