February 27, 2019- Bryce Franklin v. State of New Mexico, Attorney Generals Office, No. A-1-CA-37537

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico
BRYCE FRANKLIN, Filed 2/27/2019 12:07 PM

Plaintiff-Appellant, AL _ [> |
Mark Reynolds ;

and |
NICK GONZALES,

Plaintiff,
Vv. No. A-1-CA-37537
STATE OF NEW MEXICO,
ATTORNEY GENERALS OFFICE,

NEW MEXICO DEPARTMENT OF
CORRECTIONS, and JOHN DOE,

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
David K. Thomson, District Judge

Bryce Franklin
Santa Rosa, NM

Pro Se Appellant

Hector H. Balderas, Attorney General
Santa Fe, NM

for Appellees

1 	MEMORANDUM OPINION
2 VANZI, Judge.
3 	{t} 	Plaintiff, a self-represented inmate, appeals from the district court's order
4 denying his motion to reconsider the dismissal of his complaint. Unpersuaded that
5 Plaintiff demonstrated error, we issued a notice of proposed summary disposition,
6 proposing to affirm. Plaintiff has responded to our notice with a memorandum in
7 opposition, which we have duly considered. We remain unpersuaded, and affirm.
8 {2} 	On appeal, Plaintiff maintains that the district court erred in dismissing his
9 case: (1) by ruling he needed to exhaust his administrative remedies; [DS 4-5; MIO
10 4-5] (2) by considering matters outside of the pleadings and converting the motion
11 	to one for summary judgment; [DS 5; MIO 6-7] and (3) by permitting Defendants to
12 argue that Plaintiff failed to exhaust his administrative remedies, because it should
13 	have been raised as an affirmative defense. [DS 5; MIO 6] We avoid the duplication
14 	of efforts and do not restate our proposed analysis. Instead, we focus our analysis on
15 	the arguments made in response to our notice.
16 	{3} 	We begin, as we did in our notice, by discussing the reasons why the district
17 court did not err by treating the motion to dismiss as a motion for summary judgment
18 	and why the district court did not err by permitting Defendants to argue in their
19 motion that Plaintiff failed to exhaust his administrative remedies. A party may
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1 present, and the district court may consider, matters outside of the pleadings when the
2 moving party seeks dismissal under Rule 1-012(B)(6) NMRA. See Rule 1-012(B)
3 ("If, on a motion asserting the defense in Subparagraph (6) of this paragraph to
4 dismiss for failure of the pleading to state a claim upon which relief can be granted,
5 matters outside the pleading are presented to and not excluded by the court, the
6 motion shall be treated as one for summary judgment[.]"). A party may elect to assert
7 the defenses found under Rule 1-012(B) by motion instead of by answer to the
8 complaint. See id. Contrary to Plaintiffs argument, [MIO 6-7] nothing requires a
9 district court to give a plaintiff notice that the district court will treat a motion filed
10 under Rule 1-0 l 2(B )( 6) as one for summary judgment, because the Rule requires the
11 	district court to do so, where "matters outside the pleading are presented to and not
12 excluded by the court." Rule 1-012(B) ..
13 	{4} 	Additionally, Defendants' motion to dismiss properly argued that Plaintiff
14 failed to exhaust his administrative remedies as an affirmative defense to Plaintiffs
15 	claims, under the provision permitting dismissal for the failure to state a claim upon
16 which relief may be granted. See, e.g., Sabella v. Manor Care, Inc., 1996-NMSC-O 14,
17 16, 121 N.M. 596, 915 P.2d 901 (reviewing dismissal on grounds that the plaintiff
18 	failed to exhaust her remedies, which was initiated by motion to dismiss for the
19 failure to state a claim under Rule 1-012(B)(6)); Universal Life Church v. Coxon,
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1 1986-NMSC-086, 11 8-9, 105 N.M. 57, 728 P.2d 467 (holding that affirmative
2 defenses may be properly raised in a motion to dismiss under Rule 1-012(B)). To the
3 extent that Plaintiff contends that federal courts may follow a different practice, [MI 0
4 6] we are bound by New Mexico Supreme Court precedent and its Rules of Civil
5 Procedure, not by federal practice. See State ex rel. Martinez v. City of Las Vegas,
6 2004-NMSC-009, 120, 135 N.M. 375, 89 P.3d 47 (stating that the Court of Appeals
7 	is bound by Supreme Court precedent); State v. Cordova, 1999-NMCA-144, 130,
8 128 N.M. 390, 993 P.2d 104 ("It is well-established that this Court is without
9 authority to reverse or revise court rules that have been previously interpreted by our
10 	Supreme Court.").
11 	{5} 	Lastly, Plaintiff contends that the district court should have ruled that either
12 Plaintiff exhausted his remedies or his remedies were unavailable. [MIO 4-5] Plaintiff
13 	now acknowledges that the record does not contain an affirmative showing that
14 Plaintiff either exhausted his administrative remedies or was prevented from doing
15 	so. [MIO 4] Plaintiff states that he was in solitary confinement and unable to directly
16 hand the grievance officer his grievances, and had no idea which officer was
17 impeding the grievance process. [Id.] Plaintiff contends that a pro se litigant's
18 pleadings should be held to a less stringent standard, referring us again to federal law.
19 	[Id.] New Mexico case law, however, does not support such a view. Prose litigants
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1 must comply with the rules and orders of the court and will not be treated differently
2 than litigants with counsel. Bruce v. Lester, 1999-NMCA-051, ,-r 4, 127 N.M. 301,
3 980 P.2d 84 (stating that "we regard pleadings from prose litigants with a tolerant
4 eye, but a pro se litigant is not entitled to special privileges because of his pro se
5 status" and that a prose party "who has chosen to represent himself, must comply
6 with the rules and orders of the court, and will not be entitled to greater rights than
7 those litigants who employ counsel").
8 	{6} 	Plaintiffs complaints about his inability to make a record must be raised and
9 resolved in district court. We are not a court that finds facts such as those presented
10 by Plaintiffs response; we are limited to a review of the record. See Kepler v. Slade,
11 	1995-NMSC-035, ,-r 13, 119 N.M. 802, 896 P.2d 482 ("Matters outside the record
12 present no issue for review." (internal quotation marks and citation omitted)). "It is
13 	the duty of the appellant to provide a record adequate to review the issues on appeal."
14 Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ,-r 65, 146
15 N.M. 853, 215 P.3d 791.
16 {7} 	To 	the 	extent 	Plaintiff asserts 	that 	his 	arguments 	in 	his 	motion 	for
17 reconsideration were mo~e 	specific about prison officials ignoring grievances,
18 Plaintiff has not explained how his motion for reconsideration shows that he satisfied
19 his burden of demonstrating sufficient compliance with the administrative process.
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1 It is not our obligation to "search the record for facts, arguments, and rulings in order
2 to support generalized arguments." Muse v. Muse, 2009-NMCA-003, 172, 145 N.M.
3 	451,200 P.3d 104.
4 {8} 	In the absence of a record showing that Plaintiff defeated summary judgment
5 with an affirmative showing that Plaintiff either exhausted his administrative
6 remedies or was prevented from doing so, we cannot find error in the dismissal of his
7 complaint. See Farmers, Inc. v. Dal Mach. & Fabricating, Inc., 1990-NMSC-100,
8 1 8, 111 N.M. 6, 800 P .2d 1063 (explaining that we presume correctness on appeal,
9 and the appellant must clearly and affirmatively demonstrate district court error).
10 	{9} 	We observe that Plaintiffs memorandum in opposition points out that he has
11 	a pending motion to consolidate this appeal with two other appeals filed in this Court.
12 	[MIO 5-6] We have denied this motion. Plaintiffs reminder is now moot.
13 	{IO} 	For the reasons stated in our notice and in this opinion, we affirm the district
14 court's order dismissing Plaintiffs complaint.
15 	{11} 	IT IS SO ORDERED.
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WE CONCUR:

We

M. MONICA ZAMORA, Chief Judge

Cue G Voge

JULIE 4. VARGAS, Jutige