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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 JOHN P. WILCOX,
3 Plaintiff-Appellant,
4 v. No. A-1-CA-36854
5 MANAGEMENT & TRAINING CORP., 6 JAMES FRAWNER, R. MARTINEZ, 7 JERRY ROARK, K. BOYD, D. MORENO, 8 and EBETH CRUZ-MARTINEZ, all in their 9 official and individual capacities,
10 Defendants-Appellees.
11 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 12 Angie K. Schneider, District Judge
13 John Wilcox 14 Los Lunas, NM
15 Pro Se Appellant
16 Sutin, Thayer & Browne, P.C. 17 Christina Muscarella Gooch 18 Albuquerque, NM
19 for Appellees Management & Training Corp., James Frawner, R. Martinez, Jerry 20 Roark, K. Boyd, and D. Moreno
21 Ebeth Cruz-Martinez 1 Santa Fe, NM
2 Pro Se Appellee
3 MEMORANDUM OPINION
4 VANZI, Chief Judge.
5 {1} Plaintiff John P. Wilcox appeals from the district court’s order, entered on
6 August 28, 2017, granting summary judgment in favor of Defendants Management
7 and Training Corp., James Frawner, R. Martinez, K. Boyd, and D. Moreno on
8 Plaintiff’s constitutional claims that Defendants’ rejections of his mail violated the
9 First and Fourteenth Amendments to the U.S. Constitution. While there are three
10 arguments raised, in pertinent part, Plaintiff argues on appeal that the district court
11 erred in granting Defendant’s motion for summary judgment (MSJ) when genuine
12 issues of material fact exist. [DS 4] This Court issued a notice of proposed disposition
13 considering Plaintiff’s arguments and proposing to reverse and remand. Defendants
14 now have filed a memorandum in opposition (MIO) to this Court’s notice of proposed
15 disposition. This Court also received a memorandum in support from Plaintiff. Having
16 given due consideration to the arguments raised, this Court reverses the grant of
17 summary judgment.
18 {2} In this Court’s calendar notice, we proposed to conclude that it was improper
19 for the district court to resolve this dispute at the summary judgment phase in that
2 1 there were existing disputed material facts. [CN 5] See generally Rule 1-056 NMRA.
2 See also Benavidez v. Shutiva, 2015-NMCA-065, ¶ 31, 350 P.3d 1234 (indicating that
3 disputed material facts preclude summary judgment); see also In re Michael R.C.,
4 1999-NMCA-036, ¶ 13, 126 N.M. 760, 975 P.2d 373 (indicating that, even if the
5 actual “facts are undisputed, if conflicting inferences can be drawn, summary
6 judgment is improper”).
7 {3} In response to our proposed conclusion, Defendants raise three specific claims
8 of error in the Court’s proposed disposition. [MIO 7] First, Defendants assert that the
9 Court did not address Plaintiff’s argument that a “blanket ban” on internet material
10 was imposed on Plaintiff’s prison mail, and that Defendants had “conclusively
11 disproved” that argument. [MIO 7] Second, Defendants claim that they met their
12 burden by making a prima facie case for summary judgment “by offering sufficient
13 facts about the content of the rejected mail and how that content related to the safety
14 and security” of the prison, and Plaintiff failed to rebut those facts. [MIO 7] And third,
15 Defendants argue that the Court applied an incorrect standard of review for granting
16 of summary judgment. [MIO 8] The Court has considered these arguments, but is
17 unpersuaded.
18 {4} In our proposed disposition, we suggested that at least one genuine issue of
19 material fact remained in dispute: Whether Defendants’ rejections of Plaintiff’s mail
3 1 were related to a legitimate penalogical interest. [CN 3] “Summary judgment is
2 appropriate where there are no genuine issues of material fact and the movant is
3 entitled to judgment as a matter of law.” Bank of N.Y. Mellon v. Lopes, 2014-NMCA-
4 097, ¶ 6, 336 P.3d 443 (internal quotation marks and citation omitted). “An issue of
5 fact is ‘genuine’ if the evidence before the court considering a motion for summary
6 judgment would allow a hypothetical fair-minded factfinder to return a verdict
7 favorable to the non-movant on that particular issue of fact. An issue of fact is
8 ‘material’ if the existence (or non-existence) of the fact is of consequence under the
9 substantive rules of law governing the parties’ dispute.” Associated Home & RV Sales,
10 Inc. v. Bank of Belen, 2013-NMCA-018, ¶ 23, 294 P.3d 1276 (internal quotation
11 marks and citation omitted). After considering the arguments, we conclude that
12 genuine issues of material fact were in dispute at the time of the motion for summary
13 judgment.
14 {5} We specify that in the motion for summary judgment, the sole issue on which
15 we decide this controversy, Defendants failed to meet their prima facie burden. “The
16 movant need only make a prima facie showing that he is entitled to summary
17 judgment. Upon the movant making a prima facie showing, the burden shifts to the
18 party opposing the motion to demonstrate the existence of specific evidentiary facts
19 which would require trial on the merits.” Bank of N.Y. Mellon, 2014-NMCA-097, ¶ 6
4 1 (internal quotation marks and citation omitted). “A party opposing a motion for
2 summary judgment must make an affirmative showing by affidavit or other admissible
3 evidence that there is a genuine issue of material fact once a prima facie showing is
4 made by the movant.” Schwartzman v. Schwartzman Packing Co., 1983-NMSC-010,
5 ¶ 22, 99 N.M. 436, 659 P.2d 888 (emphasis added).
6 {6} We agree with Defendants’ summary of the standard: “Thus, to make a prima
7 facie showing of entitlement to summary judgment [Defendants] ha[ve] the burden of
8 presenting sufficient evidence that the refusal to provide [Plaintiff] with the Mail was
9 rationally related to a legitimate penological interest.” [MIO 16] However, we
10 disagree with Defendants’ contention that they met their prima facie burden.
11 {7} Reviewing Defendants’ motion for summary judgment, we note that there are
12 statements listed in the “undisputed material facts” section that are disputed.
13 Defendants asserted, “2. Plaintiff’s two Mail Rejections occurred based on legitimate
14 reasons related to the safety and security of the facility.” [RP 437 (citation omitted)]
15 This sentence is not an “undisputed” material fact, but instead goes to the heart of
16 Plaintiff’s complaint. As evidence, Defendants claim that this is supported by an
17 affidavit by the mail room officer at the prison facility, but that affidavit only restates
18 the same claim: “Although Plaintiff’s specific rejected mail, which is the subject of
19 this lawsuit, was blandly marked as rejected as ‘internet articles not allowed,’ the
5 1 underlying reason for the rejection was to protect the safety and security of the
2 facility.” [RP 446, ¶ 7] In their memorandum in opposition, Defendants also ask the
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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 JOHN P. WILCOX,
3 Plaintiff-Appellant,
4 v. No. A-1-CA-36854
5 MANAGEMENT & TRAINING CORP., 6 JAMES FRAWNER, R. MARTINEZ, 7 JERRY ROARK, K. BOYD, D. MORENO, 8 and EBETH CRUZ-MARTINEZ, all in their 9 official and individual capacities,
10 Defendants-Appellees.
11 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 12 Angie K. Schneider, District Judge
13 John Wilcox 14 Los Lunas, NM
15 Pro Se Appellant
16 Sutin, Thayer & Browne, P.C. 17 Christina Muscarella Gooch 18 Albuquerque, NM
19 for Appellees Management & Training Corp., James Frawner, R. Martinez, Jerry 20 Roark, K. Boyd, and D. Moreno
21 Ebeth Cruz-Martinez 1 Santa Fe, NM
2 Pro Se Appellee
3 MEMORANDUM OPINION
4 VANZI, Chief Judge.
5 {1} Plaintiff John P. Wilcox appeals from the district court’s order, entered on
6 August 28, 2017, granting summary judgment in favor of Defendants Management
7 and Training Corp., James Frawner, R. Martinez, K. Boyd, and D. Moreno on
8 Plaintiff’s constitutional claims that Defendants’ rejections of his mail violated the
9 First and Fourteenth Amendments to the U.S. Constitution. While there are three
10 arguments raised, in pertinent part, Plaintiff argues on appeal that the district court
11 erred in granting Defendant’s motion for summary judgment (MSJ) when genuine
12 issues of material fact exist. [DS 4] This Court issued a notice of proposed disposition
13 considering Plaintiff’s arguments and proposing to reverse and remand. Defendants
14 now have filed a memorandum in opposition (MIO) to this Court’s notice of proposed
15 disposition. This Court also received a memorandum in support from Plaintiff. Having
16 given due consideration to the arguments raised, this Court reverses the grant of
17 summary judgment.
18 {2} In this Court’s calendar notice, we proposed to conclude that it was improper
19 for the district court to resolve this dispute at the summary judgment phase in that
2 1 there were existing disputed material facts. [CN 5] See generally Rule 1-056 NMRA.
2 See also Benavidez v. Shutiva, 2015-NMCA-065, ¶ 31, 350 P.3d 1234 (indicating that
3 disputed material facts preclude summary judgment); see also In re Michael R.C.,
4 1999-NMCA-036, ¶ 13, 126 N.M. 760, 975 P.2d 373 (indicating that, even if the
5 actual “facts are undisputed, if conflicting inferences can be drawn, summary
6 judgment is improper”).
7 {3} In response to our proposed conclusion, Defendants raise three specific claims
8 of error in the Court’s proposed disposition. [MIO 7] First, Defendants assert that the
9 Court did not address Plaintiff’s argument that a “blanket ban” on internet material
10 was imposed on Plaintiff’s prison mail, and that Defendants had “conclusively
11 disproved” that argument. [MIO 7] Second, Defendants claim that they met their
12 burden by making a prima facie case for summary judgment “by offering sufficient
13 facts about the content of the rejected mail and how that content related to the safety
14 and security” of the prison, and Plaintiff failed to rebut those facts. [MIO 7] And third,
15 Defendants argue that the Court applied an incorrect standard of review for granting
16 of summary judgment. [MIO 8] The Court has considered these arguments, but is
17 unpersuaded.
18 {4} In our proposed disposition, we suggested that at least one genuine issue of
19 material fact remained in dispute: Whether Defendants’ rejections of Plaintiff’s mail
3 1 were related to a legitimate penalogical interest. [CN 3] “Summary judgment is
2 appropriate where there are no genuine issues of material fact and the movant is
3 entitled to judgment as a matter of law.” Bank of N.Y. Mellon v. Lopes, 2014-NMCA-
4 097, ¶ 6, 336 P.3d 443 (internal quotation marks and citation omitted). “An issue of
5 fact is ‘genuine’ if the evidence before the court considering a motion for summary
6 judgment would allow a hypothetical fair-minded factfinder to return a verdict
7 favorable to the non-movant on that particular issue of fact. An issue of fact is
8 ‘material’ if the existence (or non-existence) of the fact is of consequence under the
9 substantive rules of law governing the parties’ dispute.” Associated Home & RV Sales,
10 Inc. v. Bank of Belen, 2013-NMCA-018, ¶ 23, 294 P.3d 1276 (internal quotation
11 marks and citation omitted). After considering the arguments, we conclude that
12 genuine issues of material fact were in dispute at the time of the motion for summary
13 judgment.
14 {5} We specify that in the motion for summary judgment, the sole issue on which
15 we decide this controversy, Defendants failed to meet their prima facie burden. “The
16 movant need only make a prima facie showing that he is entitled to summary
17 judgment. Upon the movant making a prima facie showing, the burden shifts to the
18 party opposing the motion to demonstrate the existence of specific evidentiary facts
19 which would require trial on the merits.” Bank of N.Y. Mellon, 2014-NMCA-097, ¶ 6
4 1 (internal quotation marks and citation omitted). “A party opposing a motion for
2 summary judgment must make an affirmative showing by affidavit or other admissible
3 evidence that there is a genuine issue of material fact once a prima facie showing is
4 made by the movant.” Schwartzman v. Schwartzman Packing Co., 1983-NMSC-010,
5 ¶ 22, 99 N.M. 436, 659 P.2d 888 (emphasis added).
6 {6} We agree with Defendants’ summary of the standard: “Thus, to make a prima
7 facie showing of entitlement to summary judgment [Defendants] ha[ve] the burden of
8 presenting sufficient evidence that the refusal to provide [Plaintiff] with the Mail was
9 rationally related to a legitimate penological interest.” [MIO 16] However, we
10 disagree with Defendants’ contention that they met their prima facie burden.
11 {7} Reviewing Defendants’ motion for summary judgment, we note that there are
12 statements listed in the “undisputed material facts” section that are disputed.
13 Defendants asserted, “2. Plaintiff’s two Mail Rejections occurred based on legitimate
14 reasons related to the safety and security of the facility.” [RP 437 (citation omitted)]
15 This sentence is not an “undisputed” material fact, but instead goes to the heart of
16 Plaintiff’s complaint. As evidence, Defendants claim that this is supported by an
17 affidavit by the mail room officer at the prison facility, but that affidavit only restates
18 the same claim: “Although Plaintiff’s specific rejected mail, which is the subject of
19 this lawsuit, was blandly marked as rejected as ‘internet articles not allowed,’ the
5 1 underlying reason for the rejection was to protect the safety and security of the
2 facility.” [RP 446, ¶ 7] In their memorandum in opposition, Defendants also ask the
3 Court to consider an apparent assertion by counsel at a telephonic hearing on the
4 motion for summary judgment. “During this Hearing, [Defendants’] counsel generally
5 described the content of the Mail that posed safety and security concerns. Specifically,
6 [Defendants’] counsel represented that the Mail contained documents which ‘showed
7 outlines of the facility.’” [MIO 9-10] However, “[T]he briefs and arguments of
8 counsel are not evidence upon which a trial court can rely in a summary judgment
9 proceeding.” V.P. Clarence Co. v. Colgate, 1993-NMSC-022, ¶ 2, 115 N.M. 471, 853
10 P.2d 722.
11 {8} Defendants’ MIO stresses that the Court does not know what mail is at issue,
12 and the point is well-taken. “There is confusion about what mailings were actually
13 rejected.” [MIO 11] Also, “[Plaintiff’s] representations that the mail consisted of
14 ‘newspaper articles from the Albuquerque Journal and copies of some New Mexico
15 statutes’ is incorrect.” [MIO 27 (citing CN 3)] “[Plaintiff] attached voluminous
16 documents to nearly every filing, some of which appear to be—but none of which
17 actually [is]—the mail.” [MIO 11] Further, Defendants do not want to provide
18 Plaintiff with access to the mail: “Notably, [Defendants] did not attach the Mail to any
19 of their pleadings because doing so would have provided a backdoor mechanism for
6 1 [Plaintiff] to obtain the Mail, thus, defeating the purpose of rejecting the Mail in the
2 first place.” [MIO 8-9] “Therefore, the Court should not be misled by [Plaintiff’s]
3 incorrect statements regarding what he believed to be the Mail’s contents.” [MIO 28]
4 {9} The Court is not privy to the contents of the mail, either. This further shows that
5 genuine issues of material fact exist, making this case unsuitable for summary
6 judgment on these assertions. Therein lies the problem of the conclusory statement.
7 Defendants’ “undisputed material fact” that the mail rejections “occurred based on
8 legitimate reasons related to the safety and security of the facility,” is actually a
9 conclusion a court could draw from facts Defendants have yet to assert. It is not an
10 evidentiary statement, but an ultimate conclusion.
11 {10} Because we conclude that Defendants’ did not make a prima facie showing, we
12 need not reach questions regarding the sufficiency of Plaintiff’s response to the
13 motion for summary judgment. “The moving party may not be entitled to judgment
14 even if the non-moving party totally fails to respond to the motion.” Brown v. Taylor,
15 1995-NMSC-050, ¶ 8, 120 N.M. 302, 901 P.2d 720.
16 {11} We conclude that this matter was not yet appropriate for summary judgment.
17 “We are mindful that summary judgment is a drastic remedial tool which demands the
18 exercise of caution in its application, and we review the record in the light most
19 favorable to support a trial on the merits.” Woodhull v. Meinel, 2009-NMCA-015, ¶ 7,
7 1 145 N.M. 533, 202 P.3d 126 (internal quotation marks and citation omitted). Based
2 on the failure of Defendants to make a prima facie case with undisputed material facts,
3 we hold that the district court erred in granting the motion for summary judgment.
4 {12} For the reasons stated above and in this Court’s notice of proposed disposition,
5 the district court’s order granting summary judgement is reversed.
6 {13} IT IS SO ORDERED.
7 _______________________________ 8 LINDA M. VANZI, Chief Judge
9 WE CONCUR:
10 ____________________________ 11 J. MILES HANISEE, Judge
12 ____________________________ 13 DANIEL J. GALLEGOS, Judge