Full opinion text
ORDER ON DISPOSITIVE MOTIONS ALAN B. JOHNSON, Chief Judge. The parties’ dispositive motions, including the County Defendants’ Motion for .Summary Judgment, the City Defendants’ Motion for Summary Judgment, the Motion for Summary Judgment filed by Crossroads Managed Care Systems, and the plaintiffs’ responses to the motions, came before the Court for consideration. The Court, having considered the motions and responses, the pleadings of record and submissions of the parties, the applicable law, and being fully advised, FINDS and ORDERS as follows: Background and Contentions of the Parties The defendants in this case include the City of Trinidad, its Mayor Harry Sayre in his official capacity, and its Chief of Police, James Montoya, and unnamed police officers. These defendants are referred to collectively as the “City defendants” in this order, unless otherwise specified. The group referred to as the “County defendants” includes Las Animas County, Sheriff of Las Animas County Lou Girodo and unnamed deputies, the Board of Commissioners of Las Animas County, and in their official capacities, Commissioners Eugene Lujan, Stanley Biber and Phil Valdez. Crossroads Managed Care'Systems, Inc. (“Crossroads”) is also a defendant. Crossroads is a private non-profit corporation providing alcohol and drug detoxification and outpatient treatment services in Trinidad. Plaintiffs include a number of individuals who allege they were unlawfully detained and transported by law enforcement officers to Crossroads and held by Crossroads, in violation of Colo.Rev.Stat. § 25-1-310 for various periods from approximately June 30, 1995 to the time of filing the complaint. Plaintiffs assert they were unlawfully seized and held against their will and that this violated plaintiffs’ rights under the United States Constitution and Colorado law. Plaintiffs allege that the defendants’ acts were performed under color of state law, deprived each plaintiff of due process and the right to be free from illegal search and seizures, and deprived them of rights and privileges secured by the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. They assert pendent state law claims of false imprisonment, negligence, negligence per se, civil conspiracy, extreme and outrageous conduct and assault. In the amended complaint, plaintiffs offer the following historical factual background. Prior to 1995, Crossroads operated an alcohol detoxication facility (“detox”) in Trinidad, Colorado. The facility was licensed by the State of Colorado and received funding from the State by contract. That facility was closed, apparently because it was not sufficiently used and because it was not profitable for the operator. After the original Trinidad detox facility closed, the nearest detox facility was in Pueblo, Colorado, approximately 85 miles from Trinidad. The Pueblo facility was also operated .by Crossroads. Plaintiffs allege that the Pueblo facility received funding that included an allocation for beds dedicated to serve clients from the Trinidad area. In 1995, plaintiffs allege that officials from the City of Trinidad and County of Las Animas advised Crossroads that they would contact state officials to request that the beds allotted for Trinidad be removed from Crossroads’ use in Pueblo. Plaintiffs allege that Crossroads then had a choice of losing the allotment of beds in Pueblo or reopening the Trinidad detox facility.: For whatever reason, in' late 1994 or early 1995, Crossroads determined that it would reopen the Trinidad detox facility. The Trinidad facility was reopened on June 30,1995. The substance of plaintiffs’ claims against all defendants is that they entered into a tacit, if not express, agreement designed to ensure that the Trinidad detox facility was fully utilized and would stay open in the future. This policy was also designed to ensure that Crossroads was adequately compensated and that the facility would be profitable and could therefore, remain open. In its motion for summary judgment, Crossroads asserts that it receives funding from various sources, although the greatest part of its revenues (76.5%) are from the State of Colorado Alcohol and Drug Abuse Division of the Department of Human Services. It - also receives revenues from local city/county revenues (14.7%), client fees (7.2%) and other federal and state agencies (1.7%). Crossroads enters into contracts with the Colorado Department of Health that provide for reimbursement of its services. Under those contracts, Crossroads is disclaimed as being an agent of or an employee of the State of Colorado. Crossroads is required to meet standards established by the Colorado Department of Health in order to be approved and licensed as a drug and alcohol treatment program. The state standards are utilized by Crossroads as guidelines, with other protocols, some of which are generated by Crossroads itself, to be followed in the operations of the Crossroads detox crisis intervention center. Those protocols give Crossroads supervisors a certain amount of discretion regarding admission, treatment, and discharge of clients into and from detox. Specific decisions regarding admission, treatment, length of an individual’s stay and discharge are made by Crossroads as the operator of the detox program. In this case, plaintiffs were taken to detox by Trinidad police officers. They assert their constitutional rights have been violated and that they were deprived of due process. Specifically, plaintiffs challenge the policy of the City of Trinidad to take intoxicated individuals to Crossroads’ detox facility and the goal of keeping the facility open as an alternative to detention in jail or some other facility. Plaintiffs allege that the defendants collectively engaged in an effort to assure that Crossroads facility in Trinidad was fully utilized by taking persons to that facility in a manner not authorized by Colorado’s emergency commitment statute, C.R.S. § 25-1-310. In June of 1995, defendant Chief of Police Montoya issued General Order 95-03, which stated: General Order 95-03 Full Detox services will become available locally beginning June 30, 1995 at 17:00 hrs. Effective immediately, when an Officer has contact with any individual who exhibits any potential of intoxication, resulting from the ingestion of alcohol, drugs, inhalants or any combination of those substances, the subject is to be .evaluated by Detox center staff for consideration of detox treatment. All D.U.I., D.U.I.D., D.W.A.I., underage drinking 18-21 years of age, or any person arrested who is under the influence [of] alcohol or other substances, regardless of whether bond posted, or ability to post bond, will be evalúated by Detox personnel. Any person who is a danger to himself or others as a result of alcohol or drug ingestion will also be evaluated for placement. The decision to commit a subject to detox rests solely with C.M.C.S. staff. Any individual contacted and meeting detox criteria, will be medically cleared by Officers in the following situations: 1. Adolescent individuals 2. Pregnant females 3. Obviously injured individuals Officers should have individuals meeting any of the three above criteria medically cleared at the Emergency Room, prior to admitting the person to detox. Additionally, Crossroads Managed Care Systems will not accept an unconscious client or any injured person who refuses medical treatment. In order to avoid conflict, officers should not refer any subject who meets the refusal criteria to Detox. The C.M.C.S. Detox will remain available contingent on full utilization. A great deal of cooperation, effort and resources went into the re-opening of this facility. If client referrals are not frequently made the facility will not remain available. Plaintiffs’ Brief in Opposition to City and County Defendants’ Motion for Summary Judgment, Exhibit 1; also at City and County Defendants’ Brief, Exhibit EE. Section 25-1-310 of the Colorado Revised Statutes provides in its entirety: (1) When any person is intoxicated or incapacitated by alcohol and clearly dangerous to the health and safety of himself or others, such person shall be taken into protective custody by law enforcement authorities or an emergency service patrol, acting with probable cause, and placed in an approved treatment facility. If no such facilities are available, he may be detained in an emergency medical facility or jail, but only for so long as may be necessary to prevent injury to himself or others or to prevent a breach of the peace. A law enforcement or emergency service patrolman, in detaining the person, is taking him to protective custody. In so doing, the detaining officer may protect himself by reasonable methods but shall make every reasonable effort to protect the detainee’s health and safety. A taking into protective custody under this section is not an arrest, and no entry or other record shall be made to indicate that the person has been arrested or charged with a crime. Law enforcement or emergency service personnel who act in compliance with this section áre acting in the course of their official duties and are not criminally or civilly liable therefor. Nothing in this subsection (1) shall preclude an intoxicated or incapacitated person who is not dangerous to the health and safety of himself or others from being assisted to his home or like location by the law enforcement officer or emergency service patrolman. (2) A law enforcement officer, emergency service patrolman, physician, spouse, guardian, or relative of the person to be committed or any other responsible person may make a written application for emergency commitment under this section, directed to the administrator of the approved treatment facility. The application shall state the circumstances requiring emergency commitment, including the applicant’s personal observations and the specific statements of others, if any, upon which he relies in making the application. A copy of the application shall be furnished to the person to be committed. (3) If the approved treatment facility administrator or his authorized designee approves the application, the person shall be committed, evaluated, and treated for a period not to exceed five days. The person shall be brought to the facility by a peace officer, the emergency service patrol, or any interested person. If necessary, the court may be contacted to issue an order to the police or sheriffs department to transport the person to the facility- (4) If the approved treatment facility administrator or his authorized designee determines that the application fails to sustain the grounds for'emergency commitment as set forth in subsection (1) of this section, the commitment shall be refused and the person detained immediately released, and the person shall be encouraged to seek voluntary treatment if appropriate. (5) When the administrator determines that the grounds for commitment no longer exist, he shall discharge the person committed under this section. No person committed under this section may be detained in any treatment facility for more than five days; except that a person may be detained for longer than five days at the approved treatment facility if, in that period of time, a petition for involuntary commitment has been filed pursuant to section 25-1-311. A person may not be detained longer than ten days after the date of filing of the petition for involuntary commitment. (6) Whenever a person is involuntarily detained pursuant to this section, he shall immediately be advised by the facility administrator or his authorized designee, both orally and in writing, of his right to challenge such detention by application to the courts for a writ of habeas corpus, to be represented by counsel at every stage of any proceedings relating to his commitment and recommitment, and to have counsel appointed by the court or provided by the court if he wants the assistance of counsel and is unable to obtain counsel. The defendants have categorized the various plaintiffs who have filed suit in this action into three general categories. The first set of plaintiffs were under arrest for various criminal activities and were taken to detox. The second group of plaintiffs were .taken to detox for evaluation by the professionals at Crossroads as to whether those individuals needed to -be taken into custody under the Emergency Commitment Act. The third group of plaintiffs includes those who were taken into custody by the Colorado State Patrol. -Plaintiffs under arrest included:’ Jude Anaya (arrested on charges of possession of marijuana and domestic violence); Erica Fabec (underage drinking); Dan Gallegos (domestic violence); Mario Incitto (underage drinking); Michael Romero, taken to detox numerous times, usually as the result of the complaints of his mother. • Plaintiffs taken into custody under the authority of the Emergency Commitment Act: Gasper Barela (two separate occasions); Patricia Dominguez (taken from her home, upon response by police to a domestic violence call from her sister); John Garcia (discovered sleeping in his car); Haskell Hooks (four occasions); Clyde Jones (mixed arrest and emergency commitment holds; first occasion “obviously intoxicated;” fleeing a bar fight; attending to another who had been stabbed in a bar. fight); Thor Jones (mixed claims; arguments; running stop sign and conviction for DWAI); Edward LeRoux (spotted by officer while hitchhiking and taken to detox); Owen Shugard (stopped while walking home from, a bar; taken to detox for evaluation); Steve Torma (drinking at bar). Plaintiffs with whom the City had no contact included Leonard Dominguez and Charlene Villani, both picked up by the Colorado State Patrol. Their complaints are solely asserted against defendant Crossroads. Plaintiffs have asserted nine claims: (1) a claim under 42 U.S.C. § 1983 premised upon a due process violation arising under both the Fifth and Fourteenth Amendment; (2) a § 1983 claim alleging an unreasonable seizure under the Fourth Amendment; (3) a claim under Colorado Constitution premised upon an alleged due process violation; (4) a second claim under the Colorado Constitution alleging unreasonable seizures; (5)'pen-dent state tort claim of false imprisonment; (6) pendent state tort claim of negligence per se for violations of the Emergency Commitment Act; (7) pendent state tort claim of civil conspiracy; (8) pendent state tort claim of outrageous conduct; and (9) pendent state tort claim of assault and battery. The City defendants argue that the due process claims should be dismissed. They assert the Fifth Amendment’s due process clause does not apply to states and that there is no due process claim where the state action concerns an alleged seizure.' Due process seizure claims should be analyzed under the Fourth Amendment, not the Fourteenth Amendment, defendants argue, citing Graham v. Connor, 490 U.S. 386, 394-396, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). Defendants also argue that the direct claims under the Colorado Constitution must be dismissed because Colorado has no statutory analogue to 42 U.S.C. § 1983, and the Tenth Circuit, in Specht v. Jensen, 863 F.2d 700, 702 (10th Cir.1988), held that there is no Bivens-type claim under the Colorado Constitution. This requires dismissal of the third and fourth claims. ■ The City also asserts that it has statutory immunity from the pendent state tort claims (the fifth through ninth claims), pursuant to C.R.S. § 24-10-108. Chief Montoya asserts that he has qualified immunity from the state tort claims. Under C.R.S. § 24-10-118(2), he argues he is entitled to immunity unless plaintiff demonstrates that his conduct was willful and wanton. Chief Montoya also argues he is entitled to qualified immunity from plaintiffs Fourth Amendment claim for unreasonable seizure. Montoya asserts that a supervisor is liable under § 1983 for the actions of subordinates only when the supervisor is deliberately indifferent to the fact that subordinates are violating the constitutional rights of others, after being put on notice of same, citing Gates v. Unified School District, 996 F.2d 1035, 1041 (10th Cir.1993). When an individual is sued under § 1983, qualified immunity protects him from the burden of further litigation, until plaintiffs demonstrate that his actions violated clearly established law, citing Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir.1995). Here, the defendant asserts the complaints against Montoya are essentially the same as asserted against the city, based upon the written policy embodied in General Order 95-03 regarding use of the detox center. Montoya argues that General Order conforms with C.R.S. § 25-10-310, particularly as the general order is consistent with the requirements of the act that the facility administrator make the decision as to whether an intoxicated person should be committed. Defendants argue there is a substantial need for a detox facility in the Trinidad area because of significant problems with alcohol, drinking, and underage drinking. Defendant Montoya argues that it was clearly established in 1995 that under Colorado law the decision to take a person to detox for evaluation under the Emergency Commitment Act was discretionary and one for which the officer would not be hable. Additionally, taking an individual to detox for evaluation is not an arrest and the public policy of Colorado is to ensure that emergency commitments are utilized to further the health and safety of the citizens of Colorado. Montoya asserts there was no clearly established federal law which is contrary and indeed that there was no federal constitutional law on the topic at all. This, defendant argues, requires this Court to determine whether General Order 95-03 directing officers to take people with whom they have had contact to detox for evaluation, if they had been drinking, amounts to an unreasonable seizure under the Fourth Amendment. Defendant submits that it was not clearly established in 1995 that this type of police activity (taking an individual to detox for evaluation) would be an unreasonable seizure under the totality of the circumstances. He notes there was a bona fide drinking problem in the Trinidad area, the seizure was a minimal intrusion because it involved only taking an intoxicated person to detox for evaluation, and finally because a number of the plaintiffs were taken to detox under the Emergency Commitment Act and not because of an arrest, there were substantial reasons for having them evaluated by the detox center. A reasonable officer in Montoya’s position would not know that he was violating clearly established constitutional rights by issuing General Orders at issue in this case. With respect to arrested plaintiffs who were taken to detox, defendant Montoya argues théir seizure was reasonable as there was probable cause for the seizure. In each instance, Montoya argues there was probable cause for the seizure and thus the general orders could not constitute any constitutional violation. The County defendants (Las Animas County, the sheriff of Las Animas County, its Board of County Commissioners and the commissioners in their official capacities) assert they are entitled to summary judgment because they had no involvement with any plaintiff in the case. The individual County defendants are entitled to federal qualified immunity from the federal claims and state qualified immunity from the pendent state torts. The County is entitled to state statutory immunity from the pendent state torts. The County defendants join in the arguments asserted by the City defendants. Plaintiffs filed a response to the City and County defendants’ motions for summary judgment. Plaintiffs note that the municipality may not claim qualified immunity and may not defend a § 1983 action based upon the good faith of its officials. Plaintiffs argue that the City defendants are only entitled to statutory immunity if they have acted in compliance with the Emergency Commitment Act. However, if they acted without probable cause of clear dangerousness and thus, wrongfully detained individuals, defendants are liable under § 1983, and if those actions were ■willful and wanton in ignoring the statute, the defendants would also be exposed to state tort liability. The plaintiffs argue that there was not any determination by police that the plaintiffs detained were clearly dangerous to themselves or others when they were taken to detox. Plaintiffs assert that General Order 95-03, which required officials having contact with individuals who exhibit any potential of intoxication to be evaluated by detox center staff, is contrary to the plain language of C.R.S. § 25-10-310. Plaintiffs argue that the statute does not allow detention of individuals who are potentially intoxicated, but rather only allows those who are intoxicated and clearly dangerous to themselves or others to be detained, and only when there is probable cause to support such a belief. Plaintiffs argue the effect of General Order 95-03 was to remove all discretion and establish a City policy contrary to the statute. They assert that it was the practice, custom and policy of law enforcement to detain without probable cause of clear dangerousness, which is inconsistent with the express language of the statute and a violation of plaintiffs’ constitutional rights. In their brief, plaintiffs’ central constitutional claim is that their Fourth Amendment rights to be free from unlawful seizure were violated in this case. The unlawful seizure in each instance is being taken to detox in a manner which was contrary to statute and federal law and that it'does not matter whether any plaintiff was in protective custody or under arrest. The circumstances of each plaintiffs detention in the detox facility are also discussed in the plaintiffs’ brief in opposition. Plaintiffs concede that their 42 U.S.C. § 1983 claim of denial of due process must proceed under rights granted under the Fourteenth Amendment to the United States Constitution, rather than, the Fifth Amendment, as alleged in the complaint. They assert they have properly pleaded a Fourteenth Amendment due process claim and that the defendants have failed to demonstrate .entitlement to judgment as a matter of law. Plaintiffs further admit that it is “very likely that other adequate remedies exist under the Federal constitution and state tort law claims,” and thus, that no implied remedy arising under the Colorado Constitution is likely to be necessary. Plaintiffs agree that the City correctly asserts it is protected by statutory immunity from the pendent state tort claims pursuant to C.R.S. § 24-10-101 et seq. . However, the § 1983 claims against the City are not affected by such statutory immunity. Plaintiffs also assert that the § 1983 claims present multiple questions of fact that preclude summary judgment, including by way of example whether the individual plaintiffs’ seizures were unreasonable; whether there was a collusive effort to provide bodies to detox; whether the City adopted an official policy contrary to the law; whether the practice was widespread; whether the police chief was deliberately indifferent; whether the City council was indifferent to such practices; and whether the individual police officers knew the policy violated the Fourth Amendment. Plaintiffs assert there is no official immunity for defendant Montoya for the pendent state tort claims. Plaintiffs argue that their most significant state claim is the claim for civil conspiracy. They explain that if this claim is established, then liability for other tortious acts by other defendants in furtherance of the conspiracy would be imputed to defendant Montoya, citing C.R.S. § 13-21-111.5(4). Additionally, defendant Montoya may be found liable for other tort claims even if the civil conspiracy claim is not established. Plaintiffs argue that General Order 95-03 provides direct evidence of an agreement to consciously conspire and deliberately pursue a common plan that resulted in a tortious act. Plaintiffs argue that if they can prove that referrals by police to detox occurred illegally or resulted in tortious actions against the plaintiffs, they have established civil conspiracy. General Order 95-03, coupled with Montoya’s eighteen months of meetings participating with the Trinidad Advisory Board in the plans to re-open the Trinidad Detox facility, is significant evidence that establishes conclusively the plaintiffs’ .civil conspiracy claim. Plaintiffs contend that the conspiracy actors included Montoya, agents of Crossroads, police officers, the City Council, the Las Animas-County Commissioners and Las Animas County Sheriff Girodo. The object of the conspiracy was the “reopening of the Crossroads detox facility by obtaining state funds to reopen and operate the detox facility.” The agreement on course of action was to artificially boost the numbers of detainees referred to Crossroads by law enforcement. The unlawful acts in furtherance of this conspiracy include law enforcement’s intentional disregard for the requirements of the emergency commitment statute, seizing individuals without legal basis and contrary to the Fourth Amendment of the United States Constitution, physically restraining individuals’ freedom, reckless indifference to insuring the laws are abided by and enforced, and flagrantly ignoring and abusing the law and abusing law enforcement authority to serve illegal and unjustified ends. Plaintiffs contend that Chief Montoya’s statement that his staff would let detox assess whether individuals met the criteria for detox is alone sufficient proof of willful or reckless disregard of C.R.S. § 5-1-310, which plaintiffs contend requires that law enforcement officials acting pursuant to that statute make a determination in order to have probable cause. Plaintiffs urge that defendants’ analysis regarding qualified immunity is wrong. The plaintiffs contend that, in addition to improper supervision of police officers, defendant Montoya himself willfully and wantonly developed and orchestrated a plan expressly intended to violate the law. In furtherance of that goal, he met regularly with other defendants and developed policies violative of the plaintiffs’ constitutional rights. Plaintiff contends that it was clearly established in 1995 that the Fourth Amendment guaranteed the right to be free of unreasonable seizures, citing Workman v. Jordan, 32 F.3d 475, 478-479 (10th Cir.1994). They argue that under the Fourth Amendment, police are required to have probable cause to arrest before a person can be subjected to deprivations of liberty that result from being detained, citing Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). They assert the evidence in this case could not cause any person of ordinary prudence and caution to reasonably believe that the individuals taken to detox were clearly dangerous to the health and safety of himself or others. Plaintiffs assert that the individual governmental officials in this suit are not protected by qualified immunity because they have demonstrated that the defendants’ actions violated federal constitutional rights. The rights of due process of law and the right to be free from unlawful seizures are clearly established and are rights of which a reasonable person would have known. As to the County defendants’ motion, plaintiffs reiterate arguments made with respect to the City defendants. The distinguishing difference is that the County defendants, including the Las Animas County Commissioners and the Sheriff, all took active roles in the alleged improper activity. Crossroads’ motion for summary judgment argues that plaintiffs’ claims against it under 42 Ú.S.C. § 1983 fail because plaintiffs have failed to show that it deprived them of a specific constitutional right while acting under color of state law. Crossroads believes that plaintiffs have clearly identified only one federal claim against Crossroads, which is the alleged violation of a liberty interest in being free from an unwarranted confinement, an interest protected by the Fourteenth Amendment. Crossroads argues that plaintiffs have not demonstrated that it, a private non-profit corporation, was acting under color of state law as a state actor when it allegedly unlawfully detained plaintiffs at the Trinidad detox facility. Crossroads argues that its actions are not fairly attributed to the state, an analysis required by Lugar v. Edmondson, 457 U.S. 922, 929-934, 102 S.Ct. 2744, 2749-2752, 73 L.Ed.2d 482 (1982). The two components of the Lugar fair attribution test, state policy (requiring that the deprivation of constitutional rights must be caused by the exercise of some right or privilege created by the state or a rule of conduct imposed by the state or by a person for whom the state is responsible) and state actor (or that the defendant is a person who can fairly be said to represent the state because he is a state official or his conduct is otherwise chargeable to the state), are not satisfied in this case. Plaintiffs have not, Crossroads argues, satisfied their burden of showing that Crossroads, a private actor, was acting under color of state law so that § 1983 liability attaches. If this Court dismisses plaintiffs’ § 1983 claims against Crossroads, Crossroads argues that supplemental jurisdiction should not be exercised over the plaintiffs’ state law claims. However, if the Court does determine that it should exercise supplemental jurisdiction, Crossroads then argues that plaintiffs’ pendent state tort claims (outrageous conduct, conspiracy, Colorado constitutional claims, negligence and respondeat superior, false imprisonment, assault and battery) should also be dismissed. Plaintiffs have responded to Crossroads’ motion by arguing that Crossroads’ actions were indeed actions taken under color of state law, and constitute a violation of the Fourteenth Amendment, establishing a right to recover under Section 1983. Plaintiffs assert that there is overwhelming direct evidence that this defendant acted jointly with state actors. Evidence includes the minutes of the Trinidad Advisory Board detailing the intentions of Crossroads to reopen the detox facility, in conjunction with efforts of the other numerous governmental actors. General Order 95-03 was developed directly as a result of that joint activity and is, on its face, contrary to the Colorado emergency commitment statute. Plaintiffs insist the defendants have acted in concert and that Crossroads has a fundamental misunderstanding of their complaints. Plaintiffs state that they do not argue Crossroads is an agent of the state merely because of its contracts or regulations or that it may be liable merely because it performed actions pursuant to contracts or regulations. They state “[t]he incontrovertible facts, ... are that local government officials (City Police Chief, County Sheriff), worked closely with Crossroads (Trinidad Advisory Board) to develop illegal policies (General Order 95-03 and jail referrals to detox without legal basis) and ‘provided such significant encouragement that the challenged decisions (to detain individuals at Crossroads without lawful basis under 25-1-310) ... must, in law be deemed to be that of the State.’ ” Plaintiffs’ Brief in Opposition to Crossroads’ Motion, at 9. Plaintiffs argue that under any test regarding “under color of staté law,” Crossroads has failed to demonstrate there are no issues of material fact which would entitle Crossroads to summary judgment. As to the state law claims, plaintiffs agree that supplemental jurisdiction is discretionary, and urge that it may be properly exercised in this case. The claims of the plaintiffs against each of the defendants are based upon identical and inseparable facts. Separate trials would present unnecessary repetition and duplications of issues, facts and witnesses. Standard of Review Motions for Summary Judgment Pursuant to Fed.R.Civ.P. 56(c), summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions oh file, together with the affidavits on file, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law.” The moving party has the burden of showing the absence of a genuine issue concerning any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The moving party’s burden may be met by identifying those portions of the record demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether these burdens have been met, the court is required to examine all evidence in the light most favorable to the non-moving party. Barber v. General Electric Co., 648 F.2d 1272 (10th Cir.1981). Once the moving party has met its initial burden, the burden shifts to the party resisting the motion. That party must “make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial.” Manders v. Oklahoma ex rel. Dept. of Mental Health, 875 F.2d 263, 265 (10th Cir.1989) citing Celotex, 477 U.S. at 325, 106 S.Ct. at 2553-2554. Discussion 1. 1$ U.S.C. § 1983 and the Colorado Emergency Commitment Statute Title 42 U.S.C. § 1983 is a broadly written statute, it provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or any other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. 42 U.S.C. § 1983. Section 1983 is not a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-394, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989), citing and quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 2694, n. 3, 61 L.Ed.2d 433 (1979). There is no question that the police officers who detained the various plaintiffs and transported them to the Crossroads detox facility were acting under color of state law. Under the Colorado emergency commitment statute, law enforcement authorities acting with probable cause are authorized to take any person intoxicated or incapacitated by alcohol and clearly dangerous to the health and safety of himself or others into protective custody and placed into an approved treatment facility. The decision to retain an individual for emergency commitment in the approved treatment facility lies with the facility administrator or his authorized designee. The statute also authorizes officers to assist to their homes persons who are intoxicated or incapacitated by alcohol but not clearly dangerous to the health and safety of themselves or others. The language of the statute “indisputably articulates a clear legislative determination that the act of taking a person into civil protective custody is not an arrest.” Colorado v. Dandrea, 736 P.2d 1211, 1214 (Colo.1987). Colorado has expressed its legislative policy and purposes of the emergency commitment act in C.R.S. § 25-1-301: (1) It is the policy of this state that alcoholics and intoxicated persons may not be subjected to criminal prosecution because of their consumption of alcoholic beverages but rather should be afforded a continuum of treatment in order that they may lead normal lives as productive members of society. The general assembly hereby finds and declares that alcoholism and intoxication are matters of statewide concern. (2) With the passage of this part 3 at its first regular session in 1973, the forty-ninth general assembly has recognized the character and pervasiveness of alcohol abuse and alcoholism and that public intoxication and alcoholism are health problems which should be handled by public health rather than criminal procedures. The general assembly further finds and declares that no other health problem has been so seriously neglected and that, while the costs of dealing with the problem are burdensome, the social and economic costs and the waste of human resources caused by alcohol abuse and alcoholism are massive, tragic, and no longer acceptable. The general assembly believes that the best interests of this state demand an across-the-board locally oriented attack on the massive alcohol abuse and alcoholism problem and that this part 3 will provide a base from which to launch the attack and reduce the tragic human loss, but only if adequately funded. Therefore, in response to the needs as determined by an ail hoe committee and to assist in the implementation of this part 3 at both the local and state level, the general assembly hereby appropriates moneys for: Receiving and screening centers and their staffs; medical detoxification; intensive treatment, halfway house care, outpatient rehabilitative therapy; orientation, education, and in-service training; division staff for the administration, monitoring, and evaluation of the program; and operating costs for patient transportation. In 1983, in Carberry v. Adams County Task Force on Alcoholism, 672 P.2d 206 (Colo.1983), the Colorado Supreme Court reviewed due process considerations with specific reference to the state’s emergency commitment statute § 25-1-310. In that case the plaintiff, who was walking home, was picked up by police in early morning hours and was taken to Washington House, an alcohol detoxification center run by the Adams County Task Force on Alcoholism. The lower court had determined that the standard set out in § 25-1-310 was an unconstitutionally vague standard for committing and releasing intoxicated persons. The judgment of the lower court was reversed and vacated by the Colorado Supreme Court. In its opinion,, the Colorado Supreme Court stated: The threshold inquiry is whether the emergency commitment of Carberry deprived him of a liberty interest protected by the due process of the Fourteenth Amendment to the United States Constitution and Article II, section 25 of the Colorado Constitution____ It is conceded that holding Carberry in Washington House for four days deprived him of liberty. We recognize that “a civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” ... The dispute in this case centers on whether due process requires a judicial hearing to minimize the risk of an erroneous commitment.... Due process is a flexible standard which does not call for the same procedural safeguards in all situations ... Due process prescribes orderly procedures balanced to protect constitutional interests while furthering legitimate governmental objectives ... In the context of an emergency commitment, due process requires consideration of three distinct factors: (1) the weight of the governmental interest in the emergency commitment process; (2) the severity of the deprivation suffered by the individual as a result of the governmental action; and (3) the functional appropriateness of the procedures for minimizing the risk of an erroneous decision, together with the probable value, if any, of additional safeguards ... The state has a compelling interest in protecting an intoxicated individual and the general public from the catastrophic consequences of alcohol abuse. The state also has an interest in providing treatment to alcoholics “in order that they may lead normal fives.” ... We recognize, however, that an individual committed under section 25-1-310 has a substantial interest in avoiding the “massive curtailment of liberty” and the “adverse social consequences,” resulting from emergency commitment ... In our view, a judicial hearing as a prerequisite to commitment of a clearly dangerous intoxicated person would-hinder the government’s efforts in controlling alcohol abuse without providing additional procedural safeguards. Due process demands only that a neutral factfinder independently determiné that the statutory requirements for commitment and release are satisfied____ Due process does not dictate that the neutral and detached factfinder be “law-trained or a judicial or administrative officer.” ... An independent factfinder strikes the proper balance between the public’s right to protection from alcohol related tragedies and the individual’s right to be protected from unjustified commitment. ... Carberry v. Adams County Task Force on Alcoholism, 672 P.2d 206, 209-210 (Colo.1983) (citations and footnote omitted). The emergency commitment statute is again considered in Leake v. Cain, 720 P.2d 152 (Colo.1986), a wrongful death action in which plaintiffs sought damages for the deaths of their children when they were struck and killed by an automobile driven by ■Ralph Crowe. Crowe, then 18, had been at an outdoor teenage party and had been drinking beer and alcoholic punch. At 11:30 that night, the police were dispatched to break up the party after a neighbor complained. Crowe became disruptive and was handcuffed and detained by police. Crowe’s younger brother approached the officers, requested that his older brother be released to him and told the officers he would drive his brother home. After they determined that Crowe’s younger brother was sober and after checking his driver’s license, they agreed to let him leave the party with his older brother. Crowe, the younger Crowe and another person left the party with the younger Crowe brother ' driving. The Crowe brothers dropped off the other person and then stopped at a convenience store. When they left the store, Ralph Crowe rather than the younger brother was driving the car. The car driven by Ralph Crowe later struck six persons on the street, killing two of them. In the wrongful death action, Ralph Crowe, Crowe’s father, the five police officers who had been dispatched to the party and permitted Ralph Crowe to leave with his younger brother were all sued. As to the police, the plaintiffs alleged the police officers were negligent in failing to take Ralph Crowe into custody. One of the matters considered by the Colorado Supreme Court was the Colorado emergency commitment statute, § 25-1-310. The Colorado Court stated: A duty of care may be created by legislative enactment____ However, the breach of a statutory duty is actionable only by one who is a member of the class the statute was designed to protect, and only where the injury suffered by such person is the type of injury which the statute was enacted to prevent. Section 25-1-310(1) was enacted as a part of a comprehensive legislative scheme dealing with alcoholism and intoxication treatment ... The legislative declaration preceding the statutory scheme states: (1) It is the policy of this state that alcoholics and intoxicated persons ,may not be subjected to criminal prosecution because of their consumption of alcoholic beverages but rather should be afforded a continuum of treatment in order that they may lead normal lives as productive members of society. The general assembly hereby finds and declares that alcoholism and intoxication are matters of statewide concern. § 25-1-310(1). We recognize that a cursory reading of the emergency commitment statute may suggest that the statute was intended to protect members of the public against intoxicated persons who appear “clearly dangerous.” However, in our view, the General Assembly did not intend to create a claim for relief against police officers who, in their discretion, release an intoxicated person into the “custody” of an apparently sober and responsible relative. Since we conclude that the respondents’ decedents were not included within the class of persons that section 25-1-310(1) was designed to protect, the respondents may not rely on the statute as a source of the officers’ duty in this case. Leake v. Cain, 720 P.2d at 162-163 (citations omitted). The emergency commitment statute was visited again by the Colorado Supreme Court in People of Colorado v. Dandrea, 736 P.2d 1211 (Colo.1987). The Colorado Court discussed civil protective custody in the context of a challenge to a warrantless search leading to the discovery of controlled substances. The Colorado Court noted that persons taken into civil protective custody because of intoxication are treated differently from those persons who are placed under custodial arrest because of suspected criminal conduct. Police officers encountering intoxicated persons must distinguish between criminal custodial arrests and civil protective detentions. Colorado v. Dandrea, 736 P.2d at 1214. “The detention authorized by the Act is permitted only to prevent harm to the detainee or others resulting from the detainee’s conduct or inability to act ... The Act, therefore, cannot be used directly or indirectly to justify the equivalent of a criminal custodial arrest not supported by probable cause.” Id. at 1215 (citations omitted). Noting that the Act does not require a warrant prior to placing an individual in civil protective custody, and recognizing the legislative policy, that court considered what the proper construction of the statute should be. It stated: A warrantless search is presumptively invalid under the fourth amendment to the United States Constitution and article II, section 7, of the Colorado Constitution, subject only to a few narrow and specifically delineated exceptions____ The general requirement that a search proceed only upon prior approval by a judge or magistrate interposes a neutral and detached judicial officer between the police and the “persons, houses, papers, and effects” of the citizen, thus ensuring the protection of those areas of a person’s life to which reasonable expectations of privacy attach ____ The constitutional test of a warrantless search ultimately is reduced to the question of whether the search was reasonable under all relevant attendant circumstances ... The prosecution bears thé burden of establishing that some basis exists to justify departure from the fundamental principle of federal and Colorado constitutional law that a warrantless search is presumed to violate the reasonable expectation of freedom from intrusion into the privacy of one’s person and personal effects enjoyed by all private parties ... Any determination of what constitutes reasonable warrantless police conduct in civil protective custody detentions authorized by the Act must take into account the absence of certain factors deemed most significant in determining the permissible scope of warrantless searches of suspected criminals. The primary justifications for permitting warrantless searches' or ■ seizures incident to custodial arrests are preserving and avoiding destruction of evidence of the crime for which the defendant has been arrested and protecting the safety of arresting officers.... Another exception to the warrant requirement is recognized for items discovered in plain view in the course of an otherwise permissible search; however, only where there is probable cause to believe those items are associated with criminal conduct is further search of the items permissible ... In these few and narrowly defined circumstances, the governmental interests are deemed sufficiently important to permit warrantless searches and seizures so long as the invasions of personal privacy rights are limited to the furtherance of those interests.... In civil protective custody cases such as this one, no governmental interest in locating or preserving evidence of a suspected crime is present. However, the Act does contemplate the transportation of some persons to various locations. Therefore, one factor to be considered in balancing a detainee’s privacy interest against legitimate governmental needs to interfere with that interest is the safety of the officer as well as the detainee during such transportation ... While the goal of assuring officer safety is admittedly important, the legislative emphasis on the noncriminal nature of the contact between government officials and private citizens in civil protective custody settings requires that in such settings the individuals’ privacy interest must be accorded maximum weight in determining the reasonableness of police conduct.... These features of civil protective custody cases distinguish them from cases involving searches incident to custodial arrests... Dandrea, 736 P.2d at 1215-1218 (citations omittéd). g. Qualified Immunity Issues — County and City..Defendants A. County Defendants ■ “[A]n official-capacity suit is in all respects other than name to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985); cited in Moore v. City of Wynnewood, 57 F.3d 924, 929 n. 4 (10th Cir.1995). The official capacity allegations are a means of bringing suit against Las Animas County. Further, where no constitutional violation is found against county officials, a county is properly dismissed. Webber v. Mefford, 43 F.3d 1340, 1344-1345 (10th Cir.1994). Under § 1983, a local government may only be held hable for the constitutional violations committed by its employees when the employee “action pursuant to official municipal policy caused a constitutional tort.” Hollingsworth v. Hill, 110 F.3d 733, 741 (10th Cir.1997). Therefore, “to establish municipal liability a plaintiff must show (1) the existence of a municipal custom or policy and (2) a direct causal link between the custom or policy and the violation alleged.” Hollingsworth v. Hill, 110 F.3d at 742 (citations omitted). A local government generally will not be liable to respond in damages for the actions of its employees under a respondeat superior theory or a theory of vicarious liability, except in very limited instances. These include whether the local government (which includes both the City and County in the instant case) had an established custom or policy, as alleged by plaintiffs, and whether the actor is the final policy making authority of the local government in the area which is the subject of dispute. Under either analysis, the official capacity suit against the County defendants, including the Board of County Commissioners, and each Commissioner, may not proceed. The plaintiffs have not demonstrated any established policy or practice violative of federal law concerning the detention of intoxicated persons pursuant to the Colorado Emergency Commitment Act that supports a § 1983 claim. Contrary to the plaintiffs’ claims, the documents and materials provided in support of the complaint and in resistance to the pending dispositive motions, which have been thoroughly and carefully reviewed by the Court, do not demonstrate more than an agreement to utilize local detox facilities for taking intoxicated persons into protective custody and an agreement to attempt to retain as a resource available to the community a facility capable of providing treatment for persons affected by alcohol and alcohol-related problems. There is no evidence before the Court that suggests there is any established policy, pattern or practice of any of the County defendants, relating to or concerning the detention and taking into protective custody of intoxicated persons as alleged by plaintiffs. In fact, utilization of the detox facilities is consistent with the expressed legislative policy of the State of Colorado that treatment and evaluation of intoxicated persons pursuant to the Emergency Commitment Act is preferred to criminal dispositions. B. City and County Defendants In the complaint, plaintiffs set out sweeping allegations asserting acts by all City and County defendants which are claimed to be conspiratorial in nature and in violation of federal law. However, “[m]ere characterization of defendants’ conduct as conspiratorial or unlawful does not set out allegations upon which relief can be granted.” Thompson v. Aland, 639 F.Supp. 724, 729 (N.D.Tex.1986). In cases invoking 42 U.S.C. § 1983, a plaintiff must state specific factual allegations and not merely eonclusory allegations. Id. To state such a claim for relief under section 1983, a plaintiff: must show that he has been deprived of any rights, privileges, or immunities secured, by the Constitution and laws and that the defendant acted.under color of state law. In Brown v. Chaffee, 612 F.2d 497, 501 (10th Cir.) (quoting Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 482, 5 L.Ed.2d 492), we held that: “Acting under color of state law as required by section 1983 is defined as the ‘[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’ ” Pitts v. Turner and Boisseau, Chartered, 850 F.2d 650, 653 (10th Cir.1988). Here, plaintiffs’ complaint does not contain factual allegations of conduct by any of the city, county or private defendants which support a legitimate claim under 42 U.S.C. § 1983. The allegations are eonclusory and are not sufficient under § 1983. C. City Defendants As noted earlier, plaintiffs have claimed that the City defendants deprived them of their due process rights under the Fourteenth Amendment of the United States Constitution. The substance of plaintiffs’ claims is that the City defendants, including the City of Trinidad, its Mayor Harry Sayre in his official capacity, and Chief of Police Montoya, in his individual and official capacities, violated their Fourteenth Amendment due process rights and their Fourth Amendment rights to be free from unreasonable search and seizures. The plaintiffs assert that the City defendants violated these rights by agreeing to utilize the Crossroads detox facility, by issuing General Order 95-03, and by taking persons to Crossroads for evaluation without first making a determination whether the person detained and transported to detox was clearly dangerous to the health and safety of himself and others, all contrary to § 25-1-310. Plaintiffs conceded they have no cognizable § 1983 claim based upon a violation of the Fifth Amendment of the United States Constitution. In this case, the plaintiffs propose that the basis for holding the local government entities liable under § 1983, including the City (and County), is participation in the plan to re-open the Trinidad detox facility and ensure use at a level that would guarantee the facility would remain open. This goal would be accomplished, with respect to the City, through the issuance of General Order 95-03, which was the directive to be followed by law enforcement authorities required to deal with intoxicated individuals during the course of performance of their jobs. There are no facts here that suggest any of the plaintiffs were not consuming alcohol when they were taken to Crossroads for evaluation. The plaintiffs have suggested, however, that it is the language of General Order 95-03 itself, stating that any person who is “potentially intoxicated” shall be taken to detox for evaluation, that is the source of the'constitutional violations at issue in this ease. This Court disagrees. Colorado law has expressly stated, in its statement of legislative policy and purpose, as well as in the language of the emergency commitment statute, that it is preferable for intoxicated persons to receive treatment rather than prosecuting those individuals criminally. The issuance of General Order 95-03 furthers and is consistent with that purpose. The Court finds no constitutional violation. As to the plaintiffs’ Fourth Amendment search and seizure arguments, Graham v. Connor, 490 U.S. 386, 394-396, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989), requires that the seizure be analyzed under an objective reasonableness standard that “requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Id. (quotation and citations omitted). The “reasonableness” must be judged from the perspective of the reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Id. The question is whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. Id. at 1872., This does not require one to assume, however, that intoxication requiring police intervention will necessarily implicate a finding that, per se, a clear danger exists. Defendant Montoya has asserted that he is entitled to qualified immunity because plaintiffs have failed to show that he violated clearly established law. This Court agrees that defendant Montoya is entitled to qualified immunity. The Tenth Circuit has stated: Qualified immunity is designed to shield public officials from liability and ensure “that erroneous suits do not even go to trial.” ... Thus, the Supreme Court has repeatedly “stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” ... Once a defendant pleads qualified immunity, the plaintiff initially bears a. heavy two-part burden____ First, the plaintiff must demonstrate that the defendant’s actions violated a constitutional or statutory right ... Second, the plaintiff must show that the constitutional or statutory rights the defendant allegedly violated were clearly established at the time of the conduct at issue.... “[Pjlaintiff must articulate the clearly established constitutional right and the defendant’s conduct which violated the right'vhth specificity.” ... To be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” ... Although the very action in question does not have to have previously been held unlaMul, “in the light of pre-existing law the unlawfulness must be apparent.” ... “Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of the authority from other courts must have found the law to be as the plaintiff maintains ...” If the plaintiff fails to carry either part of his two-part burden, the defendant is entitled to qualified immunity.... Thus, a defendant is entitled to qualified immunity if the plaintiff fails to show a violation of a constitutional right at all ... Further, a defendant is entitled to qualified immunity if the plaintiff fails to show that the law was clearly established ... Only if the plaintiff succeeds in carrying his two-part burden, does the burden shift to the defendant. At that point, the defendant must show “that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law.” ... If the court concludes Plaintiff has carried his burden, the court should state on the record the clearly established constitutional right it finds the defendant violated— Albright v. Rodriguez, 51 F.3d 1531, 1534-1535 (10th Cir.1995) (citations and parentheticals omitted). Reasonable officials in the situation of the individual defendants must have understood that their conduct violates that clearly established constitutional right. Liebson v. New Mexico Corrections Department, 73 F.3d 274, 276 (10th Cir.1996). See also Hollingsworth v. Hill, 110 F.3d 733 (10th Cir.1997). In this case, it is