May 14, 2019- Bryce Franklin v. New Mexico Department of Corrections, No. A-1-CA-37392

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	BRYCE FRANKLIN,
3 	Plaintiff-Appellant,.
4 v. 	No. A-1-CA-37392
5 NEW MEXICO DEPARTMENT OF
6 CORRECTIONS,PENITENTIARY
7 	OF NEW MEXICO; JOHN DOE;
8 UNITMANAGERJESSALYNEATON;
9 KEM HULSKAMP; and WENDY
10 PEREZ,
11 	Defendants-Appellees.
12 APPEAL ~ROM THE DISTRICT COURT OF SANTA FE COUNTY
13 	Raymond Z. Ortiz, District Judge
14 Bryce Franklin 	·
15 	Santa Rosa, NM
16 Pro Se Appellant .
17 NM Corrections Department
18 Paula E. Ganz
19 	Santa Fe, NM
20 	for Appellees
21 	. MEMORANDUM OPINION
22 	VANZI, Judge.
Court of Appeals of New Mexico
Filed 5/14/2019 8:26 AM

1 {t} 	Plaintiff, a self-represented inmate, appeals from the district court's order
2 granting summary judgment on his various grievances as to the·prison's denial of his
3 religious property and the prison's grooming requirements. Unpersuaded that Plaintiff
4 established error, we issued a notice of proposed summary disposition, proposing to
5 affirm. Plaintiff has responded to our notice with a motion for remand. We treat
6 Plaintiffs motion as a memorandum in opposition. See Rule 12-210(0){2) NMRA
7 (contemplating that the party opposing this Court's notice of proposed summary
8 disposition will file a memorandum in opposition, "s~tting forth reasons why the
9 proposed summary disposition ... should not be made"). We are not persuaded that
10 Plaintiff established error or other grounds for remand, and affirm.·
11 	{2} 	Plaintiffs docketing statement maintained that the district court erred in
12 	dismissing his case by ruling that he failed to exhaust his administrative remedies.
13 	[DS 5] Plaintiff also contended that the district court abused its discretion: (1) by
14 converting Defendants' motion to dismiss into one for summary.judgment, (2) by
15 	requiring Plaintiff to appear telephonically for a summary judgment hearing, !ind (3)
16 by denying Plaintiff the right to call witnesses.· [DS 6] We proposed to affirm on
17 grounds that the district court appropriately treated the motion to dismiss as one for
18 	summary judgment [CN 2-4] and on grounds that Plaintiff did not otherwise provide
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1 us with sufficient information to establish error on any of the ·many independent
2 grounds on which the district court dismissed. [CN 4-8]
3 	{3} 	Specifically, we observed that Defendants argued several independent grounds
4 for the dismissal of Plaintiffs claims, 	[1 	RP 87-101] and attached supporting
5 affidavits [1 RP 106-08, 146-47] and numerous documents that support dismissal on
6 grounds that Plaintiff failed to exhaust the administrative remedies for his claims. [1
7 RP 110-144, 149-210; CN 4] We proposed to agree with the district court that
8 Defendants made a prima facie showing that summary judgment was proper, which
9 shifted the burden to Plaintiff to demonstrate a genuine issue of material fact. See
10 Banko/New York Mellon v. Lopes, 2014-NMCA-097,, 6,336 P.3d443. [CN 4] We
11 	explained that Plaintiff did not demonstrate in district court or on appeal 	how his
12 response 	to 	summary 	judgment 	and 	the 	attached 	documents 	satisfied 	the
13 	administrative process that contemplates that non-responses to complaints and
14 grievances. [CN 5] We further explained that Plaintiff did not demonstrate that his
15 	property was in fact religious property or 	that the denial of this property was
16 unattributable to the disciplinary event-related to his possession of unauthorized
. 	'
17 	document-that resulted in Plaintiffs diminished privileges. [CN 6] We also noted
18 that 	the 	record 	does 	not 	show 	Plaintiff demonstrated 	that 	he 	satisfied the
19 administrative process 	for 	acquiring 	a religious 	exception to the 	hair-length
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1 requirements. [CN 6] We emphasized again that Plaintiff has not shown or even
2 argued that dismissal was inappropriate on the other independent grounds argued by
3 Defendants and accepted by the district court. [CN 6]
4 	{4} 	In response to our notice, Plaintiff filed a short motion for remand. In it he
5 states that under NMSA 1978, Section 33-2-1 l(C) (1990), the district court cannot
6 be deprived of its plenary constitutional subject matter jurisdiction. [Motion 1] He
7 also states: "As far as"immunity, Franklin[']s claims ·are waived under New Mexico
8 Religious Freedom Act, Chapter 28, Article 22." [Motion 1]
9 {5} 	Plaintiffs motion does not respond to our proposed disposition as to numerous
10 grounds for affirmance, which constitutes acceptance of our proposed affirmance on
11 	those grounds. See Frick v. Veazey, 1993-NMCA-l 19, 1 2, 116 N .M. 246, 861 P .2d
12 	287 ("Failure to file a memorandum in opposition constitutes acceptance of the
13 	disposition proposed in the calendar notice."); State v. Johnso_n, 1988-NMCA-029,
14 18, 107N.M. 356, 758 P.2d 306 (stating that when a case is decided on the summary
15 	calendar, an i~sue is deemed abandoned when a party fails to respond to the proposed
16 	disposition of that issue).
17 {6} 	Further, Plaintiffs conclusory response does not provide us with any of the
18 	information we explained was needed to establish error. See Corona v. Corona, 2014-
19 NMCA-071, 128,329 P.3d 701 ("This Court has no duty to review an argument that
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1 is not adequately developed."); see also Farmers, Inc. v. Dal Mach. & Fabricating,
2 Inc., 1990-NMSC-100,, 8, 111 N.M. 6, 800 P.2d 1063 (stating that the appellate
3 court presumes that the trial court is correct, and the burden is on the appellant to
4 clearly demonstrate that the trial court erred).
5 	{7} 	For the reasons stated in our notice and in this opinion, we deny the motion for
6 remand and affirm the district court's order granting summary judgment.
7 {8} 	IT IS SO ORDERED.
8
9
10 WE CONCUR:
11~~
12 	KRISTINA BO~S, Judge
13 	~PD#),14 MEGP.DUFF~dge
5