Pyle v. Woods ( 2017 )


Menu:
  •                                                                   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-