Avina v. Bohlen et al

Filing 145

ORDER signed by Judge J.P. Stadtmueller on 5/22/2018: GRANTING in part and DENYING in part 142 Defendants' Renewed Motion for Summary Judgment; DISMISSING with prejudice Plaintiff's Monell claim against Defendant City of Milwaukee; and DISMISSING Defendant City of Milwaukee from this action. See Order for further details. (cc: all counsel)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ENRIQUE AVINA, JR.,
Plaintiff,

Case No. 13-CV-1433-JPS

v.
TODD BOHLEN, CITY OF
MILWAUKEE, and DOES 1–100,

ORDER

Defendants.
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

As the Court noted in its first summary judgment order, at times in his
briefing Avina characterized this third claim as one for negligent retention under
Wisconsin law. However, because his pleading was clearly aimed at stating a
Monell claim under Section 1983, the Court treated it as such. (Docket #122 at 17
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

n.7). Avina’s more recent brief confirms that he intends to press a Monell claim, not
a claim under Wisconsin law. (Docket #143 at 8–9).

Page 2 of 25

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.

Page 3 of 25

1.

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
Page 4 of 25

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
Page 5 of 25

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.
Page 6 of 25

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 #1011 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
Page 7 of 25

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.
3.

ANALYSIS
Defendants advanced two arguments in their motion for summary

judgment which did not feature in the Court’s original decision, as Avina’s
claims were disposed of without reaching those arguments. First,
Defendants say that Avina’s Monell claim is without merit because he has
not coherently demonstrated that a policy, custom, or practice of the City
led to his injury. Second, Defendants contend that Bohlen is shielded from
Avina’s claim for damages under Section 1983 by the doctrine of qualified
immunity, notwithstanding the fact that he may have employed excessive
force against Avina. Before reaching these arguments, the Court will
address Avina’s belief that there should be no revisiting summary
judgment in the first place.
3.1

Defendants’ Renewed Request for Summary Judgment

Avina urges the Court to reject Defendants’ renewal of their
summary judgment motion, contending that Defendants failed to proffer
good reasons to do so. (Docket #143 at 2). According to Avina, Defendants
were required to show some intervening change in the law, some new
evidence, or a clear error in the prior ruling in order to be given a second
chance at summary judgment. Id. This position misunderstands the
controlling law.
The Seventh Circuit permits district courts the discretion to allow a
party to renew a previously denied summary judgment motion, or to file
successive motions, “particularly if good reasons exist” to do so. Whitford v.
Page 8 of 25

Boglino, 63 F.3d 527, 530 (7th Cir. 1995). For instance, in Whitford, although
the defendants had been denied summary judgment once, the Court of
Appeals found that the district court did not abuse its discretion in
permitting them to file a second motion for summary judgment which
raised new legal arguments. Id. Although there is a preference for
defendants to state all their arguments for relief at once, the district court
acted within its discretion to permit the successive motion. Id.
Here, Defendants have asked the Court to rule on legal arguments
that were fully addressed in the parties’ original briefs but were not
considered in the Court’s order disposing of the case. The fact that the
parties fully briefed these potentially dispositive arguments but Defendants
were denied a ruling on them represents good cause to permit renewal of
the summary judgment motion. Indeed, this case is quite unlike Whitford,
on which Avina relies, where the defendants tried to make entirely new
legal arguments in their second motion. Even there, the Seventh Circuit did
not find that the district court acted inappropriately when it allowed the
successive motion. If that is true, it cannot be said that a ruling on
Defendants’ previously stated arguments would be unfair to Avina.
Notably,

this

is

not

a

situation

where

Defendants

seek

reconsideration of the Court’s prior order, as Avina seems to believe. See
(Docket #143 at 2). Instead, Defendants merely request a decision on
arguments that were never touched by this Court or the Court of Appeals.
The Seventh Circuit’s reversal of summary judgment on the grounds that
were addressed by this Court represents good cause to now issue a decision
as to the grounds not previously considered. The Court therefore exercises
its discretion to entertain Defendants’ renewed request for summary
judgment. See Enlow v. Tishomingo Cnty., Miss., 962 F.2d 501, 507 (5th Cir.
Page 9 of 25

1992) (whether to allow a successive summary judgment motion, even in
the absence of new evidence, “best lies at the district court’s discretion”).
An analysis of the grounds raised in Defendants’ renewed motion follows.
3.2

The Monell Claim

First, Defendants contend that Avina cannot prove a claim for
municipal liability under Monell v. Department of Social Services, 436 U.S. 658
(1978). Monell allows municipalities to be held liable under Section 1983, but
not on a theory of respondeat superior. 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 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.
The Court originally disposed of Avina’s Monell claim based on
improper retention of Bohlen by finding that Bohlen had not employed
unreasonable force against Avina, and thus there was no constitutional
violation underlying the claim. 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
Page 10 of 25

if the policy did not result in a violation of [the plaintiff’s] constitutional
rights.”). The Court’s order said nothing of whether Avina’s evidence
sufficed to raise triable issues of fact on the existence of a policy, practice,
or custom that gave rise to his injury. See (Docket #122 at 17–18).
The Court of Appeals reversed the dismissal of the Monell claim,
finding that the facts, construed in Avina’s favor, supported a jury finding
that Bohlen did violate Avina’s constitutional rights. Avina, 882 F.3d at 679.
The appellate court made no other findings as to the claim. Id.
Defendants argued in their original briefing—and argue again
now—that Avina has insufficient evidence demonstrating that any City
policy, practice, or custom actually caused his injury. In the parlance of
Monell cases, the challenged policy, practice, or custom must be the
“moving force” behind the plaintiff’s injury. City of Canton, Ohio v. Harris,
489 U.S. 378, 388 (1989). This can be shown directly by demonstrating that
an express City policy is unconstitutional. Estate of Novack ex rel. Turbin v.
Cnty. of Wood, 226 F.3d 525, 531 (7th Cir. 2000). The requisite causality can
also be demonstrated indirectly “by showing a series of bad acts and
inviting the court to infer from them that the policymaking level of
government was bound to have noticed what was going on and by failing
to do anything must have encouraged or at least condoned, thus in either
event adopting, the misconduct of subordinate officers.” Jackson v. Marion
Cnty., 66 F.3d 151, 152 (7th Cir. 1995). Avina does not theorize that there is
an express City policy in play here; instead, he believes there was a systemic
failure to investigate Bohlen’s misconduct and thereafter fire him.
Thus, to prove his claim of improper retention of Bohlen, Avina must
have evidence that, if believed, would show that the City was deliberately
indifferent to the danger posed by retaining Bohlen as an officer. Harris, 489
Page 11 of 25

U.S. at 392. This standard of proof is necessarily high, for if the law were
otherwise, it would allow Monell claims to proceed merely on evidence that
the municipality could have done something differently to avoid the
plaintiff’s injury, which would “open municipalities to unprecedented
liability under § 1983.” Id. To ensure that municipal liability does not flow
from mere negligence in supervising or training employees, “which would
result in de facto respondeat superior liability,” a plaintiff must show that the
municipality’s failure to train, supervise, or retain employees “reflects
deliberate indifference to the constitutional rights of its inhabitants.” Id.
Avina’s arguments in his original brief certainly fell short of
proffering evidence that could support a jury finding in his favor on the
causation requirement of his Monell claim. He cited only a decision of a
Wisconsin state court on a claim of negligent retention. (Docket #105 at 35–
37). He totally failed to grapple with the requirement under Section 1983
that municipal liability must be premised on deliberate indifference to a risk
of harm, not mere negligence. The Court explained this to him, noting that
[i]n connection with [his Monell] 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 statelaw 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.
Page 12 of 25

(Docket #122 at 17 n.7). Thus, his original brief did little to advance his
Monell clam.
Now, in his brief in opposition to Defendants’ instant motion, Avina
offers what appears to be a more coherent defense of his Monell claim. He
contends that investigations of citizen complaints against police officers
such as Bohlen are not properly conducted, which in turn led to Bohlen
being retained as an officer despite several complaints of excessive force.
(Docket #143 at 7–10). Defendants retort that the Court should not consider
this argument at all because it was not made in Avina’s original summary
judgment briefing. (Docket #144 at 12). Because this theory for the Monell
claim still fails to cross the necessary threshold to go before a jury, the Court
will not resolve whether Avina waived his newly minted arguments by
failing to present them in his original briefing.
The failure of proof begins with Avina’s failure to dispute the
material facts in his original submissions or properly submit any of his own
proposed facts. In particular, while cataloging Avina’s woefully inadequate
evidentiary submissions, the Court observed that
[p]erhaps 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 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.
(Docket #122 at 3–4).

Page 13 of 25

In his original brief, when trying to argue that many complaints have
been filed against Bohlen for breaking the arms of arrestees, Avina simply
cited “Exhibits 20 and 21,” which include hundreds of pages of citizen
complaints against MPD officers. (Docket #105 at 31). Later on, he claimed
that Bohlen has “had a multitude of prior complaints,” including five for
breaking someone’s arm or wrist, and some number of others for using
“racial slurs” and “extreme violence.” Id. at 36–37. No citation at all was
provided. Likewise, Avina baldly stated, without reference to evidence,
that the MPD does not effectively or ethically investigate citizen complaints,
since officers do not question all available witnesses and MPD policy places
the burden on the complainant to prove his allegations. Id. at 32.
Whether or not the theory is sound, what was missing throughout
Avina’s original submissions were citations to relevant, admissible
evidence. Avina offered no accompanying statement of facts explaining the
contents of the citizen complaints or the investigations. Instead, he expected
the Court to read the hundreds of pages of complaints and agree with him
that they were relevant and showed a practice of inadequate investigation
leading to improper retention. This is not the Court’s task. Herman v. City of
Chi., 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.”); Stransky v. Cummins
Engine Co., Inc., 51 F.3d 1329, 1335 (7th Cir. 1995) (“The federal courts will
not invent legal arguments for litigants.”). Thus, not only did Avina fail to
dispute Defendants’ factual assertions, he also did not succeed in
presenting even a single one of his own, and his morass of supposed Monell
evidence is not properly before the Court.2

Even where Avina discussed one—and only one—citizen complaint
investigation other than his own, he did not provide a citation to the complaint,
2

Page 14 of 25

Avina’s more recent submissions do not remedy this error. In his
current brief, he cites scattered bits of mostly inadmissible evidence which
cannot support a charge of deliberate indifference even when construed in
his favor. Take the original mass of citizen complaints. All are filled to the
brim with inadmissible hearsay, as they are out-of-court statements used to
prove the truth of their contents—namely, that Bohlen did use excessive
force against the complaining individuals. Eisenstadt v. Centel Corp., 113 F.3d
738, 742 (7th Cir. 1997). Avina does not try to overcome Defendants’ hearsay
objection, see (Docket #143 at 8–9), nor has he submitted affidavits from
these persons attesting to the contents of their complaints, as would be
permitted on summary judgment, Eisenstadt, 113 F.3d at 742–43.
Undeterred by evidentiary shortcomings, Avina contends that the
prior complaints against Bohlen are so factually similar to his case that
those complaints, if properly investigated, should have led to Bohlen’s
termination and would have spared him from injury at Bohlen’s hands.
(Docket #143 at 8–9). Yet Bohlen was cleared of wrongdoing in each and
every complaint upon which Avina relies. (Docket #119 at 23). Thus, even
were the hearsay objection overcome, the complaints undercut his claim
rather than support it. J.G. ex rel. Koss v. Lingle, No. 13-CV-414-SLC, 2014
WL 4273269, at *10 (W.D. Wis. Aug. 28, 2014). And it should be remembered
that Avina’s own injury cannot support the existence of an unconstitutional
policy or practice, for the practice must be in place at the time of the

and the Court did not and will not scour the hundreds of pages of complaints filed
with his brief to verify his statements about the complaint’s contents. See (Docket
#105 at 33–34). Thus, his freewheeling speculation about misconduct during these
investigations remains untethered from evidence.

Page 15 of 25

plaintiff’s injury in order to give rise to Monell liability. Estate of Moreland v.
Dieter, 395 F.3d 747, 760 (7th Cir. 2005).
Perhaps in recognition of the low evidentiary value of these citizen
complaints, Avina turns on the MPD’s investigatory practices in response
to such complaints. Avina may take exception to the MPD’s investigatory
practices, and flawed investigatory practices might bolster his Monell
theory, but here again much of his evidence is non-existent. For example,
he speculates that the investigations were “severely flawed,” claiming that
he will call at trial some unidentified representative from the Wisconsin
State Medical Board to testify that one of the doctors named in one of the
complaints does not exist. (Docket #143 at 9). He does not name the
representative or cite any sworn statement by that person; he simply says
that they will testify as he claims and that, as a result, the report in question
was fabricated. Id.
Empty speculation about the prospective testimony of an
unidentified witness is simply not what summary judgment is about. For
this reason, Avina’s primary citation, Johnson v. Shasta County, 83 F. Supp.
3d 918 (E.D. Cal. 2015), is inapposite. There, the court addressed a motion
to dismiss and found that the allegations of the complaint, taken as true,
established that the municipality was deliberately indifferent to officer
misconduct because it failed to adequately investigate complaints. Id. at
932. Avina faces a higher burden at summary judgment. This is “the put up
or shut up moment in a lawsuit, when a party must show what evidence it
has that would convince a trier of fact to accept its version of the events.”
Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005). His
conclusory arguments that the evidence will be as he says are not enough.

Page 16 of 25

Beyond the unidentified witness, Avina’s second angle of attack on
the complaint investigation process is that it is confusing. True, there are
two investigation processes handled by two different departments—one by
the Milwaukee Fire and Police Commission (“FPC”) and one by the MPD.
(Docket #143 at 8). Yet other than simply stating that having two processes
is confusing, Avina provides no evidence that anyone—even he—was
actually confused. Moreover, the processes are not confusing simply
because there are two. As explained by Defendants, citizens can file
complaints against police officers by requesting a supervisor during contact
with an officer, by going in person to an MPD district office, or by filing a
complaint with the FPC. (Docket #99 ¶ 116). Complaints filed with the FPC
are investigated by the FPC while complaints filed with the MPD are
investigated by the MPD internal affairs division. Id. ¶ 117.
Avina maintains that, based on the testimony of MPD Lieutenant
Timothy Leitzke (“Leitzke”), complainants are often unware of how to
make proper complaints and are confused by the process. (Docket #143 at
8). But where is the evidence? Avina’s entire line of reasoning is as follows:
A proper investigation of citizen complaints cannot be
expected in an inconsistent system that the citizens are
unaware of how to file the complaint or assist in the
investigation. (Dep. of Leitzke at 23:2-25; 26:4-25.) Further,
Officer Leitzke admitted that the complaint investigation
process is flawed and could be improved, and that a person’s
education level could prohibit them from conveying
information into the form. (Dep. of Leitzke at 47: 9-14; 49:1625; 50:1-15). As a result Defendant Officer Bohlen was not
properly disciplined for the multiple complaints against him
or terminated from his position. See Exhibit 21.
(Docket #143 at 8).

Page 17 of 25

In his deposition, Leitzke described the MPD’s citizen complaint
processes, noting that an MPD officer at the police station would, if asked,
help a citizen fill out a form by directing him or her where to put certain
information. (Docket #111-1 24:22–25:18). He noted that the individual
complainant’s education and intellectual ability could affect his or her
ability to fill out a complaint, as the attendant MPD officer will not write
the complaint for them. Id. 49:3–50:3. However, Leitzke maintained that
stating a complaint in plain language would usually not be difficult,
particularly since the investigator assigned to the complaint will contact the
complainant to discuss the matter and flesh out the details. Id. 50:4–15.
Leitzke admitted that the MPD’s complaint process “could be improved”
by making complaint forms available online but was not “terribly flawed.”
Id. 47:9–14.
Avina’s gloss on Leitzke’s testimony grossly overstates his
reservations about the MPD complaint process. Notably, the only
improvement he saw as beneficial would be to make the complaint forms
available over the internet, which has nothing to do with how well the
investigations are ultimately carried out. To read Leitzke’s testimony as
Avina does goes too far into the realm of unsupported speculation and
conjecture. See Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008)
(“[O]ur favor toward the nonmoving party does not extend to drawing
‘[i]nferences that are supported by only speculation or conjecture.’”)
(quoting Fischer v. Avanade, Inc., 519 F.3d 393, 401 (7th Cir. 2008)).
Moreover, recall that Avina challenged none of Defendants’
statements of fact relating to the complaint processes submitted in
connection with their summary judgment motion. Thus, it is undisputed
for purposes of summary judgment that there are robust procedures
Page 18 of 25

employed to investigate citizen complaints about officer misconduct,
including review by an independent investigator who interviews the
complainant and identified witnesses, searches for unidentified witnesses
and interviews them, and gathers any other relevant evidence, including
information about the officer’s complaint history, before determining the
validity of the complaint. (Docket #99 ¶¶ 116–20). Additionally, an internal
board of the MPD reviews every use of force resulting in citizen injury or
death to ensure compliance with the law and MPD policy. Id. ¶¶ 123–29.
Further, Bohlen has met all continuing training and certification
requirements relating to the use of force. Id. ¶¶ 137–39. Consequently, on
his best day Avina has only hinted at some minor flaws in the investigation
of police misconduct while leaving the vast body of relevant evidence to
the contrary unperturbed.
Finally, assuming that it is reasonable to infer that the complaint
process is seriously flawed based on Leitzke’s testimony—and to be sure, it
is not—the logical leap between that proposition and the conclusion—that,
as a result of the flawed investigatory procedures, “Defendant Officer
Bohlen was not properly disciplined for the multiple complaints against
him or terminated from his position”—is enormous and unsupported by
the evidence. (Docket #143 at 8). As the Seventh Circuit has emphasized,
summary judgment requires the drawing of reasonable inferences in the
non-movant’s favor, “not every conceivable inference.” DeValk Lincoln
Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir. 1987); Spitz v.
Proven Winners N. Am., LLC, 759 F.3d 724, 730 (7th Cir. 2014).
Avina’s evidence creates no colorable connection between one
officer’s suggestions for improving the investigation process and Bohlen’s
retention. It must be remembered that the focus of the Monell claim is on
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whether it was proper to retain Bohlen despite knowing he was overly
aggressive toward arrestees; the claim is not framed as a challenge to
investigatory practices per se. Thus, the evidence must support a reasonable
inference that the City was on notice of Bohlen’s repeated wrongdoing, and
it does not. Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir.
2010) (policymakers cannot be deliberately indifferent to a risk unless they
were actually aware of it or it was persistent, widespread, and obvious).3
In sum, to prove his Monell claim, Avina proffers sweeping
conjecture about the complaint investigation process and one potential case
in which some unknown person may be able to undermine part of the
investigation. This is not enough to create genuine issues for trial.
Argyropoulos, 539 F.3d at 732. As a result, the Court is obliged to grant
summary judgment to Defendants on Avina’s Monell claim.
3.3

Qualified Immunity

Defendants’ other renewed argument is that the doctrine of qualified
immunity shields Bohlen from liability for damages under Section 1983.
(Docket #142 at 3–4). Qualified immunity protects government officials
from liability for damages under Section 1983 to the extent their conduct
does not violate “clearly established statutory or constitutional rights of

Likewise, the theory for this claim is only improper retention of Bohlen
himself after citizen complaints and cursory investigations; Avina had previously
alleged a Monell claim based on failure to train and discipline Bohlen with respect
to the application of force, but he omitted that claim from his third amended
complaint. (Docket #116-3); (Docket #122 at 2 n.2). Evidence relating to the failureto-train and failure-to-discipline Monell claims is not relevant to the retention
claim. To prove the former, Avina could potentially rely on a broad body of
evidence showing systemic overuse of force by MPD officers and the City’s failure
to implement more training or discipline in response. But for the much more
specific claim that Bohlen should not have been retained in light of his overuse of
force, the City’s deliberate indifference could only arise from information that
Bohlen was a repeat violator of excessive force policies. This he has not shown.
3

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which a reasonable person would have known.” Pearson v. Callahan, 555
U.S. 223, 231 (2009). To determine the applicability of qualified immunity
on summary judgment, a court must engage in a two-part analysis to
determine: (1) whether the facts, viewed in the light most favorable to the
non-movant, establish the violation of a constitutional right; and (2)
whether the constitutional right at issue was “clearly established” at the
time of the official’s purportedly illegitimate conduct. Id. at 232; Cavalieri v.
Shepard, 321 F.3d 616, 620 (7th Cir. 2003). The first element has been
established by the Court of Appeals’ reversal in this case. Avina, 882 F.3d at
679. The second element remains in dispute.
“To be clearly established, a right must be sufficiently clear ‘that
every reasonable official would [have understood] that what he is doing
violates that right.’” Reichle v. Howards, 566 U.S. 658, 664 (2012) (alteration
in original) (citation omitted). “This is a high bar.” Kramer v. Pollard, 497 F.
App’x 639, 642 (7th Cir. 2012). The Supreme Court has emphasized that “the
clearly established law must be ‘particularized’ to the facts of the case. . . .
Otherwise, plaintiffs would be able to convert the rule of qualified
immunity. . .into a rule of virtually unqualified liability simply by alleging
violation of extremely abstract rights.” White v. Pauly, 137 S. Ct. 548, 551
(2017). To defeat a qualified immunity defense, a plaintiff need not point to
a case that is factually identical to the present suit, but “existing precedent
must have placed the statutory or constitutional question beyond debate.”
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). “In other words, immunity
protects ‘all but the plainly incompetent or those who knowingly violate
the law.’” White, 137 S. Ct. at 551 (quoting Mullenix v. Luna, 136 S. Ct. 305,
308 (2015)).

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Qualified immunity serves to shield officials from suit in cases
involving “gray areas” of constitutional rights. Maciariello v. Sumner, 973
F.2d 295, 298 (4th Cir. 1992); Anderson v. Creighton, 483 U.S. 635, 639–40
(1987) (a rejection of qualified immunity requires “that in the light of preexisting law the unlawfulness [of a defendant’s actions] must be apparent”).
The Supreme Court very recently explained that
“[s]pecificity is especially important in the Fourth
Amendment context, where the Court has recognized that it
is sometimes difficult for an officer to determine how the
relevant legal doctrine, here excessive force, will apply to the
factual situation the officer confronts.” Mullenix v. Luna, 136
S. Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam) (internal
quotation marks omitted). Use of excessive force is an area of
the law “in which the result depends very much on the facts
of each case,” and thus police officers are entitled to qualified
immunity unless existing precedent “squarely governs” the
specific facts at issue. Id., 136 S. Ct., at 309 (internal quotation
marks omitted and emphasis deleted). Precedent involving
similar facts can help move a case beyond the otherwise “hazy
border between excessive and acceptable force” and thereby
provide an officer notice that a specific use of force is
unlawful. Id., 136 S. Ct., at 312 (internal quotation marks
omitted).
Kisela v. Hughes, 138 S. Ct. 1148, 1152–53 (2018).
However, against these principles of leniency toward officers the
Court must balance the standard of review at summary judgment, which is
quite generous to a non-movant seeking to overcome an assertion of
qualified immunity. While the non-movant must show that the particular
conduct in question was clearly unlawful under existing law, the
particularized version of events used to make that assessment is taken from
the undisputed facts as construed in his favor. See Williams v. Ind. State Police
Dep’t, 797 F.3d 468, 484 (7th Cir. 2015). Thus, at summary judgment, Avina

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can avoid an assertion of qualified immunity if the facts and reasonable
inferences therefrom, drawn in his favor, show that the right in question
was clearly established. See Kisela, 138 S. Ct. at 1159 (Sotomayor, J.,
dissenting) (contending that the majority failed to take the facts and
inferences therefrom in the non-movant’s favor when characterizing the
officer’s conduct). Whether the facts ultimately adduced at trial support
such a finding is a different matter that cannot be decided at this juncture.
In light of the deferential standard of review, the Court is obliged to
conclude that Bohlen is not entitled to summary judgment on the basis of
qualified immunity. The Court of Appeals’ explanation of the proper
recitation of the facts makes this result plain. The Seventh Circuit found that
Bohlen arguably applied unreasonable force when he broke Avina’s arm
during an ordinary instance of handcuffing during which Avina was in no
way resistant. Avina, 882 F.3d at 679. As the court observed, “[i]t 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.” Id.
Under the framework of qualified immunity, it is beyond debate that
a broken arm should not have resulted from the circumstances of Avina’s
arrest and handcuffing as presented at summary judgment. Indeed,
Defendants ignore the standard of review when they say that the
handcuffing was done in the context of a chaotic scene where gang
members and others milled about, and only a little force was applied over
the course of only a few seconds. (Docket #119 at 15). That may be how the
evidence plays out at trial, but construing the facts in this way is contrary
to the standard of review, as the Court of Appeals’ decision reveals. The
proper way to frame the factual context here is that Avina was compliant
Page 23 of 25

and that handcuffing a compliant arrestee does not in the normal course
lead to a broken limb.
True, Avina has not identified an on-point case addressing use of
force during handcuffing, but even general statements of law will suffice to
place officers on notice when the unreasonableness of their conduct is
obvious. White, 137 S. Ct. at 552; Kisela, 138 S. Ct. at 1153. That is the state of
the record at this juncture—any reasonable officer would understand that
applying enough force to break the arm of a motionless, compliant arrestee
would violate the protections of the Fourth Amendment. See Stainback v.
Dixon, 569 F.3d 767, 772 (7th Cir. 2009) (“In some cases, the fact that an act
will cause pain or injury will be clear from the nature of the act itself.”). At
the time of Avina’s arrest, it was clearly established that an officer may not
use excessive force against an individual during an arrest. Holmes v. Vill. of
Hoffman Estates, 511 F.3d 673, 687 (7th Cir. 2007). It was also clearly
established that “using a significant level of force on a non-resisting or a
passively resisting individual constitutes excessive force.” Alicea v. Thomas,
815 F.3d 283, 292 (7th Cir. 2016) (citing Rambo v. Daley, 68 F.3d 203, 207 (7th
Cir. 1995)); Payne v. Pauley, 337 F.3d 767, 779 (7th Cir. 2003). To be sure, the
parties will dispute at trial the events leading to Avina’s injury, but because
the Court must credit Avina’s view of those events at this stage of the
proceedings, the Court must deny Bohlen’s request for summary judgment
on the basis of qualified immunity. The defense may be reasserted as
appropriate based on the evidence adduced at trial.
4.

CONCLUSION
For the reasons stated above, the Court finds it appropriate to

entertain Defendants’ renewed request for summary judgment on grounds
not addressed in this Court’s prior order or in the Court of Appeals.
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Consideration of those grounds necessitates dismissal of Avina’s Monell
claim and, concurrently, dismissal of the City of Milwaukee as a defendant.
However, the Court must deny summary judgment to Bohlen on the issue
of qualified immunity, as the facts, viewed through the appropriate
standard of review, show that the constitutional right Bohlen violated was
clearly established at the time of the challenged conduct. As a result, this
matter will proceed to trial on the two claims against Bohlen: one for
excessive force, in violation of the Fourth Amendment, under Section 1983,
and the other for assault and battery, in violation of Wisconsin law.
Accordingly,
IT IS ORDERED that Defendants’ renewed motion for summary
judgment (Docket #142) be and the same is hereby GRANTED in part and
DENIED in part;
IT IS FURTHER ORDERED that Plaintiff’s Monell claim against the
City of Milwaukee be and the same is hereby DISMISSED with prejudice;
and
IT IS FURTHER ORDERED that the City of Milwaukee be and the
same is hereby DISMISSED from this action.
Dated at Milwaukee, Wisconsin, this 22nd day of May, 2018.
BY THE COURT:

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

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