Pourghoraishi, Ahmma v. Flying J Inc

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1107
AHMMAD POURGHORAISHI,
Plaintiff-Appellant,
v.
FLYING J, INCORPORATED, STEVE LINDGREN,
LARRY WILLIAMS, CITY OF GARY, INDIANA,
NAKON SECURITY, INCORPORATED,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2: 03-CV-269—Rudy Lozano, Judge.
____________
ARGUED SEPTEMBER 8, 2005—DECIDED APRIL 20, 2006
____________
Before FLAUM, Chief Judge, and EASTERBROOK and
ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Following his arrest for disor-
derly conduct and trespass, Ahmmad Pourghoraishi, a truck
driver of Middle Eastern descent accused of trying to leave
a gas station without paying for fuel, sued the gas station,
its manager, the off-duty police officer employed as a
security guard, the security company, and the City of Gary,
Indiana, for intentional discrimination in a place of public
accommodation (pursuant to 42 U.S.C. § 2000a), for inter-
fering with his right to make and enforce a contract (42
U.S.C. § 1981), for violating his Fourth and Fourteenth
2 No. 05-1107
Amendment rights by arresting him without a warrant or
probable cause (42 U.S.C. § 1983), and for various injuries
addressed by Indiana state tort law. The district court
dismissed the public accommodation claims as moot and
untimely, granted summary judgment on the § 1981 and
§ 1983 claims, and dismissed the state law claims.
Pourghoraishi appealed all but the public accommodations
claims. On appeal of the remaining claims, we affirm in
part and reverse in part.
I.
The facts as presented by the parties lay before us in a
tangled web. As we have noted before, summary judgment
briefs that present multiple versions of the facts arouse our
attention at the outset because under the Federal Rules of
Civil Procedure, a judge may grant summary judgment for
a moving party only where there are no genuine issues of
material fact in dispute and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c); Payne v.
Pauley, 337 F.3d 767, 770 (7th Cir. 2003). Because our only
task upon review of a summary judgment motion is to
determine “whether there is any material dispute of fact
that requires a trial,” (Waldridge v. Am. Hoechst Corp., 24
F.3d 918, 920 (7th Cir. 1994)), multiple versions of the facts
increase the chances that at least one of those conflicting
facts will be material to the outcome of the case. With this
in mind, we review the facts stated in the light most
favorable to Pourghoraishi, (Fed. R. Civ. P. 56(c); Anderson
v. Liberty Lobby Inc., 477 U.S. 242, 255 (1986), F.T.C. v.
Bay Area Bus. Council, Inc., 423 F.3d 627, 634 (7th Cir.
2005)), noting where appropriate conflicting facts presented
by the defendants.1
1
The parties have made this court’s task of reviewing the facts
exceptionally difficult by referring to deposition pages rather than
(continued...)
No. 05-1107 3
Mr. Pourghoraishi, a truck driver and native of Iran,
drove into a Flying J truck stop in Gary, Indiana, on the
morning of November 28, 2001, to pump fuel into his truck.
As was his usual practice, Pourghoraishi pulled up to an
open pump, called the fuel desk for authorization to pump
fuel, provided the requested information, and be-
gan pumping gas. When he finished, he went inside to pay
for the fuel and use the restroom. After standing in line
for some time, he decided to leave the line and go to the
bathroom before paying. According to Pourghoraishi, two
white truckers also left the cashier line to go to the
restroom. On his way to the restroom, Steve Lindgren, the
manager of Flying J, approached Pourghoraishi and,
according to Pourghoraishi’s account, told him, in a hostile
tone, that he had to leave the facility and could not use
the bathroom. According to the defendants, Lindgren
believed that Pourghoraishi had provided false informa-
tion during his call to the fuel desk, although he testified at
his deposition that he could not recall what false informa-
tion he believed Pourghoraishi had provided. Although we
1
(...continued)
citations to the record, and then failing to include the depositions
in their entirety anywhere in the record—thus forcing us to search
through the entire record for the particular deposition page
scattered throughout the pleadings. The Federal Rules of Appel-
late Procedure require that, “[n]o fact shall be stated in the
statement of facts unless it is supported by a reference to the page
or pages of the record or appendix where the fact appears.” Fed.
R. App. P. 28(a)(7). See also Fed. R. App. P. 28(e); Circuit Rule
28(c); Corley v. Rosewood Care Center, Inc. of Peoria, 388 F.3d 990,
1001 (7th Cir. 2004) (where the plaintiff has failed to cite the
record, “we will not root through the hundreds of documents and
thousands of pages that make up the record here to make his case
for him.”); U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)
(“Judges are not like pigs, hunting for truffles buried in” the
record.)
4 No. 05-1107
must take the facts in the light most favorable to
Pourghoraishi, we can accept Lindgren’s explanation for his
initial interaction with Pourghoraishi. Pourghoraishi does
not deny that Lindgren thought the former had provided
false information (how could he?), rather, he denies only
that he did provide false information. Lindgren’s explana-
tion merely provides a background explanation as to why
the manager approached Pourghoraishi in the first in-
stance. Pourghoraishi does not allege that anyone knew his
race or singled him out prior to the time he entered the
Flying J to pay for his fuel. In fact, Pourghoraishi claims
that prior to his encounter with Lindgren on the way to the
restroom, Pourghoraishi had never spoken to the Flying J
manager before.
Once confronted by Lindgren, Pourghoraishi claims that
he told the manager that he could not leave the facility
because he still had to pay for the gasoline he pumped into
his truck. Pourghoraishi alleges that, while Lindgren
approached him “aggressively” with a raised voice, he
responded non-offensively without raising his voice or using
profanity.
During Pourghoraishi’s and Lindgren’s exchange, Officer
Larry Williams, an auxiliary City of Gary, Indiana, police
officer, approached the two disputing men. Williams was at
the Flying J that day as an employee of Nakon Security,
Inc., the security company hired by the Flying J. Williams
told Pourghoraishi to leave the Flying J and again
Pourghoraishi responded that he had to pay his bill and use
the restroom. According to Pourghoraishi, Williams called
Pourghoraishi a “motherfucker,” handcuffed him, placed
him under arrest, and told him that he was going to send
him “back to his country.” But for a brief interaction
regarding payment and some questions regarding the
information Pourghoraishi had provided to the fuel desk,
Pourghoraishi’s interaction with Lindgren primarily ended
when Officer Williams arrived on the scene.
No. 05-1107 5
Williams escorted Pourghoraishi to a manager’s office
where he was detained for a couple of hours and questioned
primarily by Williams. During this time, Pourghoraishi
claims that Williams took his truck key and searched his
vehicle returning with a registration form. He also claims
that, while he was handcuffed and without his consent,
Williams removed $160.00 from Pourghoraishi’s pocket
which he gave to Lindgren who then took the money to a
cashier and returned with a receipt. Officer Williams
prepared an offense report and an arrest report on Gary
Police Department forms. At some point he also prepared a
probable cause affidavit, signed by Lindgren, for each of the
two misdemeanor charges—disorderly conduct and criminal
trespass. These documents indicate that Pourghoraishi was
not born in the United States and state that his race is
“Persian.”
Eventually a transporting officer from the Gary Police
Department arrived to take Pourghoraishi to the Gary
City Jail. He was released after posting bond. While at
the bond office, Pourghoraishi noticed Williams on the
sidewalk and approached him to ask about his truck and
key. Williams stated that he did not know the location of
the truck or key, but agreed to drive Pourghoraishi back to
the Flying J. Pourghoraishi claims that during this trip, he
asked Williams why he had arrested him for trespass and
Williams indicated that he had done so under Lindgren’s
direction.2
Later Pourghoraishi negotiated a “deferred prosecution”
agreement with the local prosecutor whereby the criminal
charges against him were dismissed after six months.
2
The defendants object to Pourghoraishi’s use of this testimony
as hearsay, and both parties briefed this evidentiary question
in the district court. For reasons described further, infra, we need
not resolve this issue.
6 No. 05-1107
Before the district court, Pourghoraishi claimed that
the Flying J, Lindgren, and Nakon Security had inten-
tionally discriminated against him on the basis of his race
and national origin in a place of public accommodation in
violation of 42 U.S.C. § 2000a and had interfered with his
right to make and enforce contracts on the basis of his
race in violation of 42 U.S.C. § 1981. He charged the City of
Gary and Officer Williams, in his official capacity as a City
of Gary police officer, for violations of 42 U.S.C. § 1983 for
allegedly arresting Pourghoraishi without probable cause in
violation of his Fourth and Fourteenth Amendment Rights.
Pourghoraishi lodged pendant state law claims against all
five defendants for false arrest, false imprisonment, inten-
tional infliction of emotional distress, and tortious interfer-
ence with a business relationship. In the face of a motion for
summary judgment filed by the Flying J, Lindgren, and
Nakon Security, the district court dismissed Pourghoraishi’s
public accommodation claims for lack of jurisdiction after he
failed to meet the procedural prerequisites of 42 U.S.C.
§ 2000a, and granted summary judgment on the § 1981
claims. The district court granted summary judgment for
Officer Williams and the City of Gary on the § 1983 claims,
and dismissed all of the pendant state law claims.
Pourghoraishi appeals to this court to reverse the grant
of summary judgment on the §§ 1981 and 1983 claims as
well as the district court’s dismissal of the state law claims.
Pursuant to this request, we review his claims de novo.
Hess v. Reg-Ellen Mach. Tool Corp., 423 F.3d 653, 658 (7th
Cir. 2005).
II.
A. Section 1981 claims.
Section 1981 provides that “[a]ll persons within the
jurisdiction of the United States shall have the same right
in every State and Territory to make and enforce contracts,
No. 05-1107 7
as is enjoyed by white citizens. . . .” and defines making and
enforcing of contracts as “the making, performance, modifi-
cation, and termination of contracts, and the enjoyment of
all benefits, privileges, terms, and conditions of the contrac-
tual relationship.” 42 U.S.C. § 1981. More commonly
litigants invoke § 1981 to assert their rights to be free from
discrimination while making and enforcing employment
contracts, but this court and others have evaluated § 1981
claims made by plaintiffs who allege that they faced illegal
discrimination in retail establishments. See Morris v. Office
Max, Inc., 89 F.3d 411 (7th Cir. 1996). To establish a prima
facie claim of such discrimination, Pourghoraishi must show
that (1) he is a member of a racial minority; (2) the defen-
dants had the intent to discriminate on the basis of race;
and (3) the discrimination concerned the making or enforc-
ing of a contract. Id. at 413.
The first prong, although generally clear in most cases, is
less so here. Section 1981 applies to allegations of discrimi-
nation based on race but not national origin. Von
Zuckerstein v. Argonne Nat’l Lab., 984 F.2d 1467, 1472 (7th
Cir. 1993); Hussein v. Oshkosh Motor Truck Co., 816 F.2d
348, 352 (7th Cir. 1987). As Justice Brennan pointed out in
his concurrence in Saint Francis Coll. v. Al-Khazraji, 481
U.S. 604, 614 (1987), however, “the line between discrimina-
tion based on ancestry or ethnic characteristics, and
discrimination based on place or nation of . . . origin is not
a bright one.” Id. at 614 (internal citations omitted) (ellipses
in original). In any event, the majority of the Supreme
Court has resolved much of this issue by defining race
broadly to include identifiable classes of persons who are
subjected to intentional discrimination solely because of
their ancestry or ethnic characteristics. Saint Francis Coll.,
481 U.S. at 609. When evaluating those identifiable classes,
the Supreme Court has noted that it will look to see
whether, at the time Congress passed § 1981, it intended to
protect the specific group at issue. Shaare Tefila Congrega-
8 No. 05-1107
tion v. Cobb, 481 U.S. 615, 617-18 (1987). As the Supreme
Court’s extensive historical research in Saint Francis made
clear, many groups whom we would now label
“white”—Germans, Greeks, Swedes, Hungarians, Finns
etc.—were, at the time Congress adopted § 1981, considered
distinct races. Saint Francis Coll., 481 U.S. at 611-12.
Based on this analysis, the Court concluded that “Arabs
were among the peoples then considered to be distinct races
and hence within the protection of the statute.” Shaare
Tefila Congregation, 481 U.S. at 617. Pourghoraishi compli-
cated the analysis by testifying at his deposition that, “Iran
is the only non-Arab country in this region. . . . According to
the United States recognition, Iran is whites in their Arian
background.” (R. at 69, Ex. 1, p. 45). Pourghoraishi correctly
explained that, in this messy business of classifying persons
by race, anthropologists do indeed classify Iranians into the
perhaps antiquated category of “Caucasians.” Alizadeh v.
Safeway Stores, Inc., 802 F.2d 111, 114-15 (5th Cir. 1986).
Because we look at the intent of Congress at the time it
adopted § 1981, however, Pourghoraishi’s testimony that
Iranians are indistinguishable from other persons who are
labeled “white” is inconsequential for purposes of evaluating
whether he has met the first prong of the Morris test, as are
all other definitions of race that require distinctive physiog-
nomy, or strict adherence to taxonomical, biological or
anthropological definitions. See Saint Francis Coll., 481
U.S. at 613; Daemi v. Church’s Fried Chicken, Inc., 931 F.2d
1379, 1387, n.7 (10th Cir. 1991) (noting that the concept of
race under § 1981 is broad, extending to matters of ancestry
which are normally associated with nationality, not race in
a biological sense); Jatoi v. Hurst-Euless-Bedford Hosp.
Auth., 807 F.2d 1214, 1218 (5th Cir. 1987) (refusing to limit
the protection of § 1981 to taxonomically defined racial
groups), modified 819 F.2d 545 (5th Cir. 1987) (neither is
distinct physiognomy necessary); Alizadeh, 802 F.2d at 114(same). Although this circuit has never expressly addressed
the question of whether those of Iranian ancestry belong to
No. 05-1107 9
a distinct race protected by the discrimination prohibition
of § 1981, we have followed the Court’s instruction in St.
Francis Coll. to consider the matter of race broadly. See
Lalvani v. Cook County, 269 F.3d 785, 789 (7th Cir. 2001)
(applying, without comment, protections of § 1981 to a
plaintiff from India), Sanghvi v. St. Catherine’s Hosp., Inc.,
258 F.3d 570, 573 (7th Cir. 2000) (same); Bisciglia v.
Kenosha Unified Sch. Dist. No. 1, 45 F.3d 223, 230 (7th Cir.
1995) (plaintiff should have been permitted leave to amend
complaint to state a claim under § 1981 since Italians
may in fact be an identifiable race protected by § 1981).
Other circuits to have considered the issue have found
that Iranians may state a claim for race discrimination
under § 1981. Amini v. Oberlin Coll., 259 F.3d 493, 503 (6th
Cir. 2001). Daemi, 931 F.2d at 1387, n.7; Alizadeh, 802 F.2d
at 114. Supreme Court and Seventh Circuit precedent
dictate that, for the purposes of § 1981, we must view race
broadly to encompass those of Iranian ancestry. Conse-
quently, because Pourghoraishi’s complaint alleges discrimi-
nation on the basis of race—Iranian—he has met the initial
prong of the Morris test.
Under the second prong, Pourghoraishi must demonstrate
that the defendants intended to discriminate against him.
Morris, 89 F.3d at 413. Of course, the defendants could not
have discriminated against Pourghoraishi on the basis of
race if they were unaware of his race, a factual question
both parties vigorously debate. See Holmes v. Potter, 384
F.3d 356, 362 (7th Cir. 2004). (“[a]n employer’s lack of
knowledge about a protected category rings a death knell
for discrimination claims.”); Cf. East-Miller v. Lake County
Highway Dept., 421 F.3d 558, 564 (7th Cir. 2005) (plaintiff
could not prove intentional discrimination in a similar FHA
burden shifting test where there was no evidence that the
defendants knew the race of the plaintiff). In his brief
before this court, Pourghoraishi maintains that “any
reasonably aware and knowledgeable person would have
10 No. 05-1107
identified Mr. Pourghoraishi as middle eastern [sic], both by
his appearance and speech.” (Appellant’s Brief at 18). To
support this assertion, Pourghoraishi points to an affidavit
in the record submitted by his criminal defense lawyer,
Charles Graddick, who attests that upon meeting
Pourghoraishi, it was apparent to him, both because of his
appearance and his speech, “that he was not caucasian [sic]
and that he was of middle eastern [sic] descent.” (R. at 47,
Ex. 1, p. 1). This declaration, however, directly conflicts
with Pourghoraishi’s own testimony at his deposition that
he has no physical attributes that make him appear to be
foreign born or of a minority race:
Q: Was there any way of determining your racial
background or ethnic background from anything
you were wearing or anything on your body or any
attribute that you had?
Pourghoraishi: No.
Q. Is there any attribute that you identify with your-
self that identifies you as from a different origin
than the United States?
A. No.
Q. . . . Just from your outward appearance, is it your
understanding that you look any different than
anyone else?
A. I can’t say that one to you, but you have to ask it
from the officer how he figure out I’m not from
this country.
Q. I’m asking you.
A. I don’t.
Q. You don’t think there’s anything about you that
looks—
A. No, sir.
No. 05-1107 11
Q. —different than anyone else?
A. I believe so.
(R. at 36, Ex. A, pp. 130-32). Pourghoraishi further stated
at his deposition:
Pourghoraishi: . . . Iran is the only non-Arab country in
this region. We are not—
Q.: Is it Persian
A: Persian is coming from—Persian came from Ger-
many. According to the United States recognition,
Iran is whites in their Arian background. That’s the
reason Iran means Arian. In the course of the
history, [Iranian] is Arian generation, Arian gener-
ation.
(R. at 69, Ex. 1, p. 45).
If we accept as true Pourghoraishi’s deposition testimony,
then we have no material issue of disputed fact. Both
Pourghoraishi and the defendants agree that Pourghoraishi
had no external features that would have allowed either
Lindgren or Williams to identify him as Iranian or Middle
Eastern or any other non-white race. And because according
to both Pourghoraishi and the defendants, Lindgren
selected Pourghoraishi for differential treatment before
Pourghoraishi spoke (recall that according to Pourghoraishi,
Lindgren approached Pourghoraishi as he walked to the
restroom and told him, in an aggressive, hostile voice, that
he had to leave the facility), Lindgren could not have heard
Pourghoraishi’s accent until after he made his demand and
Pourghoraishi countered that he could not leave because he
had to pay for fuel. By that time, however, the allegedly
discriminatory deed had been done: Pourghoraishi had been
singled out and asked to leave.
In short, based solely on Pourghoraishi’s deposition
testimony, there are no material issues of fact regarding
12 No. 05-1107
Pourghoraishi’s dispute with Lindgren and summary
judgment must be granted for Lindgren and the Flying J.
This would end the matter but for the affidavit submitted
by attorney Graddick which insists that Pourghoraishi both
looks and sounds “middle eastern.” A plaintiff
cannot, however, create an issue of material fact by submit-
ting an affidavit that contradicts an earlier deposition.
Piscione v. Ernst & Young, L.L.P., 171 F.3d 527, 532 (7th
Cir. 1999). When a conflict arises between a plain-
tiff’s sworn testimony and a later affidavit or declaration,
the “affidavit is to be disregarded unless it is demonstrable
that the statement in the deposition was mistaken, perhaps
because the question was phrased in a confusing manner or
because a lapse of memory is in the circumstances a
plausible explanation for the discrepancy.” Id. at 532-33.
Pourghoraishi has not asserted that either of these scenar-
ios applies to his deposition testimony. Consequently, we
must disregard Graddick’s affidavit and assume for the
sake of summary judgment that Lindgren would have had
no reason to know that Pourghoraishi was of Middle
Eastern descent. This, of course, dooms Pourghoraishi’s
claim against Lindgren, for in order to establish a § 1981
claim of racial discrimination in a retail transaction,
Pourghoraishi must demonstrate that Lindgren had an
intent to discriminate on the basis of race, which is, as we
said, impossible to do if Lindgren had no way of knowing
Pourghoraishi’s race. The district court, consequently,
properly granted summary judgment in Lindgren and
Flying J’s favor.
The evidence against Williams on the other hand is
different. Pourghoraishi points to several pieces of evidence
that Williams knew he was of a minority race. First, while
Officer Williams was arresting Pourghoraishi, he allegedly
told Pourghoraishi, “I’m going to send you back to your
country.” (R. at 36, Ex. A, p. 152). Second, he noted
Pourghoraishi’s race as “Pershen” [sic] on the Gary Police
Department offense Report. (R. at 43, Ex. 4 to Ex. C).
No. 05-1107 13
Pourghoraishi’s § 1981 claims, however, do not include
Officer Williams or the City of Gary, so Williams’ actions
taken in his role as a City of Gary police officer should have
no effect on the § 1981 claims against the Flying J,
Lindgren, or Nakon Security. Although Pourghoraishi
does not charge Williams directly with a § 1981 claim, to
the extent Williams was acting as an agent of Nakon
Security or the Flying J, his actions could be imputed to
those entities and expose them to liability. Unfortunately,
neither party’s briefs on appeal address the law of agency,
but the matter can nonetheless be resolved without much
ado. It is undisputed that at the time Officer Williams
arrested Pourghoraishi he was acting in his capacity as
a City of Gary police officer. According to Williams, when he
arrested Pourghoraishi he did so in his capacity as a City of
Gary police officer. (R. at 36, Ex. C, p. 154). Furthermore,
he testified that he switched from being a security guard for
Nakon Security to a Gary police officer when he informed
Pourghoraishi that if he did not calm down or leave, he
would be arrested. (R. at 36, Ex. C, p. 153). And according
to Pourghoraishi’s own testimony, all of the indicia of racial
animus and any potential actions which deprived
Pourghoraishi of the ability to contract occurred after the
point at which Williams began acting in his capacity as a
Gary police officer—that is after the point at which he first
threatened Pourghoraishi with arrest. Pourghoraishi
testified that the first words out of Officer Williams’ mouth
were “you have to get out of here, if you don’t I’m going to
arrest you.” (R. at 36, Ex. A, p. 149). And, as he placed the
handcuffs on Pourghoraishi’s wrists he said, “I’m going to
send you back to your country,” and then supplemented the
threat with profanity. (Id., pp. 143, 151-52). Officer Wil-
liams’ testimony varies slightly in that he says that he first
informed Pourghoraishi that he was a security guard and in
that capacity asked him to lower his voice and calm down
three times before switching gears to his police officer
capacity and warning Pourghoraishi that he would be
14 No. 05-1107
arrested. (R. at 43, Ex. C, pp. 66-69). Under either scenario,
however, Williams had switched roles to police officer before
any allegedly illegal conduct occurred.
Furthermore, to the extent Williams interfered with
Pourghoraishi’s ability to contract, he did so only after
he had switched into his Gary Police Department hat.
Consequently, any actions by Officer Williams denying
Pourghoraishi the right to complete his fuel transaction
have no effect on the liability of the Flying J, Lindgren, or
Nakon Security. 3 Williams actions in arresting
3
It is worth mentioning the third prong of the Morris test, even
though Pourghoraishi has failed on the first two prongs. A
plaintiff satisfies the third prong of the Morris test by demonstrat-
ing that the defendants denied the alleged victims the opportunity
to make a purchase by, for example, refusing admittance or
service. Morris, 89 F.3d at 414. According to the defendants’ brief,
“Mr. Pourghoraishi confirmed that the fuel transaction took place
in an honest fashion; he was only charged for the fuel he had
intended to purchase; he was given the correct change, and was
given a receipt that confirmed the entire transaction.” (Appellee’s
Brief at 23). Thus, the defendants argue, Pourghoraishi cannot
complain that he was denied the right to make and enforce a
contract. To describe what was, in essence, a polite mugging as a
fair and honest transaction borders on the absurd. If a credit card
company broke into Pourghoraishi home in the middle of the night
and stole the exact amount of money he owed—and left a receipt,
of course— one doubts that he would feel he had been dealing at
arms length in a fair, honest transaction. By arresting
Pourghoraishi and removing him from the line for the cashier,
Williams denied Pourghoraishi the opportunity to complete his
transaction. As we noted, however, Pourghoraishi’s complaint does
not allege any § 1981 violations by Officer Williams, and because
he was not an agent of Nakon Security or the Flying J at the time
of the incident, his actions cannot be imputed to them. Further-
more, even if they were, Pourghoraishi has failed the first and
second prongs of the Morris test, so it cannot be determined that
(continued...)
No. 05-1107 15
Pourghoraishi, however, have relevance to the latter’s
§ 1983 claims to which we now turn.
B. Section 1983 claims.
Pourghoraishi alleges that Officer Williams, individually
and in his official capacity as a City of Gary police officer,
violated his rights under the Fourth and Fourteenth
Amendments to the U.S. Constitution when he arrested
Pourghoraishi for trespass and disorderly conduct with-
out probable cause. Pourghoraishi seeks to enforce these
claims via 42 U.S.C. § 1983, which provides that “[e]very
person who, under color of any statute, ordinance, regula-
tion, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privi-
leges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress . . . .” 42
U.S.C. § 1983. Williams asserts that he had probable cause
to arrest Pourghoraishi on both charges, and, even if he did
not, he was entitled to qualified immunity on both claims.
The district court agreed with Williams with respect to the
trespass claim, but held that factual disputes precluded a
finding that Williams had probable cause to arrest
Pourghoraishi for disorderly conduct. Nevertheless, because
the district court concluded that Williams had probable
cause to arrest Pourghoraishi for trespass, the district court
held that Williams was entitled to qualified immunity on
the § 1983 claim.
3
(...continued)
Pourghoraishi was denied the opportunity to contract on the basis
of his race as opposed to some other ground.
16 No. 05-1107
Police officers performing discretionary functions—such
as determining whether they have probable cause to
arrest—enjoy qualified immunity from suit unless it
would have been clear to a reasonable police officer that,
given the situation she confronted, her conduct violated
a constitutional right. Saucier v. Katz, 533 U.S. 194, 201-02
(2001); Anderson v. Creighton, 483 U.S. 635, 640 (1987);
Sornberger v. City of Knoxville, Ill., 434 F.3d 1006, 1013
(7th Cir. 2006).
The threshold question in a qualified immunity defense
is whether, given the facts taken in the light most favorable
to the plaintiff, there is any merit to the underlying consti-
tutional claim. Saucier, 533 U.S. at 200, Norfleet v. Webster,
439 F.3d 392, 395 (7th Cir. 2006). If so, we move on to
inquire whether the right was clearly established at the
time of the alleged injury; that is, whether a reasonable
officer would have known that his actions were unconstitu-
tional. Saucier, 533 U.S. at 202; Anderson, 483 U.S. at 640;
Sornberger, 434 F.3d at 1013.
The underlying constitutional claim, as asserted by
Pourghoraishi, is that Officer Williams arrested him
without probable cause in violation of his Fourth Amend-
ment rights. Williams had probable cause to arrest
Pourghoraishi if he reasonably believed that, in light of
the facts and circumstances within his knowledge at the
time of the arrest, Pourghoraishi had committed or was
committing an offense. Payne, 337 F.3d at 776. “[i]t is
inevitable,” the Supreme Court has reminded us, “that
law enforcement officials will in some cases reasonably
but mistakenly conclude that probable cause is present,
and . . . in such cases those officials—like other officials who
act in ways they reasonably believe to be lawful—should not
be held personally liable.” Anderson, 483 U.S. at 641. In
other words, we must bear in mind that “the doctrine of
qualified immunity leaves ‘ample room for mistaken judg-
No. 05-1107 17
ments’ by police officers.” Payne, 337 F.3d at 776, citing
Malley v. Briggs, 475 U.S. 335, 343 (1986).
Turning to the disorderly conduct charge, the district
court determined that “because a reasonable jury could find
that Williams lacked probable cause to charge Plaintiff with
disorderly conduct, judgment as a matter of law on this
ground is improper,” (R. at 71, p. 27), a holding Williams
asks us to overturn.
Whether an officer has probable cause to arrest de-
pends on the requirements of the applicable state criminal
law. Williams v. Jagloski, 269 F.3d 778, 782 (7th Cir. 2001).
Under Indiana law, a person engages in disorderly conduct
when that person “recklessly, knowingly, or intentionally:
(1) engages in fighting or in tumultuous conduct; (2) makes
unreasonable noise and continues to do so after being asked
to stop; or (3) disrupts a lawful assembly of persons.” Ind.
Code § 35-45-1-3.4 As we have noted before, at this stage of
the proceedings, we must credit Pourghoraishi’s version of
the facts, and resist the temptation to evaluate the relative
veracity of each party’s facts, provided the claims are not
implausible on their face. Payne, 337 F.3d at 770-71. This
is true even when the one-sidedness of the allegations
causes us to raise a brow. Id. at 771. We do not vouch for
the truth of the facts, (Herzog v. Village of Winnetka, 309
F.3d 1041, 1044-45 (7th Cir. 2002)), but rather merely use
them to determine whether the case can be resolved as a
matter of law.
According to the facts most favorable to Pourghoraishi, he
did not use “an offensive voice,” he did not use profanity, he
did not raise his voice. (R. at 39, Ex. 2, pp. 133-35, 149-52).
In short, according to Pourghoraishi’s version of events, he
did not engage in even one of the enumerated behaviors in
4
The statute was amended in 2002 in a manner that does not
affect this litigation.
18 No. 05-1107
Indiana’s disorderly conduct statute and consequently,
Officer Williams could not have reasonably believed that
Pourghoraishi was committing an offense. He did not,
therefore, under Pourghoraishi’s version of the facts, have
probable cause to arrest Pourghoraishi for disorderly
conduct.
Under the second prong of the qualified immunity test, we
move on to inquire whether it would have been clear to a
reasonable officer that it was unlawful to arrest
Pourghoraishi for disorderly conduct. Saucier, 533 U.S. at
202. Because, according to Pourghoraishi’s version of
events, he did not raise his voice, use profanity, make
unreasonable noise, or otherwise engage in any be-
haviors prohibited by the disorderly conduct statute, no
reasonable officer could have concluded that he had proba-
ble cause to arrest Pourghoraishi. See, e.g., Payne, 337 F.3d
at 778.
This conclusion, however, does not knock Williams down
for the count. The actual existence of any probable cause to
arrest precludes a § 1983 suit for false arrest. Morfin v. City
of E. Chicago, 349 F.3d 989, 997 (7th Cir. 2003). “Simply
stated, a person arrested with probable cause cannot cry
false arrest, and without a predicate constitutional viola-
tion, one cannot make out a prima facie case under § 1983.”
Id. (internal citations omitted). Consequently, if Williams
had probable cause to arrest Pourghoraishi on the trespass
claim, he is shielded from liability under § 1983.
Just as we did for the disorderly conduct claim, we look to
Indiana law on criminal trespass to determine whether a
law enforcement officer reasonably could have believed, in
light of the facts and circumstances within his knowledge at
the time of the arrest, that Pourghoraishi had committed or
was committing trespass as described by the statute. Payne,
337 F.3d at 776. Indiana state law provides that “a person
who: . . .(2) not having a contractual interest in the prop-
No. 05-1107 19
erty, knowingly or intentionally refuses to leave the real
property of another person after having been asked to leave
by the other person or that person’s agent . . . commits
criminal trespass.” Ind. Code § 35-43-2-2(a)(2).
The defendants assert that it is undisputed that both
Lindgren and Officer Williams asked Pourghoraishi to
leave, but this simply is not so. Pourghoraishi testified
at his deposition that both Lindgren and Willaims told
him to leave. (R. at 39, Ex. 2, pp. 124, 140). Williams
agreed, at least in regard to his own actions, that he did tell
Pourghoraishi to leave (although he testified that he did so
in his capacity as a Gary police officer, a point to which we
will return shortly). (R. at 36, Ex. C, p. 153). Lindgren, on
the other hand, testified in no uncertain terms that he did
not ask Pourghoraishi to leave, but rather told him that he
could not leave until he paid his bill. (R. at 50, Ex. B, pp. 68,
71-73). This certainly creates an odd dispute of material
facts. In this case the facts that favor Pourghoraishi are,
paradoxically, those pronounced by the defendants. The rule
on summary judgment, however, requires only that we
accept the facts most favorable to the non-moving party, not
that we accept only the non-movant’s facts. If Lindgren did
not ask Pourghoraishi to leave, and Williams did so only in
his capacity as a Gary police officer, than neither the owner
nor agent of the property asked Pourghoraishi to leave.
Of course a police officer who is neither an owner of
a property nor an agent of an owner of a property cannot
create a trespass violation by asking a patron to leave, and
then arrest the patron when she refuses to do so. The
right to shoo away strangers belongs to the owner of the
property and her agents. See Ind. Code § 35-43-2-2(a)(2)
(a person commits trespass only when refusing to leave
“having been asked to leave by the [the property owner] or
that person’s agent.”) As noted before, neither party’s briefs
address the issue of when an off-duty police officer em-
ployed as a security guard acts as an agent for the private
20 No. 05-1107
employer, and Indiana law addressing this question is less
than crystal clear. The Fourth District of the Indiana
Appellate Court has stated, “[p]olice officers who work as
security guards when off duty, shed their cloak of State
Agency and become agents of the private hiring authority.”
Rode v. State, 524 N.E.2d 797, 800 (Ind. Ct. App. 1988),
citing Bowman v. State, 468 N.E.2d 1064, 1068, n.1 (Ind. Ct.
App. 1984). The First District of that same court, however,
rejected Bowman and Rode and followed its earlier prece-
dent holding that the agency question required a highly
factual inquiry into the nature of the acts performed and
the manner in which security guards identified themselves.
Owen v. Indiana, 490 N.E.2d 1130, 1134-36 (Ind. App.
1986); accord Tapp v. State, 406 N.E.2d 296, 302 (1980).
Although it is undisputed that at the time of the ar-
rest, Williams was acting in his capacity as a City of Gary
police officer, there are conflicting facts regarding Williams’
capacity when he asked Pourghoraishi to leave.5 Lindgren
testified that he did not want Pourghoraishi to leave
without paying, did not want Williams to arrest
Pourghoraishi, and did not ask Williams to arrest
Pourghoraishi. (R. at 50, Ex. B, pp. 71-73). Williams
testified that he received the authority to ask Pourghoraishi
to leave both from “himself” and from Lindgren. (R. at 43,
Ex. C, p. 84). On the other hand, Williams also testified that
Lindgren never told or suggested to him that he get
Pourghoraishi out of the store. (Id. at p. 70). He also
5
We note that this is a different inquiry from the one that asks
whether an off-duty police officer is acting under color of state law
for § 1983 liability purposes—an inquiry, resolved by federal law,
that turns on the nature of the specific acts the police officer
performed. See Pickrel v. City of Springfield, 45 F.3d 1115, 1118
(7th Cir. 1995). It is clear and undisputed, that at the time
Williams arrested Pourghoraishi he was acting under color of
state law.
No. 05-1107 21
testified that when he asked Pourghoraishi to leave, he had
switched roles from being a security guard for the Flying J
to a Gary police officer:
Q. So at some point in your mind, you changed from
being security guard and put on your Gary Police
Officer hat?
A. Correct.
Q. When was, in your mind, that point when you
stopped being a security guard and started being a
Gary police officer?
A. I informed Mr. Pourghoraishi that I was also a
Gary police officer and that at which point if he did
not calm down or leave, that’s when I told him
he would be arrested.
(R. at 36, Ex. C, p. 153) (emphasis ours). Pourghoraishi, on
the other hand, testified that Williams told him that the
reason he charged Pourghoraishi with trespass was because
Lindgren was Williams’ boss and had required him to
charge in this manner. (R. at 50, Ex. A, pp. 187, 188, 230,
244) (R. at 36, Ex. A, p. 194). The defendants object to
Pourghoraishi’s alleged use of hearsay as evidence that
Lindgren directed Officer Williams’ actions. The district
court judge declined to rule on the hearsay question, finding
it moot in light of his ruling on the trespass claim. For
purposes of summary judgment, we need not resolve the
dispute over the admissibility of this evidence, for even
without it, there remains a critical dispute of material fact
that precludes summary judgment on the § 1983 claim
against Officer Williams for the trespass arrest.
Pourghoraishi claims that both Lindgren and Williams told
him to leave. (R. at 39, Ex. 2 pp. 124, 140). Williams
testified that he did tell Pourghoraishi to leave, but did so
in his capacity as a Gary police officer (R. at 36, Ex. C, p.
153), and Lindgren testified that he never requested that
Pourghoraishi leave. (R. at 39, Ex. 3, pp. 68, 71-73). Thus
22 No. 05-1107
with or without the disputed hearsay testimony, we cannot
resolve, as a matter of law, that Williams had probable
cause to arrest Pourghoraishi. Again, taking the facts in the
light most favorable to Pourghoraishi, when Williams asked
Pourghoraishi to leave, he was acting solely in his capacity
as a police officer and not as an agent of the Flying J.
To determine whether Williams had qualified im-
munity, one must know whether the facts apparent to the
arresting officer would have caused a reasonable officer to
believe there was probable cause. Payne, 337 F.3d at 776.
At this stage of the litigation, however, there are critical
disputes over what facts were apparent to Officer
Williams at the time of the arrest, primarily whether
Lindgren had asked Pourghoraishi to leave and whether
Officer Williams had the authority to ask Pourghoraishi
to leave.6 See Morfin, 349 F.3d at 1000, n.13. In short,
did Williams have the authority to create the condition
precedent to the crime? This is a question that must
be resolved by a trier of fact.
Once all of the federal claims had been dismissed, the
district court dismissed the remaining state court claims
(for false arrest, false imprisonment, intentional infliction of
emotional distress, and tortious interference with a busi-
ness relationship), under 28 U.S.C. § 1367(c)(3), treating
them as supplemental to Pourghoraishi’s federal claims.
6
Pourghoraishi does not argue that Lindgren has any liability
under § 1983, so even if, on remand, a trier of fact were to
determine that Williams acted only at the behest of Lindgren, any
claim against Lindgren under § 1983 has been waived. Compare
Pourghoraishi v. Flying J, No. 2:03-CV-269, slip op. at 21-31(N.D.
Ind. Dec. 13, 2004) with Wilson v. McRae, 413 F.3d 692, 693 (7th
Cir. 2005) (plaintiff alleged that the private shopkeeper should be
treated as a state actor because, plaintiff claimed, he had struck
a deal with the police to arrest anyone the shopkeeper desig-
nated).
No. 05-1107 23
Pourghoraishi, however, asserted not only that the district
court had supplemental jurisdiction, but also that the court
had jurisdiction pursuant to 28 U.S.C.A. § 1332 since the
controversy is between citizens of different states and the
amount in controversy exceeds $75,000. (R. at 1). None of
the defendants challenged Pourghoraishi’s jurisdictional
claims, and this court has no reason to believe that the
claim was made in bad faith, or that it appears to a legal
certainty that the claim is really for less than the jurisdic-
tional amount. See Meridian Sec. Ins. Co. v. Sadowski, 441
F.3d 536, 541-43 (7th Cir. 2006). Consequently, on remand,
the district court must entertain the viable state law claims.
In his final claim on appeal, Pourghoraishi objects not
only to the district court’s grant of summary judgment
for Williams, but also to the sua sponte grant of sum-
mary judgment to the City of Gary and Officer Williams
in his official capacity. When a plaintiff sues an individual
officer in his official capacity, the suit is treated as if the
plaintiff has sued the municipality itself. Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985). A municipality can
have no liability under § 1983 simply because it employs the
alleged wrongdoer. Bd. of the County Comm’rs v. Brown,
520 U.S. 397, 403-04 (1997); Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 694 (1978). To state a claim against a munici-
pality under § 1983, a plaintiff must identify a municipal
policy or custom that caused the injury. Id.
Neither the City of Gary, nor Willaims in his official
capacity filed a separate motion for summary judgment.
Nevertheless, the district court dismissed all of the
claims against them with prejudice, reasoning that
Pourghoraishi had failed to allege the existence of an
unconstitutional policy or custom—a prerequisite to any
constitutional claim against a municipality. Monell, 436
U.S. at 690-91. Although Pourghoraishi objects to the
district court’s sua sponte grant of summary judgment, the
district court’s actions might better be described as a sua
24 No. 05-1107
sponte grant of a motion to dismiss for failing to state claim
upon which relief can be granted pursuant to Federal Rule
of Civil Procedure 12(b)(6). In either case, a court cannot
sua sponte enter summary judgment or dismiss a complaint
without notifying the parties of its intentions and allow-
ing them an opportunity to cure the defect in the complaint
or to respond. English v. Cowell, 10 F.3d 434, 437 (7th Cir.
1993); see also Celotex v. Catrett, 477 U.S. 317, 326 (1986)
(district courts are widely acknowledged to possess the
power to enter summary judgments sua sponte, so long as
the losing party was on notice that she had to come forward
with all of her evidence); Acequia, Inc. v. Prudential Ins. Co.
of Am., 226 F.3d 798, 807 (7th Cir. 2000) (“a district court
is permitted to enter summary judgment sua sponte if the
losing party has proper notice that the court is considering
granting summary judgment and the losing party has a fair
opportunity to present evidence in opposition.”) Further-
more, “[w]here one defendant succeeds in winning summary
judgment on a ground common to several defendants, the
district court may also grant judgment to the non-moving
defendants, if the plaintiff had an adequate opportunity to
argue in opposition.” Acequia, 226 F.3d at 807. Although
Pourghoraishi’s claims against Officer Williams in his
official capacity and the City of Gary appear to be the same
as those lodged against the remainder of the defendants,
claims against a municipality require unique allegations
that Pourghoraishi did not have the opportunity to assert.
The party opposing summary judgment has no obliga-
tion to address grounds not raised in a motion for summary
judgment. Titran v. Ackman, 893 F.2d 145, 148 (7th Cir.
1990) (“When a party moves for summary judgment
on ground A, the opposing party need not address grounds
B, C, and so on; the number of potential grounds for (and
arguments against) summary judgment may be large, and
litigation is costly enough without requiring parties to
respond to issues that have not been raised on pain of
No. 05-1107 25
forfeiting their position.”) Although it seems hard to
imagine that Pourghoraishi could adduce proof that the City
of Gary has a policy of arresting Iranians without probable
cause or of arresting citizens for trespass or disorderly
conduct without probable cause, due process requires that
Pourghoraishi have the opportunity to attempt such a claim
if he believes, in good faith, that the allegations have
evidentiary support or are likely to have evidentiary
support after a reasonable opportunity for discovery. See
Fed. R. Civ. P. 11(b)(2).
For the reasons asserted above, we affirm the district
court’s grant of summary judgment for the Flying J, Steve
Lindgren, and Nakon Security on the § 1981 claims and the
state law claims, and reverse the grant of summary judg-
ment for Officer Williams and the City of Gary, Indiana, on
the claims brought under 42 U.S.C. § 1983, and the relevant
state law claims. We remand for further proceedings
consistent with this decision. All parties to bear their
own costs.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-20-06