Avina v. Bohlen

• Decision Date: 14 February 2018
• Docket Number: No. 17-1902,17-1902
• Citation: 882 F.3d 674
• Parties: Enrique AVINA, as parent and guardian of XXXX, a minor, Plaintiff–Appellant, v. Todd BOHLEN, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

882 F.3d 674

Enrique AVINA, as parent and guardian of XXXX, a minor, Plaintiff–Appellant,

v.Todd BOHLEN, et al., Defendants–Appellees.

No. 17-1902

United States Court of Appeals, Seventh Circuit.

Argued December 1, 2017

Decided February 14, 2018

Verona Swanigan, Attorney, Swanigan Legal Services, Little Rock, AR, for Plaintiff–Appellant.

Patrick Joseph McClain, Attorney, Milwaukee City Attorney's Office, Milwaukee, WI, for Defendants–Appellees.

Before Bauer, Flaum, and Rovner, Circuit Judges.

Bauer, Circuit Judge.

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 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 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 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.

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 gang-related 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 grass-covered median of the street. Because they had given Avina 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 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).

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...