Groh v. City of Aztec

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 Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 JOHN GROH, 8 Plaintiff-Appellant, 9 v. NO. 30,719 10 CITY OF AZTEC, COUNTY OF 11 SAN JUAN, TOM HAVEL, JIM 12 CALHOUN, SJCDC SERGEANTS 13 SMART and MARTINEZ, and 14 SJCDC OFFICER RUTLEDGE, 15 Defendants-Appellees. 16 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 17 Thomas J. Hynes, District Judge 18 John Groh 19 Roswell, NM 20 Pro Se Appellant 21 Klecan & Childress 22 Ronald J. Childress 23 Elaine R. Dailey 24 Albuquerque, NM 25 Brennan & Sullivan PA 26 Michael W. Brennan 27 Santa Fe, NM 1 for Appellees — 2 — 1 MEMORANDUM OPINION 2 VIGIL, Judge. 3 Plaintiff filed suit based on his claim of neglect after he was detained pursuant 4 to a bench warrant. We issued two calendar notices proposing to affirm. We have 5 received memoranda in opposition to both notices. We have duly considered 6 Plaintiff’s arguments, but we find them unpersuasive. We affirm. 7 Plaintiff continues to claim that he was entitled to a jury instruction on 8 negligence per se regarding his right to a telephone call and that he was entitled to an 9 instruction on loss or destruction of evidence. In our calendar notice, we explained 10 that Plaintiff had not demonstrated harm or injury of the general type that was to be 11 prevented by the statute granting a right to a telephone call. Plaintiff was required to 12 demonstrate injury and to show that his injuries were caused by Defendants’ wrongful 13 conduct in violating the statute. See Johnstone v. City of Albuquerque, 2006-NMCA14 119, ¶ 18, 140 N.M. 596 , 145 P.3d 76 . Plaintiff cannot simply allege harm or injury. 15 See Acosta v. City of Santa Fe, 2000-NMCA-092 , ¶ 15, 129 N.M. 632 , 11 P.3d 596 . 16 In response to our explanation, Plaintiff again points to his allegations of various 17 problems he claims to have experienced as a result of the violation of the statute 18 including, lost muscle mass, inability to sleep, and loss of enjoyment. [MIO 2-4] An 19 assertion of prejudice is not a showing of prejudice, In re Ernesto M., Jr., 19963 1 NMCA-039, ¶ 10, 121 N.M. 562 , 915 P.2d 318 . We hold that Plaintiff did not 2 demonstrate that he suffered harm or injury. 3 Plaintiff also claims that, while he was testifying, he was cut off and interrupted 4 by the district court. There is nothing to indicate that his claims are supported by the 5 record. State v. Reynolds, 111 N.M. 263, 267 , 804 P.2d 1082, 1086 (Ct. App. 1990) 6 (“Matters outside the record present no issue for review.”). In fact, as discussed by 7 Plaintiff, during his testimony, the district court only reminded Plaintiff to refer to 8 relevant facts and to limit argument to closing. The district court must exercise 9 reasonable control over the interrogation of witnesses and the presentation of 10 evidence. Rule 11-611 NMRA. Admission of evidence is within the discretion of the 11 district court. See State v. Worley, 100 N.M. 720, 723 , 676 P.2d 247, 250 (1984). 12 Plaintiff has not demonstrated error by the district court. 13 In our calendar notice, we proposed to agree with the district court’s decision 14 to dismiss Plaintiff’s claim of destruction of evidence on grounds that Plaintiff failed 15 to state a claim. We explained that, if matters outside the pleadings are considered, 16 on a motion to dismiss for failure to state a claim, the motion becomes a motion for 17 summary judgment. Knippel v. N. Commc’ns, Inc., 97 N.M. 401, 402 , 640 P.2d 507 , 18 508 (Ct. App. 1982). We concluded that Plaintiff had failed to show that the failure 19 to preserve booking tapes caused him damage or prevented him from presenting a — 4 — 1 defense. In response, Plaintiff states that, because the tapes were lost, he could not be 2 sure about the identity one of those he made claims against and he “would probably 3 have prevailed” [MIO 9] on one claim if he had the tapes to make a positive 4 identification. Plaintiff also claims that the tapes “would disprove” the defenses, and 5 would show whether he had shoes, whether he had been given telephone calls, and 6 whether he was fed. [MIO 10] Again, these are only assertions and cannot be used 7 to show prejudice or harm. Moreover, Plaintiff was available to testify about the 8 person he claims was laughing at him and was available to testify about his other 9 claims. Plaintiff has not demonstrated that he was harmed by the loss of the tapes. 10 For the reasons discussed in this opinion and in our two calendar notices, we 11 affirm. 12 IT IS SO ORDERED. 13 __________________________________ 14 MICHAEL E. VIGIL, Judge 15 WE CONCUR: 16 _________________________________ 17 JAMES J. WECHSLER, Judge 18 _________________________________ 19 LINDA M. VANZI, Judge — 5 —