United States District Court, E.D. Wisconsin
DECISION AND ORDER
William C. Griesbach, Chief Judge.
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).
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.
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.
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.
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
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.
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
Officers Romanowicz and Haag
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