United States District Court, D. New Mexico
January 9, 2017
JACKIE MARTINEZ, as Personal Representative on behalf of the Estate of Russell Martinez, Plaintiff,
JOSEPH SALAZAR, in his individual capacity, GREG ESPARZA, in his individual capacity, THE ESPANOLA DEPARTMENT OF PUBLIC SAFETY, LEO MONTOYA, and THE CITY OF ESPANOLA, Defendants.
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Defendant Joseph Salazar,
Greg Esparza, the Espanola Department of Public Safety, Leo
Montoya, and the City of Espanola's
(“Defendants'”) Second Motion to Bifurcate
and Memorandum (“Second Motion to Bifurcate”),
filed on October 13, 2015. (Doc. 109). Plaintiff filed a
response on October 29, 2015, and Defendants filed a reply on
November 10, 2015. (Docs. 120 and 126). Having reviewed the
Second Motion to Bifurcate and the accompanying briefs, the
Court DENIES the Second Motion to Bifurcate.
a police excessive force case arising from interactions
between Russell Martinez (“Mr. Martinez”) and
Defendants Joseph Salazar and Greg Esparza on May 11, 2012.
Plaintiff originally filed this case on May 5, 2014, in the
First Judicial District Court, County of Rio Arriba, New
Mexico. (Doc. 1-1). Defendants removed the case to this Court
on June 6, 2014. (Doc. 1). Subsequently, Plaintiff filed his
First Amended Complaint for Damages Resulting from Civil
Rights Violations, Intentional Torts, Negligence, and
Violations of Title II of the Americans with Disabilities Act
(“Amended Complaint”). (Doc. 88).
Count I of the Amended Complaint, Plaintiff brings 42 U.S.C.
§ 1983 excessive force claims against Espanola Police
Department Officers Joseph Salazar and Greg Esparza
(“Defendants Salazar and Esparza, ” or the
“Individual Defendants”). (Doc. 88) at 5. In
Count II, Plaintiff brings New Mexico Tort Claims Act
(“NMTCA”) claims against Defendants Salazar and
Esparza for the intentional torts of assault, battery, false
arrest, and violation of the United States and New Mexico
constitutions. Id. at 5-6. In addition, Plaintiff
brings respondeat superior claims against the
Espanola Department of Public Safety (“EDPS”) and
the City of Espanola (together, the “Municipal
Defendants”) for the intentional torts allegedly
committed by Salazar and Esparza. Id. In Count III,
Plaintiff brings state negligence claims against Joe Montoya
(“Defendant Montoya”), the Director of the EDPS,
for negligently hiring, training, and/or supervising Salazar
and Esparza, and thereby causing Salazar and Esparza to
commit the intentional torts listed in Counts I and II.
Id. at 6-7. Plaintiff also alleges that the
Municipal Defendants are liable for Defendant Montoya's
negligent actions under respondeat superior.
Id. at 7. Finally, in Count IV, Plaintiff asserts
claims under Title II of the Americans with Disabilities Act
(“ADA”) against the Municipal Defendants for
failing to reasonably accommodate Mr. Martinez's
disability in the course of questioning, interacting with,
and detaining him. Id.
1, 2015, upon Defendants' motion, and before Plaintiff
filed his Amended Complaint, the Court bifurcated the trial
in this case into two phases. (Doc. 90). The Court ordered
that the first phase of the trial will be limited to Counts I
and II, and the second phase of the trial, if necessary, will
occur immediately following the first phase, and will be
limited to Count III. Id. at 4-5. The Court also
ordered that the same jury will adjudicate both phases of the
trial. Id. at 5.
now move to bifurcate Plaintiff's ADA claim against the
Municipal Defendants into the second phase of the trial.
(Doc. 109) at 4-5. Defendants contend that bifurcating
Plaintiff's ADA claim into the second phase of the trial
would promote convenience, expediency, and economy, and would
avoid prejudice against Defendants. Plaintiff opposes the
Second Motion to Bifurcate. (Doc. 120).
Rule of Civil Procedure 42(b) provides that a court may order
separate trials “[f]or convenience, to avoid prejudice,
or to expedite and economize.” A trial court has broad
discretion in determining whether to bifurcate a trial under
Rule 42(b). Easton v. City of Boulder, 776 F.2d
1441, 1447 (10th Cir. 1985). “Bifurcation is often in
the interest of efficiency and judicial economy when the
resolution of one claim may obviate the need to adjudicate
one or more other claims.” Desmare v. New
Mexico, 2007 WL 5231690, at *2 (D.N.M.) (citing
Mandeville v. Quinstar Corp., 109 F. App'x 191,
194 (10th Cir. 2004)). Bifurcation, however, is improper if
the issues are not separable, and should not be ordered
routinely unless it is clearly necessary. Angelo v.
Armstrong World Industries, Inc., 11 F.3d 957, 965 (10th
Cir. 1993); see Marshall v. Overhead Door
Corp., 131 F.R.D. 94, 98 (E.D. Pa. 1990). The party
seeking bifurcation bears the burden of proving that
bifurcation is proper “in light of the general
principle that a single trial tends to lessen the delay,
expense, and inconvenience.” Belisle v. BNSF Ry.
Co., 697 F.Supp.2d 1233, 1250 (D. Kan. 2010).
Convenience, Expediency, and Economy
argue that, because Plaintiff's ADA claim is alleged
against the Municipal Defendants, it should be bifurcated
from the claims against the Individual Defendants. As
grounds, Defendants contend that the Court has already
ordered that Plaintiff's municipal and supervisory claims
be bifurcated from the individual claims and that, to avoid a
procedural anomaly, Plaintiff's ADA claim should be
bifurcated as well.
the Court did not bifurcate Plaintiff's claims based on
whether the claims were municipal or supervisory, or
individual. To the contrary, the Court bifurcated Counts I
and II from Count III on the basis that the resolution of
Counts I and II could obviate the need to try the Count III
claims. Indeed, Count III alleges that Defendant
Montoya's negligent hiring, training and/or supervising
of Defendants Salazar and Esparza caused Defendants Salazar
and Esparza to commit the constitutional violations and
intentional torts alleged in Counts I and II. (Doc. 90) at
3-4. The Court reasoned that, if the jury were to find that
Defendants Salazar and Esparza did not commit the
constitutional violations and intentional torts alleged in
Counts I and II, Defendant Montoya's alleged actions
could not have proximately caused any harm to Plaintiff.
Id. at 3 (citing Lopez v. Martinez, 2014 WL
7187065, at ¶ 6 (N.M. Ct. App.)). As a result, the
negligence claims, as well as the corresponding
respondeat superior claims, would fail, and there
would be no need for the second phase of the trial.
reasoning does not apply to Plaintiff's ADA claim. The
resolution of Plaintiff's ADA claim does not depend on a
finding of liability by Defendants Salazar and Esparza as to
Counts I and II. Rather, Plaintiff's ADA claim involves
an entirely different standard of liability, and does not
incorporate aspects of the other claims alleged in the
Amended Complaint. Indeed, the issue in Fourth Amendment
excessive forces cases is whether an officer's use of
force was objectively reasonable. Graham v. Connor,
490 U.S. 386, 397 (1989). For ADA claims under Title II, on
the other hand, a plaintiff must show that: (i) he is a
qualified individual with a disability; (ii) he was either
excluded from participation in or denied the benefits of some
public entity's services, programs, or activities, or the
public entity otherwise discriminated against the plaintiff;
and (iii) such exclusion, denial of benefits, or
discrimination was by reason of the plaintiff's
disability. Trujillo v. Rio Arriba Cty., No. CIV
15-0901 JB/WPL, 2016 WL 4035340, at *8 (D.N.M. June 15, 2016)
(citing Gohier v. Enright, 186 F.3d 1216, 1219 (10th
Cir. 1999)). As a result, a jury could find that Defendants
Salazar and Esparza used a constitutionally justifiable
amount of force in Counts I and II, but also find that they
failed to reasonably accommodate Mr. Martinez's
disability in the course of interacting with, questioning,
and detaining him. Thus, while resolution of Counts I and II
could obviate the need to try Count III, Plaintiff's ADA
claim in Count IV will be tried regardless of the outcome. As
a result, bifurcating Count IV into the second phase could
potentially lengthen the trial.
the resolution of Plaintiff's ADA claim requires much of
the same evidence relevant to Plaintiff's excessive force
claims. “[B]ifurcation is improper if the issues are
not separable.” Angelo, 11 F.3d at 964. While
Plaintiff's ADA claim is alleged against the Municipal
Defendants, it is nevertheless premised upon Defendants
Salazar and Esparza's conduct during the encounter with
Mr. Martinez. Indeed, in the context of ADA claims based on
police conduct, the claims hinge on law enforcement's
treatment of a disabled individual in the course of an
investigation, arrest, or detention. See Gohier, 186
F.3d at 1220-21 (discussing ADA claims which may arise where
police wrongly arrest individual with disability because
police misperceived effects of disability as criminal
conduct, or where police fail to accommodate persons'
disability in court of investigation or arrest).
result, in order to resolve Plaintiff's ADA claim, the
jury will have to decide what exactly happened between Mr.
Martinez and Defendants Salazar and Esparza on May 11, 2012.
That is, the same witnesses, findings of fact, and
credibility determinations relevant to Counts I and II will
also have to be made with regard to the standard for
liability under the ADA. Plaintiff may then argue that the
Municipal Defendants are liable for Plaintiff's injuries
under a theory of vicarious liability or a failure to train
or supervise. See id. at 1222 (noting that plaintiff
could have argued that Title II required municipality to
better train its police officers to investigate and arrest
persons with disabilities in manner reasonably accommodating
their disability); Doe v. Bd. of Cty. Comm'rs of
Craig Cty., No. 11-CV-0298-CVE-PJC, 2011 WL 6740285, at
*2 (N.D. Okla. Dec. 22, 2011) (“While the Tenth Circuit
has not explicitly addressed the issue of respondeat
superior liability under Title II of the ADA, other
circuits . . . unanimously held that a municipal employer is
vicariously liable for the acts of its employees who violate
Title II of the ADA.”). This is not the case with
Plaintiff's state negligent claims in Count III, which do
not require a determination of the propriety of Defendants
Salazar and Esparza's conduct under a separate theory of
liability. Rather, the state negligence claims rely
completely on Defendants Salazar and Esparza's liability
under Counts I and II.
light of the foregoing, Defendants have not demonstrated that
convenience, expediency, and economy favor bifurcating
Plaintiff's ADA claim in Count IV into the second phase
of the trial.
Prejudice to Defendants and Plaintiff
further argue that trying Plaintiff's ADA claim in the
first phase of the trial with Counts I and II would be
prejudicial to Defendants. Specifically, Defendants maintain
that evidence specific to the complained-of ADA violations,
including the Municipal Defendants' policies and
procedures regarding ADA compliance, are irrelevant to the
excessive force and tort claims against Defendants Salazar
and Esparza, and will be prejudicial to those defendants.
Court has acknowledged that a jury could erroneously consider
the Municipal Defendants' policies and procedures
regarding ADA compliance in connection with Plaintiff's
excessive force claims under Section 1983. See (Doc.
213) at 18. However, this risk can be sufficiently reduced
with a limiting instruction at trial. Hence, the Court will
instruct the jury that evidence of the Municipal
Defendants' policies and procedures are only to be
considered in connection with their ADA compliance, and are
not to be used to determine Defendants Salazar and
Esparza's individual liability. See Kretek v. Bd. of
Commissioners of Luna Cty., No. CIV. 11-676 KG/GBW, 2014
WL 11621695, at *1-2 (D.N.M. Feb. 24, 2014) (finding that
bifurcation of trial unnecessary when court will give
appropriate limiting instruction to reduce any risk of
prejudice or jury confusion); The SCO Grp., Inc. v.
Novell, Inc., 439 F.App'x 688, 695 (10th Cir. 2011)
(holding that risk of prejudice was significantly reduced by
court's limiting instruction); see also United States
v. Jones, 530 F.3d 1292, 1299 (10th Cir. 2008)
(“[W]e presume that juries follow limiting
instructions.”) (internal citations and quotations
the Court will give an appropriate limiting instruction to
reduce any risk of prejudice or jury confusion, bifurcation
of Plaintiff s ADA claim to the second phase of trial is not
warranted under Rule 42(b).
foregoing reasons, the Court finds that the purposes for
bifurcation under Rule 42(b), i.e., “convenience, to
avoid prejudice, or to expedite and economize, ” are
not met here.
IT IS THEREFORE ORDERED that Defendants' Second Motion to
Bifurcate and Memorandum, (Doc. 109), is DENIED.
 On December 7, 2015, Plaintiff's
Counsel filed a statement notifying the Court and the parties
that Mr. Martinez had passed away. (Doc. 139). The Court then
substituted Jackie Martinez (“Mrs. Martinez”), as
personal representative of Mr. Martinez's estate, as the
plaintiff in this case. (Doc. 161).
 Counts I, II, and III of the Amended
Complaint are exactly the same as Counts I, II, and III in
Plaintiff's original complaint. Plaintiff amended his
original complaint only to add Count IV against the Municipal
Defendants under the ADA. Compare (Doc. 88)
with (Doc. 1-1).
 In fact, Plaintiff's supervisory
claims against the municipalities under the NMTCA in Count II
will be tried in the first phase of the trial.