Gallegos v. State

• Decision Date: 15 December 1987
• Docket Number: No. 9072,9072
• Citation: 1987 NMCA 150,107 N.M. 349,758 P.2d 299
• Parties: Phillip GALLEGOS, Plaintiff-Appellant, v. STATE of New Mexico, et al., Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 299

758 P.2d 299

107 N.M. 349

Phillip GALLEGOS, Plaintiff-Appellant, v. STATE of New Mexico, et al., Defendants-Appellees.

No. 9072.

Court of Appeals of New Mexico.

Dec. 15, 1987.

Certiorari Quashed June 30, 1988.

[107 N.M. 350] Ray M. Vargas, Albuquerque, for plaintiff-appellant.

Douglas A. Baker, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, for defendants-appellees State of N.M., Corrections Dept., and Bruce King.

Patrick M. Shay, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for defendants-appellees Felix Rodriguez and Tom Trujillo.

OPINION

BIVINS, Judge.

Plaintiff, a former inmate of the New Mexico Penitentiary, brought suit for damages resulting from injuries sustained on or about January 23, 1981, when he was assaulted by other inmates of cellblock six. His amended complaint alleges claims under the New Mexico Tort Claims Act, NMSA 1978, Sections 41-4-1 to -29 (Repl.1986), and the federal Civil Rights Act, 42 U.S.C. Section 1983 (1982), and names as defendants the state, its Corrections and Criminal Rehabilitation Department (CCRD), former Governor Bruce King, former acting warden Felix Rodriguez, and deputy warden Tom Trujillo. After the trial court announced its intention to grant defendants' motions for summary judgment, but before entry of the judgments, plaintiff moved to further amend his complaint. He appeals from the summary judgments entered and from the denial of his motion to amend. We affirm.

On a motion for summary judgment, the burden is on the moving party to make a prima facie showing that there are no issues of material fact, and that the moving party is entitled to summary judgment as a matter of law. Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972). Once the moving party makes such a showing, the burden shifts to the party opposing the motion to demonstrate that the facts before the trial court, together with all reasonable inferences from those facts, create a genuine issue of material fact. Id. It is sufficient if the party opposing the motion creates a "reasonable doubt" as to whether a factual issue exists. Koenig v. Perez, 104 N.M. 664, 726 P.2d 341 (1986). In reviewing the grant of summary judgment, the reviewing court will look at the whole record to determine whether a genuine issue of material fact exists. Pharmaseal Laboratories, Inc. v. Goffe, 90 N.M. 753, 568 P.2d 589 (1977), cited with approval in Koenig v. Perez. The whole record, as we discuss later, means the record before the trial court on the summary judgment motions.

¶1 Plaintiff's Tort Claims

Plaintiff urges summary judgment was improper as to the claims under the Tort Claims Act because: (1) the state is liable under the doctrine of respondeat superior; (2) Section 41-4-6 waives immunity; and (3) the individual defendants should be denied immunity since their actions were unconstitutional. We reject each of these claims.

In Abalos v. Bernalillo County District Attorney's Office, 105 N.M. 554, 734 P.2d 794 (Ct.App.1987), we discussed which governmental entity can be sued and when. In Abalos, we reaffirmed the rationale for naming the particular agency that allegedly caused the harm, rather than the state, as announced in Wittkowski v. State, 103 N.M. 526, 710 P.2d 93 (Ct.App.1985), modified on other grounds in Abalos v. Bernalillo County District Attorney's Office. Silva v. State, 106 N.M. 472, 745 P.2d 380 (1987) recognizes this "doctrine of remoteness." Here, CCRD is the proper governmental entity, not the state.

Silva answers plaintiff's contention that respondeat superior renders the governmental entity liable. Although Silva allows the application of respondeat superior under the Tort Claims Act, the Act still requires a negligent public employee who meets one of the waiver exceptions under Sections 41-4-5 to -12. Abalos v. Bernalillo County District Attorney's Office. If immunity has been waived, the particular agency that caused the harm may be held liable for the negligent act or omission of the public employee. Id.

Plaintiff relies on Section 41-4-6, which waives immunity for "damages resulting from bodily injury * * * caused by the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any building * * * machinery, equipment or furnishings." ¹ Plaintiff argues that he was injured by a mop wringer wielded by another inmate; that the mop wringer and other cleaning equipment should have been kept outside the living area so that inmates could not have access to them; and that cleaning supplies should have been issued to inmates only for the purposes of cleaning their living area, and then only under supervision by correctional officers.

In Wittkowski v. State, we considered a similar argument. There, plaintiff argued that since the corrections department maintains and operates the state penitentiary, a public building, and the operation of the building includes security, custody and classification of inmates, immunity was waived where two inmates escaped and killed a resident of Colorado. In Wittkowski, we said that since the injuries did not occur due to a physical defect in a building, Section 41-4-6 did not apply.

Here, assuming a mop wringer can be considered either "machinery, equipment or furnishings," a question we need not decide, no claim is made that any physical defect existed with the mop wringer or that a defect caused plaintiff's injuries. The claim is that a portion of plaintiff's injuries was caused when that item was used as a weapon. Section 41-4-6 does not provide a waiver of immunity for that claim. We have since applied the rationale of Wittkowski in Pemberton v. Cordova, 105 N.M. 476, 734 P.2d 254 (Ct.App.1987), and Martinez v. Kaune Corp., 106 N.M. 489, 745 P.2d 714 (Ct.App.1987). We likewise apply the rationale here and determine that the trial court properly granted summary judgment on plaintiff's tort claim. We note that Silva in dicta states that waiver of immunity under Section 41-4-6 might "arguably" apply to one acting within the scope of duties as secretary of corrections. We need not reach that issue however, because on these facts we hold that Section 41-4-6 does not provide a waiver of immunity for plaintiff's claim. Considering the plain language of the statute and prior case law, we do not believe Silva intended to extend liability under Section 41-4-6 to situations as presented in our case. To do so would open the door to liability for virtually all claims involving buildings, equipment, machinery or furnishings. Imposing such liability would undermine the immunity provided by the Tort Claims Act.

Relying on cases such as Salazar v. Town of Bernalillo, 62 N.M. 199, 307 P.2d 186 (1956) (holding town not responsible where mayor exceeded authority in ordering deputy marshall to assault plaintiff), plaintiff argues that the individual defendants were stripped of immunity by their alleged unconstitutional activities. See also Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) (state immunity not imparted to state officer who attempted to enforce unconstitutional statute). A similar claim was made and rejected in Silva v. State, 26 SBB 130 (Ct.App.1986), rev'd on other grounds, Silva v. State, 106 N.M. 472, 745 P.2d 380 (1987). In Silva, we said that a cause of action under the Tort Claims Act must fit into one of the exceptions, and that any claim that an individual was not acting within the scope of his duties is not a claim under the Act. Since the Act provides the exclusive remedy, to allow plaintiff to assert a claim outside the Act would render the Act meaningless. Further, we note this claim of lack of authority conflicts with plaintiff's own pleadings and the position he took in the trial court.

We affirm summary judgment on the claims under the Tort Claims Act.

¶2 Claims Under 42 U.S.C. Section 1983

The fact that plaintiff has no claim under the Tort Claims Act does not mean he cannot pursue a 42 U.S.C. Section 1983 claim growing out of the same facts. The federal remedy is supplemental to the state remedy. Wells v. County of Valencia, 98 N.M. 3, 644 P.2d 517 (1982).

Before addressing the merits of the 42 U.S.C. Section 1983 claims, we discuss two procedural matters: plaintiff's claim of error in the denial of his motion to further amend his complaint, made almost three weeks after the summary judgment hearing, and the question of what materials were properly before the trial court in support of and in opposition to summary judgment.

Plaintiff moved to amend his complaint after the trial court announced its intention to grant summary judgment and before entry of the formal order. Plaintiff's second amended complaint, attached to his motion, generally alleges under the 42 U.S.C. Section 1983 count claims against the individual defendants for failure to properly supervise. The trial court denied the motion to amend in the same orders in which it granted summary judgment to defendants. On appeal, plaintiff argues he should have been allowed to amend his complaint to conform to the evidence submitted to the trial court on the issue of failure to supervise. Although amendments to pleadings are favored and should be allowed when justice so requires, the denial of a motion to amend will be reversed only upon a showing of clear abuse of discretion. Slide-A-Ride of Las Cruces, Inc. v. Citizens Bank of Las Cruces, 105 N.M. 433, 733 P.2d 1316 (1987). Plaintiff makes no claim of abuse of discretion; therefore, we affirm the denial of his motion to amend. Notwithstanding affirmance, we do analyze plaintiff's claim as one based on failure to supervise, which is the theory plaintiff advanced at oral argument before this court.

What was properly before the trial court on defendants' motions for summary judgment must also be resolved against plaintiff. Defendants attached to their motions, filed October 2, 1985, the affidavits of Governor King, Rodriguez...