United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE.
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.
[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.
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.
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.
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.
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
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.
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.
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).
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
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