Benavidez v. HSD

• Court: New Mexico Court of Appeals
• Decided: December 12, 2011
• Docket: 31,472
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date.

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 GEORGE R. BENAVIDEZ,

8 Plaintiff-Appellant,

9 v. NO. 31,472

10 NEW MEXICO HUMAN SERVICES 11 DEPARTMENT,

12 Defendant-Appellee.

13 APPEAL FROM THE NEW MEXICO HUMAN SERVICES DEPARTMENT 14 OF BERNALILLO COUNTY 15 Mark Arguello, Administrative Law Judge

16 George R. Benavidez 17 Albuquerque, NM

18 Pro Se Appellant

19 Office of General Counsel 20 Susan Sita 21 Santa Fe, NM

22 for Appellee

23 MEMORANDUM OPINION

24 FRY, Judge. 1 Plaintiff appeals pro se from a decision of the director of the New Mexico

2 Human Services Department (“Department”) adopting the hearing officer’s findings

3 and conclusions that Plaintiff is no longer entitled to benefits under the Working

4 Disabled Individual Program due to his income. We proposed to dismiss in a notice

5 of proposed summary disposition because the appeal is procedurally defective.

6 As discussed in our notice of proposed summary dismissal, Plaintiff had a

7 statutory right to appeal the underlying administrative action. See NMSA 1978, § 27-

8 3-4 (1999). As a result, any appeal to the district court had to be undertaken pursuant

9 to Rule 1-074 NMRA. The district court decision could then be reviewed by this

10 Court by petition for writ of certiorari pursuant to Rule 12-505 NMRA.

11 Instead of appealing to the district court, Plaintiff filed a notice of appeal with

12 this Court. In light of Plaintiff’s failure to comply with Section 27-3-4 and Rule 1-074

13 by filing an appeal in district court, we proposed to dismiss the appeal. See Williams

14 v. Rio Rancho Pub. Schs., 2008-NMCA-150, ¶ 15, 145 N.M. 214, 195 P.3d 879

15 (observing that “time and place requirements for filing the notice of appeal are

16 mandatory preconditions to the exercise of appellate jurisdiction”).

17 On October 6, 2011, the Department filed a motion to dismiss the appeal for the

18 same reasons set forth in our notice of proposed summary dismissal. We held that

2 1 motion in abeyance pending receipt of any timely memorandum in opposition filed

2 by Plaintiff.

3 Plaintiff has failed to file a memorandum in opposition to our proposed

4 summary dismissal. Therefore, for the reasons set forth in our proposed notice,

5 Plaintiff’s appeal is dismissed. In light of the dismissal, the Department’s motion is

6 denied as moot.

7 IT IS SO ORDERED.

8 9 CYNTHIA A. FRY, Judge

10 WE CONCUR:

11 12 JAMES J. WECHSLER, Judge

13 14 RODERICK T. KENNEDY, Judge