Date: 02-14-2018

Case Style:

Case Number: 17-1902

Judge: Bauer

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Eastern District of Wisconsin (Milwaukee County)

Plaintiff's Attorney: Marwan Porter

Defendant's Attorney: La Keisha W Butler and Patrick J McClain

Description: 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
No. 17-1902 3
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
6 No. 17-1902
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.
No. 17-1902 7
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
No. 17-1902 9
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.

10 No. 17-1902

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.

Outcome: 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.

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