Stanley v. Gallegos, et al.
ORDER DISMISSING PLAINTIFF'S STATUTORY TRESPASS CLAIM AGAINST DEFENDANT OLONA by Magistrate Judge Gregory B. Wormuth re 168 Plaintiff's Brief Regarding Trespass Claim Against Defendant Olona, 170 Defendant Olona's Response. (km)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DAVID N. STANLEY,
DONALD GALLEGOS, et al.,
Civ. No. 11‐1108 GBW/JHR
ORDER DISMISSING PLAINTIFF’S STATUTORY TRESPASS CLAIM AGAINST
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
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 group1 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
It is not clearly established in the record which members of the group removed the fence and T‐posts.
However, based on the Court’s review of the photographs Plaintiff labeled and included in the record,
the people identified by Plaintiff in the photos as Defendant Gallegos, Defendant Olona, Eddie Trujillo,
Max Trujillo, Colfax County Deputy Marquez, Mora County Deputy Martinez, and “Public 2” are those
who are depicted standing near or touching the gate, fence, and/or T‐posts on August 24, 2011. See docs.
125‐5 at 2‐4; 125‐6 at 4; 125‐7 at 3; 149‐3 at 5‐6; 56‐6; 56‐8; 56‐9.
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.
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
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.
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, Defendant Olona appears to be
reaching toward the T‐post in the other man’s hand, and either touching or pointing to
it. It is also possible he is touching a pole next to the post, or pointing to something else.
As explained in the Court’s earlier Order, this photograph, standing alone, is
insufficient to establish a material dispute as to whether Defendant Olona personally
“injure[d], damage[d] or destroy[ed]” Plaintiff’s property, as would be necessary to
meet the damages element of the statutory trespass claim at trial. N.M.S.A. § 30‐14‐
Many of the photographs contained in the record are duplicates of other exhibits. However, the Court
has taken care to exclude any duplicative exhibits from these citations.
3 Three other photos taken on August 24, 2011 show (1) Defendant Olona standing in a group of men near
a parked vehicle out of view of the gate, doc. 149‐3 at 2; (2) Defendant Olona in an open, grassy area
apparently taking photographs from a distance, doc. 149‐3 at 4; and (3) Defendant Olona standing in a
group of men near the fence. Doc. 56‐3. There are no photos in the record from the September 10 removal
which depict Defendant Olona. See docs. 56‐10, 56‐11, 56‐12, 56‐13.
1.1(D). It is not clear from the photograph whether Defendant Olona even touched any
piece of the chain, wire fence, or posts which were removed, let alone damaged them.
Without more, there is insufficient evidence for a reasonable jury to find in Plaintiff’s
favor on the damages element.
In his supplemental briefing, however, Plaintiff points to two other pieces of
record evidence to support the damages element of his claim. First, Plaintiff argues that
Defendant Olona “admitted that he ‘assisted’ in removing Plaintiff’s fence T‐posts when
he positioned himself at the foot of the cattle guard on Plaintiff’s property.” Doc. 168 at
2 (citing doc. 168‐1, Olona Dep. 64:1‐4). Second, Plaintiff relies on the language
Defendant Olona used in his email to Defendant Gallegos regarding the September 10
removal. In that email, Defendant Olona wrote, “we were in the process of unlocking
the gate . . . .” Doc. 168 at 2 (quoting doc. 149‐3 at 9).
The Court is unpersuaded that this evidence suffices to create a genuine, triable
issue of material fact as to the damages element, such that a reasonable jury could
return a verdict for Plaintiff on his statutory trespass claim against Defendant Olona.
See Liberty Lobby, 477 U.S. at 248. First, the relevant excerpt of Defendant Olona’s
deposition on which Plaintiff relies involves a photograph which depicts a sheriff’s
deputy apparently cutting the barbed‐wire fence with wire cutters on August 24, 2011.
Doc. 168‐1 at 2, Olona Dep. 62:23‐63:17. Defendant Olona’s testimony regarding that
photograph is as follows:
Q: So again, based on your recollection, what was done to the cattle guard
. . .
A. The T‐posts were pulled out from the cattle guard.
Q. Okay. And were you involved in that at all?
. . .
A. The only thing I was involved in is being present. And at one point, I
did assist right at the foot of the cattle guard there for some reason. I
Id. at 63:18‐64:4.
Following this exchange, Defendant Olona was presented with the photograph
described above, in which he is crouching on the cattle guard with another man and
possibly touching a T‐post in the other man’s hand. When asked what he was doing in
that photograph, he stated “I don’t recall what I was doing there.” Id. at 64:14‐15. The
deposing attorney continued:
Q. Is it correct that you’re handling one of the T‐posts?
. . .
A. I don’t think I would handle the T‐bar. My hand would be around the
pole. The T‐bar that he’s got in his hand, I don’t believe – I don’t know
what we were picking up or what.
Q. So again, did you personally take any actions to either remove the
barbed wire fence or remove the T‐posts from the cattle guard?
. . .
A. I don’t believe I assisted.
. . .
Q. Did you take any physical actions to remove the barbed wire?
. . .
A. No, I don’t recall assisting.
Q. And were the T‐posts removed from the cattle guard?
Q. And did you take any physical actions to remove the T‐posts?
. . .
Id. at 64:16‐65:3; 65:14‐24. Plaintiff relies on Defendant Olona’s statement that, “at one
point,” he “did assist right at the foot of the cattle guard there for some reason” to
support his argument that there is sufficient record evidence to create a triable issue as
to the damages element. But in so doing, he takes the statement out of context of
Defendant Olona’s immediately subsequent testimony, where he answered “No” to the
direct inquiries about whether he took any physical actions to remove the barbed wire
or T‐posts. See id.
Second, Plaintiff points to Defendant Olona’s September 12, 2011 email to
Defendant Gallegos regarding the September 10 removal of the gate (doc. 149‐3 at 9) in
an attempt to show that there is a triable issue as to whether Defendant Olona
committed statutory trespass on that date. Doc. 168 at 2. The full text of that email is as
These are the pictures of the gate before and after we got Sheriff[‘]s
Deputy Tony Aguirre to unlock the gate on 9/10/11. This was done after
your trip on 8/23/11 [sic] along with the Sheriff[‘]s Deputies from Mora
and Colfax Counties to open the gate initially. The gate was locked by one
of [Plaintiff’s] employees sometimes between the dates 9/5 thru 9/9. This
is a blatant disregard by [Plaintiff] of your order to remove and leave the
gate unlocked. While we were in the process of unlocking the gate, my
son Ed overheard the conversation between [one of Plaintiff’s]
employee[s], Greg Faught and a female, who was relaying a message to
and from ranch manager Leslie[. T]he female kept relaying the message
that if anyone crossed the fence they would be trespassing, and that it was
in court. Ed said it sounded like there may[ ]be further intentions to lock
the gate again by the ranch.
Doc. 149‐3 at 9. The very first sentence of this email makes clear that Sheriff’s Deputy
Tony Aguirre unlocked the gate on September 10, 2011. Other objective record
evidence further establishes that Deputy Aguirre, and not Defendant Olona, unlocked
the gate on that date. According to an affidavit filed by Plaintiff’s counsel John Hays,
Defendant Olona provided Plaintiff with the photographs taken on September 10 that
are referenced in Defendant Olona’s email to Defendant Gallegos. Doc. 56 at 2. Those
four photographs are attached to the affidavit. Docs. 56‐10, 56‐11, 56‐12, 56‐13. None of
these photographs shows Defendant Olona involved in the gate removal, and one
clearly depicts Deputy Aguirre using bolt cutters to cut the chain securing the gate.
Moreover, Colfax County Sheriff Patrick Casias (a former Defendant in this
litigation) filed an affidavit in this matter in conjunction with his motion for summary
judgment. See doc. 40, Ex. A. In his affidavit, Sheriff Casias stated that Defendant Olona
contacted him by phone on September 10, 2011, to notify him that Plaintiff’s gate had
been locked again. Id. at 3. Accordingly, Sheriff Casias explained that he “sent Colfax
County Deputy Tony Aguirre to Red Hill Road on September 10, 2011 to re‐establish
public access to the White Peaks area.” Id. Deputy Aguirre prepared a report of what
transpired on that date, and Sheriff Casias testifies in his affidavit that based on his
review of that report, “on September 10, 2011, Deputy Aguirre cut the chain/lock on the
gate, thereby opening the gate across the cattle guard on Red Hill Road and re‐
permitting access to the White Peaks area.” Id. Therefore, while the evidence
establishes Defendant Olona’s presence on both occasions, there is no evidence to
support that he personally damaged, injured, or destroyed any realty or improvements
on Plaintiff’s property, as would be necessary for Plaintiff to prevail at trial on his
statutory trespass claim against Defendant Olona.
In sum, even viewing the facts in the light most favorable to Plaintiff, Plaintiff
has identified no witness testimony and no photographic or other evidence of record
that Defendant Olona personally took any physical actions to dismantle Plaintiff’s
barbed‐wire fencing, T‐posts, or the chain securing Plaintiff’s gate on either occasion
that the gate was opened. Defendant Olona is therefore entitled to summary judgment
on Plaintiff’s statutory trespass claim pursuant to N.M.S.A. § 30‐14‐1.1(D).
The Court will briefly address two other arguments in Plaintiff’s supplemental
briefing. First, Plaintiff asks that the Court preserve his claim for injunctive relief
against future trespasses by Defendant Olona, even though N.M.S.A. § 30‐14‐1.1(D)
does not provide for injunctive relief. Doc. 168 at 3‐4. Plaintiff argues that his First
Amended Complaint meets the pleading standard to state a claim for common law
trespass against Defendant Olona in addition to his statutory trespass claim, and thus
the Court should find that his prayer for injunctive relief contemplates enjoining future
common law trespass as well. Id. at 3. In the alternative, Plaintiff asks that the Court
grant him leave to amend his First Amended Complaint to more clearly state a claim for
common law trespass, such that Defendant Olona could be enjoined from future
common law trespasses. Id. at 3‐4.
In response, Defendant Olona argues that allowing such an amendment would
prejudice him, and that it would be futile because Plaintiff has failed to establish that
Defendant Olona entered onto Plaintiff’s private land. Doc. 170 at 6‐7. The Court finds
that Plaintiff’s argument fails for a different reason. Namely, injunctions are granted to
prevent irreparable injury for which there is “no adequate and complete remedy at
law.” City of Las Cruces v. Rio Grande Gas Co., 431 P.2d 492, 494 (N.M. 1967). Injunctive
relief is typically not available for a claim of simple trespass, unless “the nature and
frequency of the trespasses are such as to prevent or threaten the substantial enjoyment
of the rights of possession and property in land.” 4 Barry A. Lindahl, Modern Tort Law:
Liability and Litigation § 38:17.50 (2d ed. 2017). Consistent with this general rule, the
Supreme Court of New Mexico has explained that where an interference with a
plaintiff’s property “is of a continuous nature, the constant recurrence of which renders
a remedy at law inadequate, except by a multiplicity of suits, then a sufficient ground
for relief by injunction is afforded.” Kennedy v. Bond, 460 P.2d 809, 813 (N.M. 1969).
Plaintiff has made no such showing of an inadequate remedy at law here, as he
has made no showing of continuous or recurring trespass on land established as
private. To elucidate, it is helpful to turn to the allegations set forth in the First
Amended Complaint. Plaintiff’s injunctive relief request specifically asks the Court to:
enjoin and restrain Defendants, their respective agents, representatives
and employees, from trespassing on Plaintiff’s property, from damaging
Plaintiff’s personal property, or from interfering with any and all
measures taken or which may be taken by Plaintiff on the Stanley Ranch
to maintain the Roads as private roads and to prevent unauthorized use of
the Roads including, but not limited to, Plaintiff’s gating, fencing or
otherwise obstructing the Roads on the Stanley Ranch.
Doc. 21 at 11. Additionally, it is clear from Plaintiff’s recitation of the damages incurred
that the only ongoing alleged trespass with which Plaintiff is concerned is the continued
public use of the roads across his ranch. See id. at 5.
Whether these roads are public or private is disputed. In fact, that very issue is
currently being adjudicated in a quiet title action filed by Plaintiff in New Mexico’s
Eighth Judicial District Court in August 2011. Doc. 21 at 2. That action is scheduled for
trial in March 2018. Doc. 202 at 3; doc. 205 at 2. Plaintiff has made clear that he does not
wish for this Court to determine whether the road at issue, as it crosses Plaintiff’s ranch,
is public or private. See doc. 207, Joinder Hr’g Tr. at 42:6‐44:21, 62:7‐18. Rather, the
parties agree it is appropriate for that issue to be determined by the state court. See id.;
see also id. at 25:10‐15. Therefore, the First Amended Complaint contains no allegations
of ongoing trespass on land that is established as private. See generally doc. 21.
Accordingly, because the question of whether the road is public or private is
presently the subject of a state court quiet title action, the Court shall not at this juncture
preserve Plaintiff’s claim for injunctive relief based on a common‐law trespass theory.
A federal court should not enjoin future trespass on a road that the state court may
declare to be public tomorrow. See United Mine Workers of America v. Gibbs, 383 U.S. 715,
726 (1966) (“Needless decisions of state law should be avoided both as a matter of
comity and to promote justice between the parties, by procuring for them a surer‐footed
reading of applicable law.”). If the state court determines the road is private in the
quiet title action, Defendant Olona shall be legally constrained from accessing it
pursuant to state law. Thus, Plaintiff has an adequate remedy at law in state court.
Finally, Plaintiff argues that if the statutory trespass claim against Defendant
Olona is dismissed, the Court should decline to exercise supplemental jurisdiction over
Defendant Olona’s counterclaim for malicious abuse of process. Doc. 168 at 4‐6. As this
dispositive request was not the subject of the summary judgment motion at issue, the
Court denies this request without prejudice.
Even viewing the facts in the light most favorable to Plaintiff, there is insufficient
record evidence to create a triable issue as to whether Defendant Olona damaged,
injured, or destroyed Plaintiff’s property. Plaintiff’s statutory trespass claim against
Defendant Olona brought pursuant to N.M.S.A. § 30‐14‐1.1(D) is therefore DISMISSED
WITH PREJUDICE. Plaintiff’s corresponding claim for injunctive relief is accordingly
DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
GREGORY B. WORMUTH
United States Magistrate Judge
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