Avina v. Bohlen et al

Filing 44

ORDER signed by Judge Rudolph T. Randa on 10/30/2014. 31 Defendants' MOTION to Bifurcate/MOTION to Stay DENIED; 41 Plaintiff's MOTION to Amend/Correct Response Brief GRANTED. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ENRIQUE AVINA
as Parent and Guardian of XXXX, a minor,
Plaintiff,
-vs-

Case No. 13-C-1433

TODD BOHLEN,
MIKE ROHDE,
EDWARD A. FLYNN,
CITY OF MILWAUKEE, and
DOES 1-100,
Defendants.

DECISION AND ORDER
This action pursuant to 42 U.S.C. §§ 1983 and 1985(2) for alleged
violations of the Fourth, Fifth and Fourteenth Amendments, arises out of an
October 1, 2012, encounter between Milwaukee Police Department (“MPD”)
officers Todd Bohlen (“Bohlen”) and Mike Rohde (“Rohde”) and the minor son
of Plaintiff Enrique Avina (“Avina”).1 This Decision and Order addresses the
Defendants’ motion to bifurcate and stay discovery (ECF No. 31) with respect
to Avina’s claims against the Defendant City of Milwaukee (“City”) under
Monell v. Dept. of Soc. Serv., 436 U.S. 658 (1978), alleging that City customs,
The Second Amended Complaint (“Complaint”) also includes state common law
claims of negligence based on the City’s failure to implement the use of audio and/or
video equipment, and assault and battery, false imprisonment, and malicious
prosecution. (Compl. ¶¶ 31-33.) (ECF No. 24.)
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policies, and practices caused the violations of the minor’s constitutional
rights, and Avina’s request for leave to amend (ECF No. 41) his response to
the bifurcation motion with a supplemental affidavit. The latter request is
granted.
Bifurcation and Stay
The Defendants request the stay with respect to the Monell claim(s)
until the completion of discovery relating to the liability of individual
Defendants Bohlen, Rohde, and Edward A. Flynn (“Flynn”) and the ruling on
a dispositive motion that they intend to file. The Defendants assert they can
save the time and costs that would be associated with the discovery on the
Monell claim if they can establish that none of the individual Defendants
violated the minor’s constitutional rights. Avina contends bifurcation would
cause needless delay and cost.
The Defendants rely on three reasons for bifurcating the discovery on
the Monell claims: 1) the Monell claims will fail if the individual Defendants
are not liable for violating the minor’s constitutional rights, 2) there is little or
no overlap of discovery for the individual claims and the Monell claims, and 3)
the discovery requests for the Monell claims will be extremely broad and
burdensome.
The Defendants rely on City of Los Angeles v. Heller, 475 U.S. 796, 799,
(1986), which states that a municipality cannot be held liable for a

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constitutional harm if its individual officers have not committed any
constitutional violation. The Defendants also assert that the Monell claims
could fail even if the individual Defendants acted improperly, if they are found
to be protected by qualified immunity and, therefore, held not liable. The
Defendants contend that if either occurs the Monell claims will never be
reached.
To the contrary, a municipality can be held liable even if its individual
officers are not liable or if the officers are granted an affirmative defense such
as qualified immunity. Thomas v. Cook Cnty. Sheriff's Dept., 604 F.3d 293,
304-05 (7th Cir. 2010). Thomas states that a rule requiring individual officer
liability before a municipality can ever be held liable for damages under
Monell is an unreasonable extension of Heller.

Id. at 305.

Even if the

individual officers are granted qualified immunity, a municipality may be
liable if its customs, policies, or practices may have caused a violation of a
plaintiff's constitutional rights. Id. at 304-05.
As this Court has previously stated, the rule in Thomas is narrower
than the rule the Defendants adopt from Heller. Ott v. City of Milwaukee, 09C-870, 2010 WL 5095305, at *2 (E.D. Wis. Dec. 8, 2010). Thomas states, “a
municipality can be held liable under Monell, even when its officers are not,
unless such a finding would create an inconsistent verdict.” Thomas, 604 F.3d
at 305. To determine whether the City could be liable in this case, even if the

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individual Defendants are not, the Court must consider the nature of the
constitutional violation, the theory of municipal liability, and the defenses set
forth. Id.
The Complaint alleges: (1) that the minor’s constitutional rights to
equal protection, to be free from unreasonable seizures and excessive force
were violated by Bohlen and Rohde who unlawfully used race as a factor for
reasonable suspicion, arrest without probable cause, and excessive force
causing the minor’s arm to break and multiple bruises; (2) that when Bohlen
and Rohde took the minor to the hospital they allegedly misrepresented how
he broke his arm “potentially causing a delay in his treatment or a
misdiagnosis”; (3) that the Defendants caused criminal municipal charges to
be filed against the minor knowing that the charges were baseless and that
the Defendants were acting within the custom, policy or practice of the City at
that time; (4) that it is MPD policy to treat Hispanics in a cruel manner
regardless of the circumstances; (5) that the City did not have guidelines, or
lacked adequate guidelines, to prevent officers from using excessive force; (6)
that Flynn endorsed the MPD’s uncontrolled use of force, even when no crime
had been committed; (7) that the City failed to train or control the use of force;
and (8) that the City, Flynn, and the MPD negligently retained the individual
Defendants despite their inappropriate use of force on prior occasions, the fact
that they had been given instructions to treat Hispanics poorly, Flynn’s

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failure to provide adequate training, and other conduct unbecoming a police
officer. (Id. at ¶¶ 14, 21, 26-29.)
Under Thomas it is plausible that Bohlen and Rohde may not be liable,
but the City could be if its customs and policies were the cause of the minor’s
constitutional rights being violated. Thus, neither the potential scope of the
Monell discovery nor the minimal overlap of discovery justify a stay and
bifurcation of discovery.

Therefore, the Defendants’ motion for bifurcation

and a stay is denied.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
The Defendants’ motion for bifurcation and a stay (ECF No. 31) is
DENIED; and,
Avina’s motion to supplement his response to the motion to bifurcate
(ECF No. 41) is GRANTED.
Dated at Milwaukee, Wisconsin, this 30th day of October, 2014.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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