Avina v. Bohlen et al
ORDER signed by Judge J.P. Stadtmueller on 3/31/2017: GRANTING 116 Plaintiff's Unopposed Motion for Leave to File Third Amended Complaint; GRANTING 117 Defendants' Second Motion for Leave to File Oversized Reply Brief; GRANTING 98 Defendants' Motion for Summary Judgment; and DISMISSING action with prejudice. (cc: all counsel) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ENRIQUE AVINA, as parent and guardian of
XXXX, a minor,
Case No. 13-CV-1433-JPS
TODD BOHLEN, MIKE ROHDE,
EDWARD A. FLYNN, CITY OF
MILWAUKEE, and DOES 1–100,
This case arises from a brief interaction between two Milwaukee police
officers and Plaintiff Enrique Avina’s son. On October 1, 2012, Plaintiff1 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,
Enrique Avina is involved in this action only because his son is a minor.
As a result, the Court’s references to “Plaintiff” mean Enrique Avina’s son, not
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
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); 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.
Also on March 21, 2017, Plaintiff, with Defendants’ consent, filed a motion
for leave to file a third amended complaint. (Docket #116). In the third amended
complaint, Plaintiff removed certain claims and defendants in this case. See
(Docket #116-3). These include (1) all claims asserted against Flynn individually,
(2) the false arrest, false imprisonment, and malicious prosecution claims asserted
against officers Bohlen and Rohde, and (3) the Monell claim for negligent failure
to train asserted against the City of Milwaukee. See id.; see also (Docket #119 at 2–3).
The claims that remain are (1) excessive force and assault and battery against
Bohlen and Rohde and (2) the Monell claim against the City for negligent retention
of Bohlen. (Docket #116-3); (Docket #119 at 2–3). In light of Defendants’ consent to
the filing of an amended complaint, the Court will grant Plaintiff leave to file it.
The Court will address in this order only those claims raised in the third amended
complaint, which the parties appear to agree is still properly the subject of the
present motion for summary judgment.
Page 2 of 19
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
Plaintiff’s brief, at forty-three pages long, was nearly half again longer than
what is permitted by the Local Rules. See Civ. L. R. 56(b)(8)(A) (opposition brief
limited to thirty pages). He did not seek leave to file this overlong brief as he was
required to do. See id. 56(b)(8)(B). Nevertheless, because the Court will permit
Defendants to file an overlong reply in light of Plaintiff’s overlong response, see
(Docket #114 and #117), the Court will not separately sanction this violation of its
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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,
(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
Civ. L. R. 56(b)(2)(B). The Rule warns that “[t]he
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.
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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
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
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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
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, regardless of how readily it might be
able to distill the relevant information from the record on its own”). It has
considered only the statements of fact submitted by Defendants.
Page 6 of 19
Facts Material to the Disposition of Defendants’ Motion
Because Plaintiff has failed to dispute Defendants’ proffered facts, the
Court will summarize only those facts necessary to the disposition of
Defendants’ motion, viewing them in the light most favorable to Plaintiff.
South Division High School is located in Milwaukee, Wisconsin at 1515 West
Lapham Boulevard. Around October 1, 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
On October 1, 2012, Bohlen and Rohde were assigned to the high
school. Rohde is a nineteen-year MPD veteran, while Bohlen has twenty-three
years of experience. Bohlen has received specialized training on gangs and
had been specifically assigned the task of monitoring and gathering
information on the Mexican Posse gang. Based on his training and ongoing
experience with the Mexican Posse gang, he was able to identify known
members at sight.
The officers arrived at South Division High 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, Plaintiff 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.
Plaintiff was a student at the school 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 Plaintiff and his cohorts had been loitering
outside the school for about fifteen to twenty minutes, the assistant principal,
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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. Plaintiff’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 Plaintiff, 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, Plaintiff 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
Bohlen observed the group and recognized several individuals he
knew to be Mexican Posse gang members. He did not recognize Plaintiff, but
it was evident to him that Plaintiff was a member of the group. This led
Bohlen to suspect that Plaintiff was associated with the Mexican Posse gang
or was himself a member.
The officers watched the group harassing passersby and flashing hand
signals they knew to be 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 the group’s activity could escalate into violence. They
therefore approached the group and told them to leave the area because they
were being disruptive and could not be on school property.
In response, the group moved one block down the street and remained
there for approximately fifteen to twenty minutes. During this time, Bohlen
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and Rohde were patrolling the area in their vehicle, monitoring several
groups of individuals. Bohlen identified several additional groups of Mexican
Posse gang members in the vicinity. Also during this time, Plaintiff’s group
continued to harass pedestrians by arguing with them and displaying gang
After fifteen to twenty minutes, officers Bohlen and Rohde observed
that the group continued to harass pedestrians. They approached again and
warned the group that if they did not disperse, they would be arrested. Most
of them thereafter entered the house they were standing in front of (it was
Plaintiff’s cousin’s residence) or dispersed. Plaintiff, however, rode his bicycle
back across the street toward the high school and began talking to another
individual near the school. Plaintiff allowed this person to hop on the back
pegs of his bike and drove him down the sidewalk a short way. He ended up
back on the school’s front lawn, where he dropped off the individual. Because
of his proximity to the school and front entrance walkway, it was obvious
that Plaintiff was on school property.
After dropping this person off at the school, Plaintiff 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, in violation of Milwaukee Ordinance 110-10-1. The officers
believed that because Plaintiff had ignored their prior warnings, a simple
citation would not dissuade Plaintiff from continuing to loiter and be
The officers ordered Plaintiff to get off the bike and put his hands
behind his back. He did so. Bohlen had originally intended to handcuff
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Plaintiff 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. According to Plaintiff, Bohlen took hold
of his right hand and arm, while Rohde took control of his left hand and arm.
They escorted him to the front of the squad car. They said nothing to each
other during this process. Once they got to the car, the officers leaned
Plaintiff slightly against car such that his waist was touching the front
bumper area of the SUV. He was not pushed onto the hood but was instead
standing upright, with only his lower body touching the car.
Once in this position, Rohde let go of Plaintiff and Bohlen took control
of both of Plaintiff’s wrists. Bohlen then grabbed Plaintiff’s right wrist with
his right hand. Bohlen placed his left hand on Plaintiff’s right upper arm near
Plaintiff’s shoulder. Plaintiff asserts that Bohlen then moved Plaintiff’s right
hand to “halfway or like a little bit past” halfway up Plaintiff’s back. (Docket
#101-1 36:4–25). The process of moving Plaintiff’s arm in this fashion took 2–3
seconds. During this time, Rohde was not paying attention to Bohlen’s
actions and did not see the moment of injury.
As Plaintiff’s arm was being moved in this way, Plaintiff says he felt
a “pop” in his arm. This was his upper arm breaking. At no time prior to the
“pop” did Plaintiff 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 Plaintiff 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
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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 must limit his use of force to the amount reasonably necessary under
circumstances to effectuate a law enforcement objective.
Applying the relevant legal principles to the undisputed facts, the
Court finds that none of Plaintiff’s claims have merit. The Court will address
the claims in their logical order, starting with the allegations of excessive
force and assault and battery, then the Monell claim.
Excessive Force and Assault and Battery
First are the claims against Bohlen and Rohde for use of excessive force
in violation of the Fourth Amendment and assault and battery under
Wisconsin law. As to the first claim, brought pursuant to 42 U.S.C. § 1983,
Plaintiff must show that he was “deprived of a right secured by the
Constitution or federal law, by a person acting under color of law.” Thurman
v. Vill. of Homewood, 446 F.3d 682, 687 (7th Cir. 2006). Here, the relevant
constitutional right is sited in the Fourth Amendment, which protects against
the use of excessive force during investigatory stops and arrests. Graham v.
Connor, 490 U.S. 386, 394 (1989).
A claim of excessive force is judged against an objective standard of
reasonableness. Acevedo v. Canterbury, 457 F.3d 721, 724 (7th Cir. 2006). In
such cases, “[t]he dispositive question is whether, in light of the facts and
circumstances that confronted the officer (and not 20/20 hindsight), the officer
behaved in an ‘objectively reasonable’ manner.” McAllister v. Price, 615 F.3d
877, 881 (7th Cir. 2010) (quoting Graham, 490 U.S. at 396–97). Three
overarching factors inform this inquiry: (1) the severity of the crime at issue;
Page 11 of 19
(2) whether the suspect poses an immediate threat to the safety of officers or
others; and (3) whether the suspect is actively resisting arrest by flight.
Graham, 490 U.S. at 396. The Seventh Circuit also directs courts to consider
the type of injury suffered, McAllister, 615 F.3d at 881, whether the individual
was under arrest or suspected of committing a crime, whether he was armed,
and whether he was interfering or attempting to interfere with the officer’s
execution of his duties, Jacobs v. City of Chicago, 215 F.3d 758, 773 (7th Cir.
2000). The Supreme Court has cautioned against over-critical hindsight
judgments of police use of force, writing that
[n]ot every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers[,] violates the
Fourth Amendment. The calculus of reasonableness must
embody allowance for the fact that police officers are often
forced to make split-second judgments—in circumstances that
are tense, uncertain, and rapidly evolving—about the amount
of force that is necessary in a articular situation.
Graham, 490 U.S. at 396–97 (internal quotation marks and citations omitted).
Objective reasonableness of force is a legal determination rather than a pure
question of fact for the jury to decide. Bell v. Irwin, 321 F.3d 637, 640 (7th Cir.
Plaintiff’s claim for assault and battery under Wisconsin law is subject
to similar standards. Robinson v. City of West Allis, 619 N.W.2d 692, 700 (Wis.
2000). In Wisconsin, a battery is an unauthorized intentional contact with
another. McCluskey v. Steinhorst, 173 N.W.2d 148, 152 (Wis. 1970). Yet for
police officers who are effecting an arrest, the use of reasonable force is
privileged. Wirsing v. Krzeminski, 213 N.W.2d 37, 40 (Wis. 1973). This
privilege analysis, like its constitutional counterpart, asks whether the force
employed was objectively reasonable, considering the circumstances as they
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appeared to the officer at the time he acted. Robinson, 619 N.W.2d at 700;
Johnson v. Ray, 299 N.W.2d 849, 852 (Wis. 1981). The application of force will
be found reasonable if it was that “‘which an ordinarily prudent and
intelligent person, with the knowledge and in the situation of the arresting
officer, would have deemed necessary under the circumstances.’” McCluskey,
173 N.W.2d at 148 (quoting 5 Am. Jur. 2d, Arrest, § 81 (1962)).4
On the undisputed facts before the Court, no reasonable jury could
conclude that Bohlen or Rohde employed unreasonable force in effecting
Plaintiff’s arrest, notwithstanding his bizarre and severe injury. First, it is
undisputed that Rohde did not make any physical contact with Plaintiff that
caused him injury. In order for a police officer to be liable under Section 1983,
he “must have personally caused or participated in the alleged constitutional
deprivation.” Harper v. Albert, 400 F.3d 1052, 1062 (7th Cir. 2005). Similarly,
a Wisconsin battery claim requires unauthorized contact with the plaintiff. See
McCluskey, 173 N.W.2d at 152. In this instance, Rohde had no part to play in
Plaintiff’s actual injury, nor is there any claim that he failed to intervene to
protect Plaintiff from Bohlen’s use of force. See Morfin v. City of E. Chicago,
349 F.3d 989, 1001 (7th Cir. 2003) (describing failure-to-intervene claim).
Further, Plaintiff cannot maintain his claim against Rohde on the
assertion that Rohde’s minimal touching of Plaintiff—which was limited to
holding his left arm while walking him over to the squad car—itself
constituted the use of excessive force. (Docket #105 at 16); (Docket #116-3 ¶¶
30–33). Rohde was permitted to make contact with Plaintiff to effectuate an
A cause of action for excessive force by a police officer under Wisconsin
law requires a higher burden of proof—clear and convincing evidence—than an
identical Section 1983 claim. Shaw v. Leatherberry, 706 N.W.2d 380, 390 (Wis. 2005).
Because the evidence does not meet the lower preponderance standard applicable
to Plaintiff’s Section 1983 claims, this distinction makes no difference here.
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arrest, and his contact with Plaintiff caused no appreciable injury. See Tibbs
v. City of Chicago, 469 F.3d 661, 666 (7th Cir. 2006) (force not objectively
unreasonable where there was probable cause to arrest and arrestee suffered
minimal, if any, harm from overly tight handcuffs). Leading Plaintiff by the
arm to the squad car was not unreasonable.
Likewise, the undisputed facts do not support a claim against Bohlen
although he caused the injury in question. From those facts, it is clear that the
analytical factors generally weigh in Plaintiff’s favor. Plaintiff’s crime,
trespassing, was not severe; indeed, it was only an ordinance violation.5
Further, Plaintiff did not pose a high risk of harm or flight, nor was he
resisting arrest. Additionally, viewing the facts in a light most favorable to
Plaintiff, it does not appear that Bohlen and Plaintiff were caught in a rapidly
evolving or chaotic situation requiring split-second decision-making; instead,
Bohlen was completing an arrest of a cooperative individual.
Nevertheless, the Court finds that Bohlen’s behavior was not
unreasonable under the circumstances. The Seventh Circuit has explained that
an officer may not knowingly use force “in a way that will inflict unnecessary
pain or injury on an individual who presents little or no risk of flight or threat
of injury.” Stainback v. Dixon, 569 F.3d 767, 772 (7th Cir. 2009). But “whether
an officer knows that a given action unnecessarily will harm a particular
individual will depend upon the circumstances of the arrest.” Id. For some
In light of the undisputed evidence in the record and Plaintiff’s
withdrawal of his challenges to the legality of his arrest, see supra note 2, there is
no question that the officers had probable cause to believe that Plaintiff was
trespassing on school property, in violation of Milwaukee City Ordinance 110-101. See (Docket #100 at 12–14); (Docket #119 at 8–9). As a result, Plaintiff relies too
heavily on cases like Black v. Hansen, 885 F.2d 642, 645 (9th Cir. 1989), where the
court’s analysis of the reasonableness of the force employed was colored by the
lack of probable cause to arrest the person. See (Docket #105 at 13).
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applications of force, the nature of the act itself is enough to show that it
would cause pain or injury. Id.; see also Payne v. Pauley, 337 F.3d 767, 779 (7th
Cir. 2003) (tackling arrestee and violently twisting her arms, causing
significant injuries, was unreasonable in light of her minor offense and
cooperative conduct); Lester v. City of Chicago, 830 F.2d 706, 714 (7th Cir. 1987)
(force was objectively unreasonable where officers kneed arrestee in the back
and dragged her down a hallway). Even in cases where the act in question
would not hurt an ordinary arrestee, the officer might be liable if he knows
of the arrestee’s special susceptibility to injury. Id.; see also Frazell v. Flanigan,
102 F.3d 877, 885 (7th Cir. 1996) (force applied could be viewed as
unreasonable where officers knew that arrestee was having a seizure but used
force anyway), overruled on other grounds, McNair v. Coffey, 279 F.3d 463 (7th
In this instance, in the space of 2–3 seconds, Bohlen held Plaintiff’s
right shoulder, turned Plaintiff’s his right hand behind his back, and lifted
Plaintiff’s right hand to “halfway or like a little bit past” halfway up
Plaintiff’s back. (Docket #101-1 36:4–25). This action, had it not resulted in a
broken limb, would be entirely ordinary and expected during the course of
an arrest. It is not, as Plaintiff believes, automatically unreasonable simply
because his arm broke. See (Docket #105 at 39). His case is unlike his primary
citation, Calamia v. City of New York, 879 F.2d 1025, 1035 (2d Cir. 1989), where
the officer shoved the arrestee to the floor without provocation and placed
handcuffs painfully tight on him for 5–6 hours. Such conduct obviously has
the potential to cause substantial injury, in contrast to simply preparing an
individual’s hands for cuffing. See also Phillips v. Cmty. Ins. Corp., 678 F.3d
513, 524 (7th Cir. 2012) (force was objectively unreasonable where officers
shot the non-threatening arrestee multiple times with non-lethal bean-bag
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shotgun); Morfin, 349 F.3d at 1005 (force was unreasonable where officers
shoved a docile, cooperative arrestee to the floor and twisted his arm).
Likewise, Bohlen’s action could not be described as a gratuitous attempt to
injure Plaintiff, as was the case in Clash v. Beatty, 77 F.3d 1045, 1047 (7th Cir.
1996), where an officer kicked a handcuffed arrestee into the back of the
Moreover, at no time before or during this process did Plaintiff
indicate any susceptibility to injury beyond that of the average person. See
Rex v. City of Milwaukee, 321 F. Supp. 2d 1008, 1013 (E.D. Wis. 2004) (arrestee
informed officers prior to handcuffing that she had a condition that
prevented her from placing her hands behind her back). Indeed, he did not
even complain about Bohlen’s act until after it broke his arm. Put simply, the
break was unusual and seems to have come as a surprise to everyone
involved—the officers and Plaintiff included. On this record, the Court is
constrained to conclude that Bohlen’s action, though it resulted in severe
injury, was not objectively unreasonable under the circumstances. See
Stainback, 569 F.3d at 773 (although it eventually resulted in two torn rotator
cuffs, leaving handcuffs on arrestee despite his complaints of pain was not
unreasonable since there was no indication he was particularly susceptible to
such injury); Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 594 (7th Cir.
1997) (placing arrestee in prone position on the floor was not application of
unreasonable force when there was no indication to the officers that it would
result in the arrestee’s death); cf. Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472
(2015) (accidental or negligent infliction of harm is not actionable under
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Section 1983). Therefore, summary judgment must be granted in Defendants’
favor on Plaintiff’s excessive force and assault and battery claims.6
Finally, there is Plaintiff’s Monell claim against the City of Milwaukee
for its negligent retention of Bohlen.7 Although Monell v. Department of Social
Services, 436 U.S. 658 (1978), allows municipalities to be held liable under
Section 1983, it does not allow a theory of respondeat superior against such
entities. Milestone v. City of Monroe, Wis., 665 F.3d 774, 780 (7th Cir. 2011);
Oklahoma City v. Tuttle, 471 U.S. 808, 810 (1985). Instead, “[m]isbehaving
employees are responsible for their own conduct,” and “‘units of local
government are responsible only for their policies, rather than misconduct by
their workers.’” Lewis v. City of Chicago, 496 F.3d 645, 656 (7th Cir. 2007)
(quoting Fairley v. Fermaint, 482 F.3d 897, 904 (7th Cir. 2007)). For municipal
liability under Section 1983, the constitutional violation must be brought
Plaintiff proffers an “alternative” theory for these claims in his brief,
alleging that the entire course of the officers’ conduct on the afternoon of October
1, 2012 constituted a continuous act of excessive force. (Docket #105 at 14–16, 2–3).
Yet this theory relies on facts not properly presented in the record, including
accusations that the officers drove erratically and in a threatening manner, and that
the officers verbally harassed Plaintiff. See id. Consequently, this theory lacks a
In connection with this claim, Plaintiff cites only a single Wisconsin state
court opinion providing the elements for a state-law negligent retention claim.
(Docket #105 at 35–37). In every other instance of reference to this claim in the
brief, it is fashioned as a Section 1983 Monell claim, not a state-law negligent
retention claim. See id. at 24–37. Plaintiff’s lone, seemingly misguided reference to
state law cannot serve to amend the allegations of her complaint, which clearly
recite the elements of a Monell claim and do not contain the elements of a
Wisconsin negligent retention claim. (Docket #116-3 ¶¶ 42–50) (pleading that the
City of Milwaukee had a policy or custom exhibiting deliberate indifference to
citizens’ Fourth Amendment rights which was the moving force behind Plaintiff’s
injury). Thus, although Defendants proceed to analyze this claim under state-law
standards, (Docket #119 at 22–26), the Court finds it unnecessary to do so.
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about by (1) an express municipal policy; (2) a widespread, though unwritten,
custom or practice; or (3) a decision by a municipal agent with “final
policymaking authority.” Darchak v. City of Chicago Bd. of Educ., 580 F.3d 622,
629 (7th Cir. 2009); see also Monell, 436 U.S. at 694.
Here, Plaintiff claims that the City of Milwaukee, through its
decisionmaker, Flynn, had a policy or practice which led to the retention of
Bohlen as an officer despite a known danger that he would apply excessive
force against arrestees. Yet, as demonstrated above, Plaintiff has not
established that Bohlen or anyone else violated his constitutional rights. This
is a fundamental prerequisite for any Monell claim. Petty v. City of Chicago, 754
F.3d 416, 424 (7th Cir. 2014); Houskins v. Sheahan, 549 F.3d 480, 493–94 (7th
Cir. 2008); King v. E. St. Louis Sch. Dist. 189, 496 F.3d 812, 817 (7th Cir. 2007)
(“It is well established that there can be no municipal liability based on an
official policy under Monell if the policy did not result in a violation of [the
plaintiff’s] constitutional rights.”). For this reason alone, the claim must be
This case has been pending for over three years and has consumed
significant resources in the form of energy, time and expense on the part of
the parties and their counsel, not to mention the Court and its staff. To be
sure, the Court is dismayed that of necessity this litigation must be concluded
in large measure as a consequence of Plaintiff’s failure to comply with
straightforward rules of civil procedure, including Federal Rule of Civil
Procedure 1 which requires that these rules “. . . be construed, administered,
and employed by the court and the parties to secure the just, speedy, and
inexpensive determination of every action and proceeding.” For in the end,
the rules are the rules– they say what they mean and mean what they say.
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Thus, it should come as no surprise to anyone that counsel who choose to
flout the rules do so at their peril. In this instance, where the Defendants’
proffered material facts are undisputed, it simply means that Plaintiff’s claims
will not proceed to trial.
IT IS ORDERED that Plaintiff’s unopposed motion to file his third
amended complaint (Docket #116) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Defendants’ second motion for
leave to file an oversized reply brief (Docket #117) be and the same is hereby
IT IS FURTHER ORDERED that Defendants’ motion for summary
judgment (Docket #98) be and the same is hereby GRANTED; and
IT IS FURTHER ORDERED that this action be and the same is hereby
DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 31st day of March, 2017.
BY THE COURT:
U.S. District Judge
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