                                                                  FILED
                                                       United States Court of Appeals
                                                               Tenth Circuit

                                                            November 1, 2017
                                    PUBLISH                Elisabeth A. Shumaker
                                                               Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 RYAN PYLE and MARLON JONES,

             Plaintiffs - Appellants,
       v.                                        Nos. 15-4163 and 15-4187
 JAMES WOODS; KELVYN
 CULLIMORE; COTTONWOOD
 HEIGHTS,

           Defendants - Appellees.
 __________________________

 AMERICAN CIVIL LIBERTIES UNION
 OF UTAH; AMERICAN CIVIL
 LIBERTIES UNION OF COLORADO;
 AMERICAN CIVIL LIBERTIES UNION
 OF KANSAS; AMERICAN CIVIL
 LIBERTIES UNION OF NEW MEXICO;
 AMERICAN CIVIL LIBERTIES UNION
 OF OKLAHOMA; AMERICAN CIVIL
 LIBERTIES UNION OF WYOMING;
 AMERICAN CIVIL LIBERTIES UNION,

             Amici Curiae.



       APPEALS FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF UTAH
          (D.C. NOS. 2:15-CV-00143-TC & 2:15-CV-00278-TS)


Scott Michelman, Public Citizen Litigation Group, Washington, D.C. (Taylor B.
Ayres, Ayres Law Firm, Draper, Utah; Scott C. Borison, Legg Law Firm LLC,
San Mateo, California; and Scott L. Nelson, Public Citizen Litigation Group,
Washington, D.C., with him on the briefs), for Appellants.

J. Michael Hansen, Nelson Jones, PLLC, Sandy, Utah (David C. Richards and
Sarah Elizabeth Spencer, Christensen & Jensen, P.C., Salt Lake City, Utah, with
him on the brief), for Appellees.

Nathan Freed Wessler, American Civil Liberties Union Foundation, New York,
New York; Leah Farrell and John Mejia, ACLU of Utah Foundation, Inc., Salt
Lake City Utah; Mark Silverstein and Sara R. Neel, American Civil Liberties
Union Foundation of Colorado, Denver, Colorado; Stephen Douglas Bonney,
ACLU Foundation of Kansas, Overland Park, Kansas; Alexandra Freedman
Smith, ACLU of New Mexico Foundation, Albuquerque, New Mexico; Brady R.
Henderson, ACLU of Oklahoma Foundation, Oklahoma City, Oklahoma; and
Courtney A. Bowie, American Civil Liberties Union of Wyoming, Cheyenne,
Wyoming, on the brief for Amici Curiae in support of Appellants.


Before BRISCOE, MURPHY, and PHILLIPS, Circuit Judges.


MURPHY, Circuit Judge.




I.    Introduction

      After Detective James Woods accessed a state database containing the

prescription drug records of Plaintiffs Ryan Pyle and Marlon Jones, Pyle and

Jones brought separate lawsuits pursuant to 42 U.S.C. § 1983, each challenging

Defendants’ conduct as violative of the Fourth Amendment and the Fair Credit

Reporting Act (“FCRA”). In both suits, the district court dismissed the claims

against Defendant Woods, concluding Woods was entitled to qualified immunity

because the law governing warrantless access to prescription drug information by

                                       -2-
law enforcement was not clearly established. The district court also dismissed the

FCRA claims because Defendants’ actions fit within an exemption set out in the

Act.

       In Jones’s suit, the district court dismissed the constitutional claims against

the city of Cottonwood Heights with prejudice because Jones’s complaint failed

to state a claim for municipal liability plausible on its face. In Pyle’s suit, the

district court dismissed the constitutional claims against Cottonwood Heights

without prejudice, concluding Pyle failed to notify the Utah Attorney General of

those claims as required by Rule 5.1 of the Federal Rules of Civil Procedure.

       Pyle and Jones each appealed. Exercising jurisdiction pursuant to 28

U.S.C. § 1291, we affirm the district court’s judgments. 1

II.    Factual Background

       The Utah Controlled Substance Database (the “Database”) was created in

1995 pursuant to the Utah Controlled Substance Database Act (the “Database

Act”). Utah Code Ann. §§ 58-37f-101, -201. The Database is administered by

the Utah Department of Occupational and Professional Licensing (“DOPL”) and

contains data “regarding every prescription for a controlled substance dispensed

in the state [of Utah] to any individual other than an inpatient in a licensed health

care facility.” Id. § 201(5). At the time of the events giving rise to this appeal,


       1
      The motion of the ACLU et al. for leave to file a brief, as amici curiae, is
granted.

                                           -3-
the Database Act permitted “local law enforcement authorities” to access the

Database without a warrant. 2 Id. § 58-37f-301(2)(i) (2013).

      Defendant James Woods is a detective in the Cottonwood Heights Police

Department. In April 2013, Woods was informed by Utah’s Unified Fire

Authority (“UFA”) that medications, including opioids and sedatives, were

missing from several UFA ambulances. Detective Woods received a list of 480

UFA employees with access to the ambulances from Robbie Russo, the

Cottonwood Heights Chief of Police. Russo had obtained the list from Defendant

Kelvyn Cullimore, the Mayor of Cottonwood Heights. Detective Woods accessed

the Database and searched the prescription drug records of 480 UFA employees in

an effort to “develop suspect leads of those who have the appearance of Opioid

dependencies.” Consistent with Utah law at the time, Woods did not obtain a

search warrant before accessing the Database. Based on the information Woods

obtained from the Database search, he developed suspicions about Plaintiffs Pyle


      2
       The Database Act was later amended to add a warrant requirement. Utah
Code Ann. § 58-37f-301(2)(k) (2016). In 2016, the Drug Enforcement
Administration (“DEA”) filed a Petition in the United States District Court for the
District of Utah challenging the warrant requirement and arguing administrative
subpoenas issued by the DEA are sufficient to gain access to the Database. DEA
v. Utah Dep’t of Commerce et al., No. 2:16-cv-611, 2017 WL 3189868 (D. Utah
July 27, 2017). The district court issued a memorandum decision and order on
July 27, 2017, granting the DEA’s Petition to Enforce the Administrative
Subpoenas. Id. The Utah district court’s ruling that the DEA may access the
Database without a warrant is consistent with a recent ruling from the Ninth
Circuit Court of Appeals. See Or. Prescription Drug Monitoring Program v.
DEA, 860 F.3d 1228 (9th Cir. 2017).

                                        -4-
and Jones. Neither Plaintiff, however, was ever prosecuted for the thefts from the

ambulances.

      Pyle and Jones filed separate, but substantially similar, suits against

Detective Woods, Mayor Cullimore, and the city of Cottonwood Heights,

alleging, inter alia, violations of their Fourth Amendment rights because Woods

did not obtain a search warrant before accessing the Database. Plaintiffs also

alleged violations of the FCRA. Defendants filed motions to dismiss both

matters, 3 arguing, inter alia, (1) Plaintiffs’ constitutional rights were not violated,

(2) the individual defendants were entitled to qualified immunity, and (3) the

FCRA does not prohibit a search of the Database under the facts at issue.

      Defendants’ motion to dismiss was granted in the Pyle matter. As to Pyle’s

Fourth Amendment claims against Woods and Cullimore, the district court

concluded those defendants were entitled to qualified immunity because the law

on the constitutionality of a warrantless search of the Database was not clearly

established. The court dismissed Pyle’s municipal liability claim against the city

of Cottonwood Heights without prejudice, concluding the claim implicated the

constitutionality of the Database Act and Pyle failed to notify the Utah Attorney

General of the claim, as required by Rule 5.1(a)(1) of the Federal Rules of Civil

Procedure. Finally, the district court dismissed the FCRA claim because



      3
          The suits were assigned to two different district court judges.

                                           -5-
Defendants’ conduct fell within an exception to the definition of “consumer

report.”

       Defendants’ motion to dismiss Jones’s lawsuit was also granted. As in the

Pyle matter, the district court concluded Detective Woods and Mayor Cullimore

were entitled to qualified immunity because the constitutional right at issue was

not clearly established. The court dismissed the municipal liability claim against

the city of Cottonwood Heights on the ground that Jones did not identify any

municipal policy or show a link between a policy or custom and any injury caused

by the alleged Fourth Amendment violation. The district court concluded

Defendants’ actions were exempt under the FCRA and dismissed that claim also.

       The two cases have been consolidated for purposes of appeal. Neither

Plaintiff appeals from the dismissal of the Fourth Amendment claims against

Mayor Cullimore.

III.   Discussion

       A. Qualified Immunity

       Qualified immunity is a defense that shields “governmental officials

performing discretionary functions . . . from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). Detective Woods raised a qualified immunity defense to

the Fourth Amendment claims asserted against him by Pyle and Jones and sought

                                         -6-
dismissal of the claims. “When a defendant raises a claim of qualified immunity,

the burden shifts to the plaintiff to show that the defendant is not entitled to that

immunity.” Douglas v. Dobbs, 419 F.3d 1097, 1100 (10th Cir. 2005).

      The qualified immunity test is a two-part inquiry involving the questions of

whether the defendant violated the constitutional rights of the plaintiff and

whether such rights were clearly established at the time of the defendant’s

conduct. Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009). In each case, the

district court addressed only the second prong, concluding the constitutionality of

a warrantless search of a prescription drug database was not clearly established

and, thus, Woods was entitled to qualified immunity. This court has the

discretion to determine “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.” Id. at 236. The matters before this court involve a situation “in

which it is plain that a constitutional right is not clearly established but far from

obvious whether in fact there is such a right.” Id. at 237. Accordingly, under the

circumstances, we will also address only the second prong of the qualified

immunity test.

      Whether a constitutional right is clearly established is a question of law

which we review de novo. Johnson v. Martin, 195 F.3d 1208, 1215-16 (10th Cir.

1999). Our analysis focuses on whether, at the time of the incident, “every

reasonable official would have understood that what he is doing violates” the

                                          -7-
constitutional right at issue. Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)

(quotations and alteration omitted). A reasonable official possesses this

understanding if “courts have previously ruled that materially similar conduct was

unconstitutional, or if a general constitutional rule already identified in the

decisional law applies with obvious clarity to the specific conduct at issue.” Buck

v. City of Albuquerque, 549 F.3d 1269, 1290 (10th Cir. 2008) (quotation and

alternation omitted). To resolve the question, therefore, we must determine

whether “a Supreme Court or Tenth Circuit decision on point, or the clearly

established weight of authority from other courts . . . have found the law to be as

the plaintiff maintains.” Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010)

(quotation omitted). The law is not clearly established unless this precedent

“place[s] the statutory or constitutional question beyond debate.” Ashcroft v. al-

Kidd, 563 U.S. 731, 741 (2011).

      “The touchstone of Fourth Amendment analysis is whether a person has a

constitutionally protected reasonable expectation of privacy.” California v.

Ciraolo, 476 U.S. 207, 211 (1986) (quotation omitted). Both Plaintiffs assert they

had a reasonable expectation of privacy in their prescription drug records and,

thus, the warrantless search of the Database conducted by Detective Woods

necessarily violated their Fourth Amendment rights. According to Plaintiffs, the

issue of whether they had a reasonable expectation of privacy is beyond debate

because it was definitively decided by this court in Douglas. 419 F.3d at 1099.

                                          -8-
      In Douglas, the plaintiff brought suit under 42 U.S.C. § 1983, alleging her

civil rights were violated when defendants conducted a search of her pharmacy

records pursuant to a warrant issued by a magistrate. Id. at 1099-1100. The

Douglas plaintiff claimed the Assistant District Attorney violated her Fourth

Amendment rights “by authorizing the submission of the Motion and proposed

Order to the magistrate judge to obtain approval” to conduct the search. Id. at

1100. Relying on the Supreme Court’s opinion in Whalen v. Roe, this court held

that the right to privacy protecting the disclosure of medical information extended

to an individual’s prescription drug records. Id. at 1102; see also Whalen v. Roe,

429 U.S. 589, 599-600 (1977) (considering whether a state’s assembling of

prescription information into a database violated the privacy rights of doctors and

patients). The Douglas court, however, made it clear that a plaintiff alleging a

Fourth Amendment violation is not entitled to relief “merely upon identifying an

abstract right to privacy protected by the Fourth Amendment.” Douglas, 419 F.3d

at 1103. A plaintiff must also show that the defendant’s actions violated the right

at issue. Id. at 1102-03.

      Here, Plaintiffs allege Detective Woods violated their Fourth Amendment

rights by searching the Database for their prescription drug information without a

warrant. Plaintiffs concede that this court has never directly addressed whether a

warrantless search by law enforcement of a patient’s prescription records in a

state database violates the Fourth Amendment but they are correct that “a case

                                         -9-
directly on point” is not required. Al-Kidd, 563 U.S. at 741. Plaintiffs must only

identify existing precedent that “place[s] the . . . constitutional question beyond

debate.” Id. They assert two legal propositions, taken together, provided a clear

answer to the Fourth Amendment question at the time Woods conducted the

warrantless search of the Database, namely: (1) individuals have a

constitutionally protected privacy right in their prescription drug records and (2)

warrantless searches violate the Fourth Amendment absent an exception. This

argument is unavailing.

      In Douglas, this court stated that any right to privacy in prescription drug

records “is not absolute . . . as it is well settled that the State has broad police

powers in regulating the administration of drugs by the health professions.” 419

F.3d at 1102 n.3 (quotation omitted). It is uncontested that Detective Woods

accessed the Database as part of an investigation into the theft of narcotics from

UFA vehicles. More than ten years ago, this court recognized that “[w]hether a

warrant is required to conduct an investigatory search of prescription records . . .

is an issue that has not been settled.” Id. at 1103. Because, as we have held, the

right to privacy in prescription drug records is not absolute, Plaintiffs’ two-part

paradigm does not provide an answer to the constitutional question. Instead,

resolution of the issue will involve a determination of the scope of the

constitutionally protected privacy right. At the time Detective Woods accessed

the Database to search Plaintiffs’ records, no court had conducted the necessary

                                           -10-
analysis and no judicial opinion held that a warrantless search of a prescription

drug database by state law enforcement officials is unconstitutional. 4

      Our precedent makes clear that any right to privacy in prescription drug

records is not absolute under the circumstances present here. Neither Plaintiffs’

two-part paradigm nor existing precedent places the Fourth Amendment question

beyond debate. Accordingly, Plaintiffs cannot show Detective Woods acted

contrary to clearly established law and Woods is entitled to qualified immunity on

the claim he violated Plaintiffs’ Fourth Amendment rights by accessing the

Database without a warrant.

      B. Municipal Liability

      Qualified immunity is not available as a defense to municipal liability.

Owen v. City of Independence, 445 U.S. 622, 637-38 (1980); Mocek v. City of

Albuquerque, 813 F.3d 912, 933 (10th Cir. 2015). Thus, our conclusion the law

was not clearly established at the time Detective Woods accessed the Database

without a warrant does not resolve the claims against the city of Cottonwood




      4
       After Detective Woods accessed the database, the United States District
Court for the District of Oregon concluded individuals have an objectively
reasonable expectation of privacy in their prescription information. Or.
Prescription Drug Monitoring Program v. DEA, 998 F. Supp. 2d 957, 966 (D. Or.
2014). It further concluded the DEA’s use of administrative subpoenas to access
prescription records violates the Fourth Amendment. Id. at 967. The latter ruling
was reversed by the Ninth Circuit Court of Appeals. See Or. Prescription Drug
Monitoring Program v. DEA, 860 F.3d 1228 (9th Cir. 2017); infra n.2.

                                        -11-
Heights. Those claims were resolved in two different ways by the two different

district court judges.

      In the Pyle matter, the district court refused to address the issue of whether

Cottonwood Heights violated Pyle’s constitutional rights. The court, instead,

dismissed the claims without prejudice because Pyle failed to notify the Utah

Attorney General of the lawsuit as required by Rule 5.1 of the Federal Rules of

Civil Procedure.

      Rule 5.1 requires a party “drawing into question the constitutionality of a

. . . state statute” to “promptly” notify the state attorney general of the lawsuit

and the question raised. Fed. R. Civ. P. 5.1(a)(2). Pyle argues he was not

required to file a Rule 5.1 notice because he is only challenging the actions of the

Defendants, not the constitutionality of the Database Act. The district court

considered and rejected this argument, noting that allegations in Pyle’s complaint

and arguments he made in opposition to Defendants’ Rule 12(b)(6) motion left

“no doubt” Pyle was challenging the constitutionality of the Database Act. 5 The

district court is correct. Because Detective Woods acted in reliance on the

Database Act when he accessed the Database without a warrant, if his actions are

unconstitutional then the Database Act, which permitted him to do so, is also

      5
       As the district court noted, Pyle’s brief in opposition to Defendants’
motion specifically states: “If [the Database Act] allows government agents to
obtain confidential and sensitive medical records in criminal investigations
without a warrant or even reasonable suspicion of a crime then it does not comply
with the U.S. and Utah Constitutions . . . .”

                                          -12-
unconstitutional. Accordingly, Pyle was required by Rule 5.1 to notify the Utah

Attorney General of his lawsuit and the district court did not err by dismissing his

claims against Cottonwood Heights without prejudice.

      Jones filed the required Rule 5.1 notice on October 29, 2015, two months

after briefing was completed on Defendants’ Rule 12(b)(6) motion to dismiss. 6

Rule 5.1(c) requires that a district court give a state attorney general sixty days to

intervene in the matter before “enter[ing] a final judgment holding the statute

unconstitutional.” Fed. R. Civ. P. 5.1(c). If the court “reject[s] the constitutional

challenge,” however, it may act within the sixty-day period. Id. Here, the Utah

Attorney General received the Rule 5.1 notice via certified mail on November 9,

2015, less than one week before the district court ruled on Defendants’ motion to

dismiss. Cottonwood Heights argues the notice was not “promptly” filed, as

required by Rule 5.1(a). Any delay in filing the Rule 5.1 notice, however, did not

hinder Utah’s ability to defend the statute at that time because the district court

granted the motion to dismiss, concluding the allegations in Jones’s complaint did

not satisfy the pleading requirements for municipal liability.

      On appeal, Jones challenges the dismissal of his municipal liability claims

with prejudice, arguing the dismissal can be affirmed only if it is both “patently

obvious” that he cannot prevail on the allegations contained in the complaint and

      6
       From the timing of the notice, it appears Jones filed the Rule 5.1 notice in
response to the district court’s identification of the omission in its October 1,
2015, ruling in the Pyle matter.

                                         -13-
that amendment of the complaint would be futile. See McKinney v. Okla. Dep’t of

Human Servs., 925 F.2d 363, 366 (10th Cir. 1991). “[A] complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements” are not sufficient to state a claim for relief. Id.

      Municipalities can be liable under 42 U.S.C. § 1983 only for their own

unlawful acts. Connick v. Thompson, 563 U.S. 51, 60 (2011). Accordingly, to

prove a § 1983 claim against a municipality, a plaintiff must show the existence

of a municipal policy or custom which directly caused the alleged injury. City of

Canton v. Harris, 489 U.S. 378, 385 (1989). A policy or custom includes a

formal regulation or policy statement, an informal custom that amounts to a

widespread practice, decisions of municipal employees with final policymaking

authority, ratification by final policymakers of the decisions of subordinates to

whom authority was delegated, and the deliberately indifferent failure to

adequately train or supervise employees. Brammer-Hoelter v. Twin Peaks

Charter Academy, 602 F.3d 1175, 1189 (10th Cir. 2010).




                                           -14-
      Here, the district court concluded Jones’s complaint failed to adequately

allege either a municipal policy, or a link between a policy or custom and the

alleged injury. Jones argues his complaint is sufficient because it contains an

allegation it was the policy of Cottonwood Heights to query employees’

prescription drug records without a warrant. It is true Jones’s complaint does so

allege, but this allegation is the type of “formulaic recitation of the elements of a

cause of action” that is insufficient to meet the Twombly pleading standard. 550

U.S. at 555.

      Jones’s complaint contains insufficient factual allegations to support an

inference that Detective Woods was following a policy or custom when he

accessed Jones’s information in the Database. Jones’s assertion Chief Russo and

Mayor Cullimore were personally involved in supplying the list of UFA

employees to Woods is unavailing because the complaint does not allege that

those acts, or any other acts Chief Russo or Mayor Cullimore purportedly took in

relation to Detective Woods’s search of the Database, 7 were taken pursuant to a


      7
       We only consider the factual allegations related to the search of the
Database because Jones expressly abandoned all federal constitutional claims
except his Fourth Amendment claims. In his memorandum in opposition to
Defendants’ motion to dismiss, Jones referenced several paragraphs in his
complaint that allegedly support the propositions that Mayor Cullimore “directed
and approved the actions of . . . Chief of Police Russo and Detective Woods” and
that Mayor Cullimore and Chief Russo initiated and implemented policies and
procedures that disregarded Jones’s constitutional rights. The referenced
paragraphs, however, contain unrelated facts and appear to have been cited in
error.

                                         -15-
policy or custom. Accordingly, we agree with the district court that Jones’s

complaint does not contain factual allegations sufficient to support a plausible

inference that a municipal policy directly caused the injuries Jones allegedly

suffered.

      Jones is correct that the district court sua sponte dismissed his claims

against Cottonwood Heights as inadequately pled without first giving him an

opportunity to amend the complaint. He asks this court to remand the matter to

the district court so he may be given that opportunity. We deny the request.

      After the district court issued its memorandum decision but before

judgment was entered, Jones had an opportunity to file a motion seeking to amend

his complaint to clarify his factual allegations against Cottonwood Heights. See

Fed. R. Civ. P. 15(a)(2) (providing a party may move to amend his complaint at

any time before judgment is entered); Ideal Steel Supply Corp. v. Anza, 652 F.3d

310, 325 (10th Cir. 2011) (“Prior to trial, after the time to amend as of right has

passed, the court should freely give leave to amend when justice so requires . . . .”

(quotation and alterations omitted)). Jones, however, did not file a Rule 15(a)(2)

motion. Instead, he filed a notice of appeal, presumably choosing to stand on his

complaint rather than amend it. 8 As we have concluded, that litigation strategy


      8
       The district court’s memorandum and order was docketed on November
16, 2015. Final judgment was not entered until December 16, 2015.
Accordingly, Jones had a full month in which to file a Rule 15(a)(2) motion.
Instead, he filed a notice of appeal on December 11, 2015.

                                         -16-
has not produced the result Jones hoped for. The courts of appeals are not

second-chance forums where litigants, whose appellate arguments are deemed

unavailing, are given the opportunity to relitigate their cases in ways previously

available to them. Jones’s request for a remand to provide him an opportunity to

amend his complaint is denied because, rather than seek that relief from the

district court when it was available to him, he instead chose to appeal the

dismissal of his original complaint.

      C. The Fair Credit Reporting Act

      In addition to their constitutional claims, Jones and Pyle alleged

Defendants violated their rights under the FCRA. Both Plaintiffs asserted

Defendants’ actions failed to comply with the requirements of 15 U.S.C. § 1681b,

which permits a consumer reporting agency to furnish a consumer report only

under specifically delineated circumstances. The district court assumed, without

deciding, that the DOPL is a consumer reporting agency and the information in

the Database is a consumer report. It nevertheless dismissed the FCRA causes of

action for failure to state a claim, concluding the communications from the

Database were exempt under the Database Act because they were made in

connection with an investigation of suspected misconduct relating to employment.

See 15 U.S.C. § 1681a(y)(1)(B)(ii).

      On appeal, Plaintiffs argue the 15 U.S.C. § 1681a(y) exception is

inapplicable because the term “investigation” as used in that section should be

                                        -17-
read to incorporate a requirement of individualized suspicion. They assert any

investigation must involve a preexisting suspicion of a particular individual. This

argument finds no support in either the FCRA or the case law. And Plaintiffs’

“fishing expedition” argument rings hollow in this situation where Detective

Woods narrowed his search to those UFA employees who had access to the

ambulances from which the drugs were stolen. Accordingly, we can find no

reversible error in the district court’s dismissal of Plaintiffs’ FCRA claims and

that dismissal is affirmed for substantially the reasons stated by the court in its

orders dated October 1, 2015, and November 16, 2015.

IV.   Conclusion

      In Pyle’s appeal (Appeal No. 15-4163), the district court’s October 2, 2015,

judgment granting qualified immunity to Detective Woods, dismissing the Fourth

Amendment claims against Cottonwood Heights without prejudice, and

dismissing the FCRA claims with prejudice is affirmed. In Jones’s appeal

(Appeal No. 15-4187), the district court’s December 16, 2015, judgment granting

qualified immunity to Detective Woods, dismissing the Fourth Amendment claims

against Cottonwood Heights for failure to state a claim, and dismissing the FCRA

claims with prejudice is also affirmed.




                                          -18-
