# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 8, 2014 *

Decided May 13, 2014

Before

FRANK H. EASTERBROOK, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 13

‐ 2188

BIBANO FAVELA

, Plaintiff

‐ Appellant,

v.

ROBERT VICARI, et al.,

Defendants

‐ Appellees

. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 09 C 5148

Jeffrey N. Cole,

Magistrate Judge.

O R D E R NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

* After examining the parties’ briefs and the record, we have concluded that oral

argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.

See F ED

. R. A PP

. P. 34(a)(2)(C).No. 13

‐ 2188 Page 2

Bibiano Favela appeals from a judgment for several officers from the Stone Park,

Illinois, Police Department after a bench trial on his claim that he was arrested with

excessive force outside a nightclub. See 42 U.S.C. § 1983. We affirm that judgment.

At trial the parties offered two versions of the events surrounding Favela’s arrest.

Favela testified that he was standing outside of a nightclub, the Playpen Lounge, when

four police officers arrived and attacked him for no reason. Favela said that the officers

swung at him, slammed him to the ground, and kicked him in the stomach. He was

arrested and brought to the police station where, Favela testified, officers beat him for

30 minutes, leaving him with a cut above his eyebrow, black eyes, scrapes on his

elbows, and the imprint of a boot on his back. During cross

‐ examination Favela

admitted that he was “very drunk that night.”

The police, however, characterized Favela as the aggressor. The nightclub’s

bouncer (who, as an auxiliary police officer, knew that Favela was wanted for

questioning) notified the police department that Favela was standing outside. Officer

Robert Vicari went to the scene and was pushed to the ground by Favela, who promptly

fled. Vicari and Sergeant Ron Fabiani gave chase and tackled him to the ground. Favela

resisted. During the struggle to place him in handcuffs, Fabiani “struck limbs” and

“used pressure points” on Favela’s thumb and behind his ear to subdue him. The

officers escorted Favela to the police station, and 10 minutes after being placed in a

holding cell, Favela was taken to the emergency room to be treated for a bleeding cut

above his eyebrow.

The magistrate judge, presiding over a bench trial with the parties’ consent, ruled

for the officers. The judge credited the officers’ testimony, found that all they did was

“pursue, subdue, and handcuff” Favela, and concluded that the force they used was

“reasonable and necessary” when arresting Favela and taking him into custody. The

judge disbelieved Favela’s account, characterizing his testimony as “utterly incredible”

and “so internally inconsistent and implausible on its face that no reasonable factfinder

could credit it.”

On appeal Favela argues that the evidence at trial of bruises, contusions, and

lacerations on his face undermines the district court’s conclusion that he was not

subjected to excessive force. But the magistrate judge rested his ruling largely on his

finding that the testifying officers were credible and Favela was not. Favela has given us

no reason to disturb this finding, which is not clearly erroneous. See Fed. R. Civ. P.

52(a)(6); Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985). To the extent thatNo. 13

‐ 2188 Page 3

Favela suggests that his injuries necessarily reflect excessive force, that is not the

standard; rather, force is excessive only when it is applied “maliciously and sadistically

to cause harm.” Hudson v. McMillian

, 503 U.S. 1, 7 (1992); see Cyrus v. Town of

Mukwonago, 624 F.3d 856, 864 (7th Cir. 2010); McAllister v. Price

, 615 F.3d 877, 882 (7th

Cir. 2010). Here, given the court’s finding that Favela struck an officer, fled, and resisted

arrest, the magistrate judge did not err in concluding that the officers’ use of force was

not excessive. See Padula v. Leimbach, 565 F.3d 595, 603 (7th Cir. 2011) (force not

excessive where officers forcibly removed intoxicated driver from car and, when he

resisted by kicking and flailing arms, officers used batons and mace to subdue him);

Catlin v. City of Wheaton, 574 F.3d 361, 367 (7th Cir. 2009) (force not excessive where

police tackled and kneeled on suspected drug kingpin who resisted arrest).

Lastly, Favela in his reply brief challenges the district court’s ruling that he failed

to sustain his burden of proof to show intentional infliction of emotional distress.

Arguments raised for the first time in a reply brief, however, are waived. United States v.

Kennedy, 726 F.3d 968, 974 n.3 (7th Cir. 2013); Nationwide Ins. Co. v. Cent. Laborers’

Pension Fund

, 704 F.3d 522, 527 (7th Cir. 2013).

AFFIRMED.