Litteral v. GEO Group

Opinion

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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”

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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

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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

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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 ______________________________

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1 LINDA M. VANZI, Judge