                               UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                            18
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

                                              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).



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