Routh v. Johnson et al

Filing 92

MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez GRANTING 81 MOTION for Summary Judgment on Basis of Qualified Immunity and Other Grounds. IT IS THEREFORE ORDERED that Defendant Frederico Marvin Torres' Motion for Summary Judgment on the Basis of Qualified Immunity and Other Grounds [Doc. 81 ] is GRANTED and Plaintiff's federal constitutional claims against Torres are dismissed with prejudice. (gr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

CATHY ROUTH,
Plaintiff,
v.

CV 16-CV-797-MV/KBM

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.

MEMORANDUM OPINION AND ORDER
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.
BACKGROUND
“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

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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

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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.
LEGAL STANDARD
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

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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 legal authority making it apparent that in light of pre-existing
law a reasonable official would have known that the conduct in question violated the
constitutional right at issue.” Id.
DISCUSSION
In Count VI of the Complaint, Plaintiff alleges, inter alia, that Torres, Martinez, and
Chavez violated her rights under the Fourteenth and Fourth Amendments to the United States
Constitution, and in Count VII, she seeks damages based on those alleged violations. These are
the only federal claims that Plaintiff has asserted in this action. As noted above, on the
Martinez/Chavez Motion, Martinez and Chavez moved, inter alia, to dismiss Plaintiff’s federal
claims against them on the basis of qualified immunity. On the instant motion, Torres moves,

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inter alia, for summary judgment in his favor on Plaintiff’s federal constitutional claims against
him on the basis of qualified immunity. As set forth herein, the Court agrees that qualified
immunity bars Plaintiff’s federal constitutional claims against Torres and that summary
judgment on those claims thus is warranted. And in a contemporaneous Memorandum Opinion
and Order, the Court finds that qualified immunity bars Plaintiff’s federal constitutional claims
against Martinez and Chavez and that dismissal on those claims thus is warranted. Accordingly,
taken together, the instant Memorandum Opinion and the Memorandum Opinion on the
Chavez/Martinez Motion dismiss all of the federal claims in this action. As further set forth
herein, the Court declines to exercise supplemental jurisdiction over Plaintiff’s remaining state
law claims against any of the Defendants, and thus will remand those claims to the Thirteenth
Judicial District Court for the State of New Mexico for further proceeding.
I.

Plaintiff’s Federal Constitutional Claims against Torres in His Individual Capacity
In support of her federal constitutional claims against Torres, Plaintiff argues that Torres

used his influence as a fellow Deputy Sheriff to convince Martinez and Chavez to take his side in
his dispute with Plaintiff over her access to the Well. Doc. 83 at 17, 19, 21. Specifically,
Plaintiff claims that as a direct result of Torres’ improper influence, Martinez and Chavez failed
to take action on Plaintiff’s repeated complaints to the Sheriff’s Department and told her not to
enter Torres’ property to access the Well or make repairs to her water line “without a court
order,” which, according to Plaintiff, violated her rights to procedural and substantive due
process and equal protection under the Fourteenth Amendment, and her right to be free from the
seizure of her property under the Fourth Amendment. Id. Thus, Plaintiff contends, Torres
“impermissibly directed his law enforcement colleagues into inaction and other unconstitutional
conduct.” Id. at 21. Based on his “direction” of Martinez and Chavez to commit constitutional

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violations, Plaintiff argues that Torres, too, is equally liable for committing those constitutional
violations. Id. at 19.
As set forth herein, however, none of the actions or inactions attributed to Martinez and
Chavez amounts to a federal constitutional violation. The crux of Plaintiff’s claims is that
Martinez and Chavez refused to assist her in her efforts “to establish, settle, and protect what she
deems to be her rights to property.” Phillips v. Kerns, 483 F. App’x 400, 402 (10th Cir. 2012).
Neither Plaintiff’s allegations nor the undisputed facts “identify any heavy hand of the
government on her,” and thus simply do not make out a violation of any constitutional right. Id.
As none of the conduct attributed to Martinez or Chavez violated Plaintiff’s federal
constitutional rights, it follows that Torres cannot be held liable for violating Plaintiff’s
constitutional rights by virtue of having caused Martinez and Chavez’s nonactionable conduct in
the first instance.
First, with regard to Plaintiff’s procedural due process and unreasonable seizure claims,
Plaintiff alleges that Torres, Martinez and Chavez were “recklessly and callously indifferent to
Plaintiff’s constitutional rights to protect her water system chattels and possessory right of
easement and water . . . and to be free from unreasonable interference of Torres and other private
citizen Defendants.” Doc. 1-2 at ¶71-72. “Under the Fourteenth Amendment, procedural due
process requires notice and a pre-deprivation hearing before property interests are negatively
affected by governmental actors.” Marcus v. McCollum, 394 F.3d 813, 818 (10th Cir. 2004)
(citation omitted). “The Fourth Amendment prohibition against unreasonable search and seizure
is implicated when there is some meaningful interference with an individual’s possessory
interests in [her] property.” Id. (citation omitted). In order to establish a violation of either the
Fourteenth or the Fourth Amendment, however, there must be evidence of governmental or state

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action, rather than merely private conduct, “which however discriminatory or wrongful,” is not
subject to constitutional prohibitions. Id. (citation omitted). Accordingly, “[g]overnmental
defendants normally can be held responsible for a private decision only when [they have]
exercised coercive power or [have] provided such significant encouragement, either overt or
covert, that the choice must in law be deemed to be that of the State.” Id. (quoting Blum v.
Yaretsy, 457 U.S. 992, 1004-05 (1982)). “Mere approval or acquiescence in the initiatives of a
private party is not sufficient to justify holding the State responsible for those initiatives.” Id.
(quoting Blum, 457 U.S. at 1004-05).
In the instant case, the undisputed facts do not demonstrate that any actions taken by
Martinez or Chavez, in the first instance, “negatively affected” Plaintiff’s interest in water from
the Well, or caused “meaningful interference” with her possessory interests in water from the
Well. Rather, the facts show that it was Torres, in his private capacity as a neighboring
landowner, along with Johnson and others who blocked Plaintiff’s access to water from the Well,
thereby negatively affecting and meaningfully interfering with her alleged property right thereto.
Nowhere does Plaintiff establish that Martinez or Chavez were involved in blocking Plaintiff’s
access to water from the Well, much less exercised coercive power over, or provided significant
overt or covert encouragement to those responsible for blocking Plaintiff’s access to water from
the Well. Instead, with regard to Martinez and Chavez, the undisputed facts show that, after the
fact, they failed to intervene on her behalf, either by following up on her complaints or by
granting her access to Torres’ property. Thus, in essence, Plaintiff claims that Martinez and
Chavez – and by extension, Torres – violated her Fourth and Fourteenth Amendment rights by
failing to assist her in restoring her alleged property right, i.e., access to water from the Well.

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Plaintiff, however, had no constitutional right to have Martinez, Chavez, Torres, or any
law enforcement officer follow up on her complaints. Phillips, 483 F. App’x at 402 (“[T]here is
no right under the Due Process Clause, either procedural or substantive, to have the police
enforce a restraining order or to arrest some third party.”) (citing Town of Castle Rock, Colo. v.
Gonzales, 545 U.S. 748, 749 (2005) (“[A] private citizen lacks a judicially cognizable interest in
the prosecution or nonprosecution of another”)); Griego v. City of Albuquerque, 100 F. Supp. 3d
1192, 1226 (D.N.M. 2015) (“There is no constitutional right to have police conduct a full,
proper, or even competent investigation.”). Nor did Plaintiff have a constitutional right to
assistance in accessing the Well on Torres’ property, regardless of whether she was legally
entitled to do so, as the state has “no constitutional duty to provide substantive services for those
within its border.” DeShaney v. Winnebago Cty. Dep’t of Soc. Serv., 489 U.S. 189, 196 (1989).
The Due Process Clause of the Fourteenth Amendment “is phrased as a limitation on the State’s
power to act, not as a guarantee of certain minimal levels of safety and security.” Id. at 195-96
(citations omitted). Accordingly, the Due Process Clause confers “no affirmative right to
governmental aid, even where such aid may be necessary to secure life, liberty, or property
interests of which the government itself may not deprive the individual.” Id. at 196 (citations
omitted).
Further, as Marcus makes clear, there can be no constitutional violation without state
action. And the failure of an officer to intervene on behalf of one private party in the context of
an attempted repossession of property does not constitute state action. Marcus, 394 F.3d at 818
(“[O]fficers are not state actors during a private repossession if they act only to keep the peace,
but they cross the line if they affirmatively intervene to aid the repossessor.”). In fact, quite to
the contrary, Martinez and Chavez may have been subject to liability for violating Torres’

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constitutional rights if they had, as Plaintiff urges they should have, assisted her repossession
efforts. Id. at 819 (“[T]he overarching lesson of the case law is that officers may act to diffuse a
volatile situation, but may not aid the repossessor in such a way that the repossession would not
have occurred but for their assistance.”).
In Phillips, much as Plaintiff here, the plaintiff was “engaged in an ongoing battle for a
considerable period of time” with her neighbor, and argued, among other things, “improper
blocking of the road, unauthorized erection of a fence, [and] obstruction of her access to an
electrical box attached to a pole by the fence.” 483 F. App’x at 403. Just as the Court explained
in upholding the dismissal of the plaintiff’s constitutional claims in Phillips, the issues raised by
Plaintiff herein “are civil, not police, matters which she must pursue in civil actions in the state
courts. She is simply not entitled to have the police do that work for her.” Id. Accordingly, the
undisputed facts do not show a violation by Martinez or Chavez of her procedural due process
rights under the Fourteenth Amendment or of her right to be free from unreasonable seizures
under the Fourth Amendment. Because Plaintiff thus has not shown that Martinez or Chavez
violated her procedural due process rights under the Fourteenth Amendment or her right to be
free from unreasonable seizures under the Fourth Amendment, it follows that Plaintiff has not
shown that Torres violated those rights by directing or influencing Martinez and Chavez.
Next, with regard to Plaintiff’s substantive due process claim, Plaintiff alleges that
Torres, Martinez and Chavez “were recklessly and callously indifferent to Plaintiff’s
constitutional rights of due process to protect her property rights, as such rights are held subject
to the fair exercise of police power.” Doc. 1-2 at ¶ 77. “The Due Process Clause contains a
substantive component that bars certain arbitrary, wrongful government actions regardless of the
fairness of the procedures used to implement them.” Doe v. Heil, 533 F. App’x 831, 841 (10th

10

Cir. 2013), cert. denied, 134 S. Ct. 1309 (2014) (quoting Zinermon v. Burch, 494 U.S. 113, 125
(1990)). As Plaintiff acknowledges, “[t]he ‘ultimate’ standard for determining whether there has
been a substantive due process violation is ‘whether the challenged government action shocks
the conscience of federal judges.’” Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir. 2006)
(quoting Ruiz v. McDonnell, 299 F.3d 1173, 1183 (10th Cir. 2002)). In order to meet this
standard, “a plaintiff must demonstrate a degree of outrageousness and a magnitude of potential
or actual harm that is truly conscience shocking.” Ruiz, 299 F.3d at 1184. Importantly, the right
to substantive due process is not implicated unless “the Government activity in question violates
some protected right.” Hampton v. United States, 425 U.S. 484, 490 (1976).
Here, the undisputed facts demonstrate that, in the face of a private dispute over
Plaintiff’s access to a well located on Torres’ property, Martinez and Chavez declined to take
action to assist Plaintiff in securing her alleged right of access to the Well.

These facts

demonstrate neither a degree of outrageousness nor a magnitude of harm that is clearly
conscience shocking. Further, as discussed above, the government activity in question, namely,
the refusal of Martinez and Chavez – and by extension Torres – to aid Plaintiff in restoring her
alleged right of access to the Well, did not violate any protected right. See Gonzales, 545 U.S. at
755 (The “‘substantive’ component of the Due Process Clause does not ‘requir[e] the State to
protect the life, liberty, and property of its citizens against invasion by private actors”) (quoting
DeShaney, 489 U.S. at 195). Accordingly, the undisputed facts do not show a violation by
Martinez or Chavez of her substantive due process rights under the Fourteenth Amendment.
Because Plaintiff has not shown that Martinez and Chavez violated her rights to substantive due
process, it follows that Plaintiff has not shown that Torres violated those rights by directing or
influencing Martinez and Chavez.

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Finally, with regard to Plaintiff’s equal protection claim, Plaintiff contends that Torres,
Martinez and Chavez treated her differently from how they treated “similarly situated” tenants
on Torres’ property, without a rational basis. Doc. 31 at 17. In order to establish a “class-ofone” equal protection claim, as she purports to do here, Plaintiff must show that “a public official
inflicts a cost or burden on one person without imposing it on those who are similarly situated in
material respects, and does so without any conceivable basis other than a wholly illegitimate
motive.” Jicarilla Apache Nation v. Rio Arriba Cty., 440 F.3d 1202, 1209 (10th Cir. 2006). The
record, however, is devoid of any facts that depict how Martinez, Chavez or Torres treated
anyone other than Plaintiff, let alone any of Torres’ tenants. Indeed, there is no evidence that
even suggests, much less explains, how any of Torres’ tenants were “similarly situated” to
Plaintiff in the first instance. Accordingly, Plaintiff has not shown a Fourteenth Amendment
class-of-one equal protection violation by either Martinez or Chavez. It follows that Plaintiff has
not shown a Fourteenth Amendment class-of-one equal protection violation by Torres for
directing or influencing Martinez and Chavez.
For the foregoing reasons, the undisputed facts fail to establish that Torres violated any of
Plaintiff’s federal constitutional rights. Accordingly, the first prong of the qualified immunity
analysis is not met. Torres thus is entitled to summary judgment on Plaintiff’s federal
constitutional claims against him in his individual capacity.
II.

Plaintiff’s Federal Constitutional Claims against Torres in His Official Capacity
Plaintiff sues Torres for violating her federal constitutional rights not only in his

individual capacity as a law enforcement officer, but also in his official capacity. “[A]n officialcapacity suit is in all respects, other than name, . . . a suit against the entity.’” Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985). Thus, the Court applies the law regarding municipal

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liability to Plaintiff’s official capacity Section 1983 claim against Torres.
In Monell v. Department of Social Services, the Supreme Court held that a plaintiff may
sue a municipality for damages under Section 1983 when “the action that is alleged to be
unconstitutional implements a policy statement, ordinance, regulation or decision officially
adopted and promulgated by that body’s officers” or is “visited pursuant to governmental
‘custom’ even though such custom has not received formal approval through the body’s official
decision-making channels.” 436 U.S. 658, 690-91 (1978). A municipality, however, may not be
held liable under Section 1983 solely because its officers inflicted injury. See Graves v. Thomas,
450 F.3d 1215, 1218 (10th Cir. 2006). Rather, to establish municipal liability, a plaintiff must
demonstrate that (1) an officer committed an underlying constitutional violation, (2) a municipal
policy or custom exists, and (3) there is a direct causal link between the policy or custom and the
injury alleged—i.e., that the policy or custom was the “moving force” behind the alleged
injury. See id.; City of Canton v. Harris, 489 U.S. 378, 388-89 (1989).
Here, as set forth above, Plaintiff has failed to demonstrate that Torres, Martinez, or
Chavez – or any other law enforcement officer – committed an underlying constitutional
violation. Accordingly, Plaintiff has failed to demonstrate an essential element of a municipal
liability claim. Accordingly, Torres is entitled to summary judgment on Plaintiff’s federal
constitutional claims against him in his official capacity.
III.

Plaintiff’s Request for Discovery
In an affidavit submitted with Plaintiff’s response, Plaintiff’s attorney requests additional

discovery before the Court rules on Torres’ Motion. Doc. 83-2. The defense of qualified
immunity not only shields from liability governmental employees who perform discretionary
functions, but it also protects them from the burdens of trial, including discovery. Jiron v. City

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of Lakewood, 392 F.3d 410, 414 (10th Cir. 2004). Supreme Court and Tenth Circuit precedent
make clear that when governmental employees file a motion based on qualified immunity, all
discovery should be stayed pending disposition of the motion. Ashcroft v. Iqbal, 556 U.S. 662
(2009); Jiron, 392 F.3d at 414. The failure to stay discovery robs the defendant of the very
benefit of the qualified immunity defense.
There, however, is a narrow exception to the discovery stay. When a party argues that
limited discovery is necessary to allow her to respond to a pending motion, she may file a motion
pursuant to Rule 56(d) of the Federal Rules of Civil Procedure. Rule 56(d) provides:
If a nonmovant shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d). “Rule 56(d), however, is not a license for a fishing expedition.” Lewis v.
Ft. Collins, 903 F.2d 752, 758 (10th Cir. 1990). Accordingly, a Rule 56(d) affidavit must
explain why facts precluding summary judgment cannot be presented. Price ex rel. Price v. W.
Res., Inc., 232 F.3d 779, 783 (10th Cir. 2000). This includes (1) identifying the “probable facts
not available,” (2) “why those facts cannot be presented currently,” (3) “what steps have been
taken to obtain these facts,” and (4) “how additional time will enable the party to obtain those
facts and rebut the motion for summary judgment.” Id. Rule 56(d) may not be invoked based
solely upon the assertion that discovery is incomplete or that specific facts necessary to oppose
summary judgment are unavailable. See id. Further, “if the party filing the Rule 56[d] affidavit
has been dilatory, or the information sought is either irrelevant to the summary judgment motion
or merely cumulative, no extension will be granted.” Id. (citation omitted).
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Here, Plaintiff’s attorney argues in his affidavit that “[e]vidence, facts and testimony
essential to support Plaintiff’s opposition to summary judgment is in the control of” Torres,
Martinez, and Chavez. Doc. 83-2 at ¶ 4. He further argues that Plaintiff “deserves limited
discovery, at a minimum, to determine qualified immunity” as pled by Torres, Martinez, and
Chavez. Id. at ¶ 5. In particular, he contends that the “issue of whether or not Torres operated in
an official capacity in this matter and caused the Valencia County Sheriff’s Department to not
investigate or allow [Plaintiff] to report her allegations of interference of her easement and right
to water on the well goes to intentional conduct and proving constitutional injury of protected
property rights created under state law (water easement) and is dispositive of the immunity
defense.” Id. at ¶ 6.
These arguments do not establish Plaintiff’s right to discovery under Rule 56(d). First,
the affidavit fails to meet the necessary standard in order invoke Rule 56(d), as it does not
identify the probable facts not available, why these facts cannot be presented currently, what
steps have been taken to obtain these facts, or how additional time will enable Plaintiff to obtain
those facts and rebut Torres’ Motion. Further, the information sought by Plaintiff, namely
whether Torres used his influence as a fellow officer to cause Martinez and Chavez to refuse to
come to Plaintiff’s aid in the private dispute between Plaintiff and Torres, is irrelevant to Torres’
Motion. There is no disputed issue of material fact on this point. Rather, the Court finds, based
on the undisputed facts viewed in the light most favorable to Plaintiff, that Torres’ direction of
Martinez and Chavez, as a matter of law, did not result in any federal constitutional violations.
No amount of discovery as to what Torres did to influence Martinez and Chavez would assist
Plaintiff in justifying her opposition to summary judgment. Accordingly, the Court denies
Plaintiff’s request for discovery.

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IV.

Plaintiff’s Pendant State Law Claims
In addition to her federal constitutional claims, Plaintiff’s Complaint includes various

claims against Martinez, Chavez, Torres, Elerby and Katsch arising from New Mexico law. The
Court’s pendent jurisdiction over these state claims “is exercised on a discretionary basis,” and
the Tenth Circuit has generally held that “if federal claims are dismissed before trial, leaving
only issues of state law, the federal court should decline the exercise of jurisdiction by
dismissing the case without prejudice.” Brooks v. Gaenzle, 614 F.3d 1213, 1229 (10th Cir.
2010) (citations omitted). The Tenth Circuit has explained its general disinclination “to exercise
pendent jurisdiction in such instances because notions of comity and federalism demand that a
state court try its own lawsuits, absent compelling reasons to the contrary.” Id. at 1230 (citations
omitted).
Having determined in this Memorandum Opinion and Order that Plaintiff’s Fourth and
Fourteenth Amendment claims against Torres are subject to summary judgment in Torres’ favor,
and having determined in a contemporaneous Memorandum Opinion and Order that Plaintiff’s
Fourth and Fourteenth Amendment claims against Martinez and Chavez are subject to dismissal,
only the supplemental or pendent state law issues of violations under the Tort Claims Act,
negligent misrepresentation, negligent interference of easement, trespass and slander to chattels,
and tortious interference with contract remain. The Court finds that these issues are best left for
a state court’s determination. Brooks, 614 F.3d at 1230. Accordingly, the Court declines to
exercise jurisdiction over Plaintiff’s remaining state law claims and will remand them to the
Thirteenth Judicial District Court for the State of New Mexico for further proceeding. Id.

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CONCLUSION
For the foregoing reasons, Torres is entitled to qualified immunity on Plaintiff’s federal
constitutional claims. Summary judgment in favor of Torres thus is warranted on Plaintiff’s
federal constitutional claims, as alleged in Count VI of the Complaint. The Court declines to
exercise jurisdiction over Plaintiff’s remaining state law claims and thus remands them to the
Thirteenth Judicial District Court for the State of New Mexico for further proceeding.
IT IS THEREFORE ORDERED that Defendant Frederico Marvin Torres’ Motion for
Summary Judgment on the Basis of Qualified Immunity and Other Grounds [Doc. 81] is
GRANTED and Plaintiff’s federal constitutional claims against Torres are dismissed with
prejudice.
DATED this 28th day of September, 2018.

MARTHA VÁZQUEZ
United States District Judge

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