MEMORANDUM OPINION AND ORDER
On June 19, 2006, plaintiffs filed suit, pursuant to 42 U.S.C. §1983 and pendent state law, arising out of the search of premises owned by them, their arrest, and their prosecution for keeping a gambling house before the charges were eventually dismissed. They seek compensatory and punitive damages for alleged violations of their rights under the 4th and 14th Amendments and for the torts of false arrest, false imprisonment, invasion of privacy, outrage and malicious prosecution as well as a declaratory judgment and an injunction.
Plaintiffs allege in the complaint that the affidavit for the search warrant contained false and unreliable information which the defendants knew or should have known to be false and unreliable and did not identify the persons making or receiving cash payments from the video arcade machines and did not assert that plaintiffs were there or involved in any conduct related to the operation of the arcade. They state that they were out of state for approximately six weeks prior to returning on June 15, 2005, when they began to inspect their home and other properties and began making repairs and to clean up such properties which is why they were at 101 Reed Street when the police arrived. Plaintiffs allege that they were told they were under arrest, the officers searched the entire premises, and plaintiffs advised the arresting officers that they did not own or operate the video arcade business but only leased the premises. They contend that Parker, Smith and McGee caused the criminal charges to be filed when they knew or should have known that there was no factual or legal basis to arrest them and that no probable cause existed for their arrest and the search of their property; McGee and Parker failed to properly investigate the alleged criminal activity to ensure that probable cause existed; Cole was deliberately indifferent in failing to establish and enforce safe and adequate customs or policies regarding proper and legal apprehension and detention of suspects and instead encouraged customs and policies of arresting, detaining and prosecuting innocent citizens; and McGee caused subpoenas to be issued to several banks causing a search of their bank accounts and records without probable cause or reasonable suspicion.
McGee, Cole and Parker (the "Lincoln County defendants") filed a motion for summary judgment on April 5, 2007, supported by brief, exhibits including affidavits, and a separate statement of undisputed facts. Besides denying that they have engaged in any conduct which would violate the plaintiff's constitutional rights, these defendants assert the defenses of qualified immunity and tort immunity. Plaintiffs filed a response supported by their affidavits and exhibits on July 5th contending that there are genuine issues of material facts in dispute.
Summary judgment can properly be entered when there are no genuine material facts that can be resolved by a finder of fact; that is, there are no facts which could reasonably be resolved in favor of either party. The Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2512 (1986). The non-moving party may not just rest upon his or her pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 106 S.Ct. 2548 (1986); Civil Procedure Rule 56.
In Counts v. MK-Ferguson Co., 862 F.2d 1338, 1339 (8th Cir. 1988) (citations omitted and brackets in original), the Eighth Circuit explained:
[T]he burden on the party moving for summary judgment is only to demonstrate, i.e., "[to] point[ ] out to the District Court," that the record does not disclose a genuine dispute on a material fact. It is enough for the movant to bring up the fact that the record does not contain such an issue and to identify that part of the record which bears out his assertion. Once this is done, his burden is discharged, and, if the record in fact bears out the claim that no genuine dispute exists on any material fact, it is then the respondent's burden to set forth affirmative evidence, specific facts, showing that there is a genuine dispute on that issue. If the respondent fails to carry that burden, summary judgment should be granted. "The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather the dispute must be outcome determinative under prevailing law." Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989).
Local Rule 56.1 provides that a party moving for summary judgment must file a separate, short and concise statement of material facts as to which it contends there is no genuine issue to be tried. The rule further provides that unless the non-moving party files a separate, short and concise statement of the material facts as to which it contends a genuine issue exists to be tried, all material facts set forth in the moving party's statement will be deemed admitted. In addition, the October 16th final scheduling order set out the required format for opposing a summary judgment statement of facts pursuant to Local Rule 56.1.*fn1 Plaintiffs did not file a controverting statement in conformity with the directive contained in the October 16th order.
The Lincoln County defendants' Local Rule 56.1 statement is set out below:
1. Lincoln County, Arkansas is a political subdivision of the State of Arkansas.
2. During all times relevant hereto, separate defendant, Larry McGee, was the duly elected and appointed Sheriff of Lincoln County, Arkansas.
3. During all times relevant hereto, separate defendant, Charlie Cole, was the duly elected and appointed County Judge of Lincoln County, Arkansas.
4. During all times relevant hereto, separate defendant, David Parker, was an employee of the Lincoln County Sheriff's Department.
5. McGee did not participate in the arrest of plaintiffs.
6. McGee did not actively participate in the investigation of the plaintiffs nor did he participate in the securing of any search warrants of the plaintiffs' property.
7. Cole did not participate in the arrest of the plaintiffs.
8. Cole did not actively participate in the investigation of the plaintiffs nor in the securing of any search warrants concerning the plaintiffs' property.
9. Cole, as the duly elected County Judge of Lincoln County, Arkansas, has absolutely no control, authority, or supervision over the Lincoln County Sheriff's Department.
10. Cole has no responsibility for nor does he have any authority to control the actions of the Lincoln County Sheriff's Department or its employees.
11. McGee, as the duly elected Sheriff, is the supervisory person for purposes of operations of the Lincoln County Sheriff's Department.
12. During all times relevant hereto, the Lincoln County Sheriff's Department followed as its policy, Rule 4.1 of the Arkansas Criminal Rules of Procedure. This rule specifically provides that a person shall not be arrested unless there is probable cause to believe that person has committed an offense. This rule is taught at the Arkansas Law Enforcement Training Academy and at numerous seminars conducted at the Lincoln County Sheriff's Department.
13. Parker began working for the Lincoln County Sheriff's Department on or about the 1st day of April, 2005.
14. Parker attended numerous training session, including but not limited to the Arkansas Law Enforcement Training Academy which was completed on or about the 22nd day of December, 1989. He was also assigned to the Pine Bluff Vice and Narcotics Unit for about one (1) year before joining the Lincoln County Sheriff's department.
15. Parker performed all duties and responsibilities assigned to him without incident and in a very professional manner during his employment at the Lincoln County Sheriff's Department.
16. Prior to June 19, 2006, the Lincoln County Sheriff's Department had received no complaints on Parker concerning allegations of securing search warrants illegally, using false or misleading information to obtain search warrants, or arresting people illegally.
17. Parker was sufficiently trained as to the policies, procedures, and customs of the Lincoln County Sheriff's Department concerning the procurement of search warrants and the arresting of individuals.
18. Parker was sufficiently trained as to the policies, procedures, and customs of Lincoln County, Arkansas concerning when a person can be arrested as a result of probable cause to believe that they have committed an offense.
19. Prior to June 16, 2005, the Lincoln County Sheriff's Department had received various complaints concerning gambling activities at several locations in Lincoln County, Arkansas.
20. Sheriff McGee instructed Parker to begin an investigation concerning these complaints.
21. Parker began obtaining information concerning the alleged complaints and concluded that, among other persons, the plaintiffs were operating a gambling business at the "Echlin's Arcade."
22. As a result of the investigation, Parker concluded that the plaintiffs were operating a gambling business based upon the information of a reliable confidential informant.
23. After conducting an investigation, Parker completed an Affidavit for Search Warrant that he signed before the Honorable Jodi Raines Dennis, Lincoln County Circuit Court Judge.
24. After reviewing the Affidavit for Search Warrant, the Honorable Jodi Raines Dennis signed a Search Warrant authorizing the Lincoln County Sheriff's Department to conduct a search of 101 Reed Street, which is a duplex owned by the plaintiffs.
25. This Search Warrant was signed by the Circuit Court Judge on June 16, 2005, at 11:45 a.m. Furthermore, the Search Warrant was to be returned to the Court no later than sixty (60) days.
26. At approximately 5:00 p.m. on the 17th day of June, 2005, officers met to discuss the execution of the search warrants. A search warrant ops plan was prepared and ...