Rivera v. King

• Decision Date: 18 October 1988
• Docket Number: No. 10022,10022
• Citation: 108 N.M. 5,1988 NMCA 93,765 P.2d 1187
• Parties: Debbie Gail RIVERA, Personal Representative of the Estate of Robert Lee Rivera, Deceased, Plaintiff-Appellant, v. Bruce KING, Governor of the State of New Mexico; Felix Rodriguez, Secretary of Corrections & Criminal Rehabilitation; Jerry Griffin, Warden of the Penitentiary of the State of New Mexico; Greg Roybal; Jose Anaya; Michael Schmitt; and New Mexico Department of Corrections, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 1187

765 P.2d 1187

108 N.M. 5

Debbie Gail RIVERA, Personal Representative of the Estate of Robert Lee Rivera, Deceased, Plaintiff-Appellant, v. Bruce KING, Governor of the State of New Mexico; Felix Rodriguez, Secretary of Corrections & Criminal Rehabilitation; Jerry Griffin, Warden of the Penitentiary of the State of New Mexico; Greg Roybal; Jose Anaya Michael Schmitt; and New Mexico Department of Corrections Defendants-Appellees.

No. 10022.

Court of Appeals of New Mexico.

Oct. 18, 1988.

Certiorari Denied Nov. 18, 1988.

Certiorari Denied Nov. 21, 1988.

[108 NM 6] Jon T. Kwako, Albuquerque, for plaintiff-appellant.

Wayne C. Wolf, W.J. Wilson, Jr., Civerolo, Hansen & Wolf, P.A., Albuquerque, for defendants-appellees, Bruce King and State of N.M.

Douglas A. Baker, Timothy R. Van Valen, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, for defendants-appellees, Felix Rodriguez and the Corrections and Criminal Rehabilitation Dept.

Patrick M. Shay, Andrew G. Schultz, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for defendants-appellees, Jerry Griffin, Greg Roybal, Jose Anaya and Michael Schmitt.

OPINION

BIVINS, Judge.

Plaintiff Debbie Gail Rivera appeals from orders of the trial court dismissing her claims against defendants for damages for the death of her spouse, Robert Lee Rivera, who was tortured to death by other inmates during the riot of February 1980 at the penitentiary of New Mexico. For the reasons discussed below, we affirm in part and reverse in part.

1. Timeliness of the Appeal as to Issues Concerning the State of New Mexico

Plaintiff's notice of appeal was filed May 20, 1987. Defendant state of New Mexico argues that plaintiff's notice of appeal was not timely as to the order of March 11, 1986, dismissing her claims against the state under the Tort Claims Act, NMSA 1978, Sections 41-4-1 to -27 (Repl.1986 & Cum.Supp.1988), and the federal Civil Rights Act, 42 U.S.C. Section 1983 (1982). We agree.

A notice of appeal must be filed within thirty days of a final judgment. NMSA 1978, Sec. 39-3-2; SCRA 1986, 12-201. Timely filing of the notice of appeal is jurisdictional. Mabrey v. Mobil Oil Corp., 84 N.M. 272, 502 P.2d 297 (Ct.App.1972). Plaintiff argues the order dismissing the state was not final because it does not contain the language required by SCRA 1986, 1-054(C)(1), that there is "no just reason for delay." We disagree.

Rule 1-054(C)(1) applies when a court enters a final judgment on one or more but fewer than all claims. In this case, the trial court correctly proceeded under Rule 1-054(C)(2), which applies to a final judgment adjudicating all issues as to fewer than all parties. Rule 1-054(C)(2) provides the judgment is final unless the court determines otherwise and expressly so provides in the order. The rule does not require that the trial court expressly find there is "no just reason for delay." The notice of appeal was filed more than thirty days after the judgment dismissing the state; therefore, we lack jurisdiction to consider alleged error in the granting of this judgment.

2. Alleged Error in Denying Plaintiff's Motion for Summary Judgment

Prior to the dismissal of her claims, plaintiff moved for summary judgment on her complaint. The motion was denied. On appeal, plaintiff argues this was error. The improper denial of a summary judgment is not reviewable after a final judgment on the merits. Green v. General Accident Ins. Co. of Am., 106 N.M. 523, 746 P.2d 152 (1987). The granting of defendants' motions to dismiss plaintiff's claims constitutes a judgment on the merits. See Pederson v. Lothman, 63 N.M. 364, 320 P.2d 378 (1958) (summary judgment is a judgment on the merits). Cf. Carter v. Thurber, 106 N.M. 429, 744 P.2d 557 (Ct.App.1987) (order of dismissal is a final judgment on the merits). Accordingly, we cannot consider plaintiff's contentions concerning the denial of this motion.

3. Dismissal and Summary Judgment in Favor of Former Governor King

Plaintiff sued former Governor King under both the Tort Claims Act and the Civil Rights Act. King moved for dismissal or alternatively for summary judgment on the grounds that he was immune from suit under the Tort Claims Act and that plaintiff failed to state a claim upon which relief could be granted under the Civil Rights Act. Plaintiff subsequently amended her complaint, and King renewed his motion, which the trial court granted on both grounds.

Regarding the claim under the Tort Claims Act, plaintiff's complaint alleged immunity had been waived by Sections 41-4-6, -9, -10 and -12. On appeal, plaintiff's brief does not argue the application of Section 41-4-9 and -10; therefore, we consider those issues to have been abandoned. Novak v. Dow, 82 N.M. 30, 474 P.2d 712 (Ct.App.1970). In addition, plaintiff conceded before the trial court that King was not a law enforcement officer within the meaning of Section 41-4-12. See Anchondo v. Corrections Dep't, 100 N.M. 108, 666 P.2d 1255 (1983). Thus, the question becomes whether King's immunity from suit was waived by Section 41-4-6.

Plaintiff's complaint alleged King was "ultimately responsible for the execution and enforcement of the laws of the State of New Mexico and all acts and omissions * * * were done under his authority." King cannot, however, be held liable for negligent acts or omissions of other employees merely because of his executive position. Silva v. State, 106 N.M. 472, 745 P.2d 380 (1987). We believe a fair reading of plaintiff's complaint demonstrates that plaintiff is seeking to hold King liable for the negligent actions of his subordinates. Thus, plaintiff failed to state a claim against King.

The claim under the Civil Rights Act is subject to a similar defect. Plaintiff alleged King, acting through his agents and employees, failed to adequately staff, train, supervise and retain correctional officers, failed to adequately classify inmates, and negligently operated the penitentiary in a variety of ways. At the hearing on the motion, plaintiff conceded the Civil Rights Act does not provide a cause of action for negligence. See Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986); Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Plaintiff contended, however, the claim was for supervisory gross negligence. Plaintiff was unable, before the trial court or this court, to cite authority for the proposition that gross negligence is sufficient to establish a constitutional violation. Without deciding, we will assume that it is.

King submitted an affidavit in support of his motion, in which he stated he did not make any hiring decisions concerning personnel of the department of corrections or the penitentiary, except to select and submit to the legislature for confirmation a secretary of the department of corrections and criminal rehabilitation. The affidavit also states he was not aware of problems at the penitentiary that would lead to the riot, had no advance knowledge of the riot, was not at the penitentiary when the riot began and exercised no control over persons at the penitentiary once the riot was in progress. According to his affidavit, King's only action during the riot was to call out the national guard to be available to secure the area. King did not actually participate in the decisions to negotiate with the inmates or to retake the penitentiary.

The standard for granting summary judgment is well settled. A motion for summary judgment should be granted if there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law. SCRA 1986, 1-056; Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972). The burden is on the moving party to establish a prima facie case; once a prima facie case has been established, the burden is on the opposing party to show the existence of a genuine issue of material fact precluding summary judgment. Id.

In order to state a claim for supervisory liability under the Civil Rights Act, plaintiff must show some personal involvement on the part of the defendant. Gallegos v. State, 107 N.M. 349, 758 P.2d 299 (Ct.App.1987). In the context of supervisory liability for violations of the rights of inmates, this court held in Gallegos that plaintiff must show: (1) there was a deprivation of plaintiff's constitutional rights by an employee under the control of the supervisor; (2) the deprivation rises to the level of deliberate indifference or reckless disregard of plaintiff's rights, which, in the context of the penitentiary, may be shown by the existence of a pervasive risk of harm to inmates from other prisoners and a failure by prison officials to respond reasonably to that risk; (3) the supervisor had notice of the pervasive risk of harm; and (4) the supervisor failed to implement a policy that promotes correction of the harm or deters future conduct.

King's affidavit established a prima facie case of no liability by showing he had no notice of any risk to inmates, or any previous deprivations of rights by employees at the penitentiary. Thus, the burden shifted to plaintiff to demonstrate that the facts before the trial court, together with all reasonable inferences from those facts, created a genuine issue of material fact. Goodman v. Brock. In this case, plaintiff did not come forward with affidavits or other materials admissible under Rule 1-056(E) that would create a genuine issue of material fact as to whether King was aware of a pervasive risk of harm to inmates and a failure by prison officials to respond reasonably to that risk. Thus, summary judgment on the supervisory liability claims under the Civil Rights Act was proper as to Governor King.

Plaintiff contends the trial court erred in treating defendants' motions as motions for summary judgment. Plaintiff's contention is incorrect. When matters outside the pleadings are presented in support of a motion to dismiss, and not excluded by the trial...