08-1470-pr
Bonilla v. Jaronczyk
                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED A FTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN WHICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN WHICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING A SUM M ARY
O RDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER W ITH THE PAPER IN
W HICH THE SUM M ARY O RDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRO NIC DATABASE W HICH IS
PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
OF THE ORDER ON SUCH A DATABASE, TH E CITATION M UST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.


      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 2 nd day of December, two thousand nine.

PRESENT:               REENA RAGGI,
                       PETER W. HALL,
                                          Circuit Judges.
                 BRIAN M. COGAN,*
                                          District Judge.
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OFIDIO BONILLA, a/k/a Juan Calderon,
                                          Plaintiff-Appellant,

                            v.                                            No. 08-1470-pr

JOHN JARONCZYK, Corrections Officer, Shield #341;
FRANK CAMIDGE, Corrections Officer, Shield #2394;
JOSEPH RAZZANO, Corrections Officer, Shield #2298;
and BRIAN SULLIVAN, Corrections Officer, Shield
#2103,
                                          Defendants-Appellees.**
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          *
         District Judge Brian M. Cogan of the United States District Court for the Eastern
District of New York, sitting by designation.
          **
               The Clerk of the Court is directed to amend the caption to read as shown above.
APPEARING FOR APPELLANT:                    MARK C. KUJAWSKI, Kujawski & Dellicarpini,
                                            Deer Park, New York.

FOR APPELLEES:                              Lorna B. Goodman, County Attorney of Nassau
                                            County, Gerald R. Podlesak, Deputy County
                                            Attorney of Nassau County, Mineola, New York.

       Appeal from the United States District Court for the Eastern District of New York

(Sandra J. Feuerstein, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the March 3, 2008 judgment of the district court is AFFIRMED.

       Plaintiff Ofidio Bonilla, a New York State prisoner, appeals from a final judgment

entered after a jury verdict in favor of defendants on plaintiff’s claim under 42 U.S.C. § 1983

of excessive force. We assume the parties’ familiarity with the facts and the record of prior

proceedings, which we reference only as necessary to explain our decision to affirm.

       1.     The Proper Constitutional Standard

       Bonilla submits that the district court erred in refusing to submit his excessive force

claim to the jury under the Fourth, as well as the Eighth, Amendment. We review claims of

legal error de novo, see Grace v. Corbis-Sygma, 487 F.3d 113, 118-19 (2d Cir. 2007), and

we identify none here.

       While claims of excessive force “in the course of an arrest, investigatory stop, or other

‘seizure’ of a free citizen should be analyzed under the Fourth Amendment,” Graham v.

Connor, 490 U.S. 386, 395 (1989), post-conviction excessive force claims, such as Bonilla’s,

are properly considered under the Eighth Amendment, see id. n.10 (“After conviction, the

Eighth Amendment ‘serves as the primary source of substantive protection . . . in cases . . .

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where the deliberate use of force is challenged as excessive and unjustified.’” (quoting

Whitley v. Albers, 475 U.S. 312, 327 (1986))); accord Brown v. Doe, 2 F.3d 1236, 1242 n.1

(2d Cir. 1993). We need not here decide whether there is some narrow class of post-

conviction excessive force claims that may be subject to constitutional provisions other than

the Eighth Amendment, as this case manifestly falls outside any such exception.1 Bonilla’s

challenge to the district court’s application of the Eighth Amendment is therefore without

merit.

         2.     Bifurcation of the Monell Claim

         Bonilla also submits that the district court erred in precluding him from pursuing a

claim under Monell v. Department of Social Services of the City of New York, 436 U.S. 658

(1978). By ruling that it would assess Bonilla’s right to proceed with a Monell claim if he

succeeded on any of his claims against the individual defendants, the district court effectively

bifurcated trial. Such bifurcation falls well within the court’s discretion, see Fed. R. Civ. P.

42(b), because “litigation of the first issue might eliminate the need to litigate the second

issue,” Amato v. City of Saratoga Springs, N.Y., 170 F.3d 311, 316 (2d Cir. 1999).

         A jury’s conclusion that a plaintiff has suffered no constitutional violation at the hands

of an individual defendant generally forecloses a Monell claim. See Matican v. City of New

         1
         Bonilla relies on language in Richman v. Sheahan, 512 F.3d 876 (7th Cir. 2008),
observing that where “it is uncertain whether the [forceful] act complained of is punishment,”
determining whether the Fourth or Eighth Amendment provides the applicable rule of
decision depends on the ultimate resolution of the facts, id. at 883. There, it was unclear
whether the defendant officers removed the decedent from a courtroom because of his refusal
to leave or as punishment for his contempt of court. See id. The instant case, however,
involves no such ambiguity.

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York, 524 F.3d 151, 154 (2d Cir. 2008); Curley v. Vill. of Suffern, 268 F.3d 65, 70-71 (2d

Cir. 2001); see also City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam).

While there are limited exceptions to this rule where “the injuries complained of are not

solely attributable to the actions of named individual defendants,” Barrett v. Orange County

Human Rights Comm’n, 194 F.3d 341, 350 (2d Cir. 1999), or where a jury concludes that

the individual defendants violated plaintiff’s rights but nonetheless enjoy qualified immunity,

see Curley v. Vill. of Suffern, 268 F.3d at 71, neither of these exceptions applies here.

Bonilla’s complaint alleged violations attributable only to the conduct of named individual

defendants, and thus individual liability was a prerequisite for municipal liability to arise

from those allegations. Because a jury determined that none of the defendants had violated

Bonilla’s constitutional rights, there was no basis for it to consider municipal liability. Thus,

the district court’s treatment of the Monell claim manifests no error.

       3.     The Challenged Evidentiary Rulings

       Bonilla challenges a number of the district court’s evidentiary rulings, arguing that he

is entitled to a new trial before a different judge. We review evidentiary rulings for abuse

of discretion, see Meloff v. N.Y. Life Ins. Co., 240 F.3d 138, 148 (2d Cir. 2001), and we will

not grant a new trial unless error affects a substantial right, see Arlio v. Lively, 474 F.3d 46,

51 (2d Cir. 2007). We identify no evidentiary error in this case.

              a.      The Department of Justice Letter

       Bonilla contends that the district court erred in excluding a September 11, 2000

United States Department of Justice letter concluding that certain conditions and practices


                                               4
at the Nassau County Correctional Center (“NCCC”) were unconstitutional. While “factual

findings resulting from an investigation made pursuant to authority granted by law” are not

excluded by the hearsay rule “unless the sources of information or other circumstances

indicate lack of trustworthiness,” Fed. R. Evid. 803(8)(c), the admissibility of such evidence

still depends on its relevance, see Fed. R. Evid. 401-403; see also Janetka v. Dabe, 892 F.2d

187, 191 (2d Cir. 1989) (“Before reaching the issue whether the report qualified under the

public report exception to the hearsay rule, the district court properly considered its

relevance.” (citations omitted)).

       The district court concluded that the letter was irrelevant because its general

discussion of constitutional violations did not implicate the facts of this case or name any of

the individual defendants. The court further concluded that the letter could not be used to

impeach the testimony of the official responsible for teaching the appropriate use of force

at the Nassau County Corrections Academy, as the practices and procedures taught were not

discontinued or disallowed on account of any subsequent investigation. Because it was only

after this witness was released that Bonilla suggested the relevancy of the letter’s discussion

of deficiencies in NCCC’s use of force training, we identify no abuse of discretion in the

district court’s rejection of the argument as untimely. In any event, because the excluded

evidence pertained only to the issues of qualified immunity and municipal liability, which

the jury either did not reach or was not asked to consider, the exclusion of this evidence, even

if error, was necessarily harmless.




                                               5
               b.     Ennis Hightower

       Bonilla asserts that the district court erred in precluding “any evidence of the subject

November 30, 1998 fight, to the extent that it involved [another prisoner named] Ennis

Hightower.” Appellant Br. at 34 (emphasis omitted). Contrary to Bonilla’s contention, the

district court did admit some evidence relating to Hightower’s involvement in the November

30 incident. See Trial Tr. at 278-81, 312-22, 338-40, 386-419. Insofar as the court excluded

evidence regarding Hightower’s own litigation against defendants as irrelevant, we discern

no abuse of discretion.

               c.     Bonilla’s Immigration Status

        Lastly, Bonilla challenges the district court’s admission of evidence relating to his

immigration status. This challenge also fails. On cross-examination of Bonilla, defendants

were permitted to inquire into specific instances of conduct bearing on Bonilla’s “character

for truthfulness or untruthfulness.” Fed. R. Evid. 608(b)(1). Questions regarding Bonilla’s

alleged use of false papers to reenter the United States illegally clearly satisfied this standard.

Any other references to Bonilla’s immigration status occurred in the context of defendants’

inquiry into his prior convictions, evidence of which was admissible under Federal Rule of

Evidence 609. On these facts, we perceive no abuse of discretion.

       4.      Conclusion

       We have considered Bonilla’s remaining arguments and conclude that they are




                                                6
without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.


                                  FOR THE COURT:
                                  CATHERINE O’HAGAN WOLFE, Clerk of Court

                                  By:




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