MEMORANDUM OPINION AND ORDER
Pending before the Court is the August 3rd motion for summary judgment filed by Smith, Free, and Anderson which is supported by brief, exhibits, and a separate statement of undisputed facts. Plaintiffs have not responded to this motion.*fn1
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 Smith and others 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. Plaintiffs also allege that Anderson was deliberately indifferent in failing to adequately train, supervise and discipline Free and in failing to take remedial measures to prevent acts of false arrest, false imprisonment and malicious prosecution of citizens having knowledge of such propensities by Free. They contend that Free, in turn, failed to do the same regarding Smith.
By order filed on July 27th, the Court granted a motion for summary judgment filed by the Lincoln County defendants finding there was probable cause for the search warrant and the arrests so those defendants were entitled to qualified immunity in their individual capacities and also in their official capacities. Pursuant to 28 U.S.C. § 1367(c)(3), the Court declined to exercise supplemental jurisdiction and dismissed the pendent state claims without prejudice.
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 As plaintiffs have failed to filed a controverting statement, the following facts are deemed admitted:
1. Plaintiffs, who are husband and wife, are suing these Separate Defendants for a search of their business in June 2005 and for their subsequent arrests.
2. This Court dismissed all federal claims against the other Separate Defendants and dismissed without prejudice all pendent state law claims.
3. During all times relevant to this Complaint, David Anderson was the Mayor of the City of Monticello, Tommy Free was the Chief of Police, and Larry Smith was a Sergeant for the Monticello Police Department.
4. None of these Separate Defendants actively participated in the investigation of the Plaintiffs' activities, and none of these Separate Defendants participated in the securing of any search warrants of the Plaintiffs' property.
5. None of these Defendants arrested the Plaintiffs, as evidenced by Larry Echlin's July 5, 2007 affidavit wherein he admitted he was arrested by police officers ...