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