Ramon Alvarado, Jr. v. Julio Ithier

In February 2018, Alvarado was detained at the Milwaukee County Jail, awaiting trial on criminal charges. Officer Jackson supervised Alvarado's pod and, after an incident where he disobeyed her commands, Jackson punished Alvarado with a 23-hour lockdown. After the lockdown, Alvarado was hostile toward Jackson and yelled profanities and threats at her. When Jackson approached Alvarado's second-floor cell to give him a lunch tray, Alvarado pushed the door open with his shoulder. The parties disagree about who threw the first punch, but at some point, Alvarado grabbed the much-smaller Jackson by the neck and started punching her in the face. Alvarado then pulled Jackson into his cell, pushed her onto the bed, and tried to take her taser. Alvarado says that while he struggled to unholster Jackson's taser, three other detainees rushed into the cell to help Jackson and started punching Alvarado. Alvarado says that he did not fight with the other detainees but instead ran out of the cell, fell to the ground, and shielded himself from the detainees' blows. Ithier was on the first floor of the pod when he looked up and saw Alvarado grabbing Jackson's neck and punching her. Ithier notified other guards and ran up to Alvarado's cell. By the time Ithier reached the cell, he saw Alvarado on the ground, swinging his arms and legs, trying to fight the other detainees. Ithier says that he ordered the other detainees to stop attacking Alvarado, but Alvarado insists that Ithier did not. Ithier ordered Alvarado to stop resisting, aimed a taser at Alvarado's torso, and fired it. The taser prongs struck Alvarado's arm and head.

A surveillance camera caught the moments after Ithier tased Alvarado. As the group of detainees disperses away from Alvarado, who is lying on the ground, another detainee runs back towards Alvarado and stomps on his leg. Jackson intervenes to stop the detainee from further stomping on Alvarado's leg. The video then shows Jackson attempting to handcuff Alvarado. Alvarado is lying flat on his stomach with his hands behind his head as Jackson attempts to move his arms so she can handcuff his wrists behind his back. But Alvarado resists, so Jackson jerks his arms, lifting his torso off the ground. Still unable to move Alvarado's arms, Jackson cuffs his wrists behind his head. Alvarado sued Jackson and Ithier for using excessive force and failing to protect him in violation of his rights under the Fourteenth Amendment. He also sued Jackson and Ithier for state-law assault, battery, and intentional infliction of emotional distress.

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The district court entered summary judgment for Jackson, deciding that no reasonable jury could conclude that she used excessive force. The court pointed out that Alvarado had conceded in a deposition that Jackson's actions during the altercation were a justified response to her belief that he was going to attack her. The court also concluded that no reasonable jury could find that Jackson failed to protect Alvarado from the other detainees because she was too preoccupied with protecting herself, the other detainees attacked Alvarado to protect Jackson, and once Alvarado was subdued, Jackson stopped a detainee from attacking him.

The court granted partial summary judgment for Ithier because no reasonable jury could conclude that he failed to prevent Jackson and the other detainees from attacking Alvarado. Because Jackson had not used excessive force, she committed no constitutional violation from which Ithier had failed to protect Alvarado. See Lewis v. Downey, 581 F.3d 467, 472 (7th Cir. 2009). And the court reasoned that even if Ithier failed to order the detainees to stop attacking Alvarado, that action amounted to negligence at most.

The court denied summary judgment for Ithier on the excessive-force claim, however, because a reasonable jury could conclude that Ithier's use of the taser was unreasonable. By the time Ithier tased Alvarado, he was on the ground, no longer fighting Jackson, and attempting to protect himself from the other detainees. The court then determined that it lacked jurisdiction over the state-law claims. Alvarado had not filed a notice of claim within 120 days of the incident as required by Wisconsin law. See W IS. STAT. § 893.82(3), (3m).

Alvarado's claim against Ithier for excessive force then proceeded to trial, where Alvarado was represented by pro bono counsel. Two detainees testified that Alvarado was not fighting back when Ithier tased him. Alvarado testified that he was lying on the ground and protecting himself when Ithier tased him. Alvarado's expert witness testified that Ithier used excessive force because—based on where the taser prongs attached—Alvarado was likely lying on the ground and covering his head when he was tased.

Ithier then testified, explaining that when he arrived at the cell, it was too dangerous to physically restrain Alvarado because he was still fighting with the other detainees, and the officers were surrounded. Ithier stated that Alvarado did not stop fighting when ordered, so Ithier aimed his taser at Alvarado's mid-section and fired.

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Another officer testified that when he interviewed Alvarado after the incident, Alvarado had no memory of it because he had blacked out. Ithier's expert testified that Ithier acted consistently with his training when he deployed the taser. Before the jury returned from deliberating, Alvarado threatened his attorney. Alvarado was put in restraints for the reading of the verdict, but the restraints were hidden behind a skirt on the table.

The jury found in Ithier's favor. Alvarado moved for judgment as a matter of law and a new trial. The court denied Alvarado's motion for judgment as a matter of law because Alvarado had not filed it at the close of the evidence, and it denied the motion for a new trial because Alvarado had failed to object during trial to the procedural errors he now identified.

On appeal, Alvarado challenges several of the district court's decisions at summary judgment, leading up to trial, and on evidentiary issues in the trial itself. But none has merit.

First, Alvarado argues that the court ignored at summary judgment his statement of facts and affidavit, which established clear disputes about who started the fight and whether the fight continued after Alvarado was incapacitated. But the court did not ignore Alvarado's statement of facts and affidavit. Rather, it properly disregarded facts from Alvarado's affidavit that contradicted his prior deposition testimony. The court correctly explained that Alvarado could not manufacture a factual dispute by submitting an affidavit at summary judgment that contradicted his prior sworn testimony. See Leibas v. Dart, 108 F.4th 1021, 1026 (7th Cir. 2024). But even if Jackson threw the first punch, no reasonable jury could conclude that her actions amounted to excessive force. To prevail on a claim that Jackson used excessive force, Alvarado had to provide evidence that the use of force was objectively unreasonable. See Kingsley v. Hendrickson, 576 U.S. 389, 399-400 (2015). But in his deposition, Alvarado conceded that Jackson was justified in interpreting his actions as an imminent threat of violence: Alvarado was yelling obscenities and threats at Jackson, had pushed open the door of his cell, and was much larger than Jackson. See, e.g., Forrest

v. Prine, 620 F.3d 739, 745 (7th Cir. 2010). Under the circumstances, Jackson acted reasonably to protect herself from an imminent attack.

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Alvarado also maintains that the court failed to consider his claim that Jackson used excessive force against him when she handcuffed him. He contends that the surveillance video shows that during the handcuffing, Jackson pulled his hair, cut his scalp and nose with her fingernails, and slammed his face into the ground. But the video contradicts Alvarado's version of events and so "no reasonable jury could believe it." Smith v. Kind, 140 F.4th 359, 372 (7th Cir. 2025) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). The video shows Jackson attempting to move Alvarado's arms from behind his head to behind his back. While resisting Jackson's efforts, Alvarado's torso comes off the ground. The video does not show Jackson grabbing Alvarado's hair, cutting his nose and scalp with her nails, and slamming his face into the ground. Because Alvarado had just attacked Jackson, fought other detainees, and resisted Jackson's attempts to restrain him, Jackson was justified to use "significant force to subdue" him. Turner v. City of Champaign, 979 F.3d 563, 569-70 (7th Cir. 2020). And when she could not put Alvarado's arms behind his back, she stopped using force and cuffed Alvarado's wrists behind his head.

Alvarado next argues that the district court abused its discretion when it dismissed his state-law claims for non-compliance with Wisconsin's notice-of-claim statute. The incident between Jackson, Ithier, and Alvarado took place on February 9, 2018, so Alvarado had until June 9, 2018, to file notice of any state-law claims. Alvarado did not file a notice until January 2019. Alvarado says he was not aware of the extent of his injuries until he viewed the surveillance video in September 2018, and therefore, he should have been excused from filing an untimely notice of claim. See § 893.82(3), (3m). But Wisconsin's notice-of-claim statute requires notice within "120 days of the event causing the injury," not a later date when the extent of certain injuries becomes known. See Oney v. Schrauth, 541 N.W.2d 229, 231-32 (Wis. Ct. App. 1995) (declining to apply the discovery rule to the deadline under § 893.82(3)). Moreover, the district court could not excuse Alvarado's failure to satisfy the notice requirement because it is jurisdictional and requires strict compliance. Badger Catholic, Inc. v. Walsh, 620 F.3d 775, 782 (7th Cir. 2010); see also Robinson v. Waterman, 1 F.4th 480, 483 (7th Cir. 2021). In any event, Alvarado knew in the days after the altercation that he had fought Jackson, was tased by Ithier, and suffered some injuries as a result. The video does not shed any additional light on the extent of Alvarado's injuries.

Next, Alvarado argues that the district court abused its discretion by denying his requests for counsel at summary judgment. He argues that he was not competent to litigate his case because he was transferred to another facility after the fight and was unable to speak to witnesses who would have attested that Jackson started the fight and

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used excessive force during the handcuffing. But the court reasonably concluded that counsel was not necessary because Alvarado's claims were straightforward, there was video evidence, and Alvarado had competently litigated the case to that point. See Pruitt

v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007) (en banc). Alvarado also argues that the district court abused its discretion when it did not compel the defendants to produce at summary judgment training manuals, taser-use guidance, and Jackson's disciplinary record. With this evidence, Alvarado says, he could have shown that Ithier and Jackson violated jail policy during the fight, and that Jackson was fired for her actions. But a violation of jail policy alone does not amount to a constitutional violation. See Pulera v. Sarzant, 966 F.3d 540, 551 (7th Cir. 2020). And the defendants explained that Jackson was not fired from the jail for her actions during the incident, so there was no relevant disciplinary record to disclose. Alvarado next challenges several of the court's evidentiary rulings during trial. But many of the arguments he now presses were not preserved through an objection made at trial, so we cannot consider them on appeal. See Bradley v. Vill. of Univ. Park,

59 F.4th 887, 897 (7th Cir. 2023); see also Wilson v. City of Chicago, 758 F.3d 875, 883 (7th Cir. 2014). Alvarado concedes that he did not timely object to Ithier's opening statement and cross-examination questions about Alvarado's disciplinary history, post- altercation statements to detectives, and deposition statements where Alvarado described his successful attempts to manipulate the jail system. Alvarado also concedes that he did not object to most of the jury instructions and the expert testimony presented by Ithier.

Alvarado argues that we should review these challenges for plain error because his pro bono counsel was ineffective. But plain error review would only be available if Alvarado could show that "(1) exceptional circumstances exist; (2) substantial rights are affected; and (3) a miscarriage of justice will occur if plain error review is not applied."

Jiminez v. City of Chicago, 732 F.3d 710, 720 (7th Cir. 2013) (quoting Est. of Moreland v. Dieter, 395 F.3d 747, 756 (7th Cir. 2005)). Alvarado's general complaints about his attorney's performance at trial are not an exceptional circumstance. And Alvarado fails to show either that his substantial rights were affected or that a miscarriage of justice would result absent plain error review.

Thus, we consider only those arguments raised in and rejected by the district court. We review evidentiary rulings for abuse of discretion and rulings that involve a question of law de novo. Pryor v. Corrigan, 124 F.4th 475, 493 (7th Cir. 2024).

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Alvarado argues that he was prejudiced at trial by a question on cross- examination about his psychiatric history. But the court sustained his objection to the question and instructed the jury to disregard any testimony preceding a sustained objection. We assume that the jury follows such instructions, and Alvarado has not produced any evidence to suggest otherwise. See Sanchez v. City of Chicago, 700 F.3d 919, 932 (7th Cir. 2012).

Alvarado next argues that the court misstated the jury instruction related to the definition of reasonable force, but we see no error. At trial, Alvarado objected to the instruction because it did not ask the jury to decide if Alvarado was actively resisting Ithier's commands when he was tased. The court overruled his objection because, it reasoned, Alvarado's proposed instruction would take away the jury's responsibility to decide whether rapidly changing events affected the reasonableness of Ithier's use of force. The resulting instruction accurately stated the law and was based on the Seventh Circuit pattern jury instructions. See Marvin v. Holcomb, 72 F.4th 828, 832 (7th Cir. 2023); see also Clarett v. Roberts, 657 F.3d 664, 672-73 (7th Cir. 2011). Finally, Alvarado revives an argument he made for the first time in his motion for a new trial. He contends that the court erred by failing to hold a hearing to determine whether he would be prejudiced by appearing in shackles for the reading of the verdict and having his witnesses appear at trial in shackles. The district court noted that Alvarado had failed to object before or during trial to any use of shackles and concluded that, in any event, he was not prejudiced. We agree. The district court properly ensured that Alvarado's restraints—which had been applied after he threatened his attorney—were hidden by a skirt on his table. See Maus v. Baker, 747 F.3d 926, 927-28 (7th Cir. 2014). And while the detainee witnesses' shackles were visible to the jury, Alvarado failed to object and has thus waived this challenge. See Naeem v. McKesson Drug Co., 444 F.3d 593, 610 (7th Cir. 2006).

We have considered Alvarado's other arguments, and none requires discussion.

AFFIRMED

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