Strelchenko v. Walworth County et al

Filing 38

ORDER signed by Judge Brett H Ludwig on 8/11/21 DENYING 14 Defendants' Motion for Summary Judgment (cc: all counsel)(vkb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ALEXEI STRELCHENKO,
Plaintiff,
v.

Case No. 17-cv-1376-bhl

WALWORTH COUNTY, et al,
Defendants.
ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT (ECF NO. 14)
INTRODUCTION
Plaintiff Alexei Strelchenko claims three Walworth County Sheriff’s deputies, Defendants
Nicholas Yohanek, Brody Fiedler, and Cody Schwartz, violated his Fourth Amendment rights by
falsely arresting him using excessive force. (ECF No. 1.) On February 8, 2019, Defendants moved
for summary judgment, insisting they undisputedly had probable cause to arrest Strelchenko and
their use of force was objectively reasonable. (ECF No. 15.) Defendants also contend they are
entitled to qualified immunity. (Id.) The motion is now fully briefed and, for the reasons stated
below, is denied.
FACTUAL BACKGROUND 1
On July 10, 2015, Alexei Strelchenko went to the Walworth County Clerk of Court’s office
to request a copy of some records. (ECF No. 33 ¶1.) In response to Strelchenko’s records request,
a staff member at the clerk’s office, Breanna Blink, told Strelchenko that he could not get a copy
of the records because they were only available to the respondent or petitioner of the case. Blink
further requested that Strelchenko provide her with his identification and additionally that he
submit his request in writing. (Id. ¶2.) Strelchenko became irritated, believing Blink was “being
These facts are drawn from the proposed statements of undisputed facts (and responses) filed by the parties. (ECF
Nos. 16, 30, 31 & 33.) Disputed facts are viewed in the light most favorable to Strelchenko as the non-moving
party. See E.E.O.C. v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000).

1

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incompetent” because she was requiring him to provide identification and to make his records
request in writing, when neither is a requirement under Wisconsin open records law. (Id. ¶3.)
Blink’s boss, Sheila Reiff, then came to assist Strelchenko with his request. She confirmed
that Strelchenko did not need to provide identification or submit his request for the records in
writing. (Id. ¶4.) Reiff then instructed a staff member to go get the file for Strelchenko. (Id. ¶5.)
Blink saw that Strelchenko was upset by the situation and asked Reiff if she should call security.
Reiff responded yes. (Id. ¶6.) Strelchenko admits he was upset with the clerk’s mishandling of
his request but insists he neither yelled nor used profanity. (ECF Nos. 30 ¶¶41-42; 31 ¶3.) Blink’s
attempt to call court security was unsuccessful. (ECF No. 30 ¶48.) Accordingly, she walked from
the second floor of the Judicial Center, where she had been speaking with Reiff and Strelchenko,
to the court security station on the first floor, where she found a member of security and reported
the situation.

(Id. ¶¶49-50.)

Court security then radioed the Walworth County Sheriff’s

Department for assistance. (Id. ¶52.)
Defendant Cody Schwartz was working front desk duty at the Sheriff’s Office, across the
street from the Judicial Center. (Id. ¶¶53-54.) Upon hearing that assistance was needed, he ran
over to the Judicial Center and met with Captain Rob Hall and Blink. (Id. ¶¶55-56.) After hearing
Blink’s account of the situation, Hall instructed Schwartz to go upstairs and speak to Strelchenko.
(Id. ¶61.) Schwartz then proceeded to the second floor where he observed Strelchenko engaged in
a disagreement with Reiff. (Id. ¶¶ 62-63.) Schwartz asked Strelchenko for identification, and
Strelchenko responded by asking if he was under arrest or being detained. (Id. ¶¶64-65.) Schwartz
then spoke with Reiff separately. (Id. ¶66.)
After getting Reiff’s report on the situation, Schwartz, and another deputy, Kirk Dodge,
spoke with Strelchenko. (ECF No. 33 ¶14.) The precise content of this conversation is disputed,
but Strelchenko maintains he repeatedly asked and was repeatedly assured that he was free to
leave, was not under arrest, and was not suspected of committing a crime. (ECF No. 33 ¶15.) The
parties agree that the deputies then informed Strelchenko that it was 5:00, the clerk’s office was
closing, and he should leave the building. (ECF No. 30 ¶69.) Strelchenko agreed and walked out
of the building, accompanied by the deputies, but without the public records he had come to obtain.
(Id. ¶70.) In subsequent court proceedings, Dodge confirmed that he advised Strelchenko at this
time that he was not being detained or arrested and was free to leave. (ECF No. 33 ¶17.)

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While Strelchenko was engaged with Dodge and Schwartz, Defendants Nicholas Yohanek
and Brody Fielder arrived at the courthouse. (ECF 30 ¶¶71-72.) Yohanek spoke with Hall who
informed him of the situation. (Id.) Hall instructed Yohanek and Fielder to try to find a woman
who had previously accompanied Strelchenko and had later left the courthouse at Strelchenko’s
direction. (Id. ¶¶73-74.) Yohanek and Fielder found a woman they believed to be Strelchenko’s
companion in a van with the engine running in the parking lot. (Id. ¶75.) As they attempted to
speak to the woman, Strelchenko left the courthouse and approached the van. (Id. ¶77.)
The specifics of Strelchenko’s subsequent interactions with the deputies is also disputed.
Yohanek contends he asked Strelchenko for his identification, which Strelchenko refused to
provide. (Id. ¶79.) Strelchenko maintains he refused to provide his identification because he had
been previously told repeatedly that he was not under arrest, not being detained, and was not
suspected of committing a crime. (Id.) Yohanek further claims he then told Strelchenko that he
was under arrest. (Id. ¶81.) Strelchenko denies this. He insists that after he refused to provide his
identification, Hall stated something to the effect of “"Well, wasn’t he being disorderly? Wasn’t
there a report of himself causing a disturbance up there? Just book him on that already.” (ECF
No. 33 ¶20.) Strelchenko claims Yohanek then grabbed his hand and twisted it backwards, and
then, along with Deputy Schwartz, slammed Strelchenko against the van, without any of the
officers telling Strelchenko that he was under arrest. (Id. ¶21.) He further asserts that Yohanek
and Schwartz slammed him into the van with enough force to make the van shake, even though he
had not resisted arrest or otherwise resisted the officers in any way. (Id. ¶¶22, 26.)
Strelchenko was then handcuffed, placed in a squad car, and conveyed to the Walworth
County Jail. (ECF No. 30 ¶¶89, 92.) After being released from jail, Strelchenko presented to
urgent care because he was experiencing an extreme headache, vision so blurry that he could no
longer drive, and feeling nauseous and disoriented. (ECF No. 33 ¶28.) Upon evaluation at urgent
care, an ambulance was called and Strelchenko was transported to the University of Wisconsin
Hospital emergency room because of suspected internal bleeding. (Id. ¶29.)
Strelchenko was later criminally charged with Disorderly Conduct and Resisting an Officer
as a result of the incident. (ECF No. 30 ¶102.) The District Attorney’s office ultimately dismissed
the criminal charges and proceeded to prosecute Strelchenko for two ordinance violations. (Id.
¶103.) Strelchenko successfully challenged the ordinance violations and a jury acquitted him on
both counts. (Id. ¶104.)

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SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if the record shows there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
The Court must determine whether “there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be resolved in favor of either party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is “material” if, under the
governing law, it could have an effect on the outcome of the lawsuit. Id. at 248; Contreras v. City
of Chicago, 119 F.3d 1286, 1291-92 (7th Cir. 1997). A dispute over a material fact is “genuine”
only if a reasonable trier of fact could find in favor of the non-moving party on the evidence
presented. Anderson, 477 U.S. at 248.
The moving party bears the burden of proving the absence of any genuine issues of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). To survive a properly supported
summary judgment motion, the opposing party must “submit evidentiary materials that set forth
specific facts showing that there is a genuine issue for trial.” Siegel v. Shell Oil Co., 612 F.3d 932,
937 (7th Cir. 2010) (citations omitted). If the parties assert different views of the facts, the Court
must view the record in the light most favorable to the nonmoving party. E.E.O.C. v. Sears,
Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000).
ANALYSIS
I.

A Reasonable Jury Could Find that Defendants Lacked Probable Cause to Arrest
Strelchenko.
Defendants argue they are entitled to summary judgment on Count I of Strelchenko’s

complaint because they undisputedly had probable cause to arrest him. (ECF 15 at 9.) They insist
no reasonable jury could conclude that they lacked probable cause to arrest Strelchenko for
disorderly conduct.
“Probable cause to arrest is an absolute defense to any claim under Section 1983 against
police officers for wrongful arrest.” Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006).
Whether officers have probable cause to arrest depends on what they saw and heard, and the facts
known to them at the time of arrest. See Tebbens v. Mushol, 692 F.3d 807, 816 (7th Cir. 2012);
Carmichael v. Village of Palatine, 605 F.3d 451, 457 (7th Cir. 2010). The relevant inquiry is
whether at the time of the arrest, the “facts and circumstances within the officer’s knowledge ...

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are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the
circumstances shown, that the suspect has committed, is committing, or is about to commit an
offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). The court must consider the totality of
the circumstances known to the officers at the time and must not focus on only a small part of the
overall picture; likewise, officers cannot close their eyes to information that cuts against probable
cause. Abbott v. Sangamon Cnty., Ill., 705 F.3d 706, 718 (7th Cir. 2013) (citing Fox v. Hayes, 600
F.3d 819, 833 (7th Cir. 2010)).
Wisconsin’s disorderly conduct statute provides:
Whoever, in a public or private place, engages in violent, abusive, indecent,
profane, boisterous, unreasonably loud or otherwise disorderly conduct under
circumstances in which the conduct tends to cause or provoke a disturbance is guilty
of a Class B misdemeanor.
Wis. Stat. §947.01(1).
Defendants insist no jury could find they lacked probable cause to arrest Strelchenko. They
insist that Schwartz’s conversations with Blink and Reiff about Strelchenko’s clear frustration after
being (wrongfully) denied documents in response to his open records request, combined with
Schwartz’s personal observations of Strelchenko, undisputedly gave him probable cause to make
a disorderly conduct arrest. (ECF No. 15 at 12-13.)
Defendants’ argument ignores several disputed facts and other circumstances that cut
against a finding of probable cause for an arrest. Strelchenko’s interactions with Blink, Reiff, and
Schwartz are disputed. Strelchenko admits being frustrated with the clerk’s office employee’s
refusal to comply with the open records law but flatly denies yelling, using profane language, or
engaging in the types of conduct identified in the disorderly conduct statute. He points to
testimony from his earlier ordinance violation trial confirming that he was not yelling or using
profanity. (ECF Nos. 29 at 3; 18-2 at 115-17.)
Defendants also fail to account for other circumstances that preceded Strelchenko’s arrest.
After discussions outside the clerk’s office, Strelchenko agreed to leave peacefully (even without
his properly requested public records). (ECF No. 30 ¶69.) At that time, Dodge repeatedly advised
Strelchenko that he was not being detained or arrested and was free to leave. (ECF No. 33 ¶17.)
Schwartz and Dodge appear to have been content to have Strelchenko leave the building and a jury
could infer that they did not believe there was cause for an arrest. It was only after Strelchenko
had voluntarily left the courthouse that Yohanek re-escalated the situation and Hall directed the

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other officers to arrest Strelcheko. Based on this factual sequence, a reasonable jury could
conclude that the officers did not have probable cause to make the arrest.
In reply, Defendants invoke the collective knowledge doctrine, insisting that Yohanek’s
decision to arrest Strelchenko (after the other officers had apparently decided otherwise) can be
justified based on information unknown to Yohanek but known to those other officers. The
collective knowledge doctrine allows police officers to make an arrest not just on their own firsthand knowledge, but with reasonable reliance on facts derived from other officers. See United
States v. Parra, 402 F.3d 752, 764-65 (7th Cir. 2005) (citing United States v. Hensley, 469 U.S.
221 (1985)). This doctrine does not help Defendants defeat Strelchenko’s claims at summary
judgment. Probable cause for an arrest is based on the totality of the circumstances and summary
judgment is decided based on the record as a whole. Defendants are not entitled to selectively
impute only some of the factual narrative, while ignoring disputed facts in the record. The officers’
collective knowledge thus includes Dodge’s assertions to Strelchenko that he was not being
arrested, along with the other disputed facts outlined previously. Whether the factual record as a
whole, known to the officers collectively, was sufficient to satisfy probable cause is a jury issue.
II.

A Reasonable Jury Could Find that Defendants Used Excessive Force Against
Strelchenko.
Defendants also contend they are entitled to summary judgment on Strelchenko’s excessive

force claim. They argue that their use of force in affecting his arrest was objectively reasonable
under the circumstances. (ECF No. 15 at 15.) They point to evidence that Strelchenko “continued
to resist” and “escalated his noncompliance,” which resulted in the Defendants having to use the
van to stabilize him so they could handcuff him. (Id. at 16.)
The Fourth Amendment guarantees citizens the right “to be secure in their persons . . .
against unreasonable . . . seizures” of the person. Graham v. Connor, 490 U.S. 386, 394 (1989);
see Tennessee v. Garner, 471 U.S. 1, 7-8 (1985) (claim of excessive force to effect arrest analyzed
under a Fourth Amendment standard). In analyzing an excessive force claim, the Court applies an
objective reasonableness test and considers the reasonableness of the force based on the events
confronting the officer at the time and not on his subjective beliefs or motivations. See Horton v.
Pobjecky, 883 F.3d 941, 949-50 (7th Cir. 2018) (citing Graham, 490 U.S. at 396-97). This test
carefully balances “the nature and quality of the intrusion on the individual’s Fourth Amendment
interests against the countervailing governmental interests at stake.” Id. at 949 (quoting Graham,

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490 U.S. at 396). This balance “requires careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting
to evade arrest by flight.” Horton, 883 F.3d at 949 (quoting Graham, 490 U.S. at 396).
Defendants insist that their use of force, in twisting Strelchenko’s arm and throwing him
against the van in order to handcuff him were reasonable under the circumstances. They argue
that Strelchenko refused to stop resisting, necessitating their use of the van to “stabilize”
Strelchenko so they could handcuff him. (ECF No. 15 at 16.) But the facts related to Defendants’
use of force against Strelchenko are disputed.
According to Strelchenko, Yohanek decided to arrest him after he refused to provide
identification, having been previously assured that he was not under arrest, not being detained, and
was not suspected of committing a crime. (ECF Nos. 29 at 2, 4-5; 31 ¶20, 22, 24.) While Yohanek
claims he told Strelchenko that he was under arrest, (ECF Nos. 16 ¶81; 21 ¶10), Strelchenko denies
this and insists that Hall simply instructed the other deputies to arrest him for conduct that other
officers had (apparently) deemed insufficient for an arrest. (ECF No. 33 ¶20.) At that point,
Yohanek grabbed Strelchenko’s hand and twisted it backwards. Then, Yohanek and Deputy
Schwartz slammed Strelchenko against the van with enough force to make the van shake, even
though he had not resisted arrest or otherwise resisted the officers in any way. (Id. ¶¶22, 26.)
Strelchenko was then handcuffed, placed in a squad car, and conveyed to the Walworth County
Jail. (ECF Nos. 30 ¶¶89, 92.) After being released from jail, Strelchenko went to urgent care, and
after exhibiting signs of a potential concussion, was transported to the University of Wisconsin
Hospital emergency room by ambulance. (ECF No. 33 ¶¶28-29.)
Given these disputed facts and circumstances, whether the force used to effectuate
Strelchenko’s

arrest

was

reasonable

cannot

be

decided

on

summary

judgment.

Defendants’ motion must be denied. 2

In support of their motion, Defendants have submitted a DVD containing video of the parking lot during the arrest.
(ECF No. 25.) The video does not contain sufficient detail to definitively resolve the disputed issues concerning the
arrest. Accordingly, the Court cannot conclude, based on the video, that a jury would necessarily reject
Strelchenko’s version of events.

2

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III.

Defendants Are Not Entitled to Qualified Immunity.
Defendants also contend they are entitled to summary judgment on qualified immunity

grounds. (ECF No. 15 at 17.) The Seventh Circuit has explained that “Qualified immunity
‘protects government officials from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.’” Williams v. City of Chicago, 733 F.3d 749, 758 (7th Cir. 2013) (quoting Pearson
v. Callahan, 555 U.S. 223, 231 (2009)). The qualified immunity analysis involves (1) whether the
facts, taken in the light most favorable to the plaintiff, make out a violation of a constitutional right
and (2) whether that constitutional right was clearly established at the time of the alleged violation.
Williams, 733 F.3d at 758.
At the time of Strelchenko’s arrest, it was clearly established that an officer could not arrest
an individual without probable cause and could not use excessive force against that individual
during an arrest. Holmes v. Village of Hoffman Estates, 511 F.3d 673, 687 (7th Cir. 2007). It was
also clearly established that using a significant level of force on a non-resisting or passively
resisting individual constitutes excessive force. Rambo v. Daley, 68 F.3d 203, 207 (7th Cir. 1995);
see also Kingsley v. Hendrickson, 801 F.3d 828, 832 (7th Cir. 2015) (denying qualified immunity
to officers who slammed a non-resisting detainee’s head into a concrete bunk and used a taser
while he was handcuffed); Sallenger v. Oakes, 473 F.3d 731, 741-42 (7th Cir. 2007) (denying
qualified immunity to officers who improperly hobbled and repeatedly struck a non-resisting
suspect).
Because the material facts concerning the officers’ beliefs and Strelchenko’s conduct
during the arrest are disputed, summary judgment is inappropriate. Where the facts are in “hot
dispute,” police officers cannot seek “refuge behind a claim of qualified immunity.’” Alicea v.
Thomas, 815 F.3d 283, 292 (7th Cir. 2016) (finding it improper to determine qualified immunity
when there was a material dispute as to whether plaintiff was resisting arrest when force was used
upon him) (quoting Dufour-Dowell v. Cogger, 152 F.3d 678, 680 (7th Cir. 1998)).

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CONCLUSION
Because the undisputed facts do not show that Defendants are entitled to judgment as a
matter of law, their motion for summary judgment (ECF No. 14) is DENIED.
SO ORDERED this 11th day of August, 2021.
BY THE COURT:
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge

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