Bazan v. Cordova , 242 F. App'x 491 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 20, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
B EN ITO BA ZA N ,
Plaintiff - Appellant, No. 06-2202
v. D. N.M .
FRANCES CORDOVA, as Sergeant in (D.C. No. CIV-04-1133 M V/DJS)
the New M exico National Guard, in
his individual capacity,
Defendant - Appellee.
OR D ER AND JUDGM ENT *
Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.
After examining the briefs and 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). The case is
therefore ordered submitted without oral argument.
Benito Bazan, appearing pro se, 1 appeals from the district court’s grant 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This order and judgment is not binding precedent except under the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.
1
Bazan was represented by an attorney in the district court. W e granted
his attorney’s request on appeal to withdraw and Bazan chose to proceed pro se.
summary judgment in favor of Frances Cordova, dismissing Bazan’s claim based
on 42 U .S.C . § 1983. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we
AFFIRM .
Background
Bazan filed a § 1983 claim against his former N ew M exico N ational Guard
supervisor, Sergeant Cordova, claiming he was terminated in retaliation for
exercising his First Amendment right to free speech (complaining of corrupt
practices). 2 Cordova was working in a military capacity at the time he terminated
Bazan. The district court granted summary judgment in favor of Cordova,
concluding Cordova was immune from suit pursuant to the doctrine of Feres v.
United States, 340 U.S. 135, 146 (1950) (“[T]he Government is not liable under
the Federal Tort Claims Act for injuries to servicemen where the injuries arise out
of or are in the course of activity incident to service.”). The district court then
dismissed Bazan’s remaining state law claim without prejudice. Bazan timely
appealed.
“Because [Bazan] appears pro se, we review his pleadings and other papers
liberally and hold them to a less stringent standard than those drafted by
attorneys.” Trackwell v. United States Gov’t, 472 F.3d 1242, 1243 (10th Cir.
2007).
2
Bazan failed to include numerous district court pleadings in the record on
appeal. Nevertheless, we take judicial notice of the relevant documents in the
files. See Tal v. Hogan, 453 F.3d 1244, 1265 n.24 (10th Cir. 2006), cert. denied,
127 S.Ct. 1334 (2007); Binford v. United States, 436 F.3d 1252, 1256 n.7 (10th
Cir. 2006).
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The briefs are not particularly helpful. Bazan filed a six-page summary and
conclusory brief. Cordova responded with a three-page brief. Taking a cue from
the parties our discussion will be terse.
Discussion
“W e review the district court’s grant of summary judgment de novo,
applying the same legal standard as the district court.” Green v. Bd. of County
Com m’rs, 472 F.3d 794, 797 (10th Cir. 2007). Summary judgment is appropriate
where “there is no genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). Reviewing
the facts in the light most favorable to Bazan, we conclude the district court
correctly rendered judgment in favor of Cordova.
Bazan first argues the district court applied the wrong law and submits it
should have applied the Patriot Act and the Homeland Security Act, which in his
view trumps the Feres doctrine. These laws were not referenced in Bazan’s
complaint nor in any pleading to the district court submitted on appeal.
Therefore, this argument will not be considered. See Oklahoma Chapter of Am .
Acad. of Pediatrics v. Fogerty, 472 F.3d 1208, 1216 (10th Cir. 2007).
Bazan next argues the district court relied on hearsay evidence in reaching
its determination of Cordova’s active military status at the time of the alleged
constitutional violation. However, the district court relied on a properly admitted
affidavit based on the affiant’s personal review of military records. “At the
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summary judgment stage, evidence need not be submitted in a form that would be
admissible at trial.” Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d
1193, 1199 (10th Cir. 2006) (internal quotations omitted). “Nonetheless, the
content or substance of the evidence must be admissible.” Id. Here, the content
of the affidavit would be admissible at trial and Bazan did not offer evidence to
contradict the affidavit’s assertion regarding Cordova’s active military status.
Finally, Bazan claims his counsel was ineffective. “The general rule in
civil cases is that the ineffective assistance of counsel is not a basis for appeal or
retrial.” Nelson v. Boeing, 446 F.3d 1118, 1119 (10th Cir. 2006). “If a client’s
chosen counsel performs below professionally acceptable standards, with adverse
effects on the client's case, the client’s remedy is not reversal, but rather a legal
malpractice lawsuit against the deficient attorney.” Id. Bazan’s complaints
regarding his counsel do not affect the district court’s determination in favor of
Cordova.
AFFIRM ED.
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
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