United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Court
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.
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).
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.
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.
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.
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).
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.
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); 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).
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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
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 ...