UNPUBLISHED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Affirmed by unpublished opinion.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.
2

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Unpublished opinions are not binding precedent in this circuit.
3

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-
4

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. 
5

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’
6

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 
7

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 
8

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 
9

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. 
10

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 
11

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 
12

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.
13

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)
14

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-cv01473-AW.
15

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)
16

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

stop4 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).
17

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 
18

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 
19

471, 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 
20

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, 
21

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 
22

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
23

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).