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Barfell v. Romanowicz

United States District Court, E.D. Wisconsin

December 19, 2016



          William C. Griesbach, Chief Judge.

         Plaintiff Thomas Barfell, proceeding pro se, brought this 42 U.S.C. § 1983 civil rights action against the above-named defendants, alleging violations of his constitutional rights relating to his arrest for disorderly conduct and resisting arrest. Barfell claims he was subjected to unlawful detention and excessive force in violation of the Fourth Amendment and that Corporal Rasmussen refused to take photographs of Barfell's alleged injuries. This case is now before the Court on both Romanowicz and Haag's motion for summary judgment (ECF No. 46) and Rasmussen's motion for summary judgment (ECF No. 62). Also before the Court is Barfell's motion to compel interrogatories. (ECF No. 40.) Barfell failed to respond to Defendants' proposed findings of fact, despite having been provided the proper notice and warnings as to the consequences of doing so. Defendants' proposed findings of fact are therefore deemed undisputed. Civil L. R. 56(b)(4).


         In the late evening on February 20, 2015, Thomas Barfell and his girlfriend Danielle Larson were at “Screwballs” bar in Oshkosh, Wisconsin. The bartender, John Kirinovic, observed Barfell aggressively push or body slam Larson on multiple occasions. Kirinovic then asked Barfell to leave. When Barfell refused, Kirinovic carried him out of the bar. Bafell attempted to re-enter the bar and Kirinovic called the Oshkosh Police Department. Officer Brenden Bonnett responded to the scene, interviewed Kirinovic and Larson, and subsequently determined there was probable cause to arrest Barfell for disorderly conduct.

         Officer Cory Haag was in the area and located Barfell walking with his hands in his pocket. Haag ordered Barfell to stop and remove his hands from his pocket. Barfell refused and responded with an obscenity. Haag again ordered Barfell to remove his hands from his pockets and told him that he wanted to discuss the disturbance at “Screwballs.” Barfell once more refused to comply and started to walk away. He claimed he kept his hands in his pockets because it was cold outside. Haag grabbed Barfell's right arm and pinned him on the hood of his squad car in an attempt to remove Barfell's hands from his pockets. Although Haag was able to remove Barfell's right hand, Barfell continued to resist and kicked his legs backwards at Haag.

         During the confrontation between Haag and Barfell, Officer Christopher Romanowicz arrived to provide assistance. Romanowicz was unable to remove Barfell's left hand from his pocket, despite pulling at the arm and focusing several punches to Barfell's left shoulder. Haag and Romanowicz then executed a takedown and were able to handcuff Barfell while he was on the ground. Barfell continued to kick and resist during the confrontation. When the officers attempted to move Barfell into the squad car, Barfell made his legs limp to make the transfer more difficult. Barfell claimed that his handcuffs were too tight, and the officers adjusted the cuffs once Barfell was secured in the car. He also banged his head into the plastic partition in the car during transport to the jail.

         Barfell continued to act belligerently and uncooperatively upon arrival at the Winnebago County Jail. He threatened to “kick everyone's ass” and to “kill all of you.” Barfell attempted to bite Deputy Wilderman. Deputies were required to forcefully remove Barfell's clothing, including cutting off his shirt. Barfell claims he asked Corporal Melissa Rasmussen, a member of the Winnebago County Sheriff's Office, to take pictures of his injuries. Winnebago County Sheriff's Office policy is not to photograph the alleged injuries of arrestees from other agencies unless requested to do so by the other agency. Barfell's booking photograph was taking the following day.

         Barfell claims he suffered a black eye, chipped tooth, swollen lip, swollen right side of his face, a gash on the left side of his head, bruising on his left shoulder/neck/back area and inside his bicep, an abrasion on the left side of his face, and swollen wrists. He alleges the injuries arose from an unlawful arrest and excessive force used by Officers Haag and Romanowicz. Barfell filed this claim on May 28, 2015.


         Summary judgment is proper “if the movant shows that 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; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); McNeal v. Macht, 763 F.Supp. 1458, 1460-61 (E.D. Wis. 1991). “Material facts” are those under the applicable substantive law that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. A dispute over “material fact” is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. In deciding a motion for summary judgment, the court will view the facts in the light most favorable to the non-moving parties. Crull v. Sunderman, 384 F.3d 453, 460 (7th Cir. 2004).


         A. Officers Romanowicz and Haag

         1. Unlawful Detention

         Barfall claims he was unlawfully stopped and arrested. A law enforcement officer may briefly detain a person on less than probable cause where he reasonably suspects that the person has committed, is committing, or is about to commit a crime. See Terry v. Ohio, 392 U.S. 1 (1968). Whether a warrantless arrest is constitutional depends on whether there was probable cause for the arrest. Woods v. City of Chicago, 234 F.3d 979, 987 (7th Cir. 2000). “The determination of whether an arresting officer has probable cause to arrest an alleged offender turns on whether a reasonable person in the officer's position would have probable cause to believe that an offense has been committed.” Id. at 997. Certainty, or proof beyond a reasonable doubt, is not needed for an arrest. The standard ...

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