Full opinion text
MEMORANDUM OPINION AND ORDER DEMENT, Senior District Judge. I. INTRODUCTION Before the court is a motion for summary judgment (Doc. No. 56), filed by Defendants the City of Montgomery, Chris Wingard and J.T. Conway. A brief and an evidentiary submission accompany the motion. (Doc. No. 57). Plaintiffs Urbanique Productions/Music Publishing, Cleveland Jointer and Xavier Jointer submitted a memorandum in response and an evidentiary submission (Doc. No. 59) to which Defendants filed a reply. (Doc. No. 60.) This lawsuit arises from events pertaining to the warrant search of Jointer’s and Cleveland Jointer’s residence from which Jointer and Cleveland Jointer also operated a business called “Urbanique,” Jointer’s warrantless arrest at the scene of the search, the dismissal in federal court of the criminal complaint against Jointer, and the subsequent state prosecution of Jointer. Plaintiffs bring Fourth Amendment and Fourteenth Amendment claims, as enforced by 42 U.S.C. § 1983 (“ § 1983”), against Defendants for unlawful search, false arrest, excessive force, malicious and retaliatory prosecution, and race discrimination, as well as state law claims for municipal tort liability, false imprisonment, assault and battery, and wantonness. Defendants move for summary judgment on all claims, and the Individual Defendants have raised qualified immunity as a defense to the § 1983 constitutional claims. After careful consideration of the arguments of counsel, the relevant law and the record as a whole, the court finds that summary judgment is due to be entered in Defendants’ favor on Plaintiffs’ constitutional claims under § 1983 and that Plaintiffs’ state law claims are due to be dismissed without prejudice pursuant to 28 U.S.C. § 1367(c)(3). II. JURISDICTION AND VENUE The court properly exercises subject matter jurisdiction over this action, pursuant to 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1343 (civil rights jurisdiction), and 28 U.S.C. § 1367 (supplemental jurisdiction). The parties do not contest personal jurisdiction or venue, and the court finds adequate allegations of both. III. STANDARD OF REVIEW A court considering a motion for summary judgment must construe the evidence and make factual inferences in the light most favorable to the nonmoving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Summary judgment is entered only if it is shown “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). At this juncture, the court does not “weigh the evidence and determine the truth of the matter,” but solely “determinefs] whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted). This determination involves applying substantive law to the substantive facts that have been developed. A dispute about a material fact is genuine if a reasonable jury could return a verdict for the nonmoving party, based on the applicable law in relation to the evidence developed. See id. at 248, 106 S.Ct. 2505; Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548. “[T]he burden on the moving party may be discharged by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325, 106 S.Ct. 2548. The burden then shifts to the nonmoving party, which “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment will not be entered unless the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party. See id. at 587, 106 S.Ct. 1348. IY. STATEMENT OF FACTS Viewed in the light most favorable to Plaintiffs, the following facts constitute the facts material to resolution of the instant motion for summary judgment. Jointer co-owns a “business venture” with his brother, Cleveland Jointer. (2nd Am. Compl. ¶ 5.) The business venture is named “Urbanique.” (Id.) Jointer describes the business as a “small recording studio, where we make music, engineer, mix and master audio.” (Jointer Aff. at 2 (unnumbered page) (Pis. Ex. A to Doe. No. 59)); (see also 2nd Am. Compl. ¶ 5.) Jointer and Cleveland Jointer live and operate their business from their residence located at 3610 Castle Ridge Road. (Jointer Aff. at 2-3.) Jointer, Cleveland Jointer and Urbanique are Plaintiffs in this lawsuit. Plaintiffs have sued Conway and Wingard, both of whom at all relevant times were police officers with the Montgomery Police Department (“MPD”) assigned to the MPD’s Special Operations Division, Narcotics and Intelligence Bureau (“Narcotics Bureau”). (2nd Am. Compl. ¶¶ 7-8.) Conway and Wingard are sued in their individual capacities for monetary damages. (Id. & damages demand at 7-10.) The City of Montgomery also is a defendant. (Id. ¶ 6.) On July 17, 2003, Conway obtained a search warrant for the premises of 3610 Castle Ridge Road, Montgomery, Alabama. (Search Warrant (Ex. 1 to Doc. No. 57).) In support of the search warrant, Conway submitted an affidavit. (Aff. in support of Search Warrant (Ex. 2 to Doc. No. 57).) In his affidavit, Conway sets forth that, at that time, he had attained the rank of corporal and was a 15-year MPD veteran, having worked the past 10 of those years in the MPD’s Narcotics Bureau. The affidavit establishes that Conway, acting in an undercover capacity, made two controlled drug buys in July 2003. (Id. at 1.) On the first occasion, Conway met with two individuals identified only as “a white male” and “a white female” for the purpose of purchasing cocaine from them. (Id.) The white male was given $140.00 of MPD “buy money.” (Id.) Before departing, the white male and the white female instructed Conway to meet them in 30 minutes at a local restaurant. Law enforcement officials followed the white male and white female, who were traveling together in a single vehicle, to an apartment with an address of 3610 Castle Ridge Road. Law enforcement officials observed the white female exit the vehicle and enter the apartment for “[a] short time,” before returning to the vehicle. (Id.) Still under law enforcement surveillance, the two subjects met Conway and gave him approximately two grams of cocaine. (Id.) On the second occasion in July 2003, Conway met with the same white male at a local restaurant, again for the purpose of buying cocaine. This time, the white male was accompanied by an “unknown black male.” (Id.) Conway gave the white male $280.00 of MPD “buy money.” (Id.) Unbeknownst to the white male and the black male, law enforcement officials followed the vehicle in which the suspects were traveling to the same apartment at 3610 Castle Ridge Road. The black male exited the vehicle, entered the apartment for “a short time” and returned to the vehicle. (Id. at 2.) These two individuals were followed by law enforcement officials to the restaurant at which time the white male exited his vehicle and got into the vehicle in which Conway was waiting. The white male gave Conway approximately five grams of “crack cocaine.” (Id.) During this second drug transaction, the white male informed Conway that his source had available for sale ounce and kilogram quantities of cocaine. (See id.) Based on the information in Conway’s affidavit, Patrick J. Murphy, in his capacity as magistrate for the Municipal Court of the City of Montgomery, Alabama, signed the search warrant, authorizing the “immediate search” of the residence at 3610 Castle Ridge Road, for the following property: “controlled substances, controlled substance paraphernalia, drug related documents, monies, drug records,” and other drug-related items listed in an attachment to the warrant. (Id.) The search warrant was executed on July 25, 2003, by Conway, Wingard and other members of the MPD Narcotics Bureau. Seized from the apartment were the following: approximately 331 grams of cocaine base; 61 grams of cocaine; two assault rifles; three handguns; $2185.00 in U.S. currency; and electronic equipment related to the business of Urbanique. (Criminal Compl. at 2-3 (Ex. to Doc. No. 57)); (Jointer Aff. at 6. (Ex. to Doc. No. 59).) Jointer was the only individual on the premises at 3610 Castle Ridge Road when Conway, Wingard and other officers executed the search warrant. Jointer was arrested almost immediately after the officers entered the residence. With his hands on the back of his head, Jointer walked a few steps into the living room where the officers surrounded him. He was placed in handcuffs, “as an officer stood over [him] with his foot on the back of [his] neck.” (Jointer Aff. at 2.) Wingard then shouted, “I got him,” and “picked [Jointer] up off the floor and escorted [him] outside.” (Id.) Wingard drove Jointer, who was accompanied in the back of the van by four other officers, to the MPD narcotics headquarters. At the narcotics headquarters, Jointer’s handcuffs were removed, and Jointer was asked general questions regarding his identity, his address and occupation. Responding, Jointer informed Wingard that he and his brothér (Cleveland Jointer) lived at 3610 Castle Ridge Road and that the two of them owned a “small recording studio.” (Id.) While being booked, Jointer was informed by Wingard that a large quantity of cocaine and some firearms had just been found in Jointer’s apartment. Jointer denied knowledge of these items. Jointer did not give a further statement, but rather signed a Miranda rights form, pleading the Fifth Amendment. (Id. at 3.) At that time, Wingard told Jointer that the “feds” would be notified. (Id.) Wingard handcuffed Jointer, with his hands in front, and Jointer was held for six to seven hours before he was transported by federal authorities to the Montgomery City Jail. (Id.) Subsequent to Jointer’s arrest, but also on July 25, 2003, Wingard filed an affidavit in support of a criminal complaint against Jointer in the United States District Court for the Middle District of Alabama. Based upon the affidavit “sworn” and “subscribed” before her, Honorable Vanzetta Penn McPherson, U.S. Magistrate Judge (“Magistrate Judge McPherson”), issued an arrest warrant for Jointer to answer a criminal complaint charging him with “knowingly and intentionally possessing] with intent to distribute 50 or more grams of cocaine base, a Schedule II Controlled Substance,” in violation of 21 U.S.C. § 841(a)(1). (Criminal Compl. (Ex. to Doc. No. 57).) The affidavit consists of two-and-a-half pages of double-spaced, typewritten letter-size paper. (See id.) Therein, Wingard identifies himself as a detective employed by the MPD for six years. He describes the two drug buys, which Conway outlined in his affidavit in support of the search warrant. Wingard’s affidavit provides a few details not revealed in the search warrant affidavit. Wingard specifies the exact dates upon which the buys occurred, July 15, 2003, and July 16, 2003. As to the July 15 drug transaction, Wingard identifies the two sellers with whom Conway had contact as “Amanda Keller” and “Eric LNU” and reveals that Keller is the one whom the surveillance officers saw enter 3610 Castle Ridge Road. (Id. at 1.) Regarding the July 16 drug transaction, Wingard reveals that Conway was assisted by a MPD confidential informant and that “Eric LNU” is the individual who had direct contact with Conway concerning the purchase of cocaine and to whom Conway provided the buy money during the transaction. Wingard attests that a “black male” was in the vehicle with “Eric LNU,” but the affidavit reveals that Conway did not have contact with this “black male.” Rather, the “black male” remained in the vehicle, while Eric LNU walked across the parking lot and entered the back seat of the vehicle in which Conway was seated. (Id. at 2.) The affidavit also includes the following information as to the identity of Jointer: Through investigative means it was determined that black male, Xavier Jointer, lives at 3610 Castle Ridge Road, Montgomery, Alabama. Corporal Conway obtained a search warrant for 3610 Castle Ridge Road, Montgomery, Alabama. On July 25, 2003, members of the Special Operations Division executed the search warrant at 3610 Castle Ridge Road. Xavier Jointer was taken into custody at the residence.... Corporal Conway and Corporal S.P. Collins identified Xavier Jointer as the black male subject that [sic] was in the vehicle with Eric LNU on July 16, 2003. Corporal Collins also conducted the surveillance and observed Eric LNU and Xavier Jointer go to 3610 Castle Ridge Road, Montgomery, Alabama. (Id. at 2-3.) On July 28, 2003, the Monday following Jointer’s Friday arrest, Jointer was appointed counsel and was “informed” of the charges against him during his initial appearance in federal court. (Jointer Aff. at 3-4.) Thereafter, a preliminary hearing was scheduled for July 30, 2003, before Magistrate Judge McPherson. Jointer was detained pending the preliminary hearing. At this preliminary hearing, Wingard testified on behalf of the government. He relayed the substance of the two drug transactions. Wingard also testified that Jointer was asleep when the MPD Narcotics Bureau officers went to his residence to execute the search warrant, that Jointer was the only person in the residence, and that, when Wingard “found” Jointer, Jointer was in the hallway. (Preliminary H’rg Tr. at 11-12, 21, 24 (Ct.Ex. 1).) Wingard stated that weapons and cocaine were seized from one of the three bedrooms and that cocaine was found in a speaker which was in a second bedroom where various electronic equipment was kept. (Id. at 13-14, 23-24.) Firearms also were found in a hall closet. (Id. at 13.) Additionally, Wingard testified that Conway ascertained Jointer’s identity and place of residence prior to executing the search warrant. Namely, after viewing a photograph of Jointer, Conway determined that Jointer was the black male who had accompanied the white male during the second drug buy. (Id. at 28, 37-38.) According to Wingard, Conway also learned prior to executing the search warrant that Jointer lived in the apartment at 3610 Castle Ridge Road. (Id.) Furthermore, Wingard testified that, during the second drug transaction, the “black male,” who has been identified as Jointer, is the one who entered 3610 Castle Ridge Road. (Id. at 20.) At the conclusion of the evidence, Magistrate Judge McPherson dismissed the criminal complaint based upon her finding that probable cause for the warrantless arrest was lacking. (Id. at 38-39, 45.) At the hearing, Jointer was advised that the dismissal of the complaint did not preclude the government from later prosecuting him for the same offense. (Id. at 45); Fed. R. Cr. P.' 5.1(f) (a magistrate judge’s dismissal of a criminal complaint for lack of probable cause “does not preclude the government from later prosecuting the defendant for the same offense”). Thereafter, on January 15, 2004, Jointer was rearrested, but this time on a state charge premised on the same conduct underlying the dismissed federal criminal complaint. The arrest was made pursuant to a felony warrant obtained by Wingard “for Trafficking in Cocaine.” (MPD Offense Report ¶ 21) (Ex. 3 to Doc. No. 57); (Jointer Aff. at 6-7.) At the time, Jointer was living with his mother in her home. (Jointer Aff. at 7.) Jointer was arrested by Wingard and “forced in handcuffs” when he [Jointer] stepped outside of the door to his mother’s home. On January 16, 2004, Jointer was arraigned in state court, and bond was set at $100,000. (Jointer Aff. at 8.) At his preliminary hearing on February 20, 2004, the state judge reduced Jointer’s bond by half, but “bound the case over to the grand jury.” (Id. at 9.) Jointer remained in custody from the date of his arrest until July 23, 2004, when bond was posted on his behalf. (Id.) Seeking to vindicate their constitutional and state law rights, Plaintiffs filed this instant lawsuit. They originally proceeded in a pro se capacity, but now are assisted by counsel. In the operative complaint, which is the Second Amended Complaint, Plaintiffs bring constitutional claims, as enforced by § 1983, as well as state law claims. Plaintiffs’ § 1983 claims allege violations of the Fourth and Fourteenth amendments to the U.S. Constitution. Plaintiffs assert that the warrant search of 3610 Castle Ridge Road and the resulting arrests and prosecutions (both federal and state) of Jointer occurred in the absence of actual and arguable probable cause. (2nd Am. Compl. ¶¶ 26-34 (Doc. No. 47).) Plaintiffs also allege that the state prosecution was retaliatory, purportedly in violation of the Fourth Amendment (see id ¶ 31), and that Conway and Wingard are guilty of selective enforcement of law by engaging in racial profiling, in violation of the Fourteenth Amendment’s Equal Protection Clause. (See id ¶¶ 35-36.) The constitutional claims are brought against Conway and Wingard in their individual capacities. (See id. ¶¶ 7-8.) Plaintiffs also contend that the City of Montgomery has violated the Equal Protection Clause because it allegedly has in place a custom or policy which permits racial profiling and selective enforcement of the law on the basis of intentional race discrimination. (Id ¶¶ 35-46.) The remaining claims are state law claims for municipal tort liability, false imprisonment, assault and battery, and wantonness. (See id ¶¶ 39-46.) V. DISCUSSION Prior to discussing the specific claims before the court for resolution on summary judgment, it is necessary for the court to address two threshold issues. First, discerning the factual parameters of Plaintiffs’ Fourth and Fourteenth Amendment claims has proven to be a laborious and tedious task. Each count sets forth broad constitutional rights and asserted violations thereof and, for the most part, incorporates by reference all previous allegations regardless of their relevance. (See, e.g., 2nd Am. Compl. ¶¶ 26-38.) Plaintiffs’ method of pleading has made it very difficult for the court to ascertain exactly which facts Plaintiffs contend support their federal claims and which facts support their state law claims. The discussion in Plaintiffs’ brief also does not contain a clear delineation of the legal parameters and factual bases of the § 1983 Fourth Amendment and Fourteenth Amendment claims. Jointer’s affidavit, which is a primary piece of Plaintiffs’ opposition evidence, is equally disconsonant. The court, as it should, has devoted substantial time to a circumspect review of the specific causes of action asserted in the operative complaint and has attempted to correlate the factual evidence in the record to these causes of action. Below, as the court’s starting point of reference and guidepost, the court recites the specific allegations in each count before delving into its analysis of the merits of the claims. The court emphasizes that it has not considered any constitutional claim not specifically alleged in the operative complaint. To the extent, if any, that Plaintiffs have alluded to the other potential federal claims in their brief and evidence, those claims are not properly before the court and have not been considered by the court. See, e.g., Brown v. Snow, 440 F.3d 1259, 1266 (11th Cir.2006) (“[Djiscussion of a potential claim in a deposition does not satisfy the requirement of Rule 8(a)” of the Federal Rules of Civil Procedure for pleading a cause of action); Arnold v. Tuskegee Univ., Civ. A. No. 3:03cv515-F, 2006 WL 47507, *9 n. 8 (M.D.Ala. Jan. 9, 2006) (Fuller, Chief J.) (“It is axiomatic that a plaintiff cannot amend her complaint to add claims to an action by simply arguing the claims in a brief in opposition to summary judgment.”) (citing Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir.2004)). Second, it is unclear from the Second Amended Complaint which Plaintiffs are asserting which claims. The counts refer inconsistently, sometimes to “Plaintiff,” sometimes to “Plaintiffs,” and sometimes only to “Xavier Jointer.” For example, the first sentence under the “Fourth Amendment” cause of action refers to “Plaintiffs” in the plural form, but, in the same count, there also is a reference to “Plaintiff’ in the singular form, with no identifying description. However, all “[Pjlaintiffs” allege that they have suffered damages, but only “Xavier Jointer demands judgment” for monetary damages. (2nd Am.Compl.1N 26-30.) These pleading ambiguities give rise to potential standing issues; notably absent, though, is any discussion in the parties’ briefs on standing. See Arrington v. Helms, 438 F.3d 1336, 1341 n. 5 (11th Cir.2006) (“ ‘A party who invokes federal jurisdiction must establish that it has standing to assert its claim.’ ”) (quoting Nat’l Alliance for the Mentally Ill, St. Johns Inc. v. Bd. of County Comm’rs, 376 F.3d 1292, 1294 (11th Cir.2004)). While this court has serious reservations regarding Cleveland Jointer’s and Urbanique’s standing as to the majority of the constitutional claims, in particular the Fourth Amendment claims pertaining to Jointer’s alleged false arrests and malicious prosecutions, see U.S. v. Fredericks, 586 F.2d 470, 480 (5th Cir.1978) (holding that “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted”), the court finds that it is unnecessary to resolve any issues of standing because of the disposition of this case on other grounds. A. § 1983 Fourth and Fourteenth Amendment Claims against Conway and Wingard in their Individual Capacities Conway and Wingard raise qualified immunity as a defense to Plaintiffs’ § 1983 constitutional claims brought against them for monetary damages in their individual capacities. (Answer, “Affirmative Defenses,” ¶ 3 (Doc. No. 48)); (Defs. Br. at 7-11 (Doc. No. 57).) Conway and Wingard assert that they have demonstrated, and that Plaintiffs have not disputed, that they were acting within “the line and scope of their duties” during the events giving rise to this lawsuit. (Defs. Br. at 8 (Doc. No. 57).) Furthermore, the Individual Defendants contend that Plaintiffs’ reliance on “conclusory statements” is insufficient to satisfy Plaintiffs’ burden of demonstrating the existence of a constitutional violation, (id. at 9), and that Plaintiffs have failed to present “the factual detail necessary” to demonstrate the violation of a clearly-established constitutional right under either the Fourth Amendment or the Fourteenth Amendment. (Id. at 9,11.) Plaintiffs, on the other hand, contend that Conway and Wingard are not entitled to qualified immunity because, viewed in the light most favorable to them, the facts show that the officers lacked probable cause to search 3610 Castle Ridge Road and to arrest and prosecute Jointer. The court will address each claim separately after setting forth the general principles of law on qualified immunity. 1. Qualified Immunity Principles A government official may raise qualified immunity as an affirmative defense to a § 1983 individual-capacity lawsuit. Wilson v. Strong, 156 F.3d 1131, 1135 (11th Cir.1998). Pursuant to the doctrine of qualified immunity, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established ... constitutional rights of which a reasonable person should have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity bestows upon government officials a well-established “right” to avoid the burdens, costs and time of trial when the government official does not violate clearly-established constitutional norms. See Cottrell v. Caldwell, 85 F.3d 1480, 1487 (11th Cir.1996) (“[i]n cases where defendants are entitled to qualified immunity, it is imperative that they receive the benefits of that defense prior to trial”); Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (qualified immunity is not simply a defense to liability, but an immunity from suit which “is effectively lost if a case is erroneously permitted to go to trial”). The test for whether a governmental defendant is entitled to qualified immunity involves a two-step analysis. The first inquiry concerns whether the government official was engaged in a “discretionary function.” Madiwale v. Savaiko, 117 F.3d 1321, 1324 (11th Cir.1997). The government official bears the burden of making this initial showing. See Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir.2004). “A defendant unable to meet this burden may not receive summary judgment on qualified immunity grounds.” Id. Here, it is undisputed, and in fact alleged by Plaintiffs, that Conway and Wingard were at all times acting within the scope of their employment as MPD officers during the events pertaining to the search, arrests and prosecutions which form the bases of Plaintiffs’ constitutional causes of action. (2nd Am.Compl.lHl 7-9.) In other words, there is no question that obtaining warrants, conducting warrant searches and making arrests are part of Conway’s and Wingard’s job functions as police officers. Whether Conway and Wingard engaged in their duties in an unconstitutional manner is not a consideration under this first inquiry. See O’Rourke v. Hayes, 378 F.3d 1201, 1205 (11th Cir.2004) (when determining whether a government official acted within scope of discretionary authority, “ Ve do not ask whether [a government official] has the right to engage in unconstitutional searches and seizures, but whether engaging in searches and seizures in general is a part of his job-related powers and responsibilities’ ”). Accordingly, the court finds that Conway and Wingard were “acting within the scope of [their] discretionary authority” when the alleged unconstitutional acts occurred. Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir.1983). Therefore, only the second part of the qualified immunity inquiry is at issue. If the government official succeeds in setting forth facts demonstrating that he or she was acting within the scope of his or her discretionary authority, the burden shifts to the plaintiff “to demonstrate that the official is not actually entitled to [qualified immunity].” O’Rourke, 378 F.3d at 1206; Hutton v. Strickland, 919 F.2d 1531, 1538 (11th Cir.1990) (after government official establishes the performance of duties within the scope of his or her discretionary authority, “burden shifts to the [plaintiffs] to demonstrate lack of good faith or violation of clearly established statutory or constitutional law”). The qualified immunity test at this second juncture is twofold. As a “threshold question,” the court asks, “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show [the government official’s] conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If under Plaintiffs’ version of the facts, Plaintiffs’ constitutional rights would have been violated, the court must determine “whether the right was clearly established.” Id. This inquiry focuses on whether the “state of the law” at the time of the alleged violation provided Conway and Wingard with “fair warning that their alleged treatment of the [Plaintiffs] was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). Under this standard, “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Id. Furthermore, “[w]hen, as here, qualified immunity is asserted in the context of a motion for summary judgment, [the court] look[s] at the evidence in the record, interpreted in the light most favorable to the plaintiff. Based on this evidence, [the court] must determine if there is a reasonable dispute of material fact over whether the defendant violated the plaintiffs clearly established constitutional rights.” O’Rourke, 378 F.3d at 1206 (citing Dahl v. Holley, 312 F.3d 1228, 1233 (11th Cir.2002)). Furthermore, for purposes of qualified immunity, where probable cause, or the lack thereof, is at issue, such as with Plaintiffs’ Fourth Amendment claims alleging unlawful search, false arrest and malicious prosecution, the standard is not probable cause in fact, but “arguable” probable cause. Madiwale, 117 F.3d at 1324; see also Montoute v. Carr, 114 F.3d 181, 184 (11th Cir.1997). “Actual probable cause is not necessary for an arrest to be objectively reasonable. Indeed, it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and in such cases those officials should not be held personally liable.” Von Stein v. Brescher, 904 F.2d 572, 579 (11th Cir.1990). 2. Fourth Amendment (Counts 1 and 2) Counts 1 and 2 of the Second Amended Complaint focus on violations of the Fourth Amendment. In Count 1 (titled “First Federal Cause of Action”), Plaintiffs contend that Conway and Wingard “unlawfully entere[d] the plaintiffs (Xavier Jointer) residence without [his] consent and without a lawfully executed warrant or other legal authority,” in violation of Plaintiffs’ Fourth Amendment right to be free from unreasonable searches and seizures. (2nd Am. Compl. ¶ 26.) Plaintiffs contend that Conway and Wingard “violated clearly established law and [Plaintiffs’ constitutional rights by unlawfully entering and searching [P]laintiffs property and effectuating an arrest and prosecution without probable cause.” (Id. ¶ 29.) Count 1 of the Second Amended Complaint, thus, focuses on the absence of probable cause to support the search of 3610 Castle Ridge Road on July 25, 2003, Jointer’s arrest on that same date, and the ensuing federal prosecution which resulted in a dismissal of the charges against Jointer at the preliminary hearing. In Count 2 (titled “Second Federal Cause of Action”), it is alleged that, on January 15, 2004, Conway and Wingard unlawfully entered Plaintiffs’ “property,” without their consent, “brandishing weapons under Gestapo like pretenses,” all in violation of Plaintiffs’ right to be free from excessive force, in contravention of the Fourth Amendment. Plaintiffs further contend that Jointer’s arrest on January 15 and the resulting prosecution in state court were “without probable cause and in retaliation arising from the dismissal of the case previously brought in federal [court] and the subsequent civil action filed by the plaintiffs in federal court.” (Id. ¶ 81.) In Count 2, thus, Plaintiffs complain of excessive force, in violation of the Fourth Amendment, arising from the manner in which Jointer was arrested on January 15, 2004. Also as grounds for their Fourth Amendment claim, Plaintiffs contend that probable cause was absent for the arrest and state prosecution of Jointer and that the prosecution was retaliatory. (a) The Warrant Search of 3610 Castle Ridge Road on July 25, 2003 Plaintiffs, in cursory form, assert that their “rights were clearly established” so as to deprive Conway and Wingard of their entitlement to qualified immunity on Plaintiffs’ Fourth Amendment claim that the July 25, 2003, search of 3610 Castle Ridge Road was conducted without probable cause. (Pis. Br. at 6 (Doc. No. 59).) Plaintiffs argue that the information in Conway’s affidavit in support of the search warrant is not “reasonably trustworthy” because there is no attestation therein which identifies Jointer by name as the supplier of the cocaine which was sold to Conway during the two drug transactions on July 15 and 16, 2003. Plaintiffs contend generally that Conway’s affidavit fails to connect drug activity to Jointer’s residence at 3610 Castle Ridge Road. (Id. at 5-6.) Conway and Wingard, however, assert that the information contained in the affidavit supporting the search warrant for the residence at 3610 Castle Ridge Road provided “sufficient facts” from which the issuing magistrate could have concluded that probable cause existed and that they were entitled to rely on the search warrant in executing the search. (Defs. Br. at 5 (Doc. No. 57).) In the event, however, that Conway and Wingard were mistaken in their belief as to the constitutional validity of the search warrant, they assert that “at [the] very least, arguable probable cause” existed and that Jointer has “alleged no facts that would establish that a reasonable police officer would understand that the search of the residence ... would violate” the Fourth Amendment. (Id. at 9, 10.) For the reasons to follow, the court agrees with the Individual Defendants. As recognized by the Eleventh Circuit in Lowe v. Aldridge, “ ‘[o]nly where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable will the shield of [qualified] immunity be lost.’ ” 958 F.2d 1565, 1572 (11th Cir.1992) (quoting Malley v. Briggs, 475 U.S. 335, 344-45, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)); see also Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir.1991) (internal citations omitted) (“Normally, the issuance of a warrant by a neutral magistrate, which depends on a finding of probable cause, creates a presumption that it was objectively reasonable for the officers to believe that there was probable cause, and a plaintiff who argues that a warrant was issued on less than probable cause faces a heavy burden.”). The court, thus, must “review the evidence known to [the law enforcement officers] with an eye to whether any reasonable officer would have sought ... [a] search warrant[] based on that information.” Lowe, 958 F.2d at 1570. Conway is the officer who submitted the affidavit in support of the search warrant. The facts which were in possession of Conway at the time he applied for the search warrant are not in dispute; therefore, “if the facts as know to [him] constituted arguable probable cause, then summary judgment on the ground of qualified immunity is proper.” Id. at 1579. In his affidavit submitted in support of the search warrant, Conway sets forth that he is a 15-year veteran of the MPD with more than a decade of experience investigating drug-related offenses, thus, evidencing his expertise in narcotics investigations. The affidavit establishes that, twice in July 2003, Conway, acting in an undercover capacity, purchased cocaine from two individuals. On each occasion, after obtaining the purchase money from Conway, these individuals were observed by law enforcement officers entering for a “short time” and then exiting the residence at 3610 Castle Ridge Road, before returning to deliver the cocaine to Conway. (Aff. in support of Search Warrant (Ex. 1 to Doc. No. 57).) Additionally, on the first drug buy, after receiving the money from Conway, one of the sellers told Conway to meet him in 30 minutes at a local restaurant and that “he would have the cocaine.” (Id. at 1.) The court finds that, based on this information, it would be reasonable for a law enforcement official to conclude that, during each of the two drug transactions, the sellers, who were armed with cash specifically earmarked as payment for cocaine, entered the residence at 3610 Castle Ridge Road for the purpose of exchanging that money for cocaine and then left the house with the cocaine and that cocaine, therefore, was being distributed from the premises. Furthermore, the court finds that an entirely reasonable inference arises that substantial quantities of cocaine would be found at that location when the foregoing facts are considered in conjunction with the fact that one of the sellers during the second drug transaction told Conway that his supplier could provide ounce and kilogram quantities of cocaine. The level of proof required for probable cause is not certainty, nor is it proof beyond a reasonable doubt, but only probability, and the court finds that the facts presented to the issuing magistrate were enough to establish a probability of criminal drug activity at 3610 Castle Ridge Road. The court emphasizes that probable cause need not be established by direct evidence, and admittedly direct evidence is lacking in this case. See U.S. v. Jones, 994 F.2d 1051, 1056 (3rd Cir.1993) (“[I]t is well established that direct evidence is not required for the issuance of a search warrant.”); see also U.S. v. Burton, 288 F.3d 91, 103 (3rd Cir.2002) (“probable cause to search can be based on an accumulation of circumstantial evidence that together indicates a fair probability of the presence of contraband at the home of the arrested”). Indeed, circumstantial evidence, which the court finds amply exists here, may be more convincing than direct evidence. See, e.g., Olson Towboat Co. v. Dutra, 300 F.2d 883, 884 (9th Cir.1962) (“At times circumstantial evidence is stronger than direct testimony based on powers of observation.”). Because the court finds that there was actual probable cause for the issuance of the search warrant, it need not continue any further with the qualified immunity analysis. See Saucier, 533 U.S. at 201, 121 S.Ct. 2151 (“If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.”). Alternatively, assuming arguendo the absence of probable cause, the court does not find that the affidavit was so lacking in indicia of probable cause so as to render Conway’s and Wingard’s reliance on the warrant to be unreasonable. At the very least, the court finds that the existence of probable cause was arguable. As stated by one court, a dispute over whether the affidavit establishes probable cause to search “is all that is needed in order to establish qualified immunity for an official who obtained a search warrant.” Davison v. Frey, 837 F.Supp. 235, 239 (E.D.Mich.1993). The court has considered the arguments proffered by Plaintiffs, but does not find those arguments persuasive. Although Plaintiffs contend that the search warrant was obtained “maliciously and with bad faith” (Pis. Br. at 6-7 (Doc. No. 59)), they have not submitted any evidence to substantiate their terse allegations, and the court has not uncovered any such evidence in the record. See Lowe, 958 F.2d at 1571. Bare averments' of malice and bad faith are never sufficient to establish a constitutional claim, without regard to the qualified immunity analysis. See Crawford-El v. Britton, 523 U.S. 574, 588, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (observing that “[i]t is obvious, of course, that bare allegations of malice would not suffice to establish a constitutional claim”). Indeed, the Supreme Court has recognized that “[sjubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren v. U.S., 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Moreover, in the context of qualified immunity, evidence of a government official’s “subjective intent,” i.e., evidence of conduct which is “malicious or otherwise improperly motivated,” is completely “irrelevant” to the defense. Id.; Harlow, 457 U.S. at 818, 102 S.Ct. 2727 (“bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery” so as to deprive government officials of qualified immunity). Jointer’s allegations of fraud are equally conclusory and unavailing. (See Pis. Br. at 6 (Doc. No. 59).) Furthermore, contrary to Plaintiffs’ assertion, it is not an impediment to a finding of probable cause that the affidavit in support of the search warrant does not identify Jointer by name or otherwise provide who lived in the residence at 3610 Castle Ridge Road. The focus of the court’s inquiry for assessing the constitutional validity of probable cause for the issuance of the search warrant is on whether criminal conduct can be connected to the specific residence, i.e., 3610 Castle Ridge Road, “and not on the activities of any particular person.” Burton, 288 F.3d at 103. The court also rejects Plaintiffs’ suggestion that Conway and Wingard were not entitled to rely on the search warrant because it “was not signed by a duly authorized judicial officer for the state of Alabama.” (Pis. Br. at 6-7 (Doc. No. 59).) Plaintiffs have not submitted any evidence that, at the time of issuance, Magistrate Patrick J. Murphy was not “authorized to practice law in the State of Alabama” or “authorized by law to issue search warrants, within the magistrate’s territorial jurisdiction,” as provided in Rule 3.7 of the Alabama Rules of Criminal Procedure which sets out those individuals who have authority to issue search warrants. Ala. R. Civ. P. 3.7; (Search Warrant (Ex. 1 to Doc. No. 57).) Having addressed Plaintiffs’ arguments presented in opposition to the Individual Defendants’ defense of qualified immunity, the court makes two final observations of its own. First, as to the issuance of the search warrant, Plaintiffs have presented no evidence that Wingard had any role in the preparation of the affidavit submitted in support of the search warrant or even accompanied Conway to obtain the search warrant. The court, thus, finds that Wingard also is entitled to qualified immunity, given the failure of Plaintiffs to connect any conduct of Wingard to the actual issuance of the search warrant. See Williams v. Bennett, 689 F.2d 1370, 1383 (11th Cir.1982) (“¡Ejection 1983 plainly requires ... a causal connection between the Constitutional deprivation and the defendant’s acts or omissions.”). Second, it has not gone unnoticed by the court that Jointer’s affidavit is devoid of any evidence that Conway was involved in the execution of the search warrant on July 25. No evidence in the record, including the MPD offense report, reveals which individual officers, other than Wingard, participated in the search and arrest of Jointer on July. 25, 2003. (See MPD Offense Report ¶¶ 19-21 (Ex. 3 to Doc. No. 57).) Counsel for Defendants, however, has admitted Conway’s participation in the search (see Defs. Br. at 57 (Doc. No. 57).) An “admission,” within the meaning of Fed.R.Civ.P. 56(c), the procedural rule governing summary judgment proceedings, encompasses “anything which is in practical fact an admission,” inclusive of “statements made in a brief presented to the district court.” Woods v. Chicago, 234 F.3d 979, 989 (7th Cir.2000). In its summary judgment analysis, the court, thus, has presumed Conway’s presence during the search. As discussed herein, the existence of a valid search warrant supported by probable cause refutes Plaintiffs’ averment that either Conway or Wingard searched Jointer’s and Cleveland Jointer’s residence without “a lawfully executed warrant” and “without probable cause.” (2nd Am. Compl. ¶¶ 26, 29.) (b) The Warrantless Arrest of Jointer on July 25, 2003 The court turns to Plaintiffs’ contention that Jointer was arrested without probable cause on July 25, 2003, during the execution of the search warrant at 3610 Castle Ridge Road. Plaintiffs focus on Magistrate Judge McPherson’s finding at the preliminary hearing that probable cause for Jointer’s arrest was lacking and the resulting dismissal of the criminal complaint. (PI. Br. at 5 (Doc. No. 59).) Although Plaintiffs have failed to submit a copy of the transcript from the preliminary hearing, they contend that the testimony presented at that hearing demonstrates that neither Conway nor Wingard had “arguable probable cause connecting [Jointer] to any drug activity” so as to support his warrantless arrest. (Id.) Plaintiffs state that “the evidence does not show that ... Wingard and Conway were presented with any ‘reasonable trustworthy’ information” that Jointer was the supplier of the cocaine which was sold to Conway during the drug transactions at issue. (Id. at 5-6.) P.lain-tiffs also assert in cursory fashion that Jointer’s rights were “clearly established at the time of the defendants’ conduct” and that Conway and Wingard acted “fraudulently, maliciously and with bad faith” in arresting Jointer. (Id. at 6.) “It is clearly established that an arrest made without probable cause violates the Fourth Amendment.” Redd v. City of Enterprise, Ala., 140 F.3d 1378, 1381 (11th Cir.1998). Initially, the court dispels any argument that Jointer’s warrantless arrest is invalid simply on the basis that it occurred inside Jointer’s home. Law enforcement officers may arrest an individual in his or her residence, “without an arrest warrant, as long as they are lawfully on the premises (by reason, say, of a search warrant) and probable cause exists.” U.S. v. Winchenbach, 197 F.3d 548, 553 (1st Cir.2000); cf. Greiner v. City of Champlin, 27 F.3d 1346, 1353 (8th Cir.1994) (officers had qualified immunity for warrantless arrest in residence when officers arguably had probable cause to believe residents had violated law and officers had a right to enter the home because of arguable exigent circumstances). Probable cause to arrest depends upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); see also Holmes v. Kucynda, 321 F.3d 1069, 1079 (11th Cir. 2003). “ ‘Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction.’ ” Holmes, 321 F.3d at 1069 (quoting Adams v. Williams, 407 U.S. 143, 149, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)). For purposes of determining qualified immunity, an officer does not have to obtain evidence on each element of the crime prior to making an arrest. Such a requirement “would negate the concept of probable cause and transform arresting officers into prosecutors.” Scarbrough v. Myles, 245 F.3d 1299, 1302-1303 (11th Cir.2001). The question for qualified immunity is “not whether an arrestee’s conduct is a crime or ultimately will result in conviction. Police officers are not expected to be lawyers or prosecutors.” Id. at 1303 n. 8. Indeed, ‘“[although probable cause requires more than suspicion, it does not require convincing proof, and need not reach the [same] standard of conclusiveness and probability as the facts necessary to support a conviction.’ ” Durruthy v. Pastor, 351 F.3d 1080, 1088 (11th Cir.2003) (quoting Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir.2002)). Finally, as stated, in the context of qualified immunity, the standard is not probable cause in fact, but “arguable” probable cause. Madiwale, 117 F.3d at 1324. In light of the foregoing principles, the court must determine whether the information possessed by Conway and Wingard at the moment of Jointer’s arrest demonstrates arguable probable cause for the arrest for knowingly and intentionally possessing with intent to distribute 50 or more grams of cocaine base, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1), or, alternatively for a closely related offense. U.S. v. Atkinson, 450 F.2d 835, 838 (5th Cir.1971) (“[W]hen a crime under which the arrest is made and a crime for which probable cause exists are in some fashion related, then there is no question but that there is a valid arrest.”); see also U.S. v. Rambo, 789 F.2d 1289, 1294 (8th Cir.1986) (“Where a defendant is arrested for the wrong offense, the arrest is still valid if probable cause existed to arrest the defendant for a closely related offense.”). For purposes of ascertaining whether arguable probable cause existed for Jointer’s arrest, the relevant sources of evidence in the record are fourfold. The first source of evidence is Jointer’s affidavit in which Jointer, in his own words, recounts what transpired on the day of his arrest. (Jointer Aff. (Pis. Ex. A to Doc. No. 59).) With one exception referenced below in footnote 14, the facts in Jointer’s affidavit do not shed light on what information was known to Conway and Wingard at the time of Jointer’s arrest. See Jones v. Cannon, 174 F.3d 1271, 1283 n. 4 (11th Cir.1999) (“Decisions of the Supreme Court and this Court make it clear that what counts for qualified immunity purposes relating to probable cause to arrest is the information known to the defendant officers or officials at the time of their conduct, not the facts known to the plaintiff then.”). Jointer’s affidavit, however, is helpful to the extent that it establishes that, when he was arrested, Jointer was not in actual possession of the cocaine found at 3610 Castle Ridge Road; therefore, whether arguable probable cause existed to arrest Jointer “is dependent on whether it was arguably reasonable to conclude that [Jointer] exerted constructive possession over the discovered contraband.” Holmes, 321 F.3d at 1079; see also supra, footnote 13. The court, thus, must ascertain whether the other two sources of evidence demonstrate the absence of arguable probable cause as to Jointer’s constructive possession. The second source of evidence is the affidavit submitted by Conway in support of the search warrant. As an initial observation, as stated, the existence of the search warrant for the premises of 3610 Castle Ridge Road establishes that Conway and Wingard had a right to be in Jointer’s residence on the day they arrested Jointer. Also, as discussed in the preceding section, Conway’s affidavit supplies sufficient information to establish that, at the very least, arguable probable cause existed for the officers to believe that drugs could be found in the residence at 3610 Castle Ridge Road. The fact, however, that there was arguable probable cause to search 3610 Castle Ridge Road does not automatically supply arguable probable cause for Jointer’s arrest. See Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (“[A] search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided simply by pointing to the fact that coincidentally there exists probable cause to ... search the premises where the person may happen to be.”) (emphasis added). The affidavit in support of the search warrant does not name Jointer in any form or fashion. The affidavit does not contain any facts revealing what information, if any, Conway knew concerning (1) the identity of Jointer, (2) whether Jointer was a resident of 3610 Castle Ridge Road or merely a visitor on the premises, or (3) what role, if any, Jointer had in the drug transactions. Based on this affidavit, the court is left only with the facts that, on the day of the search and at the moment of Jointer’s arrest, Jointer was present in the residence where arguable probable cause existed that drugs would be found. As recognized in Holmes, “[t]his circuit’s case law has clearly established that ‘[m]ere presence at the scene of a crime, without more, does not support a finding of probable cause to arrest.’” 321 F.3d at 1081. The court, thus, agrees with Plaintiffs that the affidavit in support of the search warrant does not establish independent arguable probable cause for Jointer’s arrest. The court, thus, turns to Wingard’s affidavit, the third source of evidence, in search of facts demonstrating what information was known to Conway and Wingard at the time of Jointer’s arrest. (See Criminal Compl. (Ex. to Doc. No. 57).) Wingard filed his affidavit in federal court in support of the post-arrest criminal complaint against Jointer. The affidavit provides that the officers ascertained that Jointer lived at 3610 Castle Ridge Road, that Jointer was taken into custody at the residence during the execution of the search warrant, that Conway and another officer, who was involved in the surveillance, identified Jointer as the individual who accompanied “Eric LNU” during the drug transaction on July 15, 2003, and that a substantial quantity of cocaine (much more than 50 grams of cocaine) was found in the residence. Wingard, however, fails to pinpoint when the officers ascertained Jointer’s identity, when they learned that Jointer exercised control over the apartment as its resident, and when they became aware of Jointer’s role during the second drug transaction on July 16, 2003. More to the point, the affidavit fails to reveal whether these facts were known to Conway, Wingard and/or other involved officers at the time of the arrest or whether the facts were acquired subsequent to the arrest. The affidavit does not affirmatively state when Conway and Wingard learned this valuable information, and these ambiguities preclude a finding by this court that these facts were known to Conway and Wingard at the time of the arrest. See Goddard v. Urrea, 847 F.2d 765, 767 (11th Cir.1988) (‘We begin with the familiar principle that in reviewing a question concerning summary judgment, this court must resolve all factual ambiguities in favor of the party opposing the motion.”); see also Roberts by Roberts v. City of New York, 753 F.Supp. 480, 483 (S.D.N.Y.1990) (In determining probable cause, “facts relied upon must not be susceptible to ... ambiguous explanation.”). The court simply has no basis upon which to determine the parameters of when the Individual Defendants acquired knowledge of the foregoing facts. The Individual Defendants, however, argue that the fact that Magistrate Judge McPherson issued an arrest warrant based upon Wingard’s affidavit is “prima facie” evidence of probable cause. (Defs. Br. at 3 (Doc. No. 57).) The Individual Defendants cannot rely on the existence of a warrant as post facto justification for making the warrantless arrest. The factual scenario in this case is distinguishable from cases where courts have concluded that, although the warrant was not supported by probable cause, the officers reasonably relied on the fact that a warrant had been issued prior to the arrest. See Lowe, 958 F.2d at 1572 (“ ‘[o]nly where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable will the shield of immunity be lost’ ”). Here, there was no warrant, faulty or otherwise, at the time Jointer was arrested. The court, thus, turns to the fourth source of evidence, i.e., Wingard’s testimony given at the criminal preliminary hearing held before Magistrate Judge McPherson to ascertain whether the testimony supplies the missing link for arguable probable cause. Initially, the court must examine whether there is an evidentiary rule which permits the court to consider the testimony of Wingard in the instant proceedings. As their main weapon to avoid a finding by this court of qualified immunity, Plaintiffs rely on the fact that Magistrate Judge McPherson found no probable cause at the preliminary hearing. Plaintiffs have urged the court to “take judicial notice” of Magistrate Judge McPherson’s finding. (See Pis. Br. at 8 (Doc. No. 59).) Plaintiffs also contend that the court should take judicial notice of the substance of Wingard’s testimony, arguing that the testimony confirms the absence of even arguable probable cause. (Id. at 5.) The failure of Plaintiffs to cite any authority in support of their position is telling, as their reliance on judicial notice is problematic. Rule 201(b) of the Federal Rules of Evidence provides that “[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). It is well established that a court is precluded from taking judicial notice of the truth of a judicial finding of fact, simply because another judge has proclaimed the fact as so. See, e.g., General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1082 (7th Cir.1997) (‘We agree that courts generally cannot take notice of findings of fact from other proceedings for the truth asserted therein because these findings are disputable and usually are disputed.”); U.S. v. Jones, 29 F.3d 1549, 1553 (11th Cir.1994) (concluding that a court “may take notice of another court’s order only for the limited purpose of recognizing the ‘judicial act’ that the order represents or the subject matter of the litigation”). In Jones, the Eleventh Circuit made the following observations: In order for a fact to be judicially noticed under Rule 201(b), indisputability is a prerequisite. 21 Charles A. Wright & Kenneth W. Graham, Federal Practice and Procedure: Evidence § 5104 at 485 (1977 & Supp.1994). Since the effect of taking judicial notice under Rule 201 is to preclude a party from introducing contrary evidence and in effect, directing a verdict against him as to the fact noticed, the fact must be one that only an unreasonable person would insist on disputing. Id. If it were permissible for a court to take judicial notice of a fact merely because it has been found to be true in some other action, the doctrine of collateral estoppel would be superfluous. Id. at 256-57 (footnote omitted). Moreover, to deprive a party of the right to go to the jury with his evidence where the fact was not indisputable would violate the constitutional guarantee of trial by jury. Id. at 485. Accord United States v. Aluminum Co. of America, 148 F.2d 416, 446 (2d Cir.1945) (L.Hand, J.). In Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388-89 (2d Cir.1992) (citations omitted), the Second Circuit concluded that the district court erred in granting summary judgment based on a finding of fact within a bankruptcy court order. It recognized that a “court may take judicial notice of a document filed in another court ‘not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.’ ” Liberty Mut. Ins. Co., at 1388 (citation omitted). Accordingly, a court may take notice of another court’s order only for the limited purpose of recognizing the “judicial act” that the order represents or the subject matter of the litigation. 29 F.3d at 1553 (citations omitted). Relying on the foregoing principles, the Eleventh Circuit in Jones concluded that, in a civil action alleging breach of contract, the district court could not take judicial notice of an order entered in a prior federal court proceeding which contained a judicial finding that the plaintiff had refused to work unless he obtained a salary increase because the facts did not “indisputably establish that [the plaintiff] refused to work.” Id. Similarly, as in Jones, Magistrate Judge McPherson’s finding that the facts before her did not rise to the level of probable cause is not “indisputable,” and, thus is not a finding which this court can judicially notice. Id. Judicial notice aside momentarily, it is appropriate for the court to reiterate that, even assuming the absence of objective probable cause for Jointer’s warrant-less arrest, “the question of [qualified] immunity remains, as it should, distinct from the question of probable cause.” Warren v. Dwyer, 906 F.2d 70, 75 (2d Cir.1990). At the qualified immunity stage, the court is not concerned with actual probable cause, but only with arguable probable cause. Even if the court independent