Tenth Circuit law is far more nuanced, however, and makes clear that the circumstances alleged in this case do not provide justification for a strip search. See Foote v. Spiegel, 118 F.3d 1416, 1425 (10th Cir. 1997); Cottrell v. Kaysville City, Utah, 994 F.2d 730, 734-35 (10th Cir. 1993); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir. 1984). The Fourth Amendment "requires a balancing of the need for the particular search against the invasion of personal rights that the search entails."
Therefore, a portion of a district court order denying qualified immunity is not immediately appealable insofar as the order determines plaintiff's claims are supported by sufficient evidence in the record or disputed issues of material fact exist which preclude summary judgment. Johnson, 515 U.S. at 313, 115 S.Ct. 2151; Foote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir. 1997). The district court's denial of qualified immunity in the present case turned on both issues of abstract law and evidentiary sufficiency.
"Individual liability under § 1983 must be based on personal involvement in the constitutional violation." Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997) (citation omitted). A plaintiff must allege facts that establish an affirmative link between a particular defendant's conduct and the alleged constitutional violation.
See Mitchell v. Forsyth, 472 U.S. 511, 527-30, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Thus we may review both whether a constitutional right was clearly established at the time of the alleged violation, Fogarty v. Gallegos, 523 F.3d 1147, 1153-54 (10th Cir. 2008), and whether, taking the plaintiffs allegations as true, the defendant violated clearly established law, see Johnson v. Martin, 195 F.3d at 1214; Foote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir. 1997). However, a defendant denied qualified immunity "may not appeal a district court's summary judgment order insofar as that order determines whether or not the pretrial record sets forth a `genuine' issue of fact for trial."
In particular, the Court held, "a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court's summary judgment order insofar as that order determines whether or not the pretrial record sets forth a `genuine' issue of fact for trial." Id. at 319-320; see also Foote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir. 1997) (explaining Johnson). The Johnson Court explained that when the district court's summary judgment ruling merely determines the sufficiency of the evidence offered by the plaintiff in response to the defendant's factual assertions, the appeal is unlikely to involve the kind of abstract legal issues separate from the fact-related issues that will arise at trial.
"Orders denying qualified immunity before trial are appealable to the extent they resolve abstract issues of law." Foote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir. 1997) (citing Behrens v. Pelletier, 116 S.Ct. 834, 842 (1996), and Johnson v. Jones, 515 U.S. 304, 312-14 (1995)). More specifically:
Personal liability “under § 1983 must be based on personal involvement in the alleged constitutional violation.” Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997).
Moreover, when Plaintiff awoke, the officers testified that "[his] taste buds were raised and [he] had a green tint to [his] tongue"—indicia of recent marijuana usage, in light of the officers' experience. Id. at 3; see also Foote v. Spiegel, 118 F.3d 1416 (10th Cir. 1997) (affirming summary judgment on qualified immunity grounds for officer in action regarding a drug-related arrest premised, in part, on officer's observation of green tint to defendant's tongue). Upon these specific and articulable facts, the officers would have had probable cause to arrest Plaintiff for violating state law and to search Plaintiff's vehicle under the plain view and automobile exceptions to the warrant requirement.
The law is clear in the Tenth Circuit that "[i]ndividual liability under §1983 must be based on personal involvement in the alleged constitutional violation." Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997); Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996). "Because vicarious liability is inapplicable to ... § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."
(Doc. 46 at 11-14). See Poolaw v. Marcantel, 565 F.3d 721, 732 (10th Cir. 2009); Foote v.Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997). Plaintiff acknowledges that it was a nurse practitioner, not one of the Defendant doctors, who resumed the Valproic Acid prescription, thus, Plaintiff has not shown that any of the Defendants had any personal involvement in the harmful behavior.