McCarthy v. Kezeske et al

Filing 62

ORDER signed by Judge Lynn Adelman on 6/1/18. IT IS ORDERED that defendants' motion for summary judgment 32 is GRANTED. The Clerk of Court shall enter final judgment accordingly. IT IS FURTHER ORDERED that all other pending motions 21 , 27 , 43 , 49 , 53 , 54 , and 59 are DENIED as moot. (cc: all counsel, plaintiff) (jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TRACY E. MCCARTHY,
Plaintiff,
v.

Case No. 17-C-0986

KURT KEZESKE and KEVIN A. PORTER,
Defendants.

DECISION AND ORDER
Tracy McCarthy brings this action pro se under 42 U.S.C. § 1983 and proceeds
against Kurt Kezeske and Kevin Porter, police officers employed by the Village of
Lannon, Wisconsin, alleging false arrest in violation of his Fourth Amendment rights.
Defendants move for summary judgment. In ruling on a motion for summary judgment,
“[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to
be drawn in his favor,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), but all
“uncontroverted statements of material fact” are deemed “admitted,” Civil L. R. 56(b)(4)
(E.D. Wis.). With these principles in mind, I turn to the underlying facts of this case.
I. BACKGROUND
In his sworn complaint—which I construe as an affidavit for present purposes,
Ford v. Wilson, 90 F.3d 245, 247 (7th Cir. 1996)—McCarthy states that, on January 19,
2016, while attending municipal court, he was arrested “for questions relating to a
driving without insurance ticket [he] had received in error.” Compl., Docket No. 1, at 3.
Defendants, who were on duty assisting as municipal court bailiffs, say that
McCarthy became “agitated” and “aggressive” while discussing his case with an
assistant village attorney, they intervened after he “started yelling” and repeatedly

demanded to see a judge, he “became louder and more boisterous” when they asked
him “to lower his voice,” he objected when Porter told him to leave the building and
return another day, and he attempted to re-enter the building after Porter escorted him
outside and again told him to leave, so Porter arrested him for disorderly conduct. See
Koehnke Decl., Docket No. 35, ¶¶ 5–8; Porter Decl., Docket No. 38, ¶¶ 10–14.
In his sworn response to defendants’ summary judgment motion—which I also
construe as an affidavit on summary judgment, Ford, 90 F.3d at 247—McCarthy broadly
denies defendants’ statements of fact. For example, he denies that he raised his voice
when speaking with the village attorney. See Pl.’s Resp., Docket No. 42, at 3.
On March 30, 2016, McCarthy was charged with one count of disorderly conduct
in violation of Wisconsin Statutes section 947.01(1). The case went to trial on July 11,
2017. After jury selection, opening statements, testimony from Porter and another
witness, and a midday recess, the State moved to amend the charge to one count of
disorderly conduct in violation of section 13-102(c)(8) of the Waukesha County Code of
Ordinances—which adopts section 947.01 but limits the penalty for a violation to a
forfeiture. McCarthy pleaded guilty to the amended charge. The court found McCarthy
guilty and ordered him to pay a fine of $330.50.
II. DISCUSSION
I must grant summary judgment on a party’s motion “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(a). A fact is “material” if a dispute over
it “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at

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248. A “dispute about a material fact is ‘genuine’ . . . if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id.
To prevail on his claims under § 1983, McCarthy must establish that
(1) “defendants were acting under color of state law” and (2) they deprived him “of a
right secured by the Constitution or federal law.” Wilson v. Warren County, 830 F.3d
464, 468 (7th Cir. 2016). Defendants do not dispute that they were acting under color of
law when they arrested McCarthy, so I need only consider whether a reasonable jury
could find that they violated McCarthy’s federal rights.
McCarthy’s claims arise under the Fourth Amendment, which protects “[t]he right
of the people to be secure in their persons . . . against unreasonable . . . seizures,”
including arrests. U.S. Const. amend IV; Alexander v. McKinney, 692 F.3d 553, 558 (7th
Cir. 2012). In general, “probable cause alone is enough” to render a warrantless “arrest
in a public place” reasonable under the Fourth Amendment. United States v. Patrick,
842 F.3d 540, 542 (7th Cir. 2016) (citing United States v. Watson, 423 U.S. 411 (1976);
Payton v. New York, 445 U.S. 573 (1980)). Defendants arrested McCarthy in a public
place without a warrant. Thus, to show that they deprived him of his right to be free from
unreasonable seizures, he must show that they lacked probable cause to arrest him.
A warrantless arrest in a public place is supported by probable cause—and is,
therefore, a reasonable seizure—if the “facts and circumstances” known to the arresting
officer at the time of the arrest “are sufficient to warrant a prudent person in believing
that the suspect has committed an offense.” United States v. Howard, 883 F.3d 703,
707 (7th Cir. 2018) (quoting Williams v. Rodriguez, 509 F.3d 392, 398 (7th Cir. 2007)).
“To determine whether an officer had probable cause to arrest an individual, [courts]

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examine the events leading up to the arrest, and then decide ‘whether these historical
facts, viewed from the standpoint of an objectively reasonable police officer, amount to’
probable cause.” Maryland v. Pringle, 540 U.S. 366, 371 (2003) (quoting Ornelas v.
United States, 517 U.S. 690, 696, (1996)).
The events leading up to McCarthy’s arrest, as defendants describe them, would
warrant a prudent person in believing that he engaged in disorderly conduct. In
Wisconsin, disorderly conduct includes “boisterous [or] unreasonably loud . . . conduct
under circumstances in which the conduct tends to cause . . . a disturbance,” Wis. Stat.
§ 947.01(1), as well as “defiance of a police officer’s [lawful] order to move,” see Braun
v. Baldwin, 346 F.3d 761, 765 (7th Cir. 2003). Defendants say that they saw and heard
McCarthy accost a village attorney in a municipal building in sight or earshot of at least
20 other members of the public and that he refused, when asked, to calm down, lower
his voice, or leave and return another day. Such conduct would clearly tend to disturb
“the sedate . . . ambiance that courthouses seek,” with good reason, “to preserve.” Id.
Of course, as noted above, on summary judgment, I must consider the evidence
in the light most favorable to the non-moving party, which is to say, in the light most
favorable to McCarthy, not defendants. Here, though, McCarthy offers little in response
to defendants’ evidence apart from quibbles over trivial details, general denials, and
conclusory assertions. Even generously construed, the most that I can infer from
McCarthy’s sworn filings, his only evidence, is that his conduct was not “disorderly” and,
thus, that he must have been arrested on a “made up” charge. Pl.’s Resp., supra, at 8.
Yet, McCarthy’s sworn filings—in which he seems to summarily deny engaging in
disorderly conduct—are insufficient to raise a genuine dispute as to whether defendants

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had probable cause to arrest him because they contradict his guilty plea in state court.
A guilty plea is an admission both “that the accused did various acts” and “that he
committed the crime charged against him.” United States v. Broce, 488 U.S. 563, 570
(1989) (citations omitted) (quoting Boykin v. Alabama, 395 U.S. 238, 242 (1969); North
Carolina v. Alford, 400 U.S. 25, 32 (1970)). McCarthy’s guilty plea has not been
withdrawn or invalidated, so it stands as an admission that he engaged in disorderly
conduct sufficient to justify his arrest and subsequent conviction.
To the extent that McCarthy tries, in his sworn filings in this case, “to backpedal
from” or “retract” his guilty plea (or the admissions that necessarily underlie his plea),
those filings are entitled to “no weight” on summary judgment. Scholes v. Lehmann, 56
F.3d 750, 762 (7th Cir. 1995). “Admissions—in a guilty plea, as elsewhere—are
admissions; they bind a party . . . .” Id. (citation omitted). A guilty plea, in particular, “is
an unqualified express admission by [a criminal] defendant” that “may be used against
him in a . . . subsequent civil action,” like this one. State v. Black, 2001 WI 31, ¶ 15, 242
Wis. 2d 126, 139, 624 N.W.2d 363, 369 (quoting Lee v. Wisconsin State Bd. of Dental
Examiners, 139 N.W.2d 61, 63 (Wis. 1966)).
In sum, McCarthy fails to show that a reasonable jury could find in his favor that
defendants lacked probable cause to arrest him, so he cannot prevail at trial on his
Fourth Amendment claims against them for false arrest. Thus, there is no genuine
dispute as to any material fact in this case and defendants are entitled to judgment as a
matter of law. I will grant defendants’ motion for summary judgment and direct the Clerk
of Court to enter final judgment in their favor accordingly. Judgment moots all other
pending motions in this case, so I will deny them as such.

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III. CONCLUSION
THEREFORE, IT IS ORDERED that defendants’ motion for summary judgment
(Docket No. 32) is GRANTED. The Clerk of Court shall enter final judgment accordingly.
IT IS FURTHER ORDERED that all other pending motions (Docket Nos. 21, 27,
43, 49, 53, 54, and 59) are DENIED as moot.
Dated at Milwaukee, Wisconsin, this 1st day of June, 2018.

s/Lynn Adelman__________
LYNN ADELMAN
District Judge

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