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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 YOSEF LE ROI MUSTAFANOS,
3 Plaintiff-Appellant,
4 vs. No. 33,428
5 NEW MEXICO DEPARTMENT OF
6 PUBLIC SAFETY-MOTOR
7 TRANSPORTATION DIVISION/MOTOR
8 TRANSPORTATION POLICE and OFFICER
9 LEON BEACHMAN,
10 Defendants-Appellees.
11 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
12 Jerry H. Ritter, Jr., District Judge
13 Yoself Le Roi Mustafanos
14 Silver Springs, NV
15 Pro Se Appellant
16 Barbara M. Smith
17 Roswell, NM
18 P. Cholla Khoury
19 Santa Fe, NM
20 for Appellees
1 MEMORANDUM OPINION
2 HANISEE, Judge.
3 {1} Plaintiff, who is self-represented, appeals from a district court order dismissing
4 his civil suit against a police officer and the Department of Public Safety. We issued
5 a calendar notice proposing to affirm. Plaintiff has filed a memorandum in opposition.
6 We affirm.
7 {2} Plaintiff has raised four issues that we have consolidated as an argument that
8 the district court erred in granting Defendants’ motion to dismiss. Because the record
9 includes matters outside of the pleadings, we review this as a summary judgment case.
10 See First Sw. Fin. Servs. v. Pulliam, 1996-NMCA-032, ¶ 4, 121 N.M. 436, 912 P.2d
11 828 (stating that we review motions to dismiss as motions for summary judgment
12 when the district court considered matters outside the pleadings in making its ruling).
13 We review this issue de novo; see also Self v. United Parcel Serv., Inc., 1998-NMSC-
14 046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “Summary judgment is appropriate where there
15 are no genuine issues of material fact and the movant is entitled to judgment as a
16 matter of law.” Id. When reviewing a motion for summary judgment, a court must
17 “view the facts in a light most favorable to the party opposing summary judgment and
18 draw all reasonable inferences in support of a trial on the merits.” Romero v. Philip
2
1 Morris Inc., 2010-NMSC-035, ¶ 7, 148 N.M. 713, 242 P.3d 280 (internal quotation
2 marks and citation omitted).
3 {3} NMSA 1978, Section 41-4-4(A) (2001) provides that governmental entities and
4 public employees, while acting within the scope of duty, are granted immunity from
5 liability for any tort except where, as provided by specific statutory exceptions,
6 immunity is waived. See Ford v. N.M. Dep’t of Pub. Safety, 1994-NMCA-154, ¶ 26,
7 119 N.M. 405, 891 P .2d 546 (“[A]bsent a waiver of immunity under the Tort Claims
8 Act, a person may not sue the state for damages for violation of a state constitutional
9 right.”). Among other exceptions, immunity granted under Section 41-4-4 does not
10 apply to malicious prosecution, abuse of process, libel, slander, defamation, “or
11 deprivation of any rights, privileges, or immunities secured by the constitution and
12 laws of the United States or New Mexico when caused by law enforcement officers
13 while acting within the scope of their duties.” NMSA 1978, § 41-4-12 (1977).
14 {4} Regardless of which specific exceptions apply to the allegations made in
15 Plaintiff’s amended complaint [RP 34], his lawsuit is predicated on the unsupported
16 factual claim that Defendant/Officer Beachman issued a traffic citation despite
17 Beachman’s knowledge that no violation had occurred. Defendants relied [RP 90-91]
18 on the traffic citation, which indicates that Plaintiff was speeding. [RP 7] The citation
19 contains Defendant Beachman’s signature, and otherwise complies with the statutory
3
1 requirements for effectuating a traffic citation. See NMSA 1978, § 66-8-128 (2013).
2 As such, Defendants established a prima facie showing for summary judgment, and
3 Plaintiff was required to come forward with a sworn statement rebutting the validity
4 of the citation. Notwithstanding Plaintiff’s claim to the contrary, his assertion that
5 Beachman knowingly issued a false citation and did not take corrective action
6 thereafter is a predicate to any legal claim brought in this case. Because there is no
7 indication that Plaintiff came forward with the requisite affidavit, we believe that the
8 district court properly granted summary judgment. See Bassett v. Sheehan, 2008-
9 NMCA-072, ¶ 5, 144 N.M. 178, 184 P.3d 1072 (“A defendant seeking summary
10 judgment . . . bears the initial burden of negating at least one of the essential elements
11 upon which the plaintiff's claims are grounded[,]” and “[o]nce such a showing is
12 made, the burden shifts to the plaintiff to come forward with admissible evidence to
13 establish each required element of the claim.”(omission in original) (internal quotation
14 marks and citations omitted)).
15 {5} For the reasons set forth above, we affirm.
16 {6} IT IS SO ORDERED.
17 _________________________________
18 J. MILES HANISEE, Judge
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1 WE CONCUR:
2 __________________________________
3 LINDA M. VANZI, Judge
4 __________________________________
5 M. MONICA ZAMORA, Judge
5