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Routh v. Johnson

United States District Court, D. New Mexico

September 28, 2018

CATHY ROUTH, Plaintiff,
ANDREA CHARLEEN JOHNSON, KRISTOPHER DALE KATSCH, CARL CARMELL ELLERBY, FRED MORALES a/k/a Frederico Marvin Torres, in his official and personal capacity, BEN MARTINEZ, in his official and personal capacity, PEDRO CHAVEZ, in his official and personal capacity, Defendants.



         THIS MATTER comes before the Court on Defendant Frederico Marvin Torres' Motion for Summary Judgment on the Basis of Qualified Immunity and Other Grounds [Doc. 81]. The Court, having considered the motion, briefs, and relevant law, and being otherwise fully informed, finds that the motion is well-taken and will be granted.


         “The [relevant] facts supported by evidence, [viewed] in the light most favorable to [Plaintiff]” as the party opposing summary judgment, are as follows. Cavanaugh v. Woods Cross City, 625 F.3d 661, 662 (10th Cir. 2010). In February 2014, Plaintiff Cathy Routh bought three lots in Los Lunas, New Mexico (the “Property”). Doc. 83-1 at ¶ 4. Plaintiff purchased her Property with an easement on the neighboring property owned by Defendant Fred Morales a/k/a Frederico Marvin Torres (“Torres”) (“Torres' Property”), which allows Plaintiff access to a well on Torres' Property (the “Well”). Id. at ¶ 5. Torres is a Valencia County Deputy Sheriff. Doc. 81-1 at ¶ 3. In July 2014, Defendants Andrea Charleen Johnson, Kristopher Dale Katch, and Carl Carmell Elerby became tenants on Torres' Property. Doc. 83-1 at ¶ 6.

         Plaintiff's Property is supplied with water from the Well pursuant to a well share agreement (the “Agreement”). Id. at ¶ 5. Under the Agreement, Torres is prohibited from making any improvements to his Property that would impair Plaintiff's use of her easement to access the Well. Id.

         From in or about February 2014 through August 2015, Torres, along with Johnson, Katch and Elerby, engaged in various improper acts that interfered with Plaintiff's access to the Well and with water service from the Well to her Property, including charging Plaintiff for improvements in violation of the Agreement, threatening and intimidating Plaintiff and her tenants, demanding excessive payments from Plaintiff's tenants for water use in violation of the Agreement, placing “No Trespass” signs on Plaintiff's easement, damaging Plaintiff's water lines and valves, and blocking access to prohibit repairs thereto, and repeatedly shutting off the delivery of water to Plaintiff's Property. Id. at ¶¶ 7-22. These improper acts caused Plaintiff various harms, including the loss of rental income, the inability to start a business that she had planned for her Property and thus the loss of potential profit from such business, the salvaged sale of and loss of equity in mobile homes on her Property, ruined credit, a reduction in the value of her Property due to lack of water, needless costs for repairs, and ultimately, the abandonment of her Property. Id. at ¶¶ 9-10, 25-26.

         In response to the improper acts of Torres, Johnson, and others, Plaintiff called the Sheriff's Department on three occasions in August 2015, to file reports and to seek investigation into the improper acts of Torres, Johnson and others. Id. at ¶ 20. The Sheriff's Department did not file any reports or investigate Plaintiff's claims, but rather told her that Torres “was taking care of it.” Id. At some point, Plaintiff again contacted the Sheriff's Department, and Defendants Ben Martinez and Pedro Chavez, both Valencia County Deputy Sheriffs and colleagues of Torres, told Plaintiff that Torres “was taking care of it.” Id. at ¶ 23. After Torres told Martinez to request that Plaintiff's tenants not trespass onto his property, Doc. 81-1 at ¶ 31, Martinez further told Plaintiff not to cross a line at the scene to make repairs, and that she would have to go to court to get water or to get access to the water easement and water system. Id. Plaintiff understood from Martinez that Torres had advised him that he, Torres, had authorized that Plaintiff's water be shut off. Id. at ¶ 24. Torres, Chavez, and Martinez refused to take any further police action on Plaintiff's complaints. Id.

         Based on these facts, on June 10, 2016, Plaintiff commenced the instant action in New Mexico state court, alleging negligent misrepresentation as to Johnson, Torres, Martinez, and Chavez (Count I), negligent interference of easement as to all Defendants (Count II), trespass and slander to chattels as to all Defendants (Count III), tortious interference with contract/prospective business relations as to all Defendants (Count IV), breach of contract (Count V), and violation of the Tort Claims Act and deprivation of state and federal constitutional rights (Count VI) as to Martinez, Chavez, and Torres. Doc. 1-2. In Count VII, Plaintiff seeks damages based on the violations alleged in Counts I through VI of the Complaint.

         Martinez and Chavez removed the case to this Court on July 16, 2016. Doc. 1. On October 25, 2017, Johnson was dismissed from this case by stipulation of the parties. Doc. 73. On January 31, 2018, all counts were dismissed as to Torres by stipulation of the parties, except Count VI and Count VII (to the extent that Count VII seeks damages based on the violations alleged in Count VI). Doc. 79.

         On July 25, 2016, Martinez and Chavez filed a Motion to Dismiss on the Basis of Qualified Immunity and on Other Grounds (“Martinez/Chavez Motion”) [Doc. 24]. On February 21, 2018, Torres filed the instant motion for summary judgment on the remaining claims against him (“Torres Motion”). Doc. 81. Plaintiff opposes the motions.


         Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant has the initial burden of establishing that there is an absence of evidence to support the non-movant's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the movant meets this burden, the non-movant must come forward with specific facts, supported by admissible evidence, that demonstrate the existence of a genuine dispute. Comm. for First Amendment v. Campbell, 962 F.2d 1517, 1526 n. 11 (10th Cir. 1992). The court “construe[s] the factual record and the reasonable inferences therefrom in the light most favorable to the nonmoving party.” Mata v. Saiz, 427 F.3d 745, 749 (10th Cir. 2005).

         In the instant case, Defendants move for summary judgment on the basis of qualified immunity. Qualified immunity protects government officials performing discretionary functions “when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011). In keeping with the purposes of qualified immunity, “special rules apply when an official raises a defense of qualified immunity on summary judgment.” Hinton v. City of Elwood, Kan., 997 F.2d 774, 779 (10th Cir. 1993). Specifically, “qualified immunity requires a two-step sequence.” Morris v. Noe, 672 F.3d 1185, 1191 (10th Cir. 2012) (citation omitted). “When a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and (2) the constitutional right was clearly established.” Id. (citation omitted). “If the plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the defendant qualified immunity.” Gross v. Pirtle, 245 F.3d 1151, 1156 (10th Cir. 2001). The court has “the freedom to decide ‘which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.'” Lundstrom v. Romero, 616 F.3d 1108, 1118 (10th Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223 (2009)).

         “A constitutional right is clearly established when, at the time of the alleged violation, the contours of the right were sufficiently clear that a reasonable official would understand that his actions violate that right.” Lundstrom, 616 F.3d at 1118-19 (citation omitted). “This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition.” Fisher v. City of Las Cruces, 584 F.3d 888, 900 (10th Cir. 2009) (citation omitted). Accordingly, a “plaintiff must do more than identify in the abstract a clearly established right and allege that the defendant has violated it.” Lundstrom, 616 F.3d at 1119. Specifically, a “plaintiff must show ...

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