Litteral v. GEO Group

• Court: New Mexico Court of Appeals
• Decided: May 7, 2013
• Docket: 32,718
• Status: Unpublished

Opinion

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

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

2 JAMES LITTERAL,

3 Plaintiff-Appellant,

4 v. NO. 32,718

5 GEO GROUP, INC., CORRECTIONAL 6 MEDICAL SERVICES, BLACKSTONE GROUP 7 LP, and MEDICAL STAFF REAL NAMES 8 UNKNOWN, SECURITY STAFF REAL NAMES 9 UNKNOWN,

10 Defendants-Appellees.

11 APPEAL FROM THE DISTRICT COURT OF GUADALUPE COUNTY 12 Matthew J. Sandoval, District Judge

13 James Litteral 14 Grants, NM

15 Pro Se Appellant

16 Yenson, Allen & Wosick PC 17 April D. White 18 Albuquerque, NM

19 for Appellee GEO Group, Inc. 1 Chapman and Charlebois 2 Nicole M. Charlebois 3 Albuquerque, NM

4 for Appellee Correction Medical Services

5 Orlando C. Martinez 6 Albuquerque, NM

7 for Appellee Correction Medical Services

8 MEMORANDUM OPINION

9 WECHSLER, Judge.

10 Appellant James Litteral (Plaintiff) appeals [RP 210, 212] pro se from the

11 district court’s rulings that dismiss his claims against Defendants GEO Group (GEO),

12 Blackstone Group LP (Blackstone), and Correctional Medical Services (CMS). [RP

13 185, 183, 208] Our notice proposed to dismiss for lack of a final order, and Plaintiff

14 filed a memorandum in opposition. We are not persuaded by Plaintiff’s arguments

15 and therefore dismiss for lack of a final order.

16 As detailed in our notice, the district court entered orders on August 7, 2012

17 dismissing Plaintiff’s claims against Blackstone and GEO. [RP 185, 183]

18 Subsequently, Plaintiff filed two “objections” on August 16, 2012 [RP 195, 197, 199,

19 202], he asked the district court to “correct the judge’s errors” [RP 196] and “reverse”

2 1 the orders of dismissal. [RP 198 MIO 2] We view these motions to be effectively

2 motions for reconsideration. See NMSA 1978, 39-1-1 (1917). Prior to the district

3 court ruling on these outstanding objections, Plaintiff prematurely filed a November

4 13, 2012 notice of appeal. [RP 210] See Grygorwicz v. Trujillo, 2009-NMSC-009, ¶

5 8, 145 N.M. 650, 203 P.3d 865 (explaining that, “if a party makes a post-judgment

6 motion directed at the final judgment pursuant to Section 39-1-1 the time for filing an

7 appeal does not begin to run until the district court enters an express disposition on

8 that motion”). Because outstanding matters remain to be ruled upon, we dismiss for

9 lack of a final orders. We additionally recognize that Plaintiff appeals also from the

10 district court’s October 22, 2012 order granting CMS’ motion for joinder and

11 dismissing Plaintiff’s claims against CMS. [RP 208] Although Plaintiff did not file

12 a post-judgment motion directed against this order, given that CMS was allowed to

13 join in GEO’s motion for summary judgment [RP 208], which is subject to

14 reconsideration, the district court’s order dismissing Plaintiff’s claims against CMS

15 is also non-final.

16 We thus disagree with Plaintiff’s argument that Section 39-1-1 has been voided

17 by some of the rules of civil procedure. [MIO 2] Instead, the rules supersede only the

18 portion of Section 39-1-1 providing that many post-judgment motions are deemed

19 automatically denied if not granted within thirty days of filing. See Albuquerque

3 1 Redi-Mix, Inc. v. Scottsdale Ins. Co., 2007-NMSC-051, ¶¶ 11-16, 142 N.M. 527, 168

2 P.3d 99. As a consequence, there is no longer an automatic denial of post-judgment

3 motions, such that the time for filing notices of appeal runs from the entry of an order

4 expressly disposing of the post-judgment motions. Id. (discussing that the rules of

5 civil procedure regarding post-judgment motions were amended in 2006 and that

6 because there no longer is an automatic denial of post-judgment motions, the time for

7 filing notices of appeal runs from the entry of an orders expressly disposing of the

8 motion); see also Rule 12-201(D) NMRA (providing that if a party timely files a

9 motion pursuant to Section 39-1-1, the time for filing a notice of appeal begins to run

10 from entry of an order disposing of the motion).

11 We lastly acknowledge Plaintiff’s request that we consider his post-judgment

12 “objections” as harmless and proceed to consider the merits of his appeal, especially

13 in light of his view that prisoners’ access to legal resources is limited. [MIO 2] While

14 Plaintiff is frustrated by any further delay in resolution of his claims, the effect of

15 Plaintiff’s objections below is that there is a lack of a final order for purposes of

16 providing this Court jurisdiction over his appeal. See Dickens v. Laurel Healthcare,

17 LLC, 2009-NMCA-122, ¶ 6, 147 N.M. 303, 222 P.3d 675 (holding that because

18 resolution of the post-judgment motion could alter, amend, or moot the order that is

19 challenged, the order is not final and the appeal is premature). We note, however, that

4 1 upon entry of a final order ruling on Defendant’s post-judgment objections, Plaintiff

2 may elect, if desired, to file another notice of appeal.

3 For the reasons stated herein in and in our notice, we dismiss for lack of a final

4 order.

5 IT IS SO ORDERED.

6 _______________________________

7 JAMES J. WECHSLER, Judge

8 WE CONCUR:

9 ______________________________

10 CYNTHIA A. FRY, Judge

11 ______________________________

5 1 LINDA M. VANZI, Judge