Stanley v. Gallegos

• Decision Date: 25 August 2015
• Docket Number: No. 11-cv-1108 GBW/WPL,11-cv-1108 GBW/WPL
• Parties: DAVID N. STANLEY, Plaintiff, v. DONALD GALLEGOS, et al., Defendants.
• Court: U.S. District Court — District of New Mexico

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

No. 11-cv-1108 GBW/WPL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

August 25, 2015

ORDER GRANTING IN PART DEFENDANT OLONA'S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

This matter comes before the Court on Defendant Olona's Motion to Dismiss or for Summary Judgment. Doc. 136. Having reviewed the motion, the attendant briefing, (docs. 149, 155), and the relevant law, and being otherwise fully advised, the Court construes the motion as one for summary judgment and will GRANT it in part.

I. BACKGROUND

This case arises from the removal of a gate Plaintiff erected on Red Hill Road,¹ which runs through portions of his property ("Stanley Ranch"). Red Hill Road leads to the White Peak public lands, a popular hunting and wildlife area. Doc. 136, Ex. A at 2, ¶ 6.

Defendant Ed Olona is an avid sportsman and former president of the New Mexico Wildlife Federation, an organization that monitors issues and legislationregarding access to public lands. Doc. 136, Ex. 2 at ¶ 1; doc. 125, Ex. B at 15:13-25. Plaintiff claims that, on or about August 24, 2011, Defendant Olona and Defendant Gallegos, who was serving as the District Attorney for the Eighth Judicial District of New Mexico at the time, "entered onto the Stanley Ranch . . . without prior notice to or consent of Plaintiff, and took action to open the gate on Red Hill Road." Doc. 21 ¶ 10. Plaintiff also contends that Defendant Olona physically took part in opening the gate on Red Hill Road on August 24, 2011. Doc. 149 at 3-4, ¶ D. Defendant Gallegos again took action, or caused others to take action, on September 10, 2011, to "enter[] onto the Stanley Ranch and cut the lock on the chain across the cattle guard in order to open access to Red Hill Road." Doc. 21 ¶ 12. Plaintiff claims that Defendant Olona was present on this occasion as well, and conspired with Defendant Gallegos to enter Plaintiff's property and to open Red Hill Road to the public on both occasions.

Plaintiff brings claims against Defendant Olona for violations of his constitutional rights under 42 U.S.C. § 1983, for violations of the New Mexico Constitution, and for state law trespass. He contends that Defendant Olona was not acting as a "mere private citizen or bystander in this matter" because his actions were "so intertwined and interrelated" with those of Defendant Gallegos that he "was acting 'under color of law.'" Doc. 149 at 2.

Defendant Olona filed the instant Motion to Dismiss or for Summary Judgment on May 1, 2015, arguing that he is not a state actor subject to suit for violations of theUnited States or New Mexico Constitutions. Doc. 136. Defendant Olona also argues that he is entitled to absolute witness immunity and moves to dismiss Plaintiff's trespass claim on the ground that he has not been convicted of criminal trespass. Plaintiff responded to the motion on June 15, 2015 (doc. 149), and briefing was complete on June 30, 2015 (doc. 155).

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(a) requires that a party seeking summary judgment demonstrate 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). "[T]he moving party carries the burden of showing beyond a reasonable doubt that it is entitled to summary judgment." Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002) (quoting Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir. 1991)) (internal quotations omitted).

Summary judgment is proper only if a reasonable trier of fact could not return a verdict for the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 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 finderof 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). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record . . . ." Fed. R. Civ. P. 56(c)(1)(A). All material facts set forth in the motion and response which are not specifically controverted are deemed undisputed. D.N.M.LR-Civ. 56.1(b).

The court must adhere to three principles when evaluating a motion for summary judgment. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Liberty Lobby, 477 U.S. at 249. Second, 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). Third, 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. UNDISPUTED FACTS

1. Plaintiff owns real property ("Stanley Ranch") located within Colfax and Mora Counties in northern New Mexico. Doc. 127 at 1, ¶ 1.²

2. Red Hill Road passes through Stanley Ranch. Doc. 127 at 1, ¶¶ 1-2. The road "leads to the White Peaks area, a popular hunting and wildlife area in northeast New Mexico." Doc. 136, Ex. A at 2, ¶ 6. Plaintiff has impeded access to this area via Red Hill Road by placing a locked gate on the road. Doc. 115 at 3-4, ¶¶ 7, 13; doc. 125 at 2-3, ¶A; doc. 125 at 11, ¶7.³

3. Defendant Olona, a former president of the New Mexico Wildlife Federation—a private organization that monitors issues and legislation regarding access to public lands—contacted a number of public officials as part of an effort to open access to the White Peak public lands. Doc. 125, Ex. B at 15:13-25. Doc. 149, Ex. A at 18:1-20:17.

4. Defendant Olona is not himself a public official. Apart from his employment with the New Mexico Boys' School, from which he retired in 1990, DefendantOlona has never been employed by the government of the United States, the State of New Mexico, or any political subdivision thereof. Doc. 136 at 4, ¶ 1; Ex. 2 ¶¶ 1-2.

5. After many unsuccessful attempts to convince public officials to open the White Peak area, Defendant Olona contacted Defendant Gallegos, the elected District Attorney for the Eighth Judicial District in the State of New Mexico, which includes Colfax County. Doc. 149, Ex. A at 18:12-15. Doc. 115, Ex. 1 at 7:14-19

6. Defendant Olona has never been employed by the Eighth Judicial District Attorney's Office of the State of New Mexico, nor has he ever been compensated financially for any work undertaken for the office. Doc. 136 at 4, ¶ 2; Ex. 2 ¶ 3.

7. Defendant Gallegos determined that Red Hill Road was a public road.⁴Doc. 115, Ex. 1 at 37:9-12, 52:15-19, 109:6-9; doc. 125, Ex. A at 107:8-13. As early as September 2002, he notified Plaintiff that he would be subject to criminal charges if he placed a gate across the road. Doc. 125, Ex. C-4.

8. On August 11, 2011, Plaintiff filed a Complaint to Quiet Title in state court concerning his title to the Stanley Ranch and Red Hill Road. Doc. 125 at 5, ¶ M. Prior to the filing of this suit, Red Hill Road had never been adjudicated a public or private road. Doc. 125, Ex. A at 168:1-9; doc. 127 at 2, ¶ 6.

9. Defendant Olona is listed as a witness in the state quiet title action, which is stillpending. Doc. 136 at 4, ¶4; Ex. 1.

10. At some point prior to August 2011, Plaintiff erected a metal gate that blocked access to Red Hill Road. He locked the gate with a chain and secured a barbed wire fence across the cattle guard. Doc. 127 at 1, ¶ 2.

11. Defendant Gallegos determined that the obstruction Plaintiff had placed across Red Hill Road was unlawful. Doc. 115, Ex. 1 at 93:1-4, 98:13-19. His position was that the road needed to remain open at all times in order to allow public access to the White Peak public lands. Doc. 115, Ex. 1 at 120:2-121:8.

12. In determining that Red Hill Road was public, Defendant Gallegos reviewed documents and maps submitted to him and relied on the research of others, including Defendant Olona. E.g., doc. 115, Ex. 1 at 147:11-149:12; 150:15-152:12. The other individuals he spoke with include "Alvin Garcia, who was at the Attorney General's Office at the time," individuals from Game & Fish, and "some of the elders who told [him] about the uses of that road in generations past." Doc. 115, Ex. 1 at 147:11-149:12.⁵

13. Defendant Gallegos did not, however, conduct his own independent research. Doc. 125, Ex. A at 159:13-19. Nor did he receive any input from Plaintiff. Doc.115, Ex. 1 at 161:22-24.

14. Defendant Olona provided Defendant Gallegos with information regarding the historical use of Red Hill Road. Doc. 149 at 5, ¶ L. Defendants Olona and Gallegos also exchanged emails regarding access to the White Peak area and the gate Plaintiff had placed across the

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