Tenisha Jiggets v. Christopher Long , 510 F. App'x 278 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1124
TENISHA JIGGETS, on behalf of minor child S.J.,
Plaintiff – Appellee,
v.
CHRISTOPHER T. LONG,
Defendant – Appellant,
and
FOREVER 21 INCORPORATED; ST. CHARLES TOWN CENTER MALL; JOHN
DOE, an agent of St. Charles Town Center Mall; CHARLES MALL
COMPANY LIMITED PARTNERSHIP,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:08-cv-01473-AW)
Argued: January 31, 2013 Decided: February 22, 2013
Before NIEMEYER, GREGORY, and DAVIS, Circuit Judges.
Affirmed by unpublished opinion. Judge Davis wrote the opinion,
in which Judge Niemeyer and Judge Gregory joined.
John Francis Breads, Jr., Hanover, Maryland, for Appellant.
Donald M. Temple, TEMPLE LAW GROUP, Washington, D.C., for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
DAVIS, Circuit Judge:
In this interlocutory appeal, defendant-appellant Deputy
Sheriff Christopher T. Long seeks review of the district court’s
denial of qualified immunity as to damages claims asserted
pursuant to 42 U.S.C. § 1983 for alleged violations of the
Fourth Amendment. Appellee Tenisha Jiggetts brought suit on
behalf of her minor child, S.J. (“Jiggetts”), based on Long’s
forcible arrest of Jiggetts at a shopping mall. The district
court held that because genuine disputes of material fact exist
as to Jiggetts’ claims, Long had not established at an early
stage of the case his entitlement to qualified immunity. For the
following reasons, we affirm.
I.
In this de novo review of a district court’s denial of
summary judgment, we view and set forth the material facts in
the light most favorable to Jiggetts, the non-movant. See Ga.
Pac. Consumer Prods. v. Von Drehle Corp., 618 F.3d 441, 445 (4th
Cir. 2010). Then, because of their relevance to the parties’
dispute, we set forth the facts as attested to by Long.
A.
Jiggetts and two of her friends went to the St. Charles
Towne Center Mall (sometimes hereinafter “the mall”) in Waldorf,
Maryland, on April 28, 2007. Jiggetts was 14 years old, stood 5-
3
foot-2, and weighed 100 pounds. She and her friends first went
to the Forever 21 store (sometimes hereinafter “the store”),
where Jiggetts purchased a navy shirt, for which she received a
receipt with a time stamp of 5:44 p.m. Then, after shopping
elsewhere in the mall, the group returned to Forever 21,
apparently around 7:00 p.m. Jiggetts tried on three pairs of
jeans, but did not purchase any of them. After trying on the
jeans, she left them on a rack outside the dressing room.
Jiggetts continued looking around the store and found a green
jacket that she liked. She paid for the jacket and was given a
receipt with a time stamp of 7:15 p.m. She and her friends then
left the store.
Back in the mall, Jiggetts and her friends were approached
by two mall security officers – Dina Rodriguez and Christopher
Eusantos – who asked them to return to the store. The security
officers advised Jiggetts and her friends they were suspected of
shoplifting, which Jiggetts denied. Still, they agreed to return
to the store. A store employee asked her to “take off the jeans
under your jeans,” implying that Jiggetts had stolen jeans by
putting them on under her own jeans. J.A. 17. Jiggetts showed
that she had no other jeans on by lifting the bottom of her
pants leg and pulling down her waistband. The store employee
then said, “I’m sorry. You are free to go.” J.A. 17, 98.
4
Jiggetts and her friends left the store, but once back in
the mall and going up an escalator, Jiggetts noticed that the
same two mall security guards were following her. She called her
mother from her cell phone to report what was happening. Her
mother told her to go outside, where she would pick her up.
However, Officer Long, a local deputy sheriff working, in
uniform, a part-time security job at the mall, had been alerted
by the mall security officers and met Jiggetts at the top of the
escalator. While Long conferred with one of the security
officers, Jiggetts started walking across the food court,
heading for the exits as instructed by her mother. Long caught
up with her, asked her to stop, and, when she continued walking,
grabbed her arm. Jiggetts managed to free herself – she said she
“snatched” her arm away – and continued walking toward the exit.
J.A. 106. Long pursued her, caught up with her, and grabbed her
arm again, this time with a “tight grip.” Id.Long, still holding Jiggetts’ arm, led her through a set of
double doors off the food court into a hallway. The two mall
security officers were present throughout the encounter.
Jiggetts acknowledged that she resisted going to the hallway,
stating, “I was trying to pull away, but his grip was too
tight.” J.A. 117. Jiggetts remained on her phone, first talking
with her mother, and then with her father, who asked to speak to
Long. Long refused to take the phone to speak to Jiggetts’
5
father, declaring that he would speak to him when he arrived at
the mall. Jiggetts continued to “ignor[e]” Long and his requests
for her to get off the phone, instead continuing to speak to her
father, which angered Long. J.A. 122-23. She explained what
happened next as follows:
So to get the phone, Officer Long and [the male
security] officer with the Mohawk grabbed my arm and
slammed me against the wall and pinned my arm around
my back and take the phone out of my hand and then
slam me on the floor, and my face hit the floor, and
then handcuffed me.
J.A. 123. Eusantos put his knee on her back, so she was flat on
her stomach on the floor, and he and Long handcuffed her. In her
deposition, Jiggetts used various verbs to describe how she was
taken down to the floor: “slammed,” J.A. 124, 126; “pushed,”
J.A. 126; and “threw,” J.A. 127. Jiggetts was “crying” and
“hysterical,” and her friends were outside the double doors,
crying and screaming. J.A. 128. Jiggetts told Long he could look
in her purse for the receipts for the two items she had bought
from Forever 21; Long did so and found the receipts. Notably,
Jiggetts testified that Long did not tell her that she was under
arrest until after she had been handcuffed.
Jiggetts’ mother and father arrived at the mall and asked
what was going on; they directed Long to take the handcuffs off
their daughter. She was unhandcuffed, and told her parents that
her shoulder was hurting, so they called an ambulance. Jiggetts
6
had a cut under her left eye, and the part of her face that had
hit the floor was swollen. The ambulance took her to a hospital,
where doctors determined she had a strained ligament, gave her
Tylenol, and told her to refrain from physical activity.
The incident had a physical, psychological, and emotional
impact on Jiggetts: “After the incident, I didn’t want to do a
lot of things that I used to like to do.” J.A. 142. She stopped
playing basketball for a year after the incident. She saw a
psychiatrist about 20 times because “I was very angry.” J.A.
144.
B.
Owing to the somewhat tangled procedural course of the
proceedings, neither Long nor either of the two security
officers, Rodriguez and Eusantos, was ever deposed in the
action. Rather, in seeking an early ruling that he was entitled
to qualified immunity as a matter of law, Long’s version of the
incident was put forward in his affidavit, together with certain
arrest documents he created shortly after the incident, and
selected portions of Jiggetts’ deposition.
Long was a member of the Charles County, Maryland,
Sheriff’s Office; he was working approved secondary employment
at the St. Charles Towne Center Mall on April 28, 2007. Shortly
after 7:00 p.m. on that date, he received a request for
assistance from mall security officers regarding a person who
7
had “become disorderly when approached by employees of the
Forever 21 store.” J.A. 61-62. He met Security Officer Rodriguez
at the top of the escalator in the food court. The officer was
walking behind Jiggetts, and Long asked Rodriguez what was going
on. Before Rodriguez could respond, however, Jiggetts stated
that she had not stolen anything. Long told Jiggetts “that
interrupting people was rude” and that “she needed to be quiet
while I was speaking with the security officer.” J.A. 62.
Rodriguez told Long “that Jiggetts had been seen tearing
security tags from items of clothing in the store and that the
assistant manager did want to press charges.” Id.Jiggetts by this point was walking through the food court,
and Long caught up with her and told her to stop. She refused
and said she was going outside, as her mother had instructed.
Long said he then “used my right hand to take hold of Jiggetts’
left arm and told her to come with me, that she was being
detained while I investigated further.” J.A. 62-63. Long guided
Jiggetts to the hallway off the food court for two reasons: (1)
to prevent further disturbance in the food court area, and (2)
to shield Jiggetts from the embarrassment of having the matter
dealt with in a public place. Throughout his efforts to detain
Jiggetts, she stayed on her phone with her parents and would not
talk to him. He again asked the security officers what happened
and they said that “the assistant manager had seen Jiggetts
8
throw security tags on the floor and, prior to that, had heard
the tearing sound made when tags are forcibly removed.” J.A. 63.
Long instructed Jiggetts to hang up her cell phone and that she
was under arrest. He apparently obtained possession of her
phone, closed it, and told her to put her hands behind her back.
Long described what happened next as follows:
Instead of complying, Jiggetts pulled her right hand
away and swung her left hand at me. I then took hold
of Jiggetts’ right arm, put it behind her back, and
turned her towards the wall which was immediately to
her left. I asked Security Officer Rodriguez to
handcuff Jiggetts while I kept hold of her right arm.
As Officer Rodriguez placed the cuff on Jiggetts’
right hand, she pulled to the left and attempted to
kick Officer [Eusantos]. I ordered Jiggetts to get on
the floor. When she didn’t comply, I used an “armbar,”
a compliance technique taught to [us] in police
academies. An armbar extends the elbow joint. It
requires effective use of full-body leverage in order
to initiate and secure a lock on the targeted elbow,
while preventing a suspect from escaping the lock.
Armbars generally are a non-dangerous but effective
submission technique.
Through the arm bar, I straightened Jiggetts’ right
arm and brought her down to her knees, then placed her
on the floor by pushing her down on her stomach.
Jiggetts continued to struggle until she was fully
handcuffed.
J.A. 63-64. Jiggetts was then brought to her feet. A Forever 21
assistant manager, Kelcei McElvine, arrived and showed Long the
damaged security tags. She said a customer had alerted her that
Jiggetts was removing security tags in the dressing area and
that McElvine walked there and heard tags being torn and broken
and saw tags landing on the floor of the changing stall.
9
McElvine said she then saw Jiggetts, who had been in the stall,
exit and head to the cashier area, where she paid for “some
items, but failed to pay for the damaged items.” J.A. 64.
McElvine attempted to stop Jiggetts but Jiggetts said she had
done nothing wrong and left the store.
Jiggetts did not have any stolen items in her possession at
the time of her arrest. She had receipts for the two Forever 21
items she had purchased. Nevertheless, Long charged her with
malicious destruction of property, resisting arrest, and theft
of property having a value of less than $500 – all misdemeanors.
The Department of Juvenile Services decided in due course to
drop the charges; it issued Jiggetts a reprimand.
C.
To summarize the conflicting accounts provided by Jiggetts
and Long, the gravamen of Jiggetts’ version of the event is that
as she departed the Forever 21 store, she was suspected by a
clerk of shoplifting. At the direction of Rodriguez and
Eusantos, the security officers, she returned to the store and
was searched. Contrary to the accusation made against her, she
had not donned a pair of jeans under her jeans in an attempt to
steal them. She satisfied the security officers that she had not
secreted merchandise on her person and began to depart the mall.
Before she could do so, she was confronted by the same security
officers, now accompanied by Long, and the three of them, acting
10
without probable cause to believe she had committed a criminal
offense (or indeed, without even reasonable suspicion, because
the security officers had satisfied themselves that she had not
stolen anything from the store) violently, physically restrained
her as she obeyed her parents’ instructions to leave the mall
and meet them outside, and ultimately arrested her and caused
juvenile delinquency proceedings to be instituted against her.
Long’s version is that he had probable cause, based on the
information provided by the store clerk to the security officers
and by them provided directly to Long, to detain Jiggetts long
enough to conduct an investigation into what he was being told
by the security officers. When Jiggetts refused his command to
remain in his presence and to terminate her phone conversation
with her parents, he acted reasonably in physically escorting
her to the hallway off the food court to conduct his
investigation. Thereafter, when Jiggetts “snatched away” her arm
and otherwise physically resisted Long and the security
officers, Long employed reasonably necessary force to take her
to the floor and place her under arrest.
II.
A.
The unusual procedural history of this case merits our
attention, as it informs our resolution of this appeal. Fourteen
11
months after the incident in April 2007, on June 6, 2008,
Tenisha Jiggetts, on behalf of her minor child, filed a
complaint against Forever 21, Inc., St. Charles Towne Center
Mall, 1 and two John Doe defendants – one allegedly an agent of
Forever 21 and one allegedly an agent of the mall. (The Doe
defendants plainly were placeholders for Rodriguez and
Eusantos.) The identified defendants were promptly served with
process and each promptly filed motions to dismiss. Long was not
joined as a defendant in the case until the filing of the First
Amended Complaint on October 20, 2008; he was sued in both his
individual and official capacities in seven counts: false arrest
and excessive force under 42 U.S.C. §§ 1981, 1983, and 1985;
racial profiling under 42 U.S.C. §§ 1981 and 1985; false
imprisonment; assault and battery; intentional infliction of
emotional distress; and a due process violation under the
Maryland Constitution.
By the time the district court convened a hearing on the
motions to dismiss filed by the store and the mall, on June 19,
2009, no discovery had taken place in the case and indeed, the
district court had not issued a scheduling order. Jiggetts had
not served Long with process and so she voluntarily dismissed
1
In fact, as counsel later realized, the owner/operator of
the mall was defendant Charles Mall Company Limited Partnership,
who was later properly named and joined in the action.
12
all claims against Long, without prejudice, effective June 22,
2009.
The district court granted in part and denied in part the
pending motions to dismiss and, on June 23, 2009, issued its
scheduling order, which set a discovery deadline of November 9,
2009. Discovery then commenced among Jiggetts, the store, and
the mall. Jiggetts was deposed by lawyers for Forever 21 and St.
Charles Towne Center Mall on October 14, 2009. Long was not a
party to the suit at that time and his attorney was not present
at that deposition.
It is apparent from an examination of the district court
record that Jiggetts’ delay in finally joining Long as a
defendant resulted from her counsel’s uncertainty (whether
justified or not, we do not know) and consequent inability to
identify, Rodriguez and Eusantos and, concomitantly, his
uncertainty as to whether Long should be sued as an agent of the
owner of the mall. 2 Indeed, in due course, it emerged that
2
In the joint status report filed with the district court
on November 10, 2009, pursuant to the Scheduling Order, Jiggetts
averred:
In view of recent disclosures as to the owner of
the security company that employs mall security,
Plaintiff will likely seek to Amend Complaint to add
that company and Officer Long. Plaintiff is still
unaware as to whether Officer Long was an off-duty
police officer working part-time at the time of the
subject incident.
(Continued)
13
Rodriguez and Eusantos were hired by a non-party security
company, IPC, which operated the security function at the mall.
Long, who, unlike the other two security officers involved in
the case, was a sworn law enforcement officer, was paid by the
owner of the mall but was supervised by, and reported up a
command structure to, IPC personnel.
In any event, having unpacked all or most of the ownership
and status/capacity issues alluded to above during discovery in
the fall and winter of 2009, Jiggetts filed a motion for leave
to file her Second Amended Complaint, joining Long as a
defendant, on December 31, 2009 (well after the original
deadline for doing so set forth in the June 23, 2009, scheduling
order and, indeed, after what was to have been the deadline for
the completion of discovery, November 5, 2009). By order filed
on February 19, 2010, the district court granted the motion for
leave to file a second amended complaint. The Second Amended
Complaint was formally docketed on March 3, 2010; Long was named
in three counts: one count each of false arrest and use of
excessive force under 42 U.S.C. § 1983 and one count of assault
and battery.
Status Report at 2, Nov. 10, 2009, ECF No. 66, No. 8:08-cv-
01473-AW.
14
Long was served with process on or about March 31, 2010,
and, after an extension of time granted by the district court,
Long filed a Motion to Dismiss or, Alternatively, for Summary
Judgment on June 15, 2010. As mentioned above, the motion was
accompanied by material outside the pleadings. In her opposition
to the motion, although she did not file (as she should have) a
formal request and affidavit of counsel pursuant to Federal Rule
of Civil Procedure 56(d) to seek necessary discovery in order to
respond adequately to the motion, Jiggetts repeatedly invoked
the principles underlying the rule. 3
3
Jiggetts argued as follows in her opposition to Long’s
motion seeking a determination of qualified immunity as a matter
of law:
Plaintiff submits that any representation from
Officer Long and the Store Security officers is
uncorroborated as Plaintiff has not enjoyed an
opportunity to depose any of these individuals.
Plaintiff will show credibility gaps nonetheless which
should be resolved by a jury, rather than the court.
Pl.’s Opp’n to Def.’s Mot. Dismiss and/or Summ. J. at 4 n.2,
July 12, 2010, ECF No. 98, No. 8:08-cv-01473-AW. See also id. at
9-10:
Defendant Long seeks dispositive orders from this
court, and particularly a summary judgment, before
Plaintiff has been given any opportunity to depose
this Defendant or to corroborate his significant
representations as to what other witnesses told him
and/or were themselves told. Indeed, Defendant Long
claims that he relied upon the uncorroborated
testimony of Mall Security guards Rodriguez and
[Eusantos] to justify his stop and arrest of
Plaintiff. See Long Affidavit at paragraphs 4, 7 and 9
at Defendant’s Exhibit 1. Defendant Long further
(Continued)
15
B.
The district court treated Long’s motion as one for summary
judgment. The court first dismissed all claims against Long in
his official capacity, citing Eleventh Amendment immunity.
Jiggetts v. Forever 21, No. 08-1473-AW, 2010 WL 5148429, at *2
(D. Md. Dec. 13, 2010). The court next held that Long’s Terry
stop 4 of Jiggetts was proper because the information Long
received from the security officers provided a reasonable
articulable suspicion of criminal activity. Id. at *4. The court
also dismissed the state law assault and battery count. Id. at
*8.
As to both § 1983 counts, the court held that genuine
issues of material fact existed that precluded summary judgment.
states that he subsequently relied upon the
questionable and uncorroborated statement of the
Forever 21 store manager. Id. at paragraph 10. No
depositions have been taken of any of these witnesses,
including Defendant Long. Further, as shown below,
there are many factual inconsistencies which raise
questions about credibility, an obvious basis for jury
rather than judicial consideration. Hence, Plaintiff
asserts that any ruling on summary judgment is
premature.
Notably, at the conclusion of the hearing on Long’s motion, the
district court, intending to set a trial date, expressed
surprise that discovery had not been completed. See J.A. 409-10
(“I thought discovery was over, but if it’s not, then it’s
not.”).
4
See Terry v. Ohio, 392 U.S. 1 (1968).
16
Jiggetts, 2010 WL 5148429, at *5-7. Regarding the arrest for
theft, the court found a “genuine factual dispute as to whether
Defendant Long had probable cause to arrest Jiggetts in light of
the fact that Jiggetts allegedly showed the same officers who
supplied Defendant [Long] with probable cause to arrest for
theft that she had no stolen merchandise on her immediately
after she exited the store.” Id. at *6.
Further, the court held, given the differing accounts as to
whether Jiggetts resisted arrest, there was a genuine dispute of
material fact as to whether Long had probable cause to arrest
Jiggetts for any crime. Jiggetts, 2010 WL 5148429, at *6-7.
Finally, given the discrepancies in Long’s and Jiggetts’
accounts of the amount of force used, the court held there was a
genuine dispute of material fact as to whether the amount of
force was reasonable under the circumstances. Id. at *7.
The court therefore denied Long’s motion, stating that
“‘[o]nce a genuine issue of material fact is found to exist, the
defense of qualified immunity shielding the defendant from trial
must be denied . . . . [W]here there are [genuine] issues of
material fact surrounding [the conduct of either an arrestee or
an arresting officer] it is impossible for the court to
determine, as a matter of law, what predicate facts exist to
decide whether or not the officer’s conduct clearly violated
established law.’” Jiggetts, 2010 WL 5148429, at *7 (quoting
17
Gainor v. Rogers, 973 F.2d 1379, 1385 (8th Cir. 1992)). Long
noted a timely interlocutory appeal to this Court.
III.
A.
We have jurisdiction under Mitchell v. Forsyth, 472 U.S.
511 (1985); Johnson v. Jones, 515 U.S. 304 (1995); and Behrens
v. Pelletier, 516 U.S. 299 (1996), to hear interlocutory appeals
of denials of qualified immunity insofar as they turn on
questions of law. See Jackson v. Long, 102 F.3d 722, 727 (4th
Cir. 1996) (“The Johnson principle is limited to the
circumstance where the dispute on appeal is whether a factual
dispute was created. If, however, resolution of the factual
dispute is immaterial to whether immunity should be afforded,
the underlying legal question about whether immunity is to be
afforded remains and may be appealed under Mitchell as a
collateral order.”).
B.
As mentioned, we review de novo a district court’s denial
of a motion for summary judgment based on qualified immunity.
Johnson v. Caudill, 475 F.3d 645, 650 (4th Cir. 2007). We
“accept as true the facts that the district court concluded may
be reasonably inferred from the record when viewed in the light
most favorable to the plaintiff.” Waterman v. Batton, 393 F.3d
18471, 473 (4th Cir. 2005). “To the extent that the district court
has not fully set forth the facts on which its decision is
based, we assume the facts that may reasonably be inferred from
the record when viewed in the light most favorable to the
plaintiff.” Id.C.
Under the doctrine of qualified immunity, “government
officials performing discretionary functions generally are
shielded 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The
doctrine “balances two important interests — the need to hold
public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties
reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009).
Following Harlow and Saucier v. Katz, 533 U.S. 194, 201
(2001), when a government official asserts a qualified immunity
defense, we first must ask whether the facts, taken in the light
most favorable to the plaintiff, show that the official’s
conduct violated a constitutional right. The second step of the
Saucier analysis requires us to determine whether the right at
issue was “clearly established” at the time of the officer’s
19
conduct – that is, “whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted.” Saucier, 533 U.S. at 201. The Supreme Court in
Pearson, 555 U.S. at 236, allowed lower courts the discretion to
take the Saucier steps in whichever order makes sense in light
of the particular circumstances of a case.
Here, Long argues that there was no genuine dispute of
material fact regarding his encounter with Jiggetts, and that
based on the record he should be granted qualified immunity on
the § 1983 claims against him for false arrest and use of
excessive force. Jiggetts responds that genuine disputes of
material fact exist as to both counts, and that the district
court was thus correct in denying Long’s Motion to Dismiss or,
Alternatively, for Summary Judgment.
Whether a dispute is genuine is for the district court –
and not us – to decide. The issue, however, of whether a genuine
dispute is material is a matter of law we may decide on
interlocutory appeal. See Al Shimari v. CACI Int’l, Inc., 679
F.3d 205, 221 (4th Cir. 2012) (en banc) (stating that we have
“jurisdiction over an appeal ... ‘if it challenge[s] the
materiality of factual issues,’” but “we lack jurisdiction if
such an appeal ‘challenges the district court's genuineness
ruling — that genuine issues exist concerning material facts.’”
(quoting Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481,
20
490 (5th Cir. 2001))). See also Winfield v. Bass, 106 F.3d 525,
529-30 (4th Cir. 1997) (en banc) (“[T]o the extent that the
appealing official seeks to argue the insufficiency of the
evidence to raise a genuine issue of material fact — for
example, that the evidence presented was insufficient to support
a conclusion that the official engaged in the particular conduct
alleged — we do not possess jurisdiction under § 1291 to
consider the claim and, therefore, may not do so absent some
independent jurisdictional base.”).
The district court found “several facts are in dispute as
to whether Officer Long had probable cause to arrest Plaintiff”
for any crime, including theft and resisting arrest. Jiggetts,
2010 WL 5148429, at *5. The court noted a genuine dispute exists
over whether Jiggetts swung at Long or attempted to kick one of
the mall security officers. Id. at *6. The district court also
found a genuine dispute over facts regarding whether the use of
force was reasonable under the circumstances, given Jiggetts’
and Long’s differing accounts of the encounter. Id. at *7. These
disputes are not for us to resolve.
The information that Long argues gave him probable cause
for the arrest – the statements of the mall security officers to
him – comes entirely from his untested affidavit testimony. It
is unsupported by anything else in the record. Furthermore,
Long’s account in his affidavit of Jiggetts’ behavior that led
21
to his use of force – particularly her swinging at him and
kicking at a security officer – is also without additional
support in the record. While two security officers were present
and could potentially corroborate Long’s account, the record
contains no statements from them whatsoever. “[S]elf-serving
statements in affidavits without factual support in the record
carry no weight on summary judgment.” Butts v. Aurora Health
Care, Inc., 387 F.3d 921, 925 (7th Cir. 2004) (emphasis in
original).
We note that, despite its time pending on the district
court’s docket, as to Long this case is in a relatively early
stage of litigation, and that Jiggetts has not had a reasonable
opportunity to take discovery from any of the principal actors,
Long, Rodriguez, and Eusantos, directly involved in her
detention and arrest. Although we do not fault Long’s counsel
for “rushing for the exit,” as it were, in seeking a preemptory
ruling on qualified immunity, we also respect, as we must under
Al Shimari and earlier precedent, the district court’s
determination (even on the truncated evidentiary record we
summarized above) that genuine disputes exist. We hold that, in
light of the spartan record before us, the disputes concern
facts material to Jiggetts’ § 1983 claims of false arrest and
excessive use of force. The facts surrounding whether Long had
probable cause for the arrest of Jiggetts, specifically, what
22
Long’s informants, Rodriguez and Eusantos, told Long and whether
the force Long used in effecting Jiggetts’ arrest was reasonable
under the circumstances, go to the heart of Jiggetts’ lawsuit
and are indeed material.
We therefore affirm the district court’s holding that, at
this stage of litigation, genuine disputes of material fact
exist sufficient to preclude summary judgment on the issue of
qualified immunity in favor of Long. 5
IV.
For the reasons stated herein, the judgment of the district
court is
AFFIRMED.
5
We note that our opinion leaves open to Long the option of
filing a further motion for summary judgment on the ground of
qualified immunity at the conclusion of discovery. See
Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810
F.2d 243, 251 (D.C. Cir. 1987) (“A subsequent motion for summary
judgment based on an expanded record is always permissible,”
particularly when “substantial discovery [takes] place after the
denial of appellees’ first motion for summary judgment”); Enlow
v. Tishomingo County, Miss., 962 F.2d 501, 506 (5th Cir. 1992)
(stating, “Courts have found that a subsequent summary judgment
motion based on an expanded record is permissible,” in case
where qualified immunity was denied on first motion for summary
judgment because the district court had found questions of
material fact remained).
23