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Avina v. Bohlen

United States Court of Appeals, Seventh Circuit

February 14, 2018

Enrique Avina, as parent and guardian of XXXX, a minor, Plaintiff-Appellant,
v.
Todd Bohlen, et al., Defendants-Appellees.

          Argued December 1, 2017

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:13-cv-01433-JPS - J. P. Stadtmueller, Judge.

          Before Bauer, Flaum, and Rovner, Circuit Judges.

          BAUER, CIRCUIT JUDGE.

         On October 1, 2012, officers Todd Bohlen and Mike Rohde of the Milwaukee Police Department arrested Enrique Avina for trespassing. As Bohlen was maneuvering Avina's arms behind his back to place him in handcuffs, Avina's right arm broke. Avina filed this suit against Bohlen, Rohde, and the City of Milwaukee (collectively, "Appellees"), alleging constitutional violations, as well as state-law assault and battery claims. Appellees moved for summary judgment, arguing that, despite Avina's broken arm, the officers' actions were objectively reasonable. The district court ruled in favor of Appellees on all counts, and Avina timely appealed.

         I. BACKGROUND

         A. Avina's Third Amended Complaint

         Before we set forth the relevant factual background, we must briefly address the awkward procedural posture of this case; specifically, the treatment of Avina's third amended complaint in relation to Appellees' motion for summary judgment. Appellees filed their motion on January 30, 2017, and Avina filed his response on March 20, 2017. The same day, however, he also filed, with Appellees' consent, a motion for leave to file a third amended complaint. The amended complaint eliminated certain claims and defendants, including claims for false arrest, false imprisonment, malicious prosecution, and a Monell claim for negligent failure to train officers. The claims that remained were an excessive force claim against Bohlen and Rohde, a state-law assault and battery claim against Bohlen and Rohde, and a Monell claim against the City for negligent retention of Bohlen.

         In its order granting Appellees' motion for summary judgment, the district court also granted Avina's motion for leave to file the third amended complaint. It found, however, that the amended complaint did not change the substance of Avina's remaining claims, and therefore, did not require any further briefing or a response from Appellees. Instead, the court stated that the third amended complaint was "still properly the subject of the present motion for summary judgment/' and it ruled only on the claims remaining in the amended complaint. Avina now contends that the court erred by failing to require Appellees to respond to the third amended complaint before ruling on summary judgment.

         We disagree. Avina's third amended complaint did not change any of the operative facts that allowed the court to rule on Appellees' motion. It simply reduced the number of claims and altered the presentation of some facts; Avina's theory for Appellees' liability under the remaining claims did not change. Although the third amended complaint included some facts that were not present in the previous complaint, none of them, nor any potential response to them from Appellees, would have had any impact on the substantive analysis of Avina's claims. Therefore, there was no error in the court's treatment of the motion for summary judgment vis-a-vis the third amended complaint.

         B. Factual Background

         The following facts are those established by the record on summary judgment, as viewed in the light most favorable to Avina.[1] See Lauth v. Covance, Inc., 863 F.3d 708, 710 (7th Cir. 2017).

         On October 1, 2012, Bohlen and Rohde were assigned to monitor the area around South Division High School in Milwaukee, Wisconsin. They arrived before the end of the school day and parked on the street in front of the school's main entrance. When they arrived, they saw Avina standing near the entrance with a group of approximately eight to ten others, including individuals the officers knew to be members of the Mexican Posse street gang.

         The group had been standing outside the school's entrance for approximately 15 to 20 minutes when the assistant principal, Mr. Shapiro, approached them and told them to leave school property. The group obeyed and walked across the street. By this time, school had been dismissed and the road was congested with cars and pedestrians. After they walked ...


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