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Stanley v. Gallegos

United States District Court, D. New Mexico

March 13, 2018

DAVID N. STANLEY, Plaintiff,
v.
DONALD GALLEGOS, et al., Defendants.

          ORDER DISMISSING PLAINTIFF'S STATUTORY TRESPASS CLAIM AGAINST DEFENDANT OLONA

          GREGORY B. WORMUTH MAGISTRATE JUDGE

         This 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).

         Thereafter, 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.

         I. Background

         Plaintiff's 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[1] 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.

         Plaintiff 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 at 9.

         The 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. 191.

         II. Legal Standard

         The 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 Rule 56.

         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)).

         The 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 omitted).

         The 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.

         III. Analysis

         Plaintiff 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 destroyed.

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.

         Numerous 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.[2] Of these, Plaintiff has identified only one photograph which potentially depicts Defendant Olona involved in the gate removal on August 24, 2011.[3]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, ...


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