Apodaca v. Franco ( 2018 )

FILED
United States Court of Appeals
Tenth Circuit
September 11, 2018
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
VICTOR ANDREW APODACA, SR.,
Plaintiff - Appellant,
v. No. 18-2007
(D.C. No. 1:15-CV-00061-JAP-LF)
GERMAN FRANCO; MICHELLE (D. N.M.)
BOYER; VINCENT VIGIL; GREGG
MARCANTEL; TISHA ROMERO,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before PHILLIPS, McKAY, and BALDOCK, Circuit Judges.
After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This case is therefore ordered submitted without oral argument.
Plaintiff Victor Apodaca, Sr., a state prisoner proceeding pro se, filed this
42 U.S.C. § 1983 complaint to challenge the allegedly unconstitutional actions of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
various prison officials and a nurse who worked at the prison. The district court
dismissed Plaintiff’s claims against the nurse based on res judicata, since
Plaintiff had raised the same claims against the same nurse in a prior state action.
The court dismissed a second defendant from the action because the complaint
only mentioned this defendant in passing and did not state any allegations against
him. The remaining defendants filed a Martinez report and request for summary
judgment. See Martinez v. Aaron, 570 F.2d 317, 318–19 (10th Cir. 1978). The
district court permitted Plaintiff to file an untimely response, with attached
exhibits, to the defendants’ Martinez report due to his alleged difficulties with the
prison mail system. Considering all of the documents submitted by both parties,
the court then held that all of Plaintiff’s claims against the remaining defendants,
with one exception, were subject to dismissal for failure to exhaust administrative
remedies. The court further held that even if the claims had been properly
exhausted, they each failed on the merits because Plaintiff had not submitted or
identified evidence that would establish a material dispute of fact as to any of
these claims. The court therefore dismissed all of Plaintiff’s remaining claims.
After reviewing all of the filings on appeal, the appellate record, and the
relevant cases, we are not persuaded that the district court erred in dismissing
Plaintiff’s claims against each of the defendants named in his complaint.
Therefore, for substantially the same reasons given by the district court in its
comprehensive rulings, we AFFIRM the dismissal of this case. We GRANT
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Plaintiff’s motion to supplement his opening brief and have considered his
supplementary materials in ruling on this appeal. We GRANT Plaintiff’s motion
to proceed in forma pauperis on appeal but remind him of his obligation to
continue making partial payments until the entire filing fee has been paid in full.
Entered for the Court
Monroe G. McKay
Circuit Judge
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