Apodaca v. Ommen

APODACA, Appellant Vincent

(Plaintiff), OMMEN, Archie R.N. and

Janet (Defendants). M.D., Appellees

No. 90-137. Wyoming.

Supreme Court of 18, 1991.

March However, complaint because the

ed. prejudice dismissed with and because unusual circumstances of of the somewhat case, not treat the this we will dismissals thus, judicata, permitting Apodaca to as res complaint if refile a he so desires. THE TRIAL IN COURT PROCEEDINGS January Apodaca filed his On alleged had been complaint. He that he Wyoming incarcerated in the State Peniten- August tiary since 1989. Before incarceration, injured he was in an industri- worker’s al accident for which received disability compensation temporary total Before his arrest and incarcera- benefits. tion, being E. Apodaca was treated Milo Wilcox, D.C.1, but he had not seen Wilcox February of The for treatment since 1989. Kirsch, M.D., complaint identified Archie as Apodaca, se. Vincent physician employed provide medical Gen., Terry Armitage, Atty. Asst. L. penitentia- to inmates at the state services Burt, Intern, Legal Cheyenne, for Linda Ommen, R.N., the director ry and Janet as appellee Ommen. department the medical services at the Vlastos, Westling Brooks & David E. Apodaca that he had penitentiary. claimed P.C., Casper, appellee Kirsch. Henley, requests to the administrators of submitted penitentiary permit him to be treated C.J., URBIGKIT, THOMAS and Before Wilcox, requests but that these ROONEY, GOLDEN, JJ., and paragraph referred to Ommen. one Ret., BROWN, JJ. complaint, Apodaca asserted that Apo- attempted and Ommen to force GOLDEN, Justice. Kirsch, in lieu of daca to be treated Apodaca, appeals Appellant, Vincent Apodaca’s complaint Included Wilcox. of the district court which from orders averment that Kirsch and Ommen was an malprac- of medical dismissed his attempted Apodaca to force have also M.D., appellees, Archie tice orthopedic surgeon of their treated physician Wyoming for the a contract State choice, Wil- again, lieu of treatment Ommen, R.N., Penitentiary, and Janet fa- Apodaca claimed that Wilcox was cox. as director of prison employee who serves injury and course of treat- miliar with his penitentiary’s depart- medical services ment, that Kirsch and Ommen were provides medical care to ment and who paragraph not. also included day-to-day prisoners on a basis. complaint: in his plaintiff 18. For reasons unknown to will affirm the district court’s orders We Wy- [Apodaca], for failure to the administrators dismissing the Penitentiary Defen- oming grant- claims which relief can state chiropractic board of examiners in the and in Milo E. Wilcox’s Both advertisement, yellow pages prefix he is referred to as shall not "Dr.” or “doctor” state. Dr. Milo E. Wilcox. We note that 33-10-109 sign appear any display name of before the on (1987 provides: Replacement), practitioner; connec- but shall * * * Chiropractors licensed under this act chiropractic.” tion with the title "doctor of right practice chiropractic in shall have the type appear in the same size Such title shall taught accordance with the method practitioner. name of recognized chiropractic colleges schools and on these motions for not want Plaintiff dants herein do Wilcox, support 1990. A brief filed in by Dr. Milo E. Om- treated utilizing their licensure men’s motion dismiss on defendants pro- health Although law as care that brief was filed against Ommen, civil to erect a shield it viders behalf of made reference to the rights liability for the positions of Kirsch and Ommen. both referred to Penitentiary administrators support not file a did of his in 13 above.2 February motion to dismiss.3 On 16 and 20, 1990, (1) Apodaca filed motions: for an there was no Apodaca further claimed directing pre-hearing argu- written order allowing him to reason for not legitimate ment and memoranda Kirsch and re- used his and that Kirsch had see Wilcox and, (2) scheduling hearing; to restrict ar- nonmedical licensure to mask professional gument hearing upon at to those issues peni- to reduce the as medical and decisions argument which written has been sub- providing health care tentiary’s expenses Apodaca mitted the defendants. also inmates, up to cover as well as filed traverses to the motions to dismiss on liability “lack and/or refusal of conceal February February 20 and 1990. On closing, Apodaca medical attention.” 27, 1990, Apodaca filed a notice and motion of Kirsch and Ommen claimed the acts restraining asserting order that an ac- and willful interfer- constituted a deliberate made, by penitentiary cusation had been ence with his medical treatment and with administrators as well as the counsel for compensation Finally, claim. his worker’s Ommen, guilty might that he have been of Apodaca asserted that the acts and omis- tampering with the mails because had had caused him sions of Kirsch and Ommen possession a document mailed of Om- anguish great pain and concomitant mental Apodaca men’s counsel to her. claimed compensatory, exemplary and asked attempting and her counsel were $50,000 damages from each punitive of dropping him frighten to coerce and into them. of his lawsuit. 2, 1990, February citing On W.R.C.P. hearing open conducting After a

12(b)(6), Ommen filed a motion to dismiss 27, 1990,4 the district court on failure to state a claim 5, 1990, dismiss- entered an order on March upon granted. which relief could be On 5, 1990, complaint against Ommen and Kirsch filed an identical 8, 1990, dismissing second order on March motion. The district scheduled any failed to Apodaca name of the counter assertions that his never identified penitentiary recog malpractice any administrators that he refers to in of other state a claim complaint. only Apodaca suffi nizable claim. Not was ciently he was called on notice of what it was made in Ommen's brief to the 3. Reference was do, such as but under circumstances Moreover, wording position of of Kirsch. might sponte have sua these the district court Courts, 301, Uniform for the District Rule does not mandate a brief in all cases: Rules complaint without Kirsch or Om- dismissed the having Pugh a motion. v. Parish men filed of Filing Rule 301. of Motions. (5th Cir.1989); Tammany, 875 F.2d 436 5A St. filed, except for sum- Each motion motions Miller, Wright and A. Federal Practice C. specific point mary judgment, shall set out n. 3 Procedure points upon motion course, important consideration Of the most may accompanied by brought, a con- Apodaca did not raise in this instance is that required. brief. No answer brief is cise appeal. as an issue on violation of Rule 301 specific day. no motion When There will be required, hearing will he set on of motions hearing, transcript was re- if one 4.The assignment request of counsel or motion made, part as a quested was not included the court. Motions be sub- issued by Apodaca. appeal He did of the record on All motions not mitted on brief if desired. part days designate transcript the record up as a called or set for within 60 denied, filing automatically will with appeal, after but there was no certification on pleading. days arrange- then allowed for transcript had been ordered positions of both Ommen and Kirsch pay for it. ments made to clear, give special whether we deference status, Apodaca's pro se or not. His task was to Ommen, hand, on who was This latter the other Kirsch. by the represented Attorney General final order order constitutes 15, 1990, substantive Wyoming, March did address the 54(b). On W.R.C.P. case. by Apodaca, argued only raised new trial or issues filed a motion for timely pursuant appeal that his notice judgment or amend the alter thus, above, and, entry under this court’s mandato As filed noted W.R.C.P. rule, 1.02, supreme court ry W.R.A.P. on March judgment final occurred Apo- deprived jurisdiction to consider not rule on the district court did Thus, by appeal.5 grant a daca’s motion or continuance. 59(f), the motion was

operation of and notice May deemed denied REVIEW STANDARD OF not required to be filed later appeal was of give plaintiff only required A to is Apo- 22, 2.01. May, 1990. than W.R.A.P. the defen fair notice of his claim 22, May appeal on filed his notice of daca complaint in his motions to dis dant 1990. Plead sparingly granted. miss must be to ings liberally must order construed ISSUES 8(a) parties. the justice do to raises issues: (b); Surety Casualty Johnson Aetna complaint the states a claim 1. Whether 1299, Conn., Hartford, 608 P.2d Co. of malpractice, and whether the medical considering mo (Wyo.1980). a 1302 When dismissing the district erred failure to to dismiss tion 12(b)(6),W.R.C.P. complaint under Rule upon relief can be state a claim which the court erred in district Whether alleged the facts in the granted, Appellees’ consider motions failing to the must be allegations admitted and the W.R.C.P., 12(b)(6), dismiss under Rule to the light in a to viewed most favorable hearing, as mo- orally argued the as Tottenhoff, 666 plaintiff. McClellan v. under Rule summary judgment tions 408, (Wyo.1983);Moxley 414 v. Lara P.2d 56, W.R.C.P. Builders, Inc., 733, (Wyo. 734 mie 600 P.2d the court erred in district 3. Whether 1979). is dismissed Where orally plead allowing to Appellees the claim, the ground that it fails to state a the had not been which affirmative defenses the inform order of dismissal should also im- imposing an argued writing, thus so he plaintiff of the reasons for dismissal surprise the Plaintiff. permissible upon intelligent amend make an choice as to can erred in Whether complaint. Highway Com ing his same, holding plaintiff to se Bourne, 59, (Wyo. P.2d 63 mission v. 425 standards, attorney higher, 1967). would have been. question response, poses In of DISPOSITION properly whether the trial court dismissed nature, dispositive we will Because of its Apodaca’s complaint failure to state a so, doing first. In granted. address Ommen’s issue claim which relief can be another, fully dis the mer this court has nonetheless decision not the case on 5. The to brief prudent, espe posed does not been Louisiana its cially to have of the issues. Fallis v. Pacific reading applicable 1988) 1267, (Wyo. when a of careful Corporation, 1268 763 P.2d clearly the notice rules demonstrates appeal that of so appellant that could make indicated if [court Nonetheless, timely. under our es was showing late good why was filed cause his brief precedents perceive no reason tablished can we brief, but that the court would consider his why the full benefit should receive not any event be appellee would be heard Taylor, P.2d of our decision. 972, 594 Kvenild late]; Nuspl v. cause its brief also filed judg (Wyo.1979) of reversed 978 [benefit 341, (Wyo.1986) Nuspl, [no P.2d n. 2 717 343 party nonappealing because ment to Lanham, appellee]; appearance for Meeker v. intermingled rights parties and inter of so 556, [appellees (Wyo.1979) 557 604 P.2d required justice ests of such cases action]. filed late]. because their brief was heard appellees heard for one reason where were not The four essential reader to the state- elements merely refer the (1) in the district proceedings malpractice are that: there ment of the medical is above, Apo- that court, demonstrates duty plaintiff; the defendant to the owed appeal timely filed. daca’s notice (2) perform failure of the defendant (3) duty; perform duty failure to disposition preface As a (4) proximately damage has caused issues, ad we will Apodaca’s substantive 773, plaintiff. Steger, Fiedler v. prefer entitled to claim that he is dress his Grizzle, (Wyo.1986); and see Harris v. proceeding he is ential treatment because (Wyo.1981). In a theo This court has indi in this matter. sense, retical Kirsch and Ommen had a leniency a certain is accorded cated that duty Apodaca. He an inmate however, se; proper acting pro anyone penitentiary, and the Board of Charities justice requires reason administration statutory, has a as well as a require rules and and Reform adherence to the able Powell, constitutional, City duty provide appropriate the court. Zier v. ments of (Wyo.1974); 15-16; Kost v. 526 P.2d 63 see Wyo. care for him. Const. art. §§ (and Thatch, (Wyo.1989) (July and 25-1-106 W.S. 25-1-104 therein). There is no more ba cases cited Gamble, Repl.); and Estelle v. 429 U.S. see rules than that a requirement sic 97, 97 S.Ct. 50 L.Ed.2d 251 a cause of action. complaint must state fulfilling obligation is One method of that confused the stan Likely, Apodaca has provide adequate medical board litigant in applied to a se a state dards However, Apodaca’s care. fails stringent less stan civil action with the of medical mal on the other three elements applied litigants actions dards allege did not that Kirsch and practice. He See, 42 pursuant U.S.C. § duties; in perform failed to their Rowe, 449 example, Hughes v. U.S. to, deed, trying he refused to they were but 176, 163, 173, 66 L.Ed.2d 169 101 S.Ct. him. permit provide them to treatment 1347, (1980); F.Supp. 475 Hayes Cuyler, v. Thus, perform fail to their they did not 1983, (D.C.Pa.1979); 42 n. 1349 U.S.C.A. § could no resultant dam duties and there (1981). The record in this case does 2188 circum ages Apodaca that the trial court anything not reveal stances. every courtesy and con Apodaca accorded sideration to which he was entitled. appears to as Finally, Apodaca that his states Apodaca asserts by nonconsent to treatment sert that his malpractice, medical causes of action for states a cause of action Kirsch and Ommen treatment for his nonconsent to right treated he has the and that negligence in the gross and Ommen authority states no Wilcox.6 delivery of that treatment. extant The authorities proposition. i.e., one of the inci quite opposite, quickly of these we can The last privi incarceration is loss of dences of Apoda- dispose of it is clear from because the medical care of lege to demand complaint that no treatment has been ca’s of his prisoner’s choice and submission Ommen, be him either Kirsch made practitioners medical needs by them. For cause he refused treatment v. penal institution. U.S. available negligence of the elements of a discussion (1st 39, F.2d 42-43 Cir. DeCologero, 821 Builders, Phillips, Inc. v. 632 see ABC 867, 1987); 783 F.2d 925, Spalding, v. (Wyo.1981). Roberts 930 Moreover, problems are treated non- Apodaca’s most such that one of 6. We note from the record many primary surgically by that a referral to an or- same treatment mod- concerns was Carroll, thopedic surgeon meant that he would be sub- by chiropractors. Or- employed alities intervention, surgical jected A, to some sort of Surgery, pp. 44A- thopedics 11 and Trauma provided external treatments rather than the 1989); (Facts Langone, Chiroprac- on File 50B Although people chiropractor. most suffer a (Addison- Guide, Chs. 6-9 tors: A Consumer’s lives, only problem in their back sometimes 1982). Company Wesley Publishing surgical percent require treatment. about two 944 930, Cir.), denied, management prison (9th 479 U.S. inmates lies in the

870 cert. (1986); 399, prison 93 L.Ed.2d 352 Har Apo 107 S.Ct. hands of administration. Kuhlmann, 1315, F.Supp. 1317 588 ding 338, Rodriguez, daca v. 84 N.M. (S.D.N.Y.1984), by memo n. 8 318, (1972) Crouse, (citing Bethea v. affirmed (2nd Cir.1985); F.2d 990 Ga randum 762 (10th Cir.1969)). any 417 F.2d 504 In Proba Pennsylvania Board hagan v. event, above, holding consistent with our 1326, Parole, F.Supp. tion prison we decline to establish a rule that a Townsend, (E.D.Pa.1978); Coppinger v. particular inmate demand a form of (10th Cir.1968); 392, Cooper F.2d particular treatment or the services of a State, 960-61 97 Idaho provider. health care Cohen, (1976); Rights Pris Gobert Apodaca next claims that the district oners, (Shepard’s/McGraw-Hill 11.10 court should have converted the motions to 181) (and Cum.Supp.). While see summary judgment dismiss to motions for are couched in terms of these decisions Kirsch and affirma- because Ommen raised right being no constitutional to treat there perceive any tive defenses. We do not choice, the inmate’s we hold that ment of pleadings matters outside right to demand the treat an inmate has no presented to and not excluded dis- practitioner or medical of his choice. ment contemplated by trict court as the final prison The failure of the administrator to 12(b). event, any sentence W.R.C.P. itself, treatment, by provide the demanded disposed whether the case is treated as one of action. does not state cause of under W.R.C.P. or as a motion contrary sug A rule somewhat to summary judgment under W.R.C.P. Moran, 618 F.2d gested by Ferranti v. disposition our is the same because (1st Cir.1980) opined, in 890-91 argument produce any would not a result dicta, provide that refusal to an inmate different from that we settled have on. requested type of medical care with Thus, necessary it is not that it be further negligence. may raise a colorable claim of addressed. go say That does not so far as to opinion physi that the is entitled to see the inmate Finally, response Apodaca’s in to cian, chiropractor, pro or other health care erred, argument that the and district choice, suggest it vider of his does that Apodaca surprised prejudice, by to his demands, example, if the inmate to see permitting the trial court’s Kirsch and Om- chiropractor orthopedic rather than an orally argue men to defenses affirmative surgeon request that that should be hon (for example, only say immunity), we need Also, Kerper ored. Hazel and Janeen list that the district court’s decision was that provide refusal the kind of medical care Apodaca’s complaint did not state claims prisoner demanded as one issue that granted upon which relief could and general arises in the area of medical care possibly any prejudice there could not inmates, authority prison but no is cited Apodaca As circumstances. proposition prisoner may that a for the suming, arguendo, that the district particular practitioner. H. Ker demand in in permitting error Kirsch and Om- per Kerper, Legal Rights J. Con worst, error, is, argue, men to so it an (1974). However, at 435 even as victed defect, irregularity or which does variance claim, suming the existence of such a is, thus, rights not affect substantial proper in such a case defendants would harmless. W.R.A.P. 7.04. appear Wyoming to be the warden of the The court’s orders dismiss Penitentiary The Board of Chari specify did not whether Clearly,

ties and Reform. Kirsch and Om- prejudice. or not the dismissal was with proper men are not the defendants for such 41(b) language of W.R.C.P. that, rule, Under the general a claim. We note as a one on the dismissal would to be policy courts follow a “hands off” with merits, pleadings precluding further regard penal to the administration of insti thus However, tutions, recognizing that the care and as to Kirsch and Ommen. compensation question and worker’s benefit entitlement mixed on this authorities appropriate temporary disability payment perceive this as the for a derived do not we with finali- to decide the issue testimony Cheyenne, in which in award from of a case Miller, Wright and A. Federal ty. 9 C. Wyoming chiropractor, Wilcox, See Milo E. 2373, at 238-42 Procedure Practice D.C. wanted to continue treat- unique cir- the somewhat Under Dr. in ment from Wilcox order to continue ease, including, but not cumstances receiving temporary disability total ben- to, did not that the district court limited efits. decision to explanation of its provide only them For reasons known a decision Apodaca either the form of record, certainly apparent from this explanation or in the form of a brief letter appellant and Kirsch wanted themselves, per- do not in the orders by Casper, Wyoming orthope- examined judicata should the dismissals as res ceive treating Cheyenne dic doctor instead of the pleadings Apodaca choose to file additional chiropractor. danger The discontin- matter. compensation injury uance of worker’s ben- the district court dismiss- The orders of appellant efits was self-evident to with the complaint are affirmed. ing the being result that he resisted and then final- ly and Kirsch for denial of his sued Ommen URBIGKIT, C.J., dissenting rights for continuation of examination civil opinion. treating chiropractor. and care Justice, URBIGKIT, dissenting. Chief Rawlins, driving from distance degree may I Although to a reasonable Casper compared Chey- from Rawlins to litigation accept the established idea that notably that a enne was not so different litigant should not be ex- particular cost differential travel generally held to particular advantage but penses certainly not dem- observable performance as those the same standard of onstrated within this record. represented by attorney, a licensed persons by appellant pro se on Suit was filed Markle, (Wyo. P.2d 434 Korkow January to be followed a motion Nicholls, 1987); Nicholls through firm dismiss Ommen one law GP, (Wyo.1986); 679 P.2d 976 Matter of through and a motion to dismiss would, however, strongly I (Wyo.1984), firm. In accord with the Uni- another law if not urge that he or she be a chance the Rules for the District Courts of form Perceiving perhaps equal even an chance. memo- Wyoming, Ommen filed a State of case, in I dissent. a lack of that result 12(b)(6) support to the W.R.C.P. randum actually hap- look at what We should motion: appellees pened one of the two won where filed, except motions Each motion supporting in court without a mo- spe- the summary judgment, shall set out anything, with or oth- tion to dismiss brief the mo- point points cific erwise, prior the beyond a bare motion may accompanied brought, tion is and be hearing litigant and the other now date of No answer brief is by a concise brief. securing in succeeds an affirmation specific mo- required. There will be no in without judgment dismissed this court required, hearing of mo- day. tion When any briefing filed addressing subject the in counsel or request set on tions will be in this court. by the by assignment issued motion Wyo- in Appellant, while incarcerated on Motions be submitted court. brings this civil ming Penitentiary, State not called if desired. All motions against appellees, the medical action se days hea[r]ing within 60 up or set for director, Ommen, R.N., services Janet and denied, automatically filing after will penitentiary, Ar- a contract doctor for the pleading. days then allowed with All started so chie M.D. 301, District Rules for the Rule Uniform simply. Appellant came to the Penitentiary Courts. with an established Following receipt the normal W.R. of both motions to dis- motion followed Each memorandum, appellant 12(b)(6) pur- “failure to state a miss and one form for C.P. diligent protect a effort to by the motion or sued neither defined claim” and litigation. Following interest memorandum in what re- accompanying by 13, February 1990 Ommen dismissal memo- sustained should be gard their contentions randum, appellant February filed on 16 a specific a attack on rather generic as a Directing Pre-Hearing “Motion for Order twenty-three paragraphs. complaint of Argument and Written Memoranda Re- filed Ommen subsequent brief was A 20, scheduling Hearing”; February on he subject a reasonable center on Argument filed a “Motion to Restrict persons in a confined care standard Hearing Upon to Those Issues Which Writ- way in no addressed the penitentiary Argument ten Has Been Submitted compensation evalua- subject of worker’s Response Defendants” and “Plaintiff’s which, course, treatment tion and Dismiss”; Defendants’ Motions to on Feb- by appellant. Kirsch subject presented 21, ruary “Request he filed a for Written supporting his W.R.C.P. less in did even Deposition” testimony to secure of his clearly nothing in did motion Wilcox, treating Dr. medical witness hearing date writ- any way prior to the Supplemental Response De- “Plaintiff’s comply or otherwise to ten memorandum Dismiss”; fendants’ Motions to and on Feb- 301, Rules for the Dis- with Rule Uniform ruary filed a “Notice and Motion copy signed A of a brief trict Courts. Restraining Order” followed the hear- February attorney dated Kirsch’s February held in Rawlins on 1990.1 February mailing certificate of shows Appellant filed a for New then “Motion filing in the record with a 1990 and is found Judgment” Alter Amend the Trial or to 27, 1990, although stamp date hearing the dis- responsive to the at which is not shown the instrument itself judge orally trict had advised that the mo- clerk’s index of instruments district court dismiss would sustained. No tions to origi- Obviously the included in the record. court order was ever entered decision of Casper to nal carried from must have been or Alter or the “Motion for New Trial Rawlins, hearing and, Judgment” consequently, Amend available, since no record of the appeal appellant proceeded further ever, when, way appel- if there is no to tell presently pending this court. Appellant certainly copy. lant received comprehensive brief in copy in advance of the did not receive hearing. addressing the substantive sub- this court scheduled Rawlins March, day provided: dispositive DATED this 5 1. The orders ORDER OF DISMISSAL DEFENDANT JANET ORDER GRANTING having MATTER come before the THIS TO DISMISS OMMEN'S MOTION having be- The above-entitled matter come Archie Kirsch’s Motion to Court on Defendant Janet Ommen’s fore the Court on Defendant parties having appeared in Dismiss and the dismiss, having fully Court motion to counsel; through person the Court or carefully and considered the and motion, reviewed authority having argument and in a heard hearing held on and after 27, 1990; hearing and the Court A.M., 27, 1990, commencing upon at 9:00 being advised of the law and facts of the case thereto, pertinent and be- all matters DOTH FIND: ing fully premises, finds: advised in the Complaint the Plaintiffs fails to 1. That plaintiff's complaint state a That fails to granted upon which relief can be state a claim granted, pur- claim which relief can be necessary allege the elements in that it fails to 12(b)(6), suant to Rule W.R.C.P. malpractice any other cause of of medical or IT IS THEREFORE ORDERED that the action. dismissed; be, is, hereby de- case should be dismissed. 2. That the granted. fendant’s motion to dismiss is IT IS HEREBY OR- NOW THEREFORE plaintiff’s IT IS FURTHER ORDERED that Complaint THAT the Plaintiff's DERED order, restraining motion for and motion to Defendant, M.D. be the Archie argument hearing, restrict and motion for granted. Motion be dismissed and Defendant’s directing argument and re- order scheduling written March, day hereby 1990. DATED this 8 denied. 12(b)(6) dis- originally both W.R.C.P. motion sufficient under jects of the circum- stating four issues: missals event to any stances withstand the W.R. motions, 12(b)(6) states a C.P. the 1. Whether case in its absurd malpractice, for medical and wheth- claim posture does not deserve appellate further dismissing court the district erred in er spent writing hap- time here. What 12(b)(6), complaint under Rule W.R. however, pened, this se litigant is C.P. incomprehensible even to accept- have been erred in 2. Whether district court party might able where each have been failing Appellees’ to consider the motions represented by counsel. 12(b)(6), W.R.C.P., under Rule to dismiss place, In the I first believe the Uniform orally argued hearing, at the as mo- as Rules for the District Courts should be summary Rule judgment tions under enforced within the purpose intended 56, W.R.C.P. State, repealed completely. Osborne v. Whether the district erred in (Wyo.1991) (Nos. 90-66, 806 P.2d 272 allowing orally plead Appellees 2/11/91), C.J., Urbigkit, special- decided affirmative defenses which had not been State, concurring; Phillips v. ly writing, argues imposing thus [sic] C.J., (Wyo.1989), Urbigkit, specially impermissible surprise upon Plaintiff. concurring; Harvey State, 4. Whether the district erred in C.J., (Wyo.1989), Urbigkit, specially concur- same, holding plaintiff ring. Secondly, way there is no proper higher, standards, attorney as an 12(b)(6) the W.R.C.P. motion dismis- would have been. justified sals were ex- without reference to provided also re- Appellant specifically facts, proper trinsic notice for ade- quested brief order of court ad- quate to summary judgment conversion un- dressing appeal. timeliness of his certainly der was provided. W.R.C.P. 56 both and Ommen addressed the timeliness most yet complete One of the concise issue, this time Ommen did not address 12(b)(6) analyses provided W.R.C.P. any way present- the substantive issues Corp. Texas West Oil Gas v. First essence, by appellant. ed sub- Casper, Interstate Bank appellee case to mitted her this court as Thomas, J., (Wyo.1987), dissenting: brief, provided without but this time Kirsch timely argument substantive which he to our “According standard of review provided original had not to secure the will a dismissal of a sustain dismissal order in only if on its it shows face that court.2 plaintiff not entitled to relief set of facts. Johnson v. Aetna Cas any Perhaps permits appel- since this court Surety Hartford, Wyo., replead, analysis ualty Co. of my lant which in recognized secondary purportedly that the State in behalf did file a address- consequent- had not filed a Appellant’s of Ommen brief and the timeliness Notice lacking ly, opportunity for oral Appeal, pursuant to this Court’s June expecting argument and that the case would be order, addressing not filed a brief but has was, by expedited heard docket as it 5.11, appeal). issues of the Pursuant to Rule for order that heard on motion Ommen not be W.R.A.P., Appellee Ommen now adopting appeal and a the appellant’s motion for order Further, appeal. Ap- heard on the as neither proceedings true and statement of pellee Appellant’s has contradicted Rule 4.03 purposes appeal. correct Proceedings, Statement of facts stated thoughtfulness, appellant some stated in With now be considered therein must to be true for his motion: purposes appeal. this of Appellant” filed his "Brief of Wherefore, Appellant moves the Court Proceedings and "Statement of 4.03, Under Rule directing may Appellee Its orders Appel- September W.R.A.P.”on appeal, adopting on the not now be heard brief, respond did file a but did lee Kirsch Appellant’s the facts stated Rule 4.03 State- Appellant’s of Pro- to the ceedings. Appellee Rule 4.03 Statement Proceedings purposes as true of ment of Ommen has not appeal. this responded Appellant’s and has not respond The State did to the motion. Proceedings (Appellee Ommen Statement 948 rights guaran- required (1980). considering ness In 1299 P.2d 608 Const, 1 by Wyo. in the art. and amend- motion, alleged teed the ‘facts

such a Amend- allega ments, including the Fourteenth admitted complaint are light most States Constitution ment to the United be viewed must tions Lara the incarcerated liti- Moxley granted v. plaintiffs.’ even favorable Inc., P.2d Builders, Wyo., proceeds pro 600 se to seek gant when mie reme justice. is a drastic (1979). remedy Dismissal for a claimed denial 734 v. granted. Harris sparingly dy, and is reverse the dis- Consequently, I would (1979).” P.2d 580 Grizzle, Wyo., 599 missals, case back to the district send the al., Associates, et v. Mostert CBL contemplate a more ade- and then P.2d 1092 Wyo., 741 litigant proa quate performance before (Wyo. Twiford, Torrey See denied his search to precipitously 1986). reject I justice. claim legal justified provided made without disposition dismissal reflecting on the amend, op- or even opportunity to support, do with court, know what I do not properly re- litigant portunity contentions rule that repeated our often hearing. I unrepresented now briefing cogent spond at an by proper unsupported affirming the initial decision when non-perform- reject not avail argument should Wyoming, Brown, litigants, P.2d 1338 the State one of Kipp v. ing litigant. respond by appel- Livestock Co. does not even bother (Wyo.1988); Land Jones Omaha, briefing court. to this late Bank v. Federal Land Zanetti, Zanetti (Wyo.1987); I Consequently, dissent. in this We serve (Wyo.1984). in denial represented represent the

case to liti- pro se unrepresented justice P.2d 1338.

gant. Kipp, Cf. justified may not be litigants

Pro se treatment, equal

receipt of favored fair- degree of intrinsic and some

treatment

Case Details

Case Name: Apodaca v. Ommen

Court Name: Wyoming Supreme Court

Date Published: Mar 18, 1991

Citation: 807 P.2d 939

Docket Number: 90-137

Court Abbreviation: Wyo.