The opinion of the court was delivered by: Blackburn, J.
ORDER CONCERNING MOTIONS FOR SUMMARY JUDGMENT
This matter is before me on the following: (1) Defendants Koopman and Hecker's Motion for Summary judgment Based Upon Qualified Immunity [#56]*fn1 filed April 20, 2010; (2) Dennis V. Harrison and the City of Fort Collins' Motion for Summary Judgment [#74] filed June 11, 2010; (3) Defendant James A. Alderden, Larimer County, Larimer County Board of County Commissioners, Larry Abrahamson and Eighth Judicial District of Colorado's Motion for Summary Judgment [#86] filed September 1, 2010; and (4) Defendant City of Loveland's Motion for Summary Judgment [#88] filed September 3, 2010. Each of these four motions has engendered the filing of responses and replies.
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question).
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp.,475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986);Farthing, 39 F.3d at 1134.
A party who does not have the burden of proof at trial must show the absence of a genuine fact issue. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994), cert. denied, 115 S.Ct. 1315 (1995). Once the motion has been properly supported, the burden shifts to the non-movant to show, by tendering depositions, affidavits, and other competent evidence, that summary judgment is not proper. Concrete Works, 36 F.3d at 1518. All the evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 120 S.Ct. 53 (1999). However, conclusory statements and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Rice v. United States, 166 F.3d 1088, 1092 (10th Cir.), cert. denied, 120 S.Ct. 334 (1999).
The individual defendants assert the defense of qualified immunity and they raise that defense as one of the bases for their motions for summary judgment. A motion for summary judgment asserting qualified immunity must be reviewed differently from other summary judgment motions. See Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part, Pearson v. Callahan, ___ U.S. ___, 129 S. Ct. 808 (2009); Holland v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001), cert. denied, 535 U.S. 1056 (2002). After a defendant asserts qualified immunity, the burden shifts to the plaintiff. Scull v. New Mexico, 236 F.3d 588, 595 (10th Cir. 2000). To overcome a claim of qualified immunity, the plaintiff first must establish "that the defendant's actions violated a constitutional or statutory right." Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995);Wilson v. Layne, 526 U.S. 603, 609 (1999). This burden means coming forward with specific facts establishing the violation. Taylor v. Meacham, 82 F.3d 1556, 1559 (10th Cir.1996).
If the plaintiff establishes a violation of a constitutional or statutory right, then he must demonstrate that the right at issue was clearly established at the time of the defendant's alleged unlawful conduct. Albright, 51 F.3d at 1534. To demonstrate clearly established law, "there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts," which find the law to be as the plaintiff maintains. Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir.1992), overruled in part, Williams v. City & County of Denver, 99F.3d 1009, 1014 - 1015 (10th Cir. 1996). The plaintiff must demonstrate a substantial correspondence between the conduct in question and prior law establishing that the defendant's actions clearly were prohibited. Hilliard v. City and County of Denver, 930 F.2d 1516, 1518 (10th Cir. 1991) (citing Hannula v. City of Lakewood, 907 F.2d 129, 131 (10th Cir. 1990)). In determining whether the right was "clearly established," the court assesses the objective legal reasonableness of the action at the time and asks whether "the right [was] sufficiently clear that a reasonable officer would understand that what he is doing violates that right." Wilson v. Layne, 526 U.S. at 615. However, the plaintiff need not establish a "'precise factual correlation between the then-existing law and the case at hand . . . .'" Patrick v. Miller, 953 F.2d 1240, 1249 (10th Cir.1992), (quoting Snell v. Tunnell, 920 F.2d 673, 699 (10th Cir. 1990)). "[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the 'objective legal reasonableness' of the action . . . assessed in light of the legal rules that were 'clearly established' at the time it was taken." Anderson v. Creighton, 483 U.S. 635, 639 (1987) (quotations and citations omitted).
If the plaintiff satisfies both of these elements, then the burden shifts to the defendant. Unless the defendant demonstrates that there is no disputed issue of material fact relevant to the immunity analysis, a motion for summary judgment based on qualified immunity must be denied. Salmon v. Schwarz, 948 F.2d 1131, 1136 (10th Cir.1991). If the plaintiff fails to satisfy either part of the two-pronged inquiry, then the court must grant qualified immunity. Albright, 51 F.3d at 1535. In short, although the court must review the evidence in the light most favorable to the plaintiff, a defendant's assertion of qualified immunity may be overcome only when the record demonstrates clearly that the plaintiff has satisfied his heavy two-part burden. In civil rights cases, a defendant's unlawful conduct must be demonstrated with specificity. Davis v. Gracey, 111 F.3d 1472, 1478 (10th Cir. 1997).
In a recent opinion, the United States Supreme Court altered somewhat the analytical process that may be used when a defendant claims the protection of qualified immunity. Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808 (2009). Under Saucier v. Katz, a court addressing a claim of qualified immunity first must determine whether the plaintiff has adduced facts sufficient to make out a constitutional or statutory violation. Saucier, 533 U.S. at 201. Under Saucier, a court must address and resolve this first question before proceeding to the second step of the analysis, a determination of whether the claimed constitutional or statutory right was established clearly at the time of the alleged violation. Id. In Pearson, the Supreme Court held that the sequential two step analysis mandated in Saucier should no longer be regarded as mandatory. The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.
Pearson, 555 U.S. 223, ___, 129 S.Ct. 808, 818 (2009). The Supreme Court noted, however, that the sequence set forth in Saucier often is the appropriate analytical sequence. Id.
In their complaint [#1], the plaintiffs, Jeremy C. Myers and Great Western Salvage Ltd., assert five claims under 42 U.S.C. § 1983 for alleged violations of their constitutional rights by the defendants. In early September, 2007, certain of the defendants obtained a search warrant for Myers' residence. The plaintiffs allege that defendant, Brian Koopman, a detective with the Police Department of Loveland, Colorado, "intentionally and/or recklessly made false and misleading statements" in the affidavit he executed in support of his request for a no-knock search warrant for Myers' property. Complaint [#1], ¶¶ 23 - 25. A Colorado district judge issued a no-knock search warrant, based on Koopman's affidavit.
On September 6, 2007, using the authority granted to them in the no-knock search warrant, certain of the defendants conducted a no knock search of Myers' residence and of a building located near to Myer's residence. The plaintiffs refer to the building near to Myers' residence as the White Building. The plaintiffs allege that they did not own or occupy the White Building and did not have access to that building. The defendants who conducted the search found a jar of white substance in the White Building, which they removed from the building. Two field tests of substances seized during the search showed that the substances tested presumptively positive for amphetamine, a component of methamphetamine. Motion for summary judgment [#56], Koopman affidavit [#56-1], ¶ 15. The search was conducted by the Loveland Police Department with assistance from the Larimer County Sheriff's Office and the Fort Collins Police Department. The Loveland Police, the Fort Collins Police, and the Larimer County Sheriff all are participants in the Larimer County Drug Task Force (LCDTF), and the LCDTF participated in the search at issue in this case.
Based on this search, certain of the defendants obtained an arrest warrant for plaintiff, Jeremy Myers. Myers surrendered and was arrested on September 7, 2007. Myers was charged with certain drug crimes in state court. Ultimately, tests on the items seized during the search demonstrated that no unlawful controlled substances were found during the search. The criminal charges against Myers were dismissed on November 15, 2007.
Based on these allegations, and others, the plaintiffs assert five claims for relief in their Complaint [#1]: (1) a Fourth Amendment claim for unreasonable search and seizure, asserted against all defendants, except Abrahamson; (2) a claim, asserted by plaintiff Myers only, for malicious prosecution asserted under the Fourth and Fourteenth Amendments, asserted against all defendants; (3) a claim for use of excessive force in conducting the search, asserted against all defendants, except Abrahamson; (4) a claim for failure to train or supervise the other defendants, which failures allegedly caused the constitutional violations alleged in the complaint, asserted against the cities of Loveland and Fort Collins, Colorado, the chiefs of the Loveland and Fort Collins police departments, the Larimer County Sheriff, Larry Abrahamson, the District Attorney for the Eight Judicial District of Colorado, and Larimer County ; (5) a claim alleging conspiracy by all of the defendants to violate the plaintiffs' civil rights. The plaintiffs bring these claims under 42 U.S.C. § 1983.
In orders [#99 & #118] addressing motions to dismiss filed by the defendants, I dismissed with prejudice the plaintiffs' first and third claims as alleged against each of the defendants. In addition, I dismissed all of the plaintiff's claims asserted against Koopman, Hecker, and Harrison as asserted against those defendants in their official capacities. Thus, I do not address in this order the plaintiffs' first and third claims or the plaintiffs' claims against Koopman, Hecker, and Harrison in their official capacities.
In my earlier orders [#99 & #118], I concluded also that the plaintiffs have not pled adequately their second, fourth, and fifth claims for relief. However, I deferred a determination as to whether the plaintiffs should have an opportunity to amend their complaint pending determination of the individual defendants' entitlement to qualified immunity. The qualified immunity issues are raised in the now-pending motions for summary judgment.
V. MOTIONS FOR SUMMARY JUDGMENT OF HECKER, KOOPMAN, & HARRISON
In their motion for summary judgment [#56], defendants, Luke Hecker, the Chief of the Loveland Police Department, and Brian Koopman, a Detective with the Loveland Police Department, argue that they are entitled to summary judgment on the plaintiffs' remaining claims, their second, fourth, and fifth claims, because Hecker and Koopman are entitled to qualified immunity as to these claims. In his motion for summary judgment [#74], defendant, Dennis Harrison, the Chief of the Fort Collins Police Department, argues that he is entitled to summary judgment on the plaintiffs' remaining claims because Harrison is entitled to qualified immunity as to these claims.
Discovery concerning the plaintiffs' claims against Hecker, Koopman, and Harrison has been stayed while their motion for summary judgment has been pending.
I have reviewed carefully the motions, responses, replies, and Hecker's and Koopman's supplement [#93] to their motion, which Harrison joined [#103]. Considering the issues raised in these filings, I conclude that the plaintiffs have not had a sufficient opportunity to conduct discovery necessary for the plaintiffs to uncover facts relevant to the qualified immunity claims of Hecker, Koopman, and Harrison. In these circumstances, discovery that is tailored narrowly to determine only those facts needed to resolve the qualified immunity claims is appropriate. See, e.g., Hansen v. PT Bank Negara Indonesia (Persero), TBK,601 F.3d 1059, 1064 (10th Cir. 2010); Maxey by Maxey v. Fulton, 890 F.2d 279, 282 (10th Cir. 1989). Therefore, I deny without prejudice Hecker and Koopman's motion for summary judgment and Harrison's motion for summary judgment.
In light of the fact that Hecker's and Koopman's motion for summary judgment [#56] and Harrison's motion for summary judgment [#74] do not resolve the qualified immunity issue as to these defendants, I grant these defendants' motions to dismiss [#14 & #22] as to the plaintiffs' second, fourth, and fifth claims for relief. As a result of this dismissal, I will provide the plaintiffs with an opportunity to file an amended complaint and to plead these claims adequately. If the plaintiffs file an amended complaint, and they plead one or more of these claims adequately, then I will direct that discovery narrowly tailored to the qualified immunity issues be ...