United States District Court, E.D. Wisconsin
ENRIQUE AVINA, as parent and guardian of XXXX, a minor, Plaintiff,
TODD BOHLEN, MIKE ROHDE, EDWARD A. FLYNN, CITY OF MILWAUKEE, and DOES 1-100, Defendants.
STADTMUELLER U.S. DISTRICT JUDGE.
case arises from a brief interaction between two Milwaukee
police officers and Plaintiff Enrique Avina's son. On
October 1, 2012, Plaintiff was arrested by Defendants Todd Bohlen
(“Bohlen”) and Mike Rohde (“Rohde”)
for trespassing on the grounds of South Division High School
in Milwaukee. The officers walked Plaintiff over to their
squad car, and Bohlen took Plaintiff's hands behind
Plaintiff's back for handcuffing. During the process,
Bohlen raised Plaintiff's right hand a little more than
halfway up Plaintiff's back. Surprisingly, this caused
Plaintiff's upper right arm to break. Plaintiff
thereafter brought this action, raising numerous
constitutional and state-law claims against the officers, the
City of Milwaukee, and the Milwaukee police chief, Edward A.
filed a motion for summary judgment as to all of
Plaintiff's claims on January 30, 2017. (Docket #98).
Plaintiff responded on March 10, 2017, (Docket #105), and
Defendants replied on March 21, 2017, (Docket
#119). The motion is fully briefed and, for the
reasons stated below, it will be granted.
STANDARD OF REVIEW
Rule of Civil Procedure 56 provides that the court
“shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see Boss v. Castro, 816 F.3d
910, 916 (7th Cir. 2016). A fact is “material” if
it “might affect the outcome of the suit” under
the applicable substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact
is “genuine” if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Id. The court construes all facts and
reasonable inferences in the light most favorable to the
non-movant. Bridge v. New Holland Logansport, Inc.,
815 F.3d 356, 360 (7th Cir. 2016). The court must not weigh
the evidence presented or determine credibility of witnesses;
the Seventh Circuit instructs that “we leave those
tasks to factfinders.” Berry v. Chicago Transit
Auth., 618 F.3d 688, 691 (7th Cir. 2010).
1 Plaintiff's Failure to Dispute the Material
relevant facts are undisputed because Plaintiff failed to
dispute them. This is meant literally-it is not that
Plaintiff filed a deficient response to Defendants'
statement of facts, (Docket #99); he filed no response at
all. The closest he comes is a 3-page factual summary at the
beginning of his brief, (Docket #105 at 1-5), but this
summary does not acknowledge, much less address, the factual
assertions in Defendants' statement of
Plaintiff's brief were thousands of pages of exhibits.
See (Docket #105, #106, #107, #108, #109, #110,
#111, #112, #113). Although Plaintiff cites some (though not
all) of these exhibits in his brief, he almost never provides
pinpoint citations. Instead, he typically only gestures at
them with citations like “See Exhibits 1, 3, 4, 5, 6,
7, and 8.” (Docket #105 at 2). This is not problematic
for short exhibits comprising a few pages. But some of these
exhibits are hundreds of pages long. For instance,
Plaintiff's Exhibit 3 is the entire 109-page
transcript of Plaintiff's deposition. (Docket #105-4).
the most glaring example of the deficiencies in
Plaintiff's submission come in connection with his
Monell claims. To support those claims, Plaintiff
attached hundreds of pages of complaints filed by citizens
alleging excessive force by police officers, including
several complaints directed at Bohlen specifically.
See (Docket #106, #107, and #108). Plaintiff claims
that he undertook a “detailed review” of these
documents, (Docket #105 at 28), but he does not meaningfully
explain their contents. Indeed, not a single individual
complaint is discussed anywhere in his brief. Rather, he
pushes the stack of complaints in the Court's direction
and expects their sheer volume to carry the day.
submission falls woefully, indeed shockingly, short of the
requirements of the federal and local rules governing summary
judgment procedure. Local Rule 56 requires the non-movant to
file, in addition to a memorandum of law:
(B) a concise response to the moving party's statement of
facts that must contain:
(I) a reproduction of each numbered paragraph in the moving
party's statement of facts followed by a response to each
paragraph, including, in the case of any disagreement,
specific references to the affidavits, declarations, parts of
the record, and other supporting materials relied upon, and
(ii) a statement, consisting of short numbered paragraphs, of
any additional facts that require the denial of summary
judgment, including references to the affidavits,
declarations, parts of the record, and other supporting
materials relied upon to support the facts described in that
paragraph. A non-moving party may not file more than 100
separately-numbered statements of additional facts[.]
Civ. L. R. 56(b)(2)(B). The Rule warns that “[t]he
Court will deem uncontroverted statements of material fact
admitted solely for the purpose of deciding summary
judgment.” Id. 56(b)(4). Similarly, Federal
Rule of Civil Procedure 56 provides that a party seeking to
dispute an asserted fact must cite to specific materials in
the record which support such a dispute. Fed.R.Civ.P. 56(c).
If the party fails to do so, the Rule permits the court to
deem the fact undisputed. Id. 56(e)(2).
rules provide for the orderly disposition of cases “by
ensuring that the proposed findings of fact are in a form
that permits the district court to analyze the admissible
evidence supporting particular factual propositions and
determine precisely what facts, if any, are material and
disputed.” Schmidt v. Eagle Waste & Recycling,
Inc., 599 F.3d 626, 630 (7th Cir. 2010). They are not
“hyper-technical” and they do not turn litigation
into a game of skill. Id. Instead, they provide
“plain instructions” designed to “assist
the court by organizing the evidence, identifying undisputed
facts, and. . .imposing some discipline on the pretrial
process.” Markham v. White, 172 F.3d 486, 490
(7th Cir. 1999).
ignored these rules, leaving the Court with the untenable
task of sifting the evidentiary chaff from the wheat.
However, “district courts are not obliged in our
adversary system to scour the record looking for factual
disputes and may adopt local rules reasonably designed to
streamline the resolution of summary judgment motions.”
Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922
(7th Cir. 1994); Smith v. Lamz, 321 F.3d 680, 683
(7th Cir. 2003) (“‘Judges are not like pigs,
hunting for truffles buried in briefs.'”) (quoting
United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991)). “[A] court should not be expected to review a
lengthy record for facts that a party could have easily
identified with greater particularity.” Ammons v.
Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th
Cir. 2004); Herman v. City of Chicago, 870 F.2d 400,
404 (7th Cir. 1989) (“A district court need not scour
the record to make the case of a party who does
nothing.”). Particularly apt here is the Seventh
Circuit's admonition that for purposes of summary
judgment, “[c]itations to an entire transcript of a
deposition or to a lengthy exhibit are not specific and are.
. .inappropriate.” Ammons, 368 F.3d at 817-18;
Packer v. Trustees of Ind. Univ. Sch. of Medicine,
800 F.3d 843, 848 (7th Cir. 2015) (finding that non-movant
failed to dispute factual assertions through general
citations to entire affidavits or deposition transcripts).
Plaintiff's submission violates all of these principles.
reviewing applications of a district court's local
summary judgment rules, the Seventh Circuit has
“repeatedly held that requiring strict compliance with
[such rules] is not an abuse of the district court's
discretion.” Zoretic v. Darge, 832 F.3d 639,
641 (7th Cir. 2016); Anders v. Waste Mgmt. of Wis.,
463 F.3d 670, 671-72 (7th Cir. 2006). Indeed, even in cases
brought by pro se plaintiffs, in which the Court
must liberally construe the plaintiff's filings, the
Court is entitled to strictly enforce the rules regarding
summary judgment procedure. See Hill v. Thalacker,
210 F. App'x 513, 515 (7th Cir. 2006). For a party
represented by counsel, enforcement of these rules goes
rules governing summary judgment procedure are critical in
cases like this one, where there exists a huge factual record
that must be reviewed against a litany of claims arising
under diverse legal standards. Plaintiff's disregard for
those rules cannot be countenanced. Consequently, the Court
deems admitted each of Defendants' statements of material
fact. See Fed. R. Civ. P. 56(e); Civ. L. R.
56(b)(4). To be clear, it has not reviewed Plaintiff's
evidentiary submissions to mine them for evidence.
Waldridge, 24 F.3d at 923 (without the
“roadmap” provided by a statement of facts, the
district court “should not have to proceed further,