1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 DAVID S. PETERSON,
8 Plaintiff-Appellant,
9 v. No. 30,235
10 JOSEPH NEUBAUER, PAUL HEYSER,
11 R.D. PECARICH, FOOD STEWARTS (REAL
12 NAMES UNKNOWN), ARAMARK CORP.,
13 Defendants-Appellees.
14 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
15 Jerald A. Valentine, District Judge
16 David S. Peterson
17 Grants, NM
18 Pro Se Appellant
19 Butt, Thornton & Baehr, P.C.
20 Robert Tabor Booms
21 Albuquerque, NM
22 for Appellees
23 MEMORANDUM OPINION
24 SUTIN, Judge.
1 Plaintiff appeals pro se from an order granting summary judgment to
2 Defendants and denying his motion for reconsideration. We proposed to affirm in a
3 notice of proposed summary disposition, and Plaintiff has filed a motion to appoint
4 counsel and a one page motion to amend the docketing statement. Defendants have
5 filed responses to both of Plaintiff’s motions, and Plaintiff has filed replies in support
6 of his motions. Given that Plaintiff’s motions contain arguments contending that this
7 Court erred in our notice of proposed summary disposition, we construe them as his
8 memorandum in opposition. We consider the responses filed by the parties to the
9 extent they address the merits of Plaintiff’s motion to appoint counsel. However, we
10 do not consider them to the extent they address the merits of the appeal because “our
11 rules of appellate procedure do not provide for the filing of responses and replies back
12 and forth between the parties to their memoranda in support of, or in opposition to, a
13 calendar notice.” Landavazo v. N.M. Dep’t of Human Servs., 106 N.M. 715, 717, 749
14 P.2d 538, 540 (Ct. App. 1988).
15 After reviewing the motions filed by Plaintiff, we are not persuaded that our
16 proposed summary disposition is in error. Therefore, we affirm the district court’s
17 order granting summary judgment to Defendants and denying Plaintiff’s motion to
18 reconsider. In affirming, we note that Plaintiff need not have moved to amend the
19 docketing statement because he does not raise any issues in the motion to amend that
2
1 were not already raised in his docketing statement. See Rule 12-208(F) NMRA.
2 Finally, we are not persuaded by Plaintiff’s arguments urging us to appoint counsel
3 on his behalf and therefore deny his motion to appoint counsel.
4 Appeal
5 Standard of Review
6 “Summary judgment is appropriate where there are no genuine issues of
7 material fact and the movant is entitled to judgment as a matter of law.” Self v. United
8 Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582 . “The movant
9 need only make a prima facie showing that he is entitled to summary judgment. Upon
10 the movant making a prima facie showing, the burden shifts to the party opposing the
11 motion to demonstrate the existence of specific evidentiary facts which would require
12 trial on the merits.” Roth v. Thompson, 113 N.M. 331, 334-35, 825 P.2d 1241, 1244-
13 45 (1992) (citation omitted). A party opposing summary judgment may not simply
14 argue that evidentiary facts requiring a trial on the merits may exist, “nor may [a
15 party] rest upon the allegations of the complaint.” Dow v. Chilili Coop. Ass’n, 105
16 N.M. 52, 54-55, 728 P.2d 462, 464-65 (1986).
17 Claims Relating to Alleged Criminal Violations
18 In his docketing statement, Plaintiff contends that he was entitled to summary
19 judgment on his claims of making or permitting false public vouchers, bribery of
3
1 public officers, and claims relating to prostitution and that the district court erred in
2 granting summary judgment to Defendants on these claims. [DS 8; RP 620 (¶ 8)] In
3 our notice of proposed summary disposition, we proposed to disagree because these
4 claims all involve criminal allegations [RP 37], and Plaintiff is not authorized to
5 prosecute criminal violations. Cf. City of Roswell v. Smith, 2006-NMCA-040, ¶ 10,
6 139 N.M. 381, 133 P.3d 271 (observing that the district courts lack jurisdiction to hear
7 criminal matters brought by unauthorized persons); State v. Baca, 101 N.M. 716, 717,
8 688 P.2d 34, 35 (Ct. App. 1984) (holding that the court had no jurisdiction to hear a
9 criminal matter in which the private prosecutor was not authorized to represent the
10 state).
11 In his motion to appoint counsel, Plaintiff contends that this Court has erred
12 because civil lawsuits are often brought against persons who commit crimes such as
13 drunk drivers. [Mtn. to Appt. 2] We are not persuaded that a private person’s right
14 to bring a negligence action against a drunk driver who has injured that person entitles
15 a private person such as Plaintiff to bring a private action against someone for
16 allegedly violating any and all criminal statutes. [Id. 2] For the same reason, we are
17 not persuaded by Plaintiff’s citation to UJI 13-1501 NMRA [Id. 2] because that
18 instruction is directed at cases involving negligence as a matter of law based upon
19 violation of a statute. See UJI 13-1501. Plaintiff’s claims of making or permitting
4
1 false public vouchers, bribery of public officers, and claims relating to prostitution do
2 not involve allegations of negligence.
3 Plaintiff also makes general statements about the small amount of money in his
4 prison account. [Mtn. to Amend] However, we fail to see how these statements rebut
5 any of the analysis contained in our proposed summary disposition.
6 Finally, in our notice, we proposed to hold that Plaintiff was not entitled to
7 prevail on his claim to restrain the payment or receipt of public money pursuant to
8 NMSA 1978, Section 30-23-4 (1963) because Plaintiff’s complaint fails to request
9 injunctive relief and the governmental agency that is allegedly wrongfully paying
10 money to Defendants is not even named as a defendant. [RP 34, 38] We also noted
11 that Plaintiff’s motion for a preliminary injunction merely requested that Defendants
12 be compelled to provide a nutritionally adequate vegetarian diet; there is nothing
13 requesting that a public agency be restrained from paying any public money. [RP 82-
14 86] Cf. Hatch v. Keehan, 61 N.M. 1, 3, 293 P.2d 314, 315 (1956) (holding that private
15 citizens may only bring an action to restrain the payment or receipt of public funds
16 and thus a private citizen is not authorized to bring an action to recover or restore
17 public funds). Plaintiff fails to point out any errors in our analysis except to contend
18 he has a right to bring this action based upon the Fraud Against Taxpayers Act,
19 NMSA 1978, §§ 44-9-1 to -14 (2007). [Mtn. to Appt. 2; Mtn. to Amend] However,
5
1 Plaintiff has failed to state a claim under that statute because he has failed to bring any
2 action in the name of the state. See § 44-9-5(A).
3 For the foregoing reasons and those set forth in our notice of proposed summary
4 disposition, we affirm the district court on Plaintiff’s first issue.
5 Failure to Issue Subpoenas
6 Plaintiff contends that he was denied due process when the district court failed
7 to issue subpoenas or to have a hearing for expert witnesses. [DS 8] In our notice, we
8 proposed to affirm because the only documents in the record pertaining to this issue
9 showed that the district court needed additional information from Plaintiff before
10 issuing the subpoenas. [RP 671-72] As we were unable to determine what
11 information was missing, we were unable to determine if the district court erred in
12 refusing to issue the subpoenas. See generally State v. Reynolds, 111 N.M. 263, 267,
13 804 P.2d 1082, 1086 (Ct. App. 1990) (“Matters outside the record present no issue for
14 review.”).
15 In his motion to appoint counsel, Plaintiff claims that Rule 1-045 NMRA does
16 not require any specific information and, in his motion to amend, he claims he sent the
17 district court complete subpoenas. [Mtn. to Appt. 3; Mtn. to Amend] Despite these
18 contentions, Plaintiff fails to inform us as to the district court’s explanation for its
6
1 alleged failure to issue subpoenas on his behalf. Therefore, we remain unable to
2 determine if the district court erred in refusing to issue the subpoenas.
3 In addition, in our notice of proposed summary disposition, we proposed to
4 affirm because Plaintiff failed to inform us of the identity of or the anticipated
5 testimony from the doctors or “dietary expert witnesses” that he hoped to obtain. [DS
6 3-4] We noted that the district court gave Plaintiff thirty days to provide the court
7 with expert testimony regarding his vegetarian diet before his motion for a preliminary
8 injunction would be denied. [RP 175] Plaintiff submitted a list of exhibits, but none
9 of them pertain to expert testimony on the adequacy of Plaintiff’s vegetarian diet. [RP
10 225-29, 232-44]
11 In his motion to appoint counsel, Plaintiff contends that we ignored the blood
12 test and the information provided by Dr. Horning. [Mtn. to Appt. 3] We disagree,
13 because our review fails to indicate that either supports Plaintiff’s claim. To the
14 contrary, the blood test results and the exhibits in the record proper indicate Plaintiff
15 was receiving an adequate diet by indicating that Plaintiff’s health was not being
16 compromised by his diet. [RP 230-31, 244-46]
17 Finally, as discussed at length in our notice of proposed summary disposition,
18 Plaintiff has failed to provide any information regarding the identity of the persons he
19 sought to subpoena or how their testimony would have assisted him, and he has failed
7
1 to inform us as to how these witnesses would have rebutted the documentary evidence
2 and affidavits offered by Defendants. [Mtn. to Appt. 3] In our notice, we instructed
3 Plaintiff to inform us of whether he had any potential expert witnesses that could have
4 testified to the allegedly adverse health effects suffered by Plaintiff due to inadequate
5 calories or protein. He has failed to provide this information and thus we remain
6 unpersuaded that Plaintiff was prejudiced by the district court’s alleged failure to issue
7 subpoenas. See State v. Fernandez, 117 N.M. 673, 677, 875 P.2d 1104, 1108 (Ct.
8 App. 1994) (“In the absence of prejudice, there is no reversible error.”); cf. Reeves v.
9 Wimberly, 107 N.M. 231, 236, 755 P.2d 75, 80 (Ct. App. 1988) (“Upon a doubtful or
10 deficient record, every presumption is indulged in favor of the correctness and
11 regularity of the trial court’s decision, and the appellate court will indulge in
12 reasonable presumptions in support of the order entered.”).
13 For the foregoing reasons and those set forth in our notice of proposed summary
14 disposition, we affirm on this issue.
15 Propriety of the Order Granting Summary Judgment to Defendants
16 Plaintiff contends that the district court erred in granting summary judgment to
17 Defendants given that Plaintiff’s motions to compel were outstanding. [DS 8] In our
18 notice, we proposed to affirm because Plaintiff failed to show how any materials
8
1 sought but not yet disclosed could have rebutted Defendants’ prima facie showing
2 entitling them to summary judgment.
3 In his motion to appoint counsel and motion to amend, Plaintiff has again failed
4 to make any showing that the analysis contained in our notice of proposed summary
5 disposition is incorrect. [Mtn. to Appt. 3; Mtn. to Amend] See Hennessy v. Duryea,
6 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly
7 held that, in summary calendar cases, the burden is on the party opposing the proposed
8 disposition to clearly point out errors in fact or law.”). In our notice, we engaged in
9 a lengthy summary of the arguments and supporting documentation submitted by
10 Defendants to establish a prima facie showing that they were entitled to summary
11 judgment. [RP 453-87] See generally Self, 1998-NMSC-046, ¶ 6; Roth, 113 N.M.
12 at 334-35, 825 P.2d at 1244-45. We then observed that Plaintiff failed to rebut
13 Defendants’ prima facie showing and failed to establish that any outstanding
14 discovery would assist him in rebutting Defendants’ showing. See Dow, 105 N.M. at
15 54-55, 728 P.2d at 464-65 (noting that a party opposing summary judgment may not
16 simply argue that evidentiary facts requiring a trial on the merits may exist, “nor may
17 [a party] rest upon the allegations of the complaint”).
18 We understand Plaintiff to now contend that, had the subpoenas been issued,
19 he could have rebutted Defendants’ prima facie case. [Mtn. to Appt. 3] However, as
9
1 discussed in the preceding section, Plaintiff had failed to identify any experts who
2 could have testified that he suffered due to the alleged inadequacies of his diet.
3 Therefore, we are not convinced that he was deprived of any experts that could have
4 supported his claims.
5 Plaintiff also contends that a jury could “disbelieve” some of the affidavits
6 submitted by Defendants in support of their motion for summary judgment. [Id.] This
7 possibility is not enough to survive a motion for summary judgment in light of
8 Plaintiff’s failure to submit any affidavits or other exhibits that rebut or call into
9 question any of the materials submitted by Defendants. See Dow, 105 N.M. at 54-55,
10 728 P.2d at 464-65.
11 In his motion to appoint counsel, Plaintiff argues that his lack of access to a law
12 library or legal authorities precludes him from being able to successfully challenge our
13 proposed disposition. [Mtn. to Appt. 3; Mtn. to Amend] We are unpersuaded. Our
14 review of the record indicates that Plaintiff’s complaint appears to be without factual
15 basis. We are therefore unconvinced that additional access to case law would render
16 the outcome any different.
17 Plaintiff also contends the American Corrections Association does not have
18 dietary standards. [Mtn. to Amend] Apparently, this is in rebuttal to our observation
19 that the motion, exhibits, and affidavits submitted by Defendants show that Plaintiff
10
1 was given a nutritionally adequate diet meeting the standards set by the American
2 Corrections Association and the National Commission of Correctional Healthcare.
3 [RP 471-71A (¶¶ 5, 8, 11), 475, 617 (¶ 9), 618 (¶ 15)] Given the expert testimony that
4 Plaintiff’s diet meets the standards set by the American Correctional Association [RP
5 471 (¶ 5), 475], Plaintiff’s unsupported allegation that these standards do no exist does
6 not warrant revisiting of the propriety of the summary judgment order.
7 Finally, in our notice of proposed disposition, we proposed to affirm the
8 dismissal of Plaintiff’s claims of fraud and violation of the Unfair Practices Act. We
9 proposed to hold that Plaintiff failed to rebut Defendants’ prima facie case that they
10 did not make any untrue statements or misrepresentations in connection with the sale
11 of goods and services. [RP 469 (¶¶ 6-10), 471A-72 (¶¶ 12-16), 477 (¶¶ 6-10), 484-85
12 (¶¶ 11-16), 618 (¶ 18), 619 (¶ 4)] See NMSA 1978, § 57-12-2(D) (2003) (amended
13 2009); Lohman v. Daimler-Chrysler Corp., 2007-NMCA-100, ¶ 5, 142 N.M. 437, 166
14 P.3d 1091 (“The gravamen of an unfair trade practice is a misleading, false, or
15 deceptive statement made knowingly in connection with the sale of goods or
16 services.” (internal quotation marks and citation omitted)); Saylor v. Valles,
17 2003-NMCA-037, ¶¶ 12-13, 17, 133 N.M. 432, 63 P.3d 1152 (filed 2002). [RP 618
18 (¶ 18), 619 (¶ 3)] Moreover, we proposed to hold that Plaintiff failed to make any
11
1 showing that he relied upon any alleged intentional misrepresentations to his
2 detriment. See Saylor, 2003-NMCA-037, ¶ 22.
3 In his motion to appoint counsel, Plaintiff claims he needs authorities to support
4 his contentions because the “clear and unambiguous” language of the statute provides
5 him with a claim. [Mtn. to Appt. 3] He claims that without access to authorities, it
6 is impossible to determine if this Court’s analysis is correct. [Id. 3-4] We are
7 unpersuaded given the language of Section 57-12-2(D) which clearly defines an
8 “unfair or deceptive trade practice” as “a false or misleading oral or written statement,
9 visual description or other representation of any kind knowingly made in connection
10 with the sale, lease, rental or loan of goods or services . . . that may, tends to or does
11 deceive or mislead any person.” Id.
12 For these reasons and those discussed at length in our notice of proposed
13 summary disposition, we affirm the district court’s order granting summary judgment
14 to Defendants and affirm the order denying Plaintiff’s motion for reconsideration.
15 Motion to Appoint Counsel
16 Plaintiff requests that this Court appoint him counsel claiming that the district
17 court’s granting of summary judgment on his complaint and this Court’s proposed
18 affirmance is evidence that he requires counsel in order to be afforded adequate access
19 to the courts. [Id. 4] We are unpersuaded.
12
1 Plaintiff is correct that New Mexico courts have recognized that “prisoners’
2 right of access to the courts is a fundamental right protected by the [c]onstitution.”
3 [Id. 1] Cordova v. LeMaster, 2004-NMSC-026, ¶ 11, 136 N.M. 217, 96 P.3d 778.
4 However, we are not convinced that Plaintiff was in any way denied access to the
5 courts merely because he had not been appointed counsel or because he was only
6 given limited access to legal authorities in bringing this lawsuit or the appeal.
7 The record and Plaintiff’s filings before this Court indicate that Plaintiff has
8 been afforded ample opportunity to present his allegations, and he has failed to show
9 an inability to articulate his claims. Plaintiff brought this lawsuit in December 17,
10 2008 [RP 1, 29], and a three-volume record, including numerous motions and exhibits,
11 was compiled before the case was resolved a year later by the order of summary
12 judgment. Review of his docketing statement and motion to appoint counsel indicates
13 that Plaintiff was not hindered by his alleged lack of access to legal authorities and
14 counsel, but instead by the weakness of his underlying claims. He seeks counsel to
15 find law to support his claim, but the law instead supports the district court’s order
16 granting summary judgment. [Mtn. to Appt. 2, 4]
17 In sum, even though the right of access to the courts is fundamental, see id., that
18 right is not boundless. See Cruz v. FTS Constr. Inc., 2006-NMCA-109, ¶ 36, 140
19 N.M. 284, 142 P.3d 365. Plaintiff has been afforded sufficient access as evidence by
13
1 the three-volume record below and the consideration of the merits of his appeal by this
2 Court. Although Plaintiff claims that meaningful access to the courts includes an
3 opportunity to comply with all court rules and requirements [Reply 1], his appeal is
4 not being rejected for failure to comply with rules or failure to cite to legal authorities
5 but instead for failure to rebut Defendants’ prima facie case entitling them to summary
6 judgment. Finally, to the extent Plaintiff is alleging that his “captors have violated
7 state law” by denying him the opportunity to access case law, this claim is not directed
8 at Defendants in this case because they are not New Mexico Corrections Department
9 officials. [Reply 1]
10 Based upon the foregoing, Plaintiff’s motion to appoint counsel is denied.
11 Conclusion
12 For the reasons set forth in this opinion and discussed at length in our notice of
13 proposed summary disposition, we affirm the district court’s order granting summary
14 judgment to Defendants and the order denying Plaintiff’s motion for reconsideration.
15 We deny Plaintiff’s motion to appoint counsel and his motion to amend the docketing
16 statement.
17 IT IS SO ORDERED.
18 __________________________________
19 JONATHAN B. SUTIN, Judge
14
1 WE CONCUR:
2 _______________________________
3 JAMES J. WECHSLER, Judge
4 _______________________________
5 MICHAEL E. VIGIL, Judge
15