Pastore v. Bd. of Cnty. Comm'rs for the Cnty. of Catron

572 F.Supp.3d 1100

Jaxon PASTORE, Plaintiff,

v.The BOARD OF COUNTY COMMISSIONERS FOR the COUNTY OF CATRON and Kenneth Adair, Defendants.

No. 2:20-CV-913-WJ-GBW

United States District Court, D. New Mexico.

Filed November 17, 2021

Jaxon Pastore, Pro Se.

Brandon Huss, New Mexico Association of Counties, Santa Fe, NM, Mark L. Drebing, David Anthony Roman, New Mexico Association of Counties, Albuquerque, NM, for Defendant Kenneth Adair.

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

WILLIAM P. JOHNSON, CHIEF UNITED STATES DISTRICT JUDGE

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.

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 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, ¶ 65-67.

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.

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...