United States District Court, D. New Mexico
DAVID N. STANLEY, Plaintiff,
DONALD GALLEGOS, et al., Defendants.
ORDER DISMISSING PLAINTIFF'S STATUTORY TRESPASS
CLAIM AGAINST DEFENDANT OLONA
GREGORY B. WORMUTH MAGISTRATE JUDGE
matter comes before the Court on Plaintiff's Brief
Regarding Trespass Claim Against Defendant Olona (doc.
168) and Defendant Olona's Response (doc.
170). Plaintiff and Defendant Olona filed these
supplemental briefs pursuant to the Court's Order
Granting in Part Defendant Olona's Motion to Dismiss or
for Summary Judgment. Doc. 166. In that Order, the
Court noted sua sponte that dismissal of
Plaintiff's statutory trespass claim against Defendant
Olona was apparently warranted, due to a lack of record
evidence to support the damages element of the relevant
statute. See Id. at 23-24; see also
N.M.S.A. § 30-14-1.1(D). However, because Defendant
Olona never raised that argument in his Motion to Dismiss or
for Summary Judgment (doc. 136), the Court allowed
Plaintiff an opportunity to file a supplemental brief on the
issue in accordance with Fed.R.Civ.P. 56(f).
Plaintiff and Defendant Olona both filed supplemental briefs
on the issue. Docs. 168, 170. Having reviewed the
briefing and being otherwise fully advised, the Court now
DISMISSES Plaintiff's statutory trespass claim against
Defendant Olona WITH PREJUDICE.
statutory trespass claim against Defendant Olona stems from
the August 24 and September 10, 2011 removals of a gate that
Plaintiff placed across a road traversing Plaintiff's
property. Defendant Olona was present during the August 24
removal, along with several other individuals including
Defendant Donald Gallegos, who is the District Attorney for
the Eighth Judicial District of New Mexico, officers from the
Mora and Colfax County Sheriff's Departments, and other
civilians. Doc. 125 at 1-2; see also doc.
149-1 at 4-5, Olona Dep. 48:3-50:23. To open the road to
public access on that occasion, Defendant Gallegos used bolt
cutters to cut the locked chain securing the gate;
additionally, he and other members of the group removed a
barbed-wire fence and T- posts set up at the cattle crossing.
Doc. 21 at 3; doc. 160-1 at 18; doc.
125-1 at 10-12, Gallegos Dep. 72:12-73:24; 82:1-86:18.
According to a letter Defendant Gallegos wrote to Plaintiff
two days later, the gate was then re-secured with wire, and
the T-posts and barbed-wire fence were left resting against a
tree. Doc. 160-1 at 18; see also doc. 149-1
at 8, Olona Dep. 68:3-7.
thereafter restored the locked gate across the road, but a
Colfax County Sheriff's Deputy removed it again on
September 10, 2011. Doc. 21 at 3-4. Defendant Olona
was present on that occasion as well, and took photographs,
which he sent to Defendant Gallegos. See doc. 149-3
Court will not recount the entire extensive procedural
history of this case here. As pertinent to this Order, the
Court dismissed Plaintiff's § 1983 and state
constitutional claims against Defendant Olona on August 25,
2015. Doc. 166. However, Plaintiff's state-law
statutory trespass claim against Defendant Olona remained
intact, pending supplemental briefing. Id. at 23-24.
That supplemental briefing was complete on September 10,
2015. Docs. 168, 170. Due to the September 18, 2015
interlocutory appeal of the Court's qualified immunity
ruling regarding Defendant Gallegos, the statutory trespass
claim went unaddressed until the Tenth Circuit remanded the
case for further proceedings on June 7, 2017. See doc.
Court raised this issue in the context of Defendant
Olona's summary judgment motion, and allowed supplemental
briefing pursuant to Rule 56(f). See doc. 166 at
24-25; see also Fed. R. Civ. P. 56(f)(2). Therefore,
the Court's analysis will proceed according to the
typical standard applicable to summary judgment motions under
Federal Rule of Civil Procedure 56(f), the Court may grant
summary judgment “on grounds not raised by a party,
” but only “[a]fter giving notice and a
reasonable time to respond.” Fed.R.Civ.P. 56(f)(2).
Though courts “generally don't favor the granting
of summary judgment sua sponte, a district court may
do so if the losing party was on notice that she had to come
forward with all of her evidence.” Johnson v. Weld
Cty., 594 F.3d 1202, 1214 (10th Cir. 2010) (quoting
Scull v. New Mexico, 236 F.3d 588, 600 (10th Cir.
2000)) (internal quotation marks and alterations omitted).
See also Celotex Corp. v. Catrett, 477 U.S. 317, 326
(1986). Summary judgment is mandated “against a party
who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Id. at 322. “In such a
situation, there can be no ‘genuine issue as to any
material fact, '” and “[t]he moving party is
‘entitled to judgment as a matter of law' because
the nonmoving party has failed to make a sufficient showing
on an essential element of her case with respect to which she
has the burden of proof.” Id. at 322-23
(quoting Fed.R.Civ.P. 56(a)).
movant bears the initial burden of “show[ing] that
there is an absence of evidence to support the nonmoving
party's case.” Bacchus Indus., Inc. v. Arvin
Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991) (citing
Celotex, 477 U.S. at 323). Once the movant meets
this burden, Rule 56(e) requires the non-moving party to
designate specific facts showing that “there are . . .
genuine factual issues that properly can be resolved only by
a finder of fact because they may reasonably be resolved in
favor of either party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986); Celotex, 477
U.S. at 324. “An issue is ‘genuine'
if there is sufficient evidence on each side so that a
rational trier of fact could resolve the issue either way. An
issue of fact is ‘material' if under the
substantive law it is essential to the proper disposition of
the claim.” Thom v. Bristol Myers Squibb Co.,
353 F.3d 848, 851 (10th Cir. 2003) (internal citation
court's role is not to weigh the evidence, but to assess
the threshold issue of whether a genuine issue of material
fact exists, requiring a trial. See Liberty Lobby,
477 U.S. at 249. In so doing, the court must resolve all
reasonable inferences and doubts in favor of the non-moving
party, and construe all evidence in the light most favorable
to the non-moving party. See Hunt v. Cromartie, 526
U.S. 541, 551-54 (1999). Additionally, the court cannot
decide any issues of credibility. See Liberty Lobby,
477 U.S. at 255. However, if the non-moving party's story
“is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt
that version of the facts for the purposes of ruling on a
motion for summary judgment.” Scott v. Harris,
550 U.S. 372, 380 (2007). In the end, “to survive the .
. . motion, [the non-movant] need only present evidence from
which a jury might return a verdict in his favor.”
Id. at 257.
brings his statutory trespass claim against Defendant Olona
pursuant to N.M.S.A. § 30-14-1.1(D). Doc. 21 at
9. That statute provides:
In the event any person enters upon the lands of another
without prior permission and injures, damages or destroys any
part of the realty or its improvements, including buildings,
structures, trees, shrubs or other natural features, he shall
be liable to the owner, lessee or person in lawful possession
for damages in an amount equal to double the amount of the
appraised value of the damage of the property injured or
Id. As the Court noted in its earlier Order, the
plain statutory language appears to create liability only
where a defendant has personally caused injury, damage, or
destruction to Plaintiff's realty or its improvements.
See doc. 166 at 24. Yet there is no record evidence
that Defendant Olona personally injured, damaged, or
destroyed Plaintiff's property. In fact, Defendant
Gallegos testified during his deposition that he personally
cut the lock on the chained gate with a pair of bolt cutters,
that his employee Tomás Trujillo removed the
barbed-wire fence, and that he and Mr. Trujillo are the only
people he recalls being involved in the removal of the
T-posts. See doc. 125-1 at 11-12, Gallegos Dep.
82:1-86:18; 87:15-89:1. Consistent with that testimony,
Defendant Gallegos formally denied Plaintiff's Request
for Admission No. 5, which asked him to “admit that
Defendant Ed Olona assisted you in taking the August 24th
actions.” Doc.56-19 at 2. Defendant Olona
testified during his deposition that he had no recollection
of who removed the T-posts, and that he “didn't
think [he] would handle the T-bar.” Doc. 149-1
at 8, Olona Dep. 66:4-7; 64:16-19.
photographs were taken to document the gate removals on both
occasions. See docs. 125-4 at 4-5; 125-5 at
1, 5; 125-6 at 1, 4; see also docs. 56-2, 56-3,
56-4, 56-5, 56-6, 56-8, 56-9, 56-10, 56-12, 56-13, 149-3
at 2, 4-6. Of these, Plaintiff has identified only
one photograph which potentially depicts Defendant Olona
involved in the gate removal on August 24,
2011.See doc. 149-3 at 6. In the
photograph, Defendant Olona is bending or crouching down on
the cattle guard where the barbed-wire fence and T- posts
were located, while another man, crouching while holding a
T-post perpendicular to the ground, faces him. Id.
The barbed wire fence remains intact between the two men,
with at least two visible T-posts still in a vertical
position holding the fence upright. Id. Although the
photograph is grainy, ...