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Avina v. Bohlen

United States District Court, E.D. Wisconsin

March 31, 2017

ENRIQUE AVINA, as parent and guardian of XXXX, a minor, Plaintiff,



         1. INTRODUCTION

         This case arises from a brief interaction between two Milwaukee police officers and Plaintiff Enrique Avina's son. On October 1, 2012, Plaintiff[1] 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. Flynn (“Flynn”).

         Defendants 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).[2] The motion is fully briefed and, for the reasons stated below, it will be granted.


         Federal 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).


         3. 1 Plaintiff's Failure to Dispute the Material Facts

         The 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 facts.[3]

         Accompanying 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).

         Perhaps 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.

         Plaintiff's 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).

         These 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).

         Plaintiff 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.

         In 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 without saying.

         The 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, ...

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