McMullin v. Bravo

• Court: New Mexico Court of Appeals
• Decided: February 17, 2016
• Docket: 34,691
• Status: Unpublished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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 BOBBIE J. McMULLIN, JR.,

3 Plaintiff-Appellant,

4 v. NO. 34,691

5 E. BRAVO, WARDEN GCCF 6 GEO CORPORATION GROUP, 7 INC., NEW MEXICO CORRECTIONS 8 DEPARTMENT, CORIZON, PHARM 9 CORR., DOCTOR REED (GCCF), 10 NURSE K. ALLEN (GCCF),

11 Defendants-Appellees.

12 APPEAL FROM THE DISTRICT COURT OF GUADALUPE COUNTY 13 Matthew J. Sandoval, District Judge

14 Bobbie J. McMullin, Jr. 15 Clayton, NM

16 Pro Se Appellant

17 Megan L. Jahner 18 Albuquerque, NM

19 for Appellees E. Bravo and Geo Corporation Group, Inc.

20 MEMORANDUM OPINION

21 ZAMORA, Judge. 1 {1} Plaintiff, a self-represented litigant, seeks to appeal from the district court’s

2 order granting summary judgment in favor of Defendant, GEO Group, Inc. We issued

3 a notice of proposed summary disposition, proposing to dismiss on grounds that the

4 notice of appeal was not filed in a timely fashion. Plaintiff has filed a memorandum

5 in opposition, which we have duly considered. Unpersuaded, we dismiss the appeal.

6 {2} As we previously observed in our calendar notice, the timely filing of notice of

7 appeal with the district court is a mandatory precondition to the exercise of

8 jurisdiction, and consequently, we do not ordinarily entertain an appeal in the absence

9 of duly filed notice. See Govich v. N. Am. Sys., Inc., 1991-NMSC-061, ¶ 12, 112 N.M.

10 226, 814 P.2d 94; see also Trujillo v. Serrano, 1994-NMSC-024, ¶ 14, 117 N.M. 273,

11 871 P.2d 369 (reaffirming that the timely filing of a notice of appeal is a mandatory

12 precondition to our exercise of jurisdiction to hear an appeal). In this case, Plaintiff

13 filed his notice of appeal approximately two and a half months after the applicable

14 deadline had passed. [2 RP 283, 294] See Rule 12-201(A)(2) NMRA (stating that a

15 notice of appeal must be filed with the district court within thirty days after the entry

16 of a final order). As a result, it is clear that Plaintiff’s notice of appeal was not timely

17 filed.

18 {3} Plaintiff does not dispute the foregoing. Instead, he argues in his memorandum

19 in opposition that exceptional circumstances exist which should excuse his failure to

2 1 timely file notice of appeal. [MIO 9-10] See Trujillo, 1994-NMSC-024, ¶ 19 (“Only

2 the most unusual circumstances beyond the control of the parties—such as error on

3 the part of the court—will warrant overlooking procedural defects.”). In this regard,

4 Plaintiff claims that he “never received any official notice of the court’s ruling in this

5 matter.” [MIO 7]

6 {4} A similar lack-of-notice argument was rejected by the New Mexico Supreme

7 Court in Maples v. State, 1990-NMSC-042, ¶ 12, 110 N.M. 34, 791 P.2d 788. We note

8 that in the present case, as in Maples, Plaintiff had advance notice of the district

9 court’s decision. Specifically, Plaintiff was present by telephone and participated in

10 a telephonic hearing on Defendant’s motion for summary judgment. [2 RP 278-80]

11 At the conclusion of the hearing, the district court ruled in favor of Defendant, granted

12 the motion for summary judgment, and instructed Defendant’s counsel to prepare an

13 order memorializing the decision. [2 RP 280] Under these circumstances, Plaintiff

14 could have filed an immediate appeal. Such an early filing would have conformed

15 with our Rules of Appellate Procedure. See Rule 12-201(A) (“A notice of appeal filed

16 after the announcement of a decision . . . but before the judgment or order is filed in

17 the district court clerk’s office shall be treated as filed after such filing and on the day

18 thereof.”); Maples, 1990-NMSC-042, ¶ 6. Alternatively, Plaintiff could have made

19 inquiries with the district court and/or opposing counsel in order to ensure that notice

3 1 of appeal was timely filed. See id. It does not appear that Plaintiff took any of these

2 actions; instead, he asserts that he “wait[ed] an approximately appropriate amount of

3 time for proper notification” before filing his notice of appeal. [MIO 7] Applying the

4 same rationale articulated in Maples, we decline to ascribe Plaintiff’s failure to timely

5 file notice of appeal to circumstances beyond his control.

6 {5} Similarly, Plaintiff’s claimed lack of knowledge of the rules of procedure [MIO

7 6] do not constitute exceptional circumstances. See Trujillo, 1994-NMSC-024, ¶ 19

8 (“Counsel should not rely on the court’s munificence when filing notices of appeal.

9 It is incumbent upon the parties to strictly adhere to our clearly articulated rules of

10 procedure.”); Woodhull v. Meinel, 2009-NMCA-015, ¶ 30, 145 N.M. 533, 202 P.3d

11 126 (“Pro se litigants must comply with the rules and orders of [this C]ourt and will

12 not be treated differently than litigants with counsel.”).

13 {6} Finally, we note that Plaintiff, presently incarcerated, generally asserts that he

14 has “[n]o access to libraries, dictionaries, [and] phones” and appears to ascribe blame

15 to this circumstance for his failure to file a timely notice of appeal. [MIO 3] We

16 observe, however, that the record before us contains no factual findings regarding

17 Plaintiff’s access to a legal library or phone. Further, we note that Plaintiff also asserts

18 that he does not have access to “even . . . another inmate to barrow [sic] a pen or paper

19 from.” [MIO 3] Yet, the very memorandum in opposition in which this allegation is

4 1 presented is handwritten, in pen. [See generally MIO 1-11] Thus, without a developed

2 factual record and legal argument, we will not address Plaintiff’s general assertions.

3 See Kepler v. Slade, 1995-NMSC-035, ¶ 13, 119 N.M. 802, 896 P.2d 482 (“Matters

4 outside the record present no issue for review.” (internal quotation marks and citation

5 omitted)); Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701 (“This Court has

6 no duty to review an argument that is not adequately developed.”).

7 {7} Accordingly, for the reasons stated above and in the notice of proposed

8 summary disposition, the appeal is dismissed.

9 {8} IT IS SO ORDERED.

10 11 M. MONICA ZAMORA, Judge

12 WE CONCUR:

13 14 MICHAEL E. VIGIL, Chief Judge

15 16 MICHAEL D. BUSTAMANTE, Judge