Enrique Avina v. Todd Bohlen, et al.

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

2 No. 17-1902

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

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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-á-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

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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

across the street, the group began to harass pedestrians by

yelling at them and flashing gang signs.

1 In his response to the motion for summary judgment, Avina failed to

include a response to Appellees’ statement of facts. He attached to his brief

thousands of pages of exhibits, but did not provide adequate citations to

those exhibits when he referenced them throughout his brief. As a result of

Avina’s failure to follow the requisite summary judgment procedures, the

district court deemed as undisputed Appellees’ entire statement of facts,

citing as support numerous decisions requiring strict compliance with the

rules. See, e.g., Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817–18 (7th

Cir. 2004). Avina does not challenge that decision on appeal, and in fact,

concedes that he did not comply with the applicable rules. Therefore, we

will recount the facts as set forth in Appellees’ motion, while still viewing

them in the light most favorable to Avina.

No. 17-1902 5

Shapiro then approached Bohlen and Rohde, and informed

them that the group should not be on school property, and that

some of the group had previously been involved in gangrelated

fights at the school. Shapiro specifically identified

Avina, who was enrolled as a student at the school. Shapiro

told Bohlen and Rohde that Avina had only attended one hour

of school all year, and therefore, did not belong on school

property.

Bohlen described the group’s harassment of pedestrians

as creating chaos. Based on Shapiro’s statements, and their

own recognition of the gang members present, Bohlen and

Rohde were concerned that their activity could escalate into

violence. They approached the group, told them they could not

be on school property, and instructed them to leave the area.

The group moved one block down the street and stood in

front of a house that belonged to Avina’s cousin. Though now

slightly farther from school grounds, the group continued to

harass pedestrians. After approximately 15 more minutes,

Bohlen and Rohde approached them again and told them if

they did not disperse, they would be arrested. In response,

most of the group either entered the house or left the area.

Avina, however, rode his bike back across the street toward

the school. He began talking to another individual, whom he

allowed to ride on the back of his bike down the sidewalk and

onto the school’s front lawn. Avina dropped the individual

there, and then started riding his bike across the street again.

At that time, Bohlen and Rohde, who had seen him ride

back onto the school’s lawn, stopped Avina in the grasscovered

median of the street. Because they had given Avina

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two previous warnings to leave the area and to stay off school

property, they decided to arrest him for trespassing. They

could have given him a simple citation, but believed that if

they did, he would continue to loiter, based on his actions to

that point.

Bohlen and Rohde instructed Avina to get off his bike and

put his hands behind his back, which he did. They decided to

move Avina to their squad car, where it would be safer to

handcuff him. Bohlen took hold of his right arm, Rohde took

hold of his left, and they escorted him to the front of their

squad car. Once there, they leaned Avina’s lower body up

against the hood, but he remained standing upright. Rohde

then let go of Avina’s arm and allowed Bohlen to take control.

Bohlen grabbed Avina’s right wrist with his right hand, and

placed his left hand on Avina’s upper right arm. Bohlen then

moved Avina’s right hand “halfway or like a little bit past”

halfway up Avina’s back. That movement caused Avina’s

upper arm to break.2 Avina immediately told Bohlen he was

in pain, and Bohlen let go and allowed him to sit on the curb.

Bohlen then called for medical attention and notified his

supervisor.

Avina originally filed this suit in Wisconsin Circuit Court,

and Appellees removed it to federal court, pursuant to 28

2 In their motion’s proposed findings of fact, Appellees note that the

officers’ account of the cause of the injury differs from Avina’s. The officers

testified that Avina lunged off the curb as Bohlen was attempting to

handcuff him. However, Defendants also included Avina’s account in their

motion, and therefore, we must accept it for purposes of summary

judgment.

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U.S.C. § 1441(a) and (c). After Avina filed the third amended

complaint, the claims that remained were an excessive force

claim against Bohlen and Rohde, pursuant to 42 U.S.C. § 1983;

a state-law claim for assault and battery against Bohlen and

Rohde; and a Monell claim against the City for negligent

retention of Bohlen.

The district court granted Appellees’ motion for summary

judgment as to all counts on March 31, 2017. The court noted

that it was undisputed that Rohde did not make any contact

with Avina that caused an injury. As a result, the court held

that Rohde was entitled to judgment on all claims against him.

As to Bohlen, the court found that the action of raising

Avina’s arm up his back was “entirely ordinary and expected

during the course of an arrest.” Therefore, the court held that

a jury could not find Bohlen’s behavior unreasonable, despite

Avina’s “unusual” injury. Finally, the court held that because

there was no underlying constitutional violation, the Monell

claim for negligent retention could not survive. Avina timely

appealed.

II. DISCUSSION

We review a district court’s ruling on summary judgment

de novo. Lauth, 863 F.3d at 714. Under Federal Rule of Civil

Procedure 56, summary judgment is appropriate where “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).

“A genuine dispute to a material fact exists if the evidence is

such that a reasonable jury could return a verdict for the

nonmoving party.” Dawson v. Brown, 803 F.3d 829, 833 (7th Cir.

2015) (internal quotation marks and citation omitted).

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A claim that a law enforcement officer used excessive force

when effectuating an arrest is analyzed under the Fourth

Amendment’s objective reasonableness standard. Cyrus v.

Town of Mukwonago, 624 F.3d 856, 861 (7th Cir. 2010). “Whether

a police officer used excessive force is analyzed from the

perspective of a reasonable officer under the circumstances,

rather than examining the officer’s actions in hindsight.”

Dawson, 803 F.3d at 833. The reasonableness of an officer’s

actions must be determined by examining the “specific

circumstances of the arrest, including ‘the severity of the crime

at issue, whether the suspect poses an immediate threat to the

safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.’” Cyrus,

624 F.3d at 861–62 (quoting Graham v. Connor, 490 U.S. 386, 396

(1989)).

Under Wisconsin law, an assault and battery claim against

a police officer is analyzed using a similar reasonableness

standard. See Wirsing v. Krzeminski, 213 N.W.2d 37, 41 (Wis.

1973) (“[A] police officer in the exercise of his duties is privileged

to use whatever force is reasonably necessary, and only

if more force than is reasonably necessary is used does it

constitute an assault and battery.”).

Appellees have conceded, both on summary judgment and

again on appeal, that there is a dispute as to exactly how

Avina’s injury occurred. Their argument, however, is that even

if we accept Avina’s account as true, as we must on summary

judgment, Bohlen’s actions were still objectively reasonable.

We disagree. Viewed in the light most favorable to Avina,

the record establishes that he was fully cooperative when

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Bohlen moved his arm up his back with enough force to break

it. Those facts simply do not support the conclusion that

Bohlen was placing Avina in handcuffs with objectively

reasonable force.

It is true, as Appellees and the district court point out, that

this case is not the same as those in which an officer’s conduct

obviously has the potential to cause serious injury. See, e.g.,

Phillips v. Comm. Ins. Corp., 678 F.3d 513, 524–25 (7th Cir. 2012)

(shooting noncompliant suspect with bean-bag gun four times

was unreasonable); Morfin v. City of East Chicago, 349 F.3d 989,

1005 (7th Cir. 2003) (force was unreasonable where officers

grabbed suspect who was not resisting, twisted his arm,

shoved him against the wall, and took him to the floor).

Typically, the act of handcuffing someone, by itself, is not a

dangerous endeavor. Police officers place cooperative suspects

in handcuffs on a daily basis without causing even minor

injuries.



However, it is precisely that premise that creates a problem

for Bohlen on the facts before us. The regularity with which

officers place individuals in handcuffs without incident raises

at least an inference that this situation involved something

more. We agree with the district court that raising a suspect’s

arm behind his back is “entirely ordinary and expected during

the course of an arrest.” It is not, however, ordinary and

expected that such an action would result in a broken arm. It

strains the imagination to envision a scenario in which an

officer could place a cooperative suspect’s hands behind his

back and break his arm if the officer were using a reasonable

amount of force.



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According to Avina, he did not resist or attempt to flee, nor

did he pose a threat to anyone’s safety while Bohlen was

arresting him for the minor crime of trespassing. With those

facts as the background, the force required to break Avina’s

arm cannot be considered objectively reasonable as a matter of

law, and a reasonable jury could return a verdict in Avina’s

favor. See Dawson, 803 F.3d at 833.



Appellees argue that Avina cannot survive summary

judgment based solely on the severity of his injury, and on that

limited point, we agree. In Stainback v. Dixon, we noted that “to

survive summary judgment, a plaintiff must do more than

point to his injury or its seriousness; he must also ‘identify the

specific unreasonable conduct that caused his or her injuries.’” 569

F.3d 767, 773 n.7 (7th Cir. 2009) (quoting Abdullahi v. City of

Madison, 423 F.3d 763, 770–71 (7th Cir. 2005)). Here, however,

Avina has identified Bohlen’s specific unreasonable conduct—

raising his arm behind his back with enough force to

break the bone. The manner in which Bohlen must have

maneuvered Avina’s arm so as to break it is the specific

unreasonable conduct that allows Avina to survive summary

judgment.



The district court’s conclusion that Bohlen’s actions were

objectively reasonable was the basis for its grant of summary

judgment on the excessive force claim, as well as the state law

assault and battery claim. Relatedly, because it found that there

was no underlying constitutional violation, it held that the

Monell claim could not survive, and did not conduct any

further analysis of that claim’s merits. See Petty v. City of

Chicago, 754 F.3d 416, 424–25 (7th Cir. 2014) (noting that a

constitutional injury is a requirement of a Monell claim).



No. 17-1902 11



Because we find that Bohlen’s actions were not objectively

reasonable as a matter of law, the district court’s judgment on

each of these counts must be reversed.



As to Rohde, however, we agree with the district court’s

conclusions. Based on the undisputed facts regarding Rohde’s

involvement in the incident, his conduct was objectively

reasonable as a matter of law. It was undisputed that Rohde’s

only contact with Avina came as he guided Avina across the

street holding one of his arms. Rohde released Avina before his

arm was broken, and there is no allegation that Avina suffered

any other injury as a result of Rohde’s actions. Therefore,

Rohde is entitled to judgment on both claims against him.

For the foregoing reasons, the judgment of the district court

is affirmed in part and reversed in part, and the case is remanded

for further proceedings.