Pastore v. Catron County Sheriff's Office et al
Filing
59
MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson Granting in Part and Denying in Part 51 Defendants' MOTION for Partial Summary Judgment on the Pleadings Related to Plaintiff's Second Amended Complaint on the Basis of Qualified Immunity. (cmm)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
______________________
JAXON PASTORE,
Plaintiff,
vs.
No. 2:20-CV-913-WJ-GBW
THE BOARD OF COUNTY COMMISSIONERS
FOR THE COUNTY OF CATRON and KENNETH ADAIR
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE
PLEADINGS RELATED TO PLAINTIFF’S SECOND AMENDED COMPLAINT ON THE
BASIS OF QUALIFIED IMMUNITY
THIS MATTER comes before the Court upon Defendants’ Motion for Partial Summary
Judgment on the Pleadings on the basis of Qualified Immunity, filed April 12, 2021 (Doc. 51) (the
“Motion”). The Motion seeks summary judgment on the grounds that Plaintiff failed to state any
federal claims against the County of Catron or the individual Defendants and that Defendants are
entitled to qualified immunity. Having considered the parties’ arguments, the applicable law and the
record, the Court hereby grants in part and denies in part the Motion in that the Court finds that
Plaintiff has three claims with potential merit that will not be dismissed.
BACKGROUND1
Plaintiff in this case is Jaxon Pastore, a retired law enforcement and public safety officer
residing in Quemado, New Mexico. Doc. 49 at 3, ¶ 5. Defendants in this case are Kenneth Adair
(“Adair”) and the Board of County Commissioners for the County of Catron (“County”). Adair is a
deputy-sheriff of Catron County. Id. at 4, ¶ 8. The County is a political body whose powers are
exercised by a board of supervisors responsible for the Catron County Sheriff’s Office. Id. at 3, ¶ 6.
1
This Memorandum Opinion and Order presents Plaintiff’s facts as set forth in the Complaint.
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In 2018, Plaintiff purchased for his retirement a remote property in rural Catron County on
the west side of Quemado. Id. at 4, ¶ 9. The property is fully fenced with “No Trespassing” signs, and
is located over twelve miles from public mailboxes. Id. To the south of this property, the nearest
neighbor is the Sometime Creek Ranch approximately two miles away. Id.
In October of 2019, Plaintiff’s property suffered a sudden loss of water to ephemeral creeks,
causing, inter alia, obstruction to the recharging of Plaintiff’s well. Id., ¶ 10. The loss of water was
related to the installation of an artificial channel rerouting Plaintiff’s creekwater into an enclosed dam.
Id. The artificial channel was constructed on public BLM lands a half-mile south of Plaintiff’s
property by the owners and operators of the Sometime Creek Ranch for the hunting purposes of
recreational hunters related to Defendant Adair. Id.
On October 11, 2019, Plaintiff visited the Sometime Creek Ranch and spoke with Mary
Montierth (“Mrs. Montierth”), wife of Jeran Montierth (“Mr. Montierth”) (together, the
“Montierths”). Id. at 5, ¶ 11. Plaintiff alleges that during this meeting, Mrs. Montierth stated that her
husband had made the alteration to the creek and that she would have him fix the issue. Id. Defendant
Adair’s police report states that during this meeting, Mrs. Montierth was afraid of a knife that Plaintiff
carried on his hip, and told Plaintiff that she would discuss the issue with Mr. Montierth when he got
home because “it was not their intention to deny water from any neighbor.” Doc. 28-4 at 4.
Following this meeting, Plaintiff reported suspicious activity on and around his property, to
include breaking and entering and rummaging of his belonging. Doc. 49 at 5, ¶ 12. After no correction
to the creek by Mr. Montierth, Plaintiff hired an attorney to send a follow-up letter requesting
correction of the creek because, according to the Montierth’s lease terms, they had no authority to
make any alterations on state land. Id.
After receipt of the letter from Plaintiff’s attorney, the Montierths allegedly drove to Plaintiff’s
property on November 16, 2019, and informed Plaintiff that the state land belonged to the Montierth
ranch and that no action would be taken to fix the alterations to the creek. Doc. 49 at 5, ¶ 14. Plaintiff
2
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informed the Montierths that he would take them to court over the water dispute. Id. The police report
by Defendant Adair makes different claims as to this meeting. The police report states that this
meeting took place on November 14, 2019. Doc. 28-4 at 4. According to the report, Mr. Montierth
reported to Defendant Adair that he and his wife visited Plaintiff, at which time the trio visited the
creek on the BLM property and discussed undoing the alteration. Id. Mr. Montierth described
Plaintiff as combative and accusatory at this time. Id.
On November 17, 2019, Plaintiff encountered armed, masked men patrolling an area near his
property. Doc. 49 at 6, ¶ 15. Plaintiff reports that this patrolling took place for four consecutive days.
Id. At one point, these men saw Plaintiff and allegedly chased him through the creek behind Plaintiff’s
property. Id. Plaintiff identified one of the men as Corwin Hulsey (“Hulsey”), an associate of the
Sometime Creek Ranch domiciled next to the ranch and responsible for controlling the cattle grazing
on the ranch. Id., ¶¶ 17-19. Plaintiff also requested information from BLM which revealed that Hulsey
leases BLM land directly south of Plaintiff’s property. Id., ¶ 19. Plaintiff claims that Hulsey is related
to Dan Adair, the nephew of Defendant Adair, id. at 10-11, ¶¶ 51-53, and that Hulsey is a violent
criminal with a record in the area, seemingly in connection with police protection by Defendants
Adair and Fletcher. Id. at 20-21, ¶¶ 114-16.
Three days later, on November 23, 2019, Plaintiff returned home to find his residence had
been entered and rummaged through, and his floor had been urinated on. Id. at 6, ¶ 21. The hard-drive
to his laptop (containing files about his case against the Montierths) was destroyed and his woodstove
was vandalized. Id. Plaintiff also reports that his Wi-Fi and game cameras were disabled. Id.
According to information received by Plaintiff pursuant to the Inspection of Public Records
Act (the “IPRA”), Hulsey, and not the Montierths, contacted Adair (on Adair’s personal cell phone)
regarding Plaintiff on November 24, 2019. Id. at 12, ¶ 62. Documents from the Sheriff’s Office
confirm that Adair went to Sometime Creek Ranch later that day to meet Hulsey. Id. at 12-13, ¶ 6567.
3
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The next day, on November 25, 2019, Plaintiff discovered that his truck had been vandalized
either during the late evening or early morning and was unusable. Id. at 7, ¶ 22. Later that morning,
Defendant Adair appeared on Plaintiff’s driveway. Id., ¶ 23. Plaintiff was issued a criminal trespass
warning which, according to the police report, was because he had frightened Mrs. Montierth during
their alleged meeting on November 14, id. at 8, ¶ 27; see Doc. 28-4 at 4, though Defendant Adair
reportedly refused to explain the reason for the warning to Plaintiff, id., ¶ 34.
While issuing the trespass warning, Defendant Adair requested Plaintiff’s identification. Id.,
¶ 28. Plaintiff asked permission to enter his home to retrieve the identification, and Defendant Adair
followed him inside and allegedly restrained his movements. Id. at 9, ¶ 37. George Orona was inside
Plaintiff’s home installing a new woodstove when Plaintiff was issued the warning. See id., ¶ 39;
Affidavit of Witness for Plaintiff, Doc. 28-3 at 3, ¶¶ 12-20.
When the warning was issued, Plaintiff was allegedly forced to sign it over his objection. Id.,
¶ 41. Plaintiff contends that at this time he reported to Defendant Adair the damage to his property
and the trespass, and that Defendant Adair responded that it was likely hunters. Id., ¶ 43. Plaintiff also
reportedly asked Defendant Adair to investigate the damage to his property and to issue a trespass
warning to the Montierths as they had done to him, because they too had come onto his property. Id.,
¶ 45. Defendant Adair reportedly refused to do so because Plaintiff had “no proof.” Id., ¶ 46.
Plaintiff proceeded to investigate Defendant Adair, the Montierths, and Hulsey, and evidently
came across a complex network of relation between these individuals, as well as other individuals
with political positions in the County or elsewhere. See id. at 10-11. Plaintiff also investigated the
activities of Sometime Creek Ranch and those hunting outfits owned by the Adairs, the Montierths
and Hulsey. See id. at 11-12. Specifically, Plaintiff theorized that the rerouting of his water was done
to draw elk in for these outfits, and he notes that the Montierths advertised a hunting business on
Facebook, which they have since deleted. Id. at 11, ¶ 58.
4
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Plaintiff reported his concerns to Catron County Sheriff Fletcher on November 26, 2019, but
his requests went unanswered. Id. at 14, ¶ 76. On December 5, 2019, Plaintiff notified the Catron
County Clerk of a Notice of Claim. Id., ¶ 77. Following the notice, Plaintiff reports that assaults on
his property increased sharply:
[H]arassments and assaults on Plaintiff and Plaintiff’s property became a daily and
nightly occurrence, including multiple attempts to break into Plaintiff’s home in the
middle of the night while Plaintiff was inside behind barricaded doors. Hulsey and
other unknown persons were patrolling around Plaintiff’s property on a daily basis,
shooting their guns off, and keeping Plaintiff a mere prisoner in his own home and
upon his own land.
Id., ¶ 78.
On January 14, 2020, two BLM officers and deputy sheriff Michael Bugayong appeared on
Plaintiff’s property to take a report from Plaintiff in response to emails Plaintiff sent requesting an
investigation into the assaults which occurred on public land. Id. at 15, ¶ 80. Plaintiff claims that
during this interchange, the BLM officers refused to take a report on the alleged crimes and instead
asked Plaintiff if he was represented by an attorney and which court Plaintiff intended to file his
complaint in. Id. at 15-16, ¶ 85.
Plaintiff made an IPRA request to the county concerning the BLM officers’ visit, and the
county responded with video footage in which a BLM officer could be heard saying, “he said it was
a red house … they said it was a red house.” Id. at 16, ¶ 86. Plaintiff theorizes that the “red house” is
in reference to Plaintiff’s red shop, about which only Adair, the Montierths or Hulsey would have
known. Id. Plaintiff also complains that Bugayong did not relay any of the information regarding the
crimes to the Sheriff’s Office. Id. at 17, ¶ 95.
On January 15, 2020, Plaintiff received an IPRA response which had been held for thirty-days
as “excessively burdensome.” Id., ¶ 99. The information provided was a full report by Defendant
Adair on the details of Plaintiff’s trespass warning, which Plaintiff maintains was incorrect and
drafted post factum with a fraudulent submission date. Id. at 19, ¶¶ 100-06; see id. at 22, ¶ 126.
5
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Plaintiff also requested Defendant’s Adair’s and other officers’ unrelated police reports for purposes
of comparison, and allegedly found that no officers, including Defendant Adair, had never written a
criminal report with a separate attached narrative on other criminal trespass warnings or citations
except as to Plaintiff. Id., ¶ 108. Plaintiff also notes that what small reports did exist as to other
individuals were written in the narrative portion of the dated standard report, not separately on a word
processing program with no dates. Id. at 20, ¶¶ 109-11. These facts and others led Plaintiff to the
conclusion that Defendant Adair drafted this report when he was aware that Plaintiff intended to file
a lawsuit, id., ¶ 113, so Plaintiff submitted at IPRA request for generation dates of certain documents,
id. at 21, ¶ 119. This request revealed that the narrative portion of Defendant Adair’s police report
was generated on December 19, 2019, nearly a month after the incident in violation of the Sheriff’s
Office report requirements, and not completed until December 31, 2019. Id. at 22, ¶ 123. If true, the
report was not submitted in November, as claimed by Defendants, and indicate that Sheriff Fletcher
signed the police report knowing, at the very least, that the date of the report was incorrect.2
LAW
I.
Standard of Review
Under Rule 12(b)(6), the Court reviews Plaintiff’s allegations for plausibility. Specifically,
the Court queries whether enough facts have been pled to state a plausible claim. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007). The “plaintiff must plead
that each Government-official defendant, through his own individual actions, has violated the
Constitution.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948, 173 L.Ed.2d 868 (2009).
In reviewing the plausibility of a complaint, the Court must assume the truth of all well-pled
facts in the complaint, and draws reasonable inferences therefrom in the light most favorable to the
Plaintiff. See Dias v. City and County of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009); Ashcroft,
2
According to Plaintiff, the report-writing policy of the Sheriff’s Office is that all reports shall be submitted by deputies
within 48 hours, and all supplemental reports within 24 hours. Doc. 49 at 23, ¶ 113.
6
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129 S.Ct. at 1949.
In addition, “[t]he court’s function on a Rule 12(b)(6) motion is not to weigh potential
evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is
legally sufficient to state a claim for which relief may be granted” under Rule 8(a)(2). Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009) (internal quotations and citations omitted), cert. denied,
130 S.Ct. 1142 (2010).
The Supreme Court has clarified the Rule 12 standard, stating that “to withstand a motion to
dismiss, a complaint must contain enough allegations of fact ‘to state a claim to relief that is plausible
on its face.’” Id. at 1247 (quoting Twombly, 550 U.S. at 570). Specifically, “[f]actual allegations
must be enough to raise a right to relief above the speculative level,” Twombly, 550 U.S. at 555, so
that “[t]he allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just
speculatively) has a claim for relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008).
Under this standard, “a plaintiff must nudge his claims across the line from conceivable to plausible in
order to survive a motion to dismiss.” Smith, 561 F.3d at 1098. Therefore, a plaintiff must “frame a
‘complaint with enough factual matter (taken as true) to suggest’ that he or she is entitled to relief.”
Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 556).
II.
42 U.S.C. § 1983
To state a claim under § 1983, a plaintiff must allege the violation of a constitutional right,
and must show that the deprivation was committed by a person acting under the color of state law.
West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). “Acting under color of state
law” requires that a defendant in a § 1983 action have exercised actual or apparent authority possessed
by virtue of state law and made possible only because the wrongdoer is clothed with the authority of
state law. Id., 487 U.S. at 49; Jojola v. Chavez, 55 F.3d 488, 493 (10th Cir. 1995). Individual
defendants may be held liable to the extent they knew, or reasonably should have known, that their
alleged conduct would lead to the deprivation of constitutional rights. See Martinez v. Carson, 697
7
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F.3d 1252, 1255 (10th Cir. 2012) (“The requisite causal connection is satisfied if [the defendants] set
in motion a series of events that [the defendants] knew or reasonably should have known would cause
others to deprive [the plaintiffs] of [their] constitutional rights.”) (citations omitted). Supervisors are
liable under § 1983 where there is an affirmative link between the alleged constitutional deprivation
and the supervisor's personal participation, exercise of control, or failure to supervise. See Gallagher
v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (citing Green v. Branson, 108 F.3d 1296, 1302 (10th
Cir. 1997)). Supervisory liability requires a showing that such policies were a “deliberate or conscious
choice.” Barney v. Pulsipher, 143 F.3d at 1307–08 (citations omitted) (internal quotations omitted);
Ashcroft, 556 U.S. at 676 (“[A] plaintiff must plead that each Government-official defendant, through
the official's own individual actions, has violated the Constitution.”).
III.
Qualified Immunity
The doctrine of qualified immunity protects officials from civil liability as long as
they do not “‘violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Mullenix v. Luna, ––– U.S. ––––, 136 S.Ct.
305, 308, 193 L.Ed.2d 255 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231,
129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). To defeat this immunity, we require the
plaintiff to show that
• the defendant violated a constitutional or statutory right; and
• the violated right was “‘clearly established at the time of the alleged unlawful
activity.’”
Lincoln v. Maketa, 880 F.3d 533, 537 (10th Cir. 2018) (bullet points in original). These two elements
are commonly referred to as the two prongs of a qualified immunity test.
Once “a defendant raises a claim of qualified immunity, the burden shifts to the plaintiff to
show that the defendant is not entitled to that immunity.” Douglas v. Dobbs, 419 F.3d 1097, 1100
(10th Cir. 2005); see also Matthews v. Bergdorf, 889 F.3d 1136, 1144 (10th Cir. 2018) (noting that
district court decisions which place the burden on the defendant-movant of establishing qualified
immunity constitute error). Matthews explains that, under the qualified immunity analysis, the
8
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conduct of each individual capacity defendant must be isolated and analyzed, as opposed to an
analysis of the defendants’ conduct cumulatively. Id. at 1145.
Regarding the clearly established law prong of a qualified immunity test, courts must not
define the relevant constitutional right “at a high level of generality.” White v. Pauly, 137 S.Ct. 548,
552, 196 L.Ed.2d 463 (2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074,
179 L.Ed.2d 1149 (2011)). Instead, as the Supreme Court “explained decades ago, the clearly
established law must be ‘particularized’ to the facts of the case.” Id. (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)).
DISCUSSION
The Complaint lists the following causes of action:
State Tort Claims Act3
1. Trespass under Article II, § 10 of the New Mexico State Constitution
2. False Imprisonment under Article II, § 10 of the New Mexico State Constitution
3. Defamation, Libel Per Se
4. Intentional Infliction of Emotional Distress
5. Negligence Per Se under N.M. Stat. § 29-1-1
6. Deprivation of Rights under N. M. Stat. § 4-41-2
7. Violation of Equal Protection under Article II, Section 18 of the New Mexico State
Constitution
Federal Claims under 42 U.S.C. § 1983
1. Failure to Train and Supervise against County
2. Unreasonable Seizure under the Fourth Amendment of the United States Constitution
against Defendant Adair
3. Violation of Equal Protection under the Fourteenth Amendment of the United States
Constitution against all Defendants
4. Conspiracy to Deprive Substantive Due Process under the Fourteenth Amendment of
the United States Constitution against all Defendants
3
All of the Tort Claims Act claims are alleged against all Defendants.
9
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5. Retaliation under the First and Fourth Amendments of the United States Constitution
against all Defendants
Defendants’ Motion asks the Court to dismiss all federal claims against all Defendants.
I.
Plaintiff’s Pro Se Status
As a preliminary matter, the Court notes that Plaintiff brings the subject Complaint pro se.
The Court is therefore required to construe his pleadings liberally so long as the Court does not fashion
legal arguments or supply additional factual allegations on his behalf. See Xiong v. McCormick, 809
Fed. Appx. 496, 498 n.1 (10th Cir. 2020) (“Because [the plaintiff] is proceeding pro se, we liberally
construe his filings. That said, liberally construing a pro se filing does not include supplying additional
factual allegations or constructing a legal theory on the appellant's behalf.”) (citing United States v.
Pinson, 584 F.3d 972, 975 (10th Cir. 2009)); Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th
Cir. 1997)).
II.
Plaintiff’s Official Capacity Claims Against Individual Defendants
Defendants’ first argument is that NMSA § 4-46-1 and Federal Rule 17 preclude Plaintiff’s
official capacity claims against Defendant Adair because official-capacity suits are effectively just
another way to plead an action against an entity of which an officer is an agent. See Kentucky v.
Graham, 473 U.S. 159, 165–66, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985); see also Torres v.
Shea, 2020 WL 1676920, at *4 (D.N.M. Apr. 6, 2020). Plaintiff concedes that because he has properly
named Defendant County, his official capacity claims against Defendant Adair are redundant and
should be dismissed. The Court thus dismisses Plaintiff’s § 1983 claims against Defendant Adair in
his official capacity.
III.
Improper Training and Supervision
The Complaint alleges that the County violated its duty to provide appropriate and adequate
hiring, training and supervision for its law enforcement personnel. Specifically, Plaintiff claims that
the County negligently and with deliberate indifference hired law enforcement personnel with a
10
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propensity for criminality, that it failed to train such personnel, and that it knew or should have known
that such practices would result in the deprivation of the rights of citizens. Plaintiff also alleges that
the County failed to implement a system of accountability, a failure which ultimately led to
unconstitutional behavior by subordinate employees.
The Supreme Court found in Monell v. Dep’t of Soc. Servs. that local governing bodies and
officials can be sued directly under § 1983. 436 U.S. 658, 98 S. Ct. 2018 (1978). Such claims are
commonly referred to as Monell claims. Defendants argue here that the Complaint fails to plead a
plausible Monell claim against the County, as Plaintiff “never identifies precisely what particular
custom or policy [of the County that the Defendant’s Fletcher4 or Adair were] acting pursuant to ….”
Doc. 51 at 11 (quoting Abila, 2016 WL 9021834, at *18) (emphasis in original).
Plaintiff contends that Defendants’ argument is unavailing for two reasons: (1) Plaintiff is not
alleging that the injuries occurred merely as a result of an official policy, but rather, as a result of
willful constitutional violative practices undertaken by the County, and (2), notwithstanding, Plaintiff
has met his burden through complaints filed with the County, complaints which he contends were
deliberately ignored as to prejudice his ability to seek relief for false reports, conspiracy, retaliation
and failure to act by the County and its agents.
As to negligent hiring and training, Plaintiff offers nothing but conclusory allegations.
Plaintiff effectively assumes that the County failed to investigate Defendant Adair’s background and
failed to train him simply by virtue of the fact that Defendant Adair acted in violation of Plaintiff’s
constitutional rights. Plaintiff alleges no facts relating to the actual hiring practices employed by the
County or to their training procedures, and therefore, those portions of the Complaint seeking § 1983
coverage on the grounds of inadequate hiring and training have no basis in the law.
However, as to negligent supervision, Plaintiff alleges the following:
4
This quote predates the voluntary dismissal of claims against Sheriff Fletcher by Plaintiff. See Doc. 58.
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•
Defendants did not implement a system for independent review of complaints
for the purpose of insulating the Sheriff’s Office from unbiased investigation
of deputy conduct. See id., ¶ 191.5
•
Defendants did not safeguard evidentiary documents because they failed to
provide software to deputies that prohibited police reports from being altered
or fraudulently generated after the fact. See Doc. 49 at 31, ¶ 190.
•
Sheriff Fletcher knowingly signed a police report with an incorrect date so
Defendant Adair could file a fraudulent report and protect other individuals
from investigation while they regularly assaulted Plaintiff and his property. See
id., ¶¶ 102-106, 118-128, 130-132.
The first of these claims, while pleaded correctly, indicates no unconstitutional conduct on
behalf of the County. The second claim fails for the same reason—Plaintiff identifies no feature of
the Constitution requiring a sheriff’s office to implement technological systems that prevent
production of post-factum police reports, and the Court is unable to find any such precedent.
However, the third claim is sufficient to form the basis of a § 1983 action against the County.
In Specht v. Jensen, the Tenth Circuit found that once an “affirmative link” exists between a
deprivation of rights and either the supervisor’s “personal participation, his exercise of control or
direction, or his failure to supervise,” they may be held liable under § 1983. 832 F.2d 1516, 1524
(10th Cir. 1988). According to the Jensen court, liability sticks when a person “does an affirmative
act, participates in another’s affirmative acts, or omits to perform an act which he is legally required
to do that causes a deprivation.” Id. Under Plaintiff’s version of the facts, Sheriff Fletcher’s knowing
approval of the fraudulent police report with the fraudulent date, resulting in the uninvestigated and
continued property damage perpetrated by family members of Defendant Adair and Defendant Adair
himself, satisfies Specht. However, Plaintiff has dismissed his claims against Sheriff Fletcher, and the
5
The specific factual support for this allegation is as follows: Plaintiff reported Defendant Adair’s misconduct to Sheriff
Fletcher via email, and the email was ignored. Doc. 49 at 14, ¶ 76. Incidents and severity of assaults on Plaintiff’s property
increased exponentially following notification by Plaintiff to the Catron County Clerk of his intention to file a claim
against the County. Id., ¶¶ 77-78.
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County is the only remaining party that may be liable for the improper supervision of Defendant Adair
under a theory of municipal liability.
There are generally three requirements for municipal liability under § 1983: (1) the existence
of an official policy or custom; (2) a direct causal link between the policy or custom and the
constitutional injury; and (3) that the defendant established the policy with deliberate indifference to
an almost inevitable constitutional injury. Dawson v. Bd. of County Comm'rs, 732 Fed. Appx. 624,
628 (10th Cir. 2018). However, where a single decision results in a constitutional violation, municipal
liability may attach where the decisionmaker has “final authority” to establish municipal policy with
respect to the single act. Pembaur v. City of Cincinnati, 475 U.S. 469 (1986). Here, Plaintiff pleads
that “Fletcher was the commanding officer of operations within the Sheriff’s Office, and he was
responsible for the training, suspension, hiring, supervising, and conduct of Defendant[ Adair] …
enforcing the regulations of the Sheriff’s Office, and for ensuring that his deputies obey the laws of
the State of New Mexico and the United States.” Doc. 49 at 3-4, ¶ 7. While not completely clear,
Plaintiff appears to plead that Sheriff Fletcher was a decisionmaker for the County, at least with
respect to supervision and deputy conduct. This alone may be enough to find that Sheriff Fletcher
was the policymaker with authority “to establish municipal policy” with regard to the filing of police
reports, and that he “sanctioned or ordered” Defendant Adair’s fraudulent police report by signing it
with an incorrect date to hide the fact that it was edited later by Defendant Adair. Pembaur, 475 U.S.
at 469; Buck v. City of Albuquerque, 2007 U.S. Dist. LEXIS 116623, at *17 (D.N.M. 2007); Bryson
v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (“A municipal policy or custom may take
the form of: … the ratification by [ ] final policy-makers of the decisions—and the basis for them—
of subordinates to whom authority was delegated subject to these policymakers’ review and approval
….”).
The Seventh Circuit has articulated a rule very applicable to the facts here:
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It doesn't matter what form the action of the responsible authority that injures the
plaintiff takes. It might be an ordinance, a regulation, an executive policy, or an
executive act (such as firing the plaintiff). The question is whether the promulgator, or
the actor, as the case may be—in other words, the decisionmaker—was at the apex of
authority for the action in question.
Gernetzke v. Kenosha Unified School Dist. No. 1, 274 F.3d 464, 469 (7th Cir. 2001) (emphasis added).
Sheriff Fletcher, at least consistent with the Plaintiff’s allegations, would certainly have been the apex
of authority for the approval of police reports in the Sheriff’s Office, as he was the county sheriff and
the individual charged with signing off on such reports. Thus, Sheriff Fletcher’s knowingly signing a
fraudulent report can be attributed to the County, and where the report resulted in a constitutional
injury, the nexus for municipal liability is satisfied. See id.; see also Randle, 69 F.3d at 447
(“Municipal liability arises even if the official's decision is specific to a particular situation.”).
Because Defendants have motioned for relief based on qualified immunity, the Court must
next determine whether Sheriff Fletcher’s signing of the fraudulent police report resulted in a
violation of constitutional or statutory rights that were “clearly established at the time of the alleged
unlawful activity.” Lincoln v. Maketa, 880 F.3d 533, 537 (10th Cir. 2018); Luna, 136 S.Ct. at 308
(“The doctrine of qualified immunity protects officials from civil liability as long as they do not
‘violate clearly established statutory or constitutional rights of which a reasonable person would have
known.’”) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)).
Plaintiff specifically alleges that Sheriff Fletcher fraudulently signed one such backdated
police report for purposes of hiding Defendant Adair’s post-factum modification. Plaintiff further
alleges that this protection by Sheriff Fletcher was to “overt[ly] encourage” further assaults on
Plaintiff’s property and hide Plaintiff’s allegations about the individuals harassing Plaintiff, insulating
them and Defendant Adair from investigation. See Doc. 49, ¶¶ 136, 55 (“They allow for Adair’s
family and friends to terrorize, threaten, harass, intimidate, and bully innocent persons such as
Plaintiff, while hiding behind, and protected by, State power.”). Section 1983 also imposes liability
on a government official who “causes to be subjected, any citizen … to the deprivation of any right,”
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regardless of whether it was “other people [who] may have concurrently caused the harm….” 42
U.S.C. § 1983; Lippoldt v. Cole, 468 F.3d 1204, 1220 (10th Cir. 2006); see also Carson, 697 F.3d at
1255 (“The requisite causal connection is satisfied if [Defendant] set in motion a series of events that
[Defendant] knew or reasonably should have known would cause others to deprive [Plaintiff] of [his]
constitutional rights.") (citing Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 2006)) (internal
quotations omitted). According to Plaintiff, it was Sheriff Fletcher’s signature and the contents of
Defendant Adair’s falsified police report that “encourage[d]” associates and even relatives of
Defendant Adair to break into Plaintiff’s home, Doc. 49, ¶¶ 136, 87, 12, assault Plaintiff, id., ¶¶ 87,
16, urinate on Plaintiff’s floor, and vandalize Plaintiff’s computer, woodstove, and truck, id., ¶¶ 2122. Even if Sheriff Fletcher was not aware that his signature would result in the violation of Plaintiff’s
property rights specifically, as opposed to some other form of harassment or retaliation, his decision
to approve the falsified report was at least deliberate indifference, as Plaintiff argues. Id., ¶ 6. There
is no reason to belabor a deliberate indifference analysis here. If Sheriff Fletcher, as Plaintiff has
alleged, knowingly signed falsified documents, id., ¶ 98, for the purposes of mischaracterizing
Plaintiff and hiding his complaints as to “overt[ly] encourage” further destruction of Plaintiff’s
property and protect Hulsey, id., ¶¶ 136, 101-06, 114-17, 125-26, 127, 131-33, then Sheriff Fletcher’s
supervisory conduct as a policymaker far exceeds deliberate indifference. Accordingly, taken as true,
Plaintiff’s allegations support and inference that the County, vis-a-vis Sheriff Fletcher, as well as
Defendant Adair acting under the color of law, knowingly set into motion a series of events that
ultimately resulted in the deprivation of Plaintiff’s property rights. See id., ¶ 140; Id. at 33, ¶ 212.
The next step is identifying which constitutional rights were violated, and whether they were
recognized at the time of the violation of said rights. Here, as the Court has stated, Plaintiff’s
established property rights were clearly violated if his truck and personal belongings were destroyed
by Hulsey or Defendant Adair as a result of the sheriff’s encouragement. See United States v. Tueller,
349 F.3d 1239 (10th Cir. 2003) (acknowledging that unnecessary destruction of property by a police
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officer is unconstitutional under the Fourth Amendment); Lowther v. United States, 480 F.2d 1031
(10th Cir. 1973) (finding law enforcement's destruction of property without authority to do so is
contrary to the Due Process Clause); United States v. Ramirez, 523 U.S. 65 (1998) (acknowledging
limits on a police officer’s ability to destroy property while executing a warrant). Furthermore,
Plaintiff has pled facts sufficient to infer that other constitutional rights were violated merely as a
result of the fraudulent police report. See Lynch v. Barrett, 2012 WL 1944553, 2012 U.S. Dist. LEXIS
72250, at *7 (D. Colo. 2012) (finding that “intentional concealment of evidence by a police officer”
is unconstitutional, and that it “would be clear to a reasonable police officer that intentional
concealment of evidence of another officer’s misconduct, the so-called conspiracy of silence, is
unlawful.”) (citing Donohue v. Hoey, 109 F. App'x 340, 356 (10th Cir. 2004) (unpublished)
(abrogated on other grounds)); Jennings v. City of Stillwater, 383 F.3d 1199, 1207-08 (10th Cir.
2007)) (abrogated on other grounds)). There is no doubt to the Court that if Sheriff Fletcher knowingly
signed a fraudulent police report to encourage destruction of Plaintiff’s property and to shield the
perpetrators from investigation, he was on notice as to the probable constitutional violations that
would stem from his conduct. Accordingly, assuming Plaintiff’s allegations are true, the County visà-vis Sheriff Fletcher “set in motion a series of events that [Sheriff Fletcher] knew or reasonably
should have known would cause others to deprive [Plaintiff] of [his] constitutional rights." Carson,
697 F.3d at 1255. Plaintiff has therefore established municipal liability, met his burden as to qualified
immunity, and pled facts that defeat Defendants’ motion for judgment on the pleadings as to this
cause of action.
IV.
Unlawful Seizure
Plaintiff next argues that Defendant Adair violated Plaintiff’s Fourth Amendment rights
against unreasonable seizure by intruding on Plaintiff’s land, seizing Plaintiff’s ability to move about
freely, entering and remaining inside of Plaintiff’s home, and issuing a criminal citation to Plaintiff
without any recognized lawful authority to do so. Doc. 48-49, ¶¶ 194-96. Defendants respond that
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Plaintiff did not object when Defendant Adair entered his home, and that he was not charged
criminally for trespass without probable cause, but that Defendant was given a trespass warning,
which “is simply a formal notification that the owner or occupant of a certain property has withdrawn
his or her consent for the recipient to enter or remain upon their land.” Doc. 51 at 17.
As to Defendant Adair’s entry into Plaintiff’s home, Plaintiff has failed to establish that
Defendant Adair violated any clearly established law. Plaintiff does not plead that he refused
Defendant Adair entry into the home, and, as Defendants rightfully note, it is generally legal for law
enforcement to enter a private property to talk. See U.S. v. Carloss, 818 F.3d 988 (10th Cir. 2016);
see also Rieck v. Jensen, 651 F.3d 1188, 1189, 1191–94 (10th Cir. 2011). Plaintiff claims to have felt
threatened and powerless, but absent any affirmative action on his part indicating that Defendant
Adair was not welcome into the home, these claims do not raise to the level of an unlawful entry and
Defendant Adair is entitled to qualified immunity on Plaintiff’s claim of unlawful seizure.
V.
Equal Protection
Plaintiff next argues that Defendant Adair and the County violated Plaintiff’s rights to equal
protection by refusing to perform their duties, intentionally depriving Plaintiff of evidence necessary
for a civil suit against the Montierths, and intentionally obstructing Plaintiff’s ability to obtain justice
both criminally and civilly for the harassment which Plaintiff alleges took place on his property.
Defendants respond that Plaintiff fails to allege facts sufficient to support such a claim, and rather,
that Plaintiff merely alleged the legal standard as though it was a set of supporting facts.
Having reviewed the Complaint in this matter, the Court is not convinced that Plaintiff merely
restated the legal standards for an equal protection cause of action. Plaintiff clearly alleges specific
acts undertaken by Defendant Adair and Sheriff Fletcher, acts sufficient to infer a violation of equal
protection. For instance, Plaintiff alleges that he reported assaults and property damage to both
Defendant Adair and Sheriff Fletcher, and that both Defendant Adair and Sheriff Fletcher not only
failed to investigate, but took affirmative steps to undermine Plaintiff and protect the individuals
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responsible for the assaults and property damage. Plaintiff supports this argument with evidence that
Defendant Fletcher did indeed draft Plaintiff’s police report post-factum, in violation of the County’s
reporting policies, and did not do so for other individuals’ police reports.
However, Plaintiff does not bring this cause of action under a traditional discrimination
theory. Because Plaintiff alleges that the County and Defendant Adair’s conduct constitutes unfair
treatment of Plaintiff as compared to everyone else, instead of just individuals with a different sex,
age or race, his claim is known as a “class of one” equal protection claim. The question thus becomes:
do the facts alleged by Plaintiff meet the burden for a “class of one” equal protection claim? In the
context of a motion to dismiss, the answer is yes.
In the Tenth Circuit, a plaintiff bringing a “class of one” equal protection claim must
demonstrate that others “similarly situated in all material respects” were treated differently. See
Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1217 (10th Cir. 2011). As Defendants note,
Jennings v. City of Stillwater explains the Tenth Circuit’s reasoning for the standard, and the case
presents somewhat similar facts. 383 F.3d 1199, 1213-1214 (10th Cir. 2004). In Jennings, the plaintiff
claimed that too few resources were devoted to her case in violation of her rights to equal protection.
Id. The Tenth Circuit ultimately found that the plaintiff failed to meet her burden of “provid[ing] a
detailed account of the nature of the preferred treatment of the favored class,” and that the
“multiplicity of relevant (nondiscriminatory) variables” made it difficult for Plaintiff to demonstrate
discrimination where she failed to “provide compelling evidence of other similarly situated persons
who were in fact treated differently.” Id. at 1214.
What Defendants fail to acknowledge is that Plaintiff plead specific facts on this issue, and
that the case is distinct from Jennings insofar as Plaintiff alleges that Defendant Adair and Sheriff
Fletcher took deliberate steps to undermine the investigation of Defendant Adair’s relatives who were
assaulting Plaintiff and destroying his property. For example, Plaintiff took great strides to request
police reports from the Sheriff’s Office against which to compare his own allegedly fraudulent report,
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and alleges that the reports for other individuals were not detailed and targeted, seemingly
distinguishing them from other police reports which were not filed with a fraudulent date.6 Because
Plaintiff’s claims in part revolve around his allegation that Defendant Adair and Sheriff Fletcher
tailored a lengthy, fraudulent report for purposes of undermining Plaintiff and protecting other
individuals from potential investigation for property crimes, Plaintiff’s allegation that his report was
treated differently from others is enough to state an equal protection claim and relates directly to the
constitutional injuries which Plaintiff alleges. As stated above, Plaintiff has sufficiently plead a
violation of recognized constitutional property rights which were caused by Defendant Adair and
Sheriff Fletcher’s allegedly selective reporting and investigatory practices, and with the facts alleged,
Plaintiff has met his burden as to his “class of one” equal protection claim.
VI.
Retaliation
Plaintiff next argues that Defendants retaliated against him in violation of the First
Amendment when he expressed his intent to file a lawsuit against Defendant Adair. In support of this
argument, Plaintiff claims that in response to his threat of legal action, (1) the County refused to grant
Plaintiff’s public records requests, and (2) Defendant Adair and Sheriff Fletcher conspired to file a
fraudulent police report undermining Plaintiff and his complaints as to property damage and assault.
First, it is clear that there is no constitutionally protected right to obtain public records, though
disclosure of records may be compelled by statute. See, e.g, McBurney v. Young, 569 U.S. 221 (2013);
see also Newsome v. The GEO Group, Inc., 2013 WL 12329116 (D.N.M. Sept. 24, 2013). Moreover,
even if Defendant Adair or Sheriff Fletcher instructed the administrative employees of the Sheriff’s
6
Plaintiff also alleges that Defendant Adair treated Plaintiff differently in the course of his investigation of Plaintiff.
Specifically, Plaintiff alleges that he issued a trespass warning to Plaintiff without proof and based merely on unsupported
statements by the Montierths. As Plaintiff alleges, when Plaintiff requested that an identical trespass warning be issued to
the Montierths, who also came on Plaintiffs land, Defendant Adair refused because there was “no proof,” in violation of
N.M. Stat. § 29-1-1 and N.M Stat. § 4-41-2. Doc. 49 at 10, ¶ 46. This occurred prior to the bulk of the assaults on Plaintiff
and his property and does not clearly indicate Defendant Adair’s conduct as to all other individuals, but this does support
Plaintiff’s argument that he was arbitrarily treated differently than the identically situated Montierths from very early on
in the investigation.
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Office to delay or deny Plaintiff’s requests, Plaintiff does not allege that such denial resulted in the
assaults or property damage allegedly perpetrated by Defendant Adair or his relatives or insulated
Defendant Adair or his relatives from investigation. It could be argued that the refusal to grant
Plaintiff’s IPRA requests emboldened further acts by the assailants, but the alleged facts are not strong
enough to support an inference to this effect. Accordingly, Plaintiff does not allege an established
constitutional injury resulting from the denial of his IPRA requests, and thus the County and
Defendant Adair are entitled to qualified immunity on this claim.
Second, the contents of the fraudulent report, though they did result in a constitutional injury,
do not support a retaliation claim. To prevail on a First Amendment retaliation claim, a plaintiff must
establish:
(1) that the plaintiff was engaged in constitutionally protected activity;
(2) that the defendant’s actions caused the plaintiff to suffer an injury that would chill a person
of ordinary firmness from continuing to engage in that activity; and
(3) that the defendant’s adverse action was substantially motivated as a response to the
plaintiff’s exercise of constitutionally protected conduct.
Shero v. City of Grove, Okl., 510 F.3d 1196, 1203 (10th Cir. 2007) (citing Worrell v. Henry,
219 F.3d 1197, 1212 (10th Cir. 2000)). The first and second Shero requirements are satisfied. Plaintiff
obviously has an established constitutional right to express his desire to pursue a lawsuit, and to do
so. See Craft v. Middleton, 2012 U.S. Dist. LEXIS 130945, at *2 (W.D.Ok. 2012) (Plaintiff enjoys a
federal constitutional right to file a lawsuit.”) (citing Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct.
1491, 52 L. Ed. 2d 72 (1977)). And as explained above, Plaintiff’s factual allegations are sufficient
for a jury to find that the fraudulent police report was meant to undermine Plaintiff’s reported version
of the dispute between Plaintiff and the Montierths and to protect Defendant Adair and his family
members from investigation for assault and destruction of property. Constant harassment, assaults
and property damage seemingly condoned by the Sheriff’s Office is, without a doubt, enough to chill
a person of ordinary firmness from pursuing a lawsuit.
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However, the third Shero requirement is not satisfied. Plaintiff submitted his Notice of Claim
expressing his intent to pursue a lawsuit against Defendant Adair on December 5, 2019. Doc. 49 at
34, ¶ 221. The police report showed a false submission date of November 24, and the investigation
on which the police report was based took place on November 24. It appears from the Complaint that
the police report accordingly should have been filed on or shortly after November 24,7 but it wasn’t.
This means that Defendant Adair’s decision to falsify the report occurred on or around November 24,
though it wasn’t until December 5 that Plaintiff notified the Sheriffs Office of his intention to file suit
against Defendant Adair. Therefore, though the increase in assaults on Plaintiff’s property can likely
be attributed to Plaintiff’s Notice of Claim, the decision to falsify the report predated the Notice of
Claim and it cannot be argued that the falsified report was made in response to the Notice of Claim.
Therefore, Plaintiff has not met the third Shero requirement, and his retaliation claim related to the
fraudulent report accordingly fails.
VII.
Conspiracy
Plaintiff argues that Defendant Adair and the County conspired with the Montierths and
family members of Defendant Adair to deprive Plaintiff of his substantive due process rights. In
support of his argument, Plaintiff alleges facts which, if true, are very suspicious:
•
•
•
Plaintiff approached the Montierths over the unlawful redirection of Plaintiff’s
sources of water. Doc. 49, ¶ 11.
The Montierths redirected the water to draw elk for the Montierths’ hunting guide
outfit and for the hunting guide outfits of Montierths’ associates, who were known
and related to Defendant Adair. Id., ¶¶ 10, 51-53, 56, 58-60.
After Plaintiff initially approached the Montierths, his home was broken into, his
floor was urinated on, he was assaulted by Corwin Hulsey—a relative of Defendant
Adair’s—and other masked individuals, his laptop was vandalized, his vehicle-repair
tools were stolen, and his truck chassis and tire were punctured by Defendant Adair
7
According to Plaintiff, Sheriff Fletcher backdated his signature to November 26, 2019, so the Court assumes that such
reports are generally filed within a few days of the reported incident. Doc. 49 at 19, ¶ 106. Further, according to Plaintiff,
the Sheriff’s Office reporting protocol required a report to be submitted within 48 hours of taking the report, and that
supplemental reports must be filed within 24 hours. Id. at 23, ¶ 133. That Defendant Adair did not file the report and
waited until much later to draft and submit the report indicates a decision by Defendant Adair to deviate from reporting
protocol on or around November 24-26, 2019.
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•
•
•
•
•
•
•
when he visited Plaintiff to issue a trespass warning. Id., ¶¶ 12, 15-19, 21-24, 53, 67,
75.
IPRA documents revealed that it was Hulsey, not the Montierths, who contacted
Defendant Adair regarding Plaintiff. Id., ¶ 62.
Prior to visiting Plaintiff’s property, Defendant Adair met with Hulsey at the
Montierths’ property, where Plaintiff alleges that Defendant Adair and Hulsey
devised a plan to intimidate Plaintiff in response to the water-rights dispute between
Plaintiff and the Montierths. Id., ¶¶ 66, 72.
When Defendant Adair went to Plaintiff’s property after this meeting, he issued
Plaintiff a trespass warning based on unsupported claims allegedly made by the
Montierths, then refused to issue a trespass warning to the Montierths under identical
circumstances. See id., ¶ 46.
Adair reported the vandalism and theft on his property, and requested that Defendant
Adair investigate and collect evidence. Id., ¶ 44. Defendant Adair attributed the
assaults to “hunters,” when, according to Plaintiff, he and his associates were truly
responsible. This information was not accurately disclosed in the police report later
filed by Defendant Adair with a fraudulent date. Id., ¶¶ 99-106, 118-127, 130-131,
133.
The report, signed by Sheriff Fletcher knowing that the report was fraudulently
backdated, contained false dates, incorrectly recited Plaintiff’s statements, and
incorrectly stated that the underlying conversations about the trespass warning were
with the Montierths, who were allegedly in Arizona, not Hulsey. Id., ¶¶ 69-70, 74.
Defendant notified Sheriff Fletcher of the assaults and property damage, but was
ignored. Id., ¶ 76.
On December 5, 2019, Plaintiff notified the County that he intended to file suit.
Immediately following this message, trespass, harassment and property damage
increased significantly on Plaintiff’s land. Id., ¶¶ 77-78.
Under Tenth Circuit law, a § 1983 conspiracy claim “requires at least a combination of two
or more persons acting in concert and an allegation of a meeting of the minds, an agreement among
the defendants, or a general conspiratorial objective.” Brooks v. Gaenzle, 614 F.3d 1213, 1227-28
(10th Cir. 2010). Plaintiffs allegations clearly point to more than two individuals within the Sheriff’s
Office, one being the sheriff himself and direct supervisor to Defendant Adair.
Plaintiff also alleges that private actors were involved in the conspiracy, and a § 1983
conspiracy claim may arise when a private actor conspires with a state actor, acting under the color
of state law, to deprive an individual of a constitutional right. Dixon v. Lawton, 898 F.2d 1443, 1449
n.6 (10th Cir. 1990) (citing Dennis v. Sparks, 449 U.S. 24, 29, 66 L. Ed. 2d 185, 101 S. Ct. 183 (1980);
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Adickes v. S.H. Kress & Co., 398 U.S. 144, 149-152, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970)). The
conspiracy itself, involving state actors, provides the requisite color of state law. Id.
Regardless of whether Defendant Adair or Sheriff Fletcher were personally involved in the
property destruction, a conspiracy claim allows for imputed liability provided there is an underlying
constitutional deprivation. Dixon, 898 F.2d at 1449 n.6 (citing Landrigan v. City of Warwick, 628
F.2d 736, 742 (1st Cir. 1980); Ryland v. Shapiro, 708 F.2d 967, 974 (5th Cir. 1983)). In other words,
Plaintiff may impose liability on Defendant Adair and the County for the actions of Hulsey performed
in the course of a conspiracy. Id.
While Plaintiff’s alleged facts certainly do not paint a complete picture of the alleged
conspiracy, such facts, if true, are more than sufficient to support an inference of conspiracy to
deprive. See Fisher v. Shamburg, 624 F.2d 156, 162 (10th Cir.1980) (finding that direct evidence of
a conspiracy is rarely available, and “the existence of a conspiracy must usually be inferred from the
circumstances”) (citing Loew's, Inc. v. Cinema Amusements, 210 F.2d 86, 93 (10th Cir. 1954)). Such
facts support an inference that Defendant Adair, his relatives, Sheriff Fletcher, and potentially others,
conspired to assault and vandalize Plaintiff’s property and to protect the culprits of the assaults on
Plaintiff’s property from investigation as to dissuade Plaintiff from filing suit against Defendant Adair
or the Montierths. As discussed above, the actions allegedly undertaken by Defendant Adair and the
County resulted in the deprivation of Plaintiff’s obvious constitutional rights, and Defendants motion
for judgment on the pleadings as to Plaintiff’s conspiracy to deprive cause of action fails.
CONCLUSION
On a motion for judgment on the pleadings based on qualified immunity, the Court must
assume Plaintiff’s alleged facts are true. Assuming the facts set forth in the Complaint are true,
Plaintiff has sufficiently pled improper supervision, equal protection, and conspiracy to deprive
claims under § 1983. His constitutional injuries were established at the time of their occurrence, as
his rights to protection from state destruction of property and to file a lawsuit are clear, and there is
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no dispute that Defendant Adair, or Sheriff Fletcher acting as a policymaker to the County, acted
under the color of state law. For these reasons, and those otherwise set forth in this Memorandum
Opinion and Order, Defendants’ Motion for Partial Judgment on the Pleadings Related to Plaintiff’s
Second Amended Complaint on the Basis of Qualified Immunity (Doc. 51) is hereby DENIED as to
Plaintiffs improper supervision, equal protection and conspiracy to deprive claims, and hereby
GRANTED as to Plaintiff’s unreasonable seizure and retaliation claims.
This is a civil rights case involving complex legal concepts. Therefore, while Plaintiff
certainly has the right to represent himself in this matter, the Court strongly recommends that he seek
legal representation moving forward. Should Plaintiff decide to seek such representation, the Court
would be inclined to look favorably upon a formal request by Plaintiff to stay this case for a limited
period of time to allow Plaintiff to do so. Plaintiff must file such formal request with the Court within
fourteen (14) days of the entry of this order. If Plaintiff chooses to proceed pro se, the Court notifies
Plaintiff that the Court cannot give advice on how to prosecute a case. See Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991) (“[I]t is [not] the proper function of the district court to assume the role
of advocate for the pro se litigant.”).
IT IS SO ORDERED.
_________________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE
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