Bazan v. Cordova, (10th Cir. 2007)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

BENITO BAZAN,

Plaintiff - Appellant,

No. 06-2202

v.

D. N.M.

FRANCES CORDOVA, as Sergeant in

the New Mexico National Guard, in

his individual capacity,

Defendant - Appellee.

(D.C. No. CIV-04-1133 MV/DJS)

ORDER AND JUDGMENT
name="txt*">(*)

Before KELLY,
name="9">MURPHY, 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,
name="txt1a">(1) appeals from the district court's grant of

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 New Mexico National 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.

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

"We 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

Comm'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

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.

AFFIRMED.

ENTERED FOR THE COURT

Terrence L. O'Brien

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*.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. We granted

his attorney's request on appeal to withdraw and Bazan chose to proceed pro se.

"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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