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Avina v. Bohlen

United States District Court, E.D. Wisconsin

May 22, 2018

ENRIQUE AVINA, JR., Plaintiff,


          J. P. Stadtmueller, U.S. District Court

         This case arises from a brief interaction between two Milwaukee police officers and Plaintiff Enrique Avina, Jr. (“Avina”). On October 1, 2012, Avina was arrested by Todd Bohlen (“Bohlen”) and Mike Rohde (“Rohde”) for trespassing on the grounds of South Division High School in Milwaukee. The officers walked Avina over to their squad car, and Bohlen took Avina's hands behind his back for handcuffing. During the process of handcuffing, Avina's arm broke.

         Avina thereafter brought this action. In his most recent and operative complaint, he raises three claims: (1) a claim under 42 U.S.C. § 1983 for excessive force, in violation of the Fourth Amendment, against Bohlen and Rohde; (2) a claim for assault and battery, in violation of Wisconsin law, against Bohlen and Rohde; and (3) a Monell claim under Section 1983 against the City of Milwaukee (the “City”) for improper retention of Bohlen. (Docket #116-3); (Docket #122 at 2 n.2).[1]

         Defendants filed a motion for summary judgment as to all of these claims on January 30, 2017. (Docket #98). Avina failed miserably in his duty to dispute Defendants' proffered facts pursuant to the federal and local procedural rules. (Docket #122 at 3-6). As a result, the Court was obliged to find that all of Defendants' proffered facts were undisputed. Id.

         On those undisputed facts, the Court determined that Rohde had no part in Avina's injury because he was not touching Avina at the time his arm broke. Id. 13-14. As for Bohlen, although he was the officer whose touch caused Avina's arm to break, the Court found that this appeared to be no more than an accident and that the amount of force Bohlen employed was not unreasonable under the circumstances. Id. at 14-17. Finally, the Court concluded that because no underlying constitutional injury was inflicted on Avina, the City could not be held liable under Monell for adopting a policy or practice that led to his injury-namely, retaining Bohlen as a police officer. Id. at 17-18. Consequently, the Court dismissed the action. Id. at 18-19.

         Avina appealed, and the Court of Appeals affirmed in part and reversed in part. Avina v. Bohlen, 882 F.3d 674 (7th Cir. 2018). The Seventh Circuit affirmed the dismissal of the claims against Rohde. Id. at 679-80. However, it reversed as to the constitutional and state-law claims against Bohlen. It found that despite Avina's failure to meaningfully dispute the facts, a reasonable jury could infer that the amount of force Bohlen used was unreasonable. Id. at 678. Critical to the court's decision was the fact that for purposes of their summary judgment motion, Defendants conceded that Avina was “fully cooperative when Bohlen moved his arm up his back with enough force to break it.” Id. Avina's lack of resistance, coupled with the knowledge that ordinary instances of handcuffing cooperative suspects do not lead to broken arms, meant that a reasonable jury could find Bohlen's use of force was excessive. Id. at 679. This conclusion also required the Seventh Circuit to reverse the dismissal of the Monell claim, as that dismissal rested solely on the lack of an underlying constitutional violation, not any failure of proof as to the claim itself. Id.

         The case is now back before the Court on remand. Defendants seek to renew their previously filed motion for summary judgment, asking the Court to rule on grounds not addressed in the prior order. (Docket #142). Specifically, Defendants ask for summary judgment on the Monell claim based on Avina's failure to properly state such a claim and his failure to provide minimally adequate evidence to support it. Id. They also seek a ruling on Bohlen's assertion of qualified immunity to Avina's damages claim under Section 1983. Id. Avina responded to the motion, arguing both that the request for a renewed appraisal of summary judgment is inappropriate, and that the renewed arguments are meritless in any event. (Docket #143).

         For the reasons stated below, the Court will entertain Defendants' request for a ruling on their previously unaddressed summary judgment contentions. It finds that Avina has not proffered sufficient evidence to proceed to a jury on his Monell claim-even after being given a second chance to make arguments and provide evidence in support of it-and that Bohlen's assertion of qualified immunity must be denied at this time based on the state of the facts at summary judgment and the applicable standard of review.


         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); 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). The party opposing summary judgment “need not match the movant witness for witness, nor persuade the court that [his] case is convincing, [he] need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).

         2. RELEVANT FACTS

         As noted above, Avina did not properly dispute the statements of material fact submitted by Defendants in connection with their motion for summary judgment. (Docket #122 at 3-6). The Court therefore found that all of Defendants' proffered facts were undisputed. Id. Avina conceded on appeal that this ruling was proper. Avina, 882 F.3d at 676 n.1. Moreover, he did not ask this Court to revisit that decision in response to Defendants' motion to renew their request for summary judgment. As a result, the Court continues to find that all of Defendants' facts submitted on summary judgment are undisputed, except as specifically addressed in the Court's analysis below. What follows is a brief summary of those facts.

         South Division High School is located in Milwaukee. In late 2012, the area around the school was plagued by gang violence, caused by a war between the Mexican Posse gang and the Latin Kings gang. Gang tensions and gang-related fights even broke out within the school itself. As a result, the high school requested that additional Milwaukee Police Department (“MPD”) officers be assigned to the school.

         On October 1, 2012, Bohlen and Rohde were assigned to the high school. The officers arrived at the school prior to the dismissal of classes for the day. They parked on the street in front of the main entrance. At the time they arrived, Avina was gathered with a group of approximately eight to ten individuals outside the main entrance. The group included individuals known to be members of the Mexican Posse gang.

         Avina was a student at South Division but had attended only one hour of class during the entire year. He skipped classes on this day as well. At approximately 3:00 p.m., after Avina and his cohorts had been loitering outside the school for about fifteen to twenty minutes, the assistant principal, Mr. Shapiro (“Shapiro”), approached them and told them to leave school property. They walked across the street.

         By this time, classes had been dismissed and the road was congested with pedestrians and cars. Avina's group began to harass pedestrians by yelling at them and flashing gang signs. Shapiro then approached Rohde and Bohlen and informed them that the group should not be on school property and that the group had previously been involved in gang-related fights at the school. Shapiro specifically identified Avina, noting that he had only attended one hour of class all year, that he had not been reinstated as a student, and that, as a result, Avina should not be on school property. Finally, Shapiro expressed concern about the group's presence during dismissal time given the heightened gang tensions and increased violence in the area.

         The officers watched the group as they harassed passersby and flashed gang signs. Bohlen described their actions as creating “chaos.” (Docket #101-2 154:6-17). The officers believed, based on Shapiro's statements and their observations, that the group was loitering. They were also concerned that, given the presence of gang members in the group, the group's activity could escalate into violence. They approached the group and told them to leave the area.

         In response, the group moved one block down the street and stood in front of Avina's cousin's house. They continued to harass pedestrians by arguing with them and displaying gang signs. After fifteen to twenty minutes, Bohlen and Rohde approached again and warned the group that if they did not disperse, they would be arrested. Most of them entered the house or dispersed. Avina, however, rode his bicycle back across the street toward the high school and began talking to another individual near the school. Avina allowed this person to hop on the back of his bike and drove him onto the school's front lawn.

         After dropping this person off on the school lawn, Avina starting riding his bike across the street. Bohlen and Rohde stopped him in the grass-covered median in the center of the street. They had seen him ride back onto school property, and because he had received at least two previous warnings to leave the area and remain off of school property, they decided to arrest him for trespassing.

         The officers ordered Avina to get off the bike and put his hands behind his back. He did so. Bohlen had originally intended to handcuff Avina while they were standing on the median, but he decided that it would be safer to do so nearer to the squad SUV in light of the crowds of individuals and vehicles in the area. Bohlen and Rohde escorted Avina to the front of the squad car and leaned him slightly against car such that his waist was touching the front bumper area of the SUV.

         Once in this position, Rohde let go of Avina and Bohlen took control of both of Avina's wrists. Bohlen then grabbed Avina's right wrist with his right hand. Bohlen placed his left hand on Avina's right upper arm near Avina's shoulder. Avina asserts that Bohlen then moved Avina's right hand to “halfway or like a little bit past” halfway up Avina's back. (Docket #101-1 36:4-25). The process of moving Avina's arm in this fashion took 2-3 seconds. Avina was cooperative throughout this process and did not struggle or attempt to flee from Bohlen.

         As Avina's arm was being moved in this way, Avina says he felt a “pop” in his arm. This was his upper arm breaking. At no time prior to the “pop” did Avina communicate to Bohlen or Rohde that he was in any discomfort or pain, nor that his arm felt stressed or over-stretched. As soon as Avina expressed that he was in pain, Bohlen let go of him and allowed him to sit on the curb of the median. He called for medical attention and notified his supervisor of the injury.

         As part of their initial and mandatory ongoing training, MPD officers are instructed on the proper use of force, including during handcuffing. The training covers both the physical methods of implementing force and the legal and constitutional constraints on the application of force. Officers receive continuing instruction three to four times each year. Bohlen has complied with all such training requirements, and he understood that a police officer ...

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