Payne v. Pauley

Decision Date09 July 2003
Docket NumberNo. 02-2674.,02-2674.
PartiesBarbara PAYNE, Plaintiff-Appellant, v. Michael PAULEY, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Kenneth N. Flaxman (argued), Chicago, IL, for Plaintiff-Appellant.

John F. Canna, Joseph Selbka (argued), Canna & Canna, Orland Park, IL, for Defendant-Appellee.

Before POSNER, EASTERBROOK, and ROVNER, Circuit Judges.


Upon learning that her fifteen-year-old son had crashed a truck into a house, Barbara Payne rushed to the scene of the accident. There she encountered Chicago Heights Police Officer, Michael Pauley. Both parties dispute what happened in the ensuing forty-five minutes, but at the end of the day, Payne had been arrested, handcuffed, and driven to the Chicago Heights police station. Payne alleges that Pauley violated 42 U.S.C. § 1983 by arresting her without probable cause and by using excessive force in carrying out her arrest. On Pauley's motion for summary judgment, the district court determined that, even construing the facts in the light most favorable to Payne, Officer Pauley had probable cause to arrest Payne and used reasonable force in doing so. We do not believe, however, that the district court properly viewed the facts in the light most favorable to the nonmoving party, Payne, and consequently, we reverse the judgment of the district court.


On May 31, 1998, Kyle Payne drove his uncle's truck into a house in Chicago Heights. Officer Pauley was the first police officer to arrive on the scene of the accident. He determined that Kyle Payne was fifteen years old and unlicenced and consequently, he arrested him. By this time a crowd of between twenty and forty people had gathered in the yard of the house that had been hit by the vehicle. Shortly thereafter, a young man went to Barbara Payne's house, a half of a block away, and informed her that her son had been in an accident. Barbara Payne rode her bicycle to the scene of the accident. Eventually Payne was arrested, handcuffed, placed in a police car, and taken to the Chicago Heights police station where she was released a few hours later when a relative paid her bail. She later sought treatment for injuries she claimed she sustained during the arrest. Thus end the facts on which both parties agree. The majority of the dispute surrounds the events that occurred between the time Payne arrived on the scene of her son's accident and the time she was placed in the police car.

Before we can recite the remaining facts of the case, we must pause to make a legal determination regarding whose version of the facts we will credit. Payne recites the familiar language of summary judgment and asks us to view the facts and make all reasonable inferences that flow from them in the light most favorable to her, the party opposing summary judgment. Ziliak v. AstraZeneca LP, 324 F.3d 518, 520 (7th Cir.2003). Officer Pauley, on the other hand, charts an unusual course for summary judgment. He begins his statement of facts with the surprising admission that "[t]here are clearly two stories in the present case," and then proceeds to tell his version of the facts. This admission arouses attention 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); Ziliak, 324 F.3d at 520. Where the parties present two vastly different stories—as they do here—it is almost certain that there are genuine issues of material fact in dispute.

On summary judgment a court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Betaco, Inc. v. Cessna Aircraft Co., 32 F.3d 1126, 1138 (7th Cir.1994); Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1041 (7th Cir.1993). Rather, "[t]he court has one task and one task only: to decide, based on the evidence of record, 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). Summary judgment is not appropriate "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. We must look therefore at the evidence as a jury might, construing the record in the light most favorable to the nonmovant and avoiding the temptation to decide which party's version of the facts is more likely true. Shepherd v. Slater Steels Corp., 168 F.3d 998, 1009 (7th Cir.1999). As we have said many times, summary judgment cannot be used to resolve swearing contests between litigants. Weeks v. Samsung Heavy Indus., 126 F.3d 926, 933 (7th Cir. 1997); Giannopoulos v. Brach & Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir.1997); Wohl v. Spectrum Mfg., 94 F.3d 353, 358 (7th Cir.1996); Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir.1992). With these principles in mind, we review the district court's grant of summary judgment de novo. Ziliak, 324 F.3d at 520.

Officer Pauley asks the court to credit his version of the facts over Payne's for two reasons. First, he claims that Payne's self-serving deposition testimony is without evidentiary support and insufficient to preclude summary judgment. Second, he asserts that her version of the facts is simply implausible and therefore she must come forward with more persuasive evidence to support her claim. At its core, Pauley's argument that Payne's deposition testimony is insufficient to defeat summary judgment is simply another way of saying that her testimony is not credible. Pauley is leading us into dangerous territory, and we have warned before of falling for the trap of weighing conflicting evidence during a summary judgment proceeding. See In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 655 (7th Cir.2002), cert. denied ___ U.S. ___, 123 S.Ct. 1251, 154 L.Ed.2d 1019 (2003), ___ U.S. ___, 123 S.Ct. 1253, 154 L.Ed.2d 1019 (2003), ___ U.S. ___, 123 S.Ct. 1254, 154 L.Ed.2d 1019 (2003). Of course Payne makes our task of suspending credibility determinations difficult by lodging some fairly outrageous accusations, including a claim that Officer Pauley broke her wrist and that three officers struggled over her arm for thirty minutes during the arrest. The former allegation she recants (see fn. 1, infra), and the latter is belied by the dispatch records which indicate that two of the arresting officers were on the scene for no more than seven minutes. See fn. 2, infra. Despite the difficulty, we will be true to our task on summary judgment and leave the credibility determinations for the factfinder below.

As for the legitimacy of Payne's deposition testimony as evidence, a party opposing summary judgment may not rest on the pleadings, but must affirmatively demonstrate that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Payne sought to demonstrate that there was a genuine issue of material fact for trial by submitting excerpts from her deposition and that of a witness to the events, Rasheedah Gray. There is certainly nothing wrong with Payne's deposition testimony on its face. The summary judgment rule itself contemplates that parties may submit deposition testimony as evidence for purposes of determining whether a genuine issue of material fact exists. See Fed.R.Civ.P. 56(c) ("The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law") (emphasis supplied). See also Winskunas v. Birnbaum, 23 F.3d 1264, 1267 (7th Cir.1994) (to ward off the grant of a summary judgment motion, the plaintiff can present deposition testimony demonstrating the existence of a genuine issue of material fact). We have routinely found that a nonmoving party's own affidavit can constitute affirmative evidence to defeat a summary judgment motion. Wohl, 94 F.3d at 358; Courtney v. Biosound, Inc. 42 F.3d 414, 418 (7th Cir.1994); Sarsha, 3 F.3d at 1041; Wilson v. Williams, 997 F.2d 348, 351 (7th Cir.1993); Jackson, 955 F.2d at 22.

There is nothing inherently more self-serving about Payne's deposition and that of her witness than Pauley's affidavit and those of his police officer witnesses. In any case, Payne "need not match [Pauley] witness for witness" or affidavit for affidavit, nor must she "persuade the court that her case is convincing, she need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact." Waldridge, 24 F.3d at 921.

The defendant points to a number of cases from this Circuit for the proposition that self-serving, uncorroborated, and conclusory statements in testimony are insufficient to defeat a motion for summary judgment. (Response Brief of Defendant-Appellant at 15) (citing Weeks, 126 F.3d at 939; Cowan v. Glenbrook Sec. Servs., Inc., 123 F.3d 438, 446 (7th Cir.1997); Filippo v. N. Ind. Pub. Serv. Corp., 141 F.3d 744, 749 (7th Cir.1998); Edward E. Gillen Co. v. City of Lake Forest, 3 F.3d 192, 196 (7th Cir.1993)). It is not the self-serving nature of the affidavits, however, that sealed their fate in these cases. After all, most affidavits submitted for these purposes are self-serving. Instead, these affidavits fail to thwart summary judgment because they are not based on personal knowledge as required by both the Federal Rule of Civil Procedure on summary judgment, Rule 56(e) ("[s]upporting and opposing affidavits shall be made on personal knowledge"),...

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