This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 ROBERT GENE ROSS, 7 Plaintiff-Appellant, 8

v. NO. 28,773 9 WEXFORD HEALTH SOURCES, INC., 10 WESTERN NEW MEXICO CORRECTIONAL 11 FACILITY, GRACE WALLACE (R/N, WHS), 12 DONNA DEMING (M.D.,WHS), TONY 13 MCCORT (MED. ADMSTR., WHS), FRANCIS 14 MONDRAGON (UNIT MGR. WNMCF), GEORGE 15 TAPIA (WARDEN, WNMCF), 16 Defendants-Appellees. 17 APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTY 18 Camille Martinez Olguin, District Judge 19 Solomon Brown 20 Albuquerque, NM 21 for Appellant 22 Miller Stratvert, P.A. 23 Ruth Fuess 24 James R. Wood 25 Albuquerque, NM 26 for Appellees 272 MEMORANDUM OPINION 1 VANZI, Judge. 2 Plaintiff, Robert Gene Ross, appeals the district court’s grant of summary 3 judgment in favor of the Appellees, Wexford Health Sources, Inc. (WHS), Western 4 New Mexico Correctional Facility (WNMCF), Grace Wallace (R/N, WHS), Donna 5 Deming (M.D., WHS), Tony McCort (Medical Administrator, WHS), Francis 6 Mondragon (Unit Mgr., WNMCF), George Tapia (Warden, WNMCF) (collectively, 7 Defendants). Plaintiff contends that the di strict court erred when it held that res 8 judicata (claim preclusion), based on the federal court’s dismissal of Plaintiff’s federal 9 court claims with prejudice, applies to bar Plaintiff’s claims in the present case. We 10 affirm the district court. 11 BACKGROUND 12 The following facts are undisputed. On November 3, 2006, Plaintiff, a prison 13 inmate in the Western New Mexico Correctional Facility (WNMCF), acting pro se, 14 filed suit against Defendants in the ThirteenthJudicial District Court (State Case). In 15 his complaint, Plaintiff brought claims under the New Mexico Tort Claims Act 16 alleging denial of medical care and medicalnegligence. Plaintiff also alleged 173 violation of federal statutes 42 U.S.C . § 1983 (1986), 42 U.S.C. § 1988 (2000), and 1 42 § U.S.C. 1997 (1980). Plaintiff’s claims were based on his allegations that he 2 sought but was refused medical care for stomach pain between September 12, 2006, 3 and September 14, 2006. 4 In January 2007, Plaintiff filed a lawsuit in the United States District Court for 5 the District of New Mexico (Federal Cas e). This lawsuit named Tony McCort, 6 Wexford Health Sources, Inc., Joe Williams , New Mexico Corrections Department, 7 George Tapia, WNMCF, and John Doe as De fendants. Plaintiff’s complaint in the 8 Federal Case consisted of eighty-fi ve handwritten or copied pages. 9 Plaintiff’s federal complaint is not part of the record in th is case; however, the 10 federal court determined that Plaintiff brought the following four claims in his federal 11 complaint: (1) that from September 12, 2006, through September 14, 2006, Plaintiff 12 was subject to deliberate indifferent medi cal care while incarcer ated at the WNMCF, 13 when he suffered from medical symptoms but was unable to obtain medical care; (2) 14 that he was subject to deliberate indifferent medical care at WNMCF because the 15 medical staff refused to issue him a pair of medical support boots; (3) that he was 16 discriminated against on the basis of race when he was moved from one unit to 17 another unit; and (4) that he suffered a vi olation of his constitutional rights from the 18 overcrowded conditions at WNMCF. 194 The federal court dismissed Plaintiff’s discrimination and constitutional rights 1 claims (claims three and four) with prejudice for failure to state a claim. The court 2 ordered a MartinezReport regarding Plaintiff’s claims of medical indifference (claims 3 one and two). The court determined that the MartinezReport and Plaintiff’s response 4 to the MartinezReport did not establish that Defe ndants were deliberately indifferent 5 to Plaintiff’s medical needs on September 12, 13, or 14, 2006, and therefore, granted 6 summary judgment in Defendants’ favor on claim one. Also based on the Martinez 7 Report, the court determined that Plainti ff had failed to exhaus t his administrative 8 remedies regarding claim two and dismissed that claim without prejudice. 9 On November 30, 2007, De fendants moved for summary judgment in the State 10 Case claiming that the suit was now barred on the basis of claim preclusion based on 11 the grant of summary judgment to Defendants in the Federal Case. Plaintiff filed two 12 pro se responses to Defendants’ motion, af ter which Plaintiff obtained an attorney. 13 Plaintiff’s attorney requested, and was provided, an opportunity to further respond to 14 Defendants’ motion. The district court granted Defendants’ summary judgment 15 motion. Plaintiff is represented by counsel inthis appeal. On appeal, Plaintiff argues 16 the State Case is not barred by claim preclus ion because: (1) the State Case involves 17 different parties than the Federal Case; (2 ) the State Case presents different claims 18 than the Federal Case; and (3) Plaintiff wa s not afforded a full and fair opportunity to 19 litigate his case in federal court. 205 DISCUSSION 1 Standard of Review 2 “An appeal from the grant of a moti on for summary judgment presents a 3 question of law and is reviewed de novo.” Montgomery v. Lomos Altos, Inc. , 2007- 4 NMSC-002, ¶ 16, 141 N.M. 21, 150 P.3d 971 (filed 2006). 5 We also review de novo a district c ourt’s application of claim preclusion. 6 Moffat v. Branch , 2005-NMCA-103, ¶10, 138 N.M. 224, 118 P.3d 732. Federal law 7 determines the preclusive effect of a federal judgment, however, federal law and New 8 Mexico law are not divergent on th e doctrine of claim preclusion. Id. ¶ 11. Therefore, 9 for convenience, in this opinion we rely primarily on New Mexico law. 10 Summary Judgment and Plaintiff’s Dispute of Facts in the State Case 11 Before addressing the issues raised in Plaintiff’s appeal, we first review his 12 response to Defendants’ motion for summary judgment in the district court. Summary 13 judgment is proper and the moving party is entitled to judgment as a matter of law 14 where a controversy presents no genui ne issues of material fact. Roth v. Thompson , 15 113 N.M. 331, 334, 825 P.2d 1241, 1244 (1992). The moving party need only make 16 a prima facie showing that they are entitled to summary judgment. Id. at 334-35, 825 17 P.2d at 1244-45. Upon such a showing, the burden shifts to the party opposing 18 summary judgment to show specific evidentiary facts, in the form of admissible 19 evidence, that require a trial on the merits. Id. “Mere argument or bare contention 206 offered by the opposing party that a material issue of fact exists cannot override the 1 moving party’s prima facie showing.” Estate of Eric S. Haar v. Ulwelling , 2007- 2 NMCA-032, ¶ 10, 141 N.M. 252, 154 P.3d 67. 3 In his response to Defendants’ motion for summary judgment in the State Case, 4 Plaintiff wholly failed to meet his burden of showing evidentiary facts at issue that 5 require a trial on the merits. As the recordindicates, Defendants set forth a list of five 6 undisputed material facts in support of their motion for summary judgment. In 7 undisputed fact number four, Defendants asserted that Plaintiff’s claims in the State 8 Case against all Defendants were based on the same alleged facts and circumstances 9 as claims that were brought in the Federal Case. In undisputed fact number five, 10 Defendants asserted that the federal c ourt found against Plaintiff and dismissed 11 Plaintiff’s claims with prejudice. 12 Plaintiff filed three responses to Defendants’ motion. Plaintiff acted pro se in 13 the first two responses. The third respons e was filed after Pl aintiff had obtained 14 counsel. Plaintiff admits that in his first two responses, he failed to dispute any of 15 Defendants’ undisputed facts. Plaintiff’s third response purported to dispute material 16 facts number four and five; however, Pl aintiff provided no evidence that would 17 support such a dispute. 18 As to undisputed fact number four, Plaintiff merely stated that the complaint he 19 filed in the Federal Case was eighty-five pages long, and th e complaint he filed in the 207 State Case was considerably shorter. This statement in no way addresses whether the 1 claims in the two cases were based on the same alleged facts and circumstances as 2 stated in Defendants’ motion. As to undis puted fact five, Plaintiff does not dispute 3 that the federal court dismissed his claims with prejudice but rather discusses the basis 4 for the federal court’s dismi ssal. Plaintiff’s response to Defendant’s motion does not 5 demonstrate that issues of material fact exist in the case at bar; therefore, summary 6 judgment was appropriate in this matter on this basis alone. Meiboom v. Watson , 7 2000-NMSC-004, ¶ 20, 128 N.M. 536, 994 P.2d 1154 (holding that an appellate court 8 may affirm a district court’s ruling on a ground that was not relie d below if reliance 9 on the new ground would not be unfair to the appellant). 10 Claim Preclusion 11 We next address whether the districtcourt erred when it determined that 12 Plaintiff’s claims in the State Case were barred by claim preclusion based on the 13 federal court ruling. 14 Before addressing the substance of this app eal, we first note that Plaintiff’s brief 15 in chief does not conform to New Mexico Rules of AppellateProcedure, Rule 12- 16 213(A)(4) NMRA, which requires the brie f in chief to provide “citations to 17 authorities, record proper, transcript of proceedings or exhibits relied on.” Plaintiff’s 18 brief contains numerous factual statements, however, the brief does not contain a 19 single citation to the record proper. Additionally, Plaintiff makes a number of general 208 and insufficiently developed arguments and fails to present evidence in support of 1 those arguments. 2 New Mexico appellate courts have cons istently held that where the appellant 3 does not make specific, adequately develope d arguments and cite to the record for 4 evidence and facts in support of those argumen ts, this Court will not search the record 5 or guess at what appellant’s arguments might be. Muse v. Muse , 2009-NMCA-003, 6 ¶ 72, 145 N.M. 451, 200 P.3d 104 (filed 2008) (s tating that an appellate court “will 7 not search the record for facts, arguments , and rulings in order to support generalized 8 arguments”); see Headley v. Morgan Mgmt. Corp. , 2005-NMCA-045, ¶ 15, 137 N.M. 9 339, 110 P.3d 1076 (stating that anappellate court will not review unclear arguments, 10 or guess at what a party’s arguments might be and declining to entertain a cursory 11 argument that relied on several factual assertions that were made without citation to 12 the record). Again, we can affirm the district court’s ruling solely on this basis. See 13 Santa Fe Exploration Co. v. Oil Conservation Comm’n , 114 N.M. 103, 108, 835 P.2d 14 819, 824 (1992) (stating that where a party fails to cite any portion of the record to 15 support its factual allegations, the Court n eed not consider its argument on appeal). 16 The deficiencies in Plaintiff’s brief make it impossible to address many of 17 Plaintiff’s assertions. Nevertheless, we address Plainti ff’s arguments where possible. 18 The purpose of the doctrine of claim preclusion is to promote finality in civil 19 disputes by relieving parties of the burdens of multiple lawsuits, conserving judicial 209 resources, and preventing inconsistent decisions. Computer One, Inc. v. Grisham & 1 Lawless P.A. , 2008-NMSC-038, ¶ 31, 144 N.M. 424, 188 P.3d 1175. “Courts are 2 committed to providing every litigant a full and fair opportunity to sue or defend[, b]ut 3 once a judgment is rendered after such an opportunity, justice requires that there be 4 an end to the litigation.” Ford v. N.M. Dep’t of Pub. Safety , 119 N.M. 405, 409, 891 5 P.2d 546, 550 (Ct. App. 1994). 6 Four elements must be met for claim preclusion to bar a claim: (1) the parties 7 must be the same or in privity in both ac tions; (2) the parties mu st be acting in the 8 same capacity or character in both actions ; (3) the actions must address the same 9 subject matter; and (4) the actions must involve the same claim. Moffat , 2005- 10 NMCA-103, ¶ 11. Additionally, the party against whom claim preclusion is to be 11 applied must have been provided a full and fair opportunity to litigate the claim in the 12 first law suit, and there must have been a final decision on the merits. Guzman v. 13 Laguna Dev. Corp. , 2009-NMCA-116, ¶ 8, ___ N.M.___, 219 P.3d 12, cert. denied , 14 ___-NMCERT-___, ___ N.M. ___, ___ P.3d ___ (No. 31,845, Sept. 14, 2009). 15 Plaintiff’s Argument Regarding Same Parties 16 Plaintiff appears to argue, although somewh at unclearly, that Plaintiff’s State 17 Case is not a claim precluded by the judgment in the Federal Case because two 18 Defendants were named in the State Case, Francis Mondragon and Grace Wallace, 19 that were not named in the Federal Case. Plaintiff argues that the parties, therefore, 2010 are not the same or in privity in the tw o suits. Francis Mondragon is an employee of 1 WNMCF, and Grace Wallace is an employee of WHS. Both WNMCF and WHS were 2 Defendants in the Federal Case. 3 Defendants argue that the liability of WNMCF and WHS in the Federal Case 4 was premised on vicarious liability for th eir employees, including Ms. Mondragon and 5 Ms. Wallace. Therefore, there was privitybetween the employers and their employees 6 in the Federal Case that would act to apply claim preclusion to th e claims against the 7 employees in the State Case. 8 Both federal and New Mexico preclusion law follow theRestatement (Second) 9 of Judgments § 51 cmt. a (1982), regarding claim preclusion and vicarious liability. 10 Ford , 119 N.M. at 409, 891 P. 2d at 550. Under Restatement (Second) of Judgments 11 § 51 cmt. a, the judgment in the Federal Case precludes Plaintiff’s State Case against 12 Francis Mondragon and Grace Wallace if four requirements are met: (1) the liability 13 of Defendants in the Federal Case was based on their vicarious liability for Plaintiff’s 14 claims against Ms. Mondragon and Ms. Wall ace in the State Case; (2) the judgment 15 in the Federal Case precludes a subsequentclaim by Plaintiff against Defendants in 16 the Federal Case for that conduct; (3) Plaintiff’s claim in the St ate Case is based on 17 grounds that Plaintiff could have asserted against Defendants in the Federal Case; and 18 (4) the judgment in favor of Defendants in the Federal Case was not based upon a 19 defense personal to those Defendants. Id. at 409, 891 P.2d at 550. 2011 Plaintiff’s only argument regarding claim preclusion and vicarious liability 1 addresses the fourth requirement set out above. Plaintiff argues that the federal 2 Defendants asserted two defenses in the Fe deral Case that would not be available to 3 the new Defendants in the State Case and, therefore, are defenses personal to 4 Defendants in the Federal Case. Plaintiff states that “[t]he exhaustion of 5 administrative remedies defense, through the grievance procedures, would not be 6 available to Mondragon or Wallace nor w ould the 8th Amendment cruel and unusual 7 punishment defense be available to them.” Plaintiff, however, does not cite to the 8 record to explain these defenses or show where or how these defenses were raised in 9 the Federal Case. Plaintiff also makes no argument regarding why those defenses are 10 personal to Defendants in the Federal Case. As we have noted, it is the duty of the 11 appellant to provide a record adequate to review the issues on appeal, and Plaintiff has 12 failed to do so here. See Dillard v. Dillard , 104 N.M. 763, 765, 727 P.2d 71, 73 (Ct. 13 App. 1986). 14 Plaintiff also cites Gonzales v. Hernandez , 175 F.3d 1202, 1206 (10th Cir. 15 1999), for the proposition that “while governmentemployees are in privity with their 16 employer in their official capacities, they are not in privity in their individual 17 capacities.” However, Plaintiff makes no argument and points to no evidence in the 18 record to show that Ms. Wallace and Ms. Mondragon were acting in their individual 1912 capacities and not in their official capacitie s during the events constituting Plaintiff’s 1 claim. 2 Plaintiff’s Argument Regarding Same Claim 3 Plaintiff next argues that the Federal Case and the State Case present different 4 claims. New Mexico courts use a three-step analysis to determine if two lawsuits 5 involve the same claims. In applying this analysis, “(1) we assess the relatedness of 6 the facts in time, space, origin, or motivation; (2) we determine whether the facts, 7 taken together, form a convenient unit for trial purposes; and (3) we consider whether 8 the treatment of the facts as a single unit conforms to the parties’ expectations or 9 business understanding or usage.” Moffat , 2005-NMCA-103, ¶ 18 (internal quotation 10 marks and citation omitted). 11 We interpret Plaintiff’s arguments th at the State Case and the Federal Case 12 present distinct claims to be the following: (1) Plaintiff is basing the suit in the State 13 Case on a different legal theory than the legal theory upon which he based the suit in 14 the Federal Case; (2) the operative facts in the two cases are unrelated; (3) the medical 15 negligence claims in the State Case and the civil rights cl aims in the Federal Case do 16 not make a convenient trial unit; and (4) Pl aintiff did not expect that the State Case 17 would be precluded by the results of the Fe deral Case. We find these arguments to 18 be without merit. 1913 In analyzing whether two claims are the same for preclusion purposes, our 1 Court in Moffat noted that the separateness of two cl aims is evaluated in factual terms, 2 based on whether the claims share a “comm on nucleus of operativ e facts,” regardless 3 of the “legal theories raised or re lief sought.” 2005-NMCA-103, ¶ 17 (internal 4 quotation marks and citation omitted). Us ing this same analysis, we find that 5 Plaintiff’s presentation of different legal theories in the State and Federal Cases is 6 irrelevant to the determinati on of whether the claims presen ted in the two cases are the 7

same. 8 Plaintiff fails to cite any evidence in the record to support his contention that 9 the operative facts in the tw o cases are sufficiently different to constitute separate 10 claims; however, Plaintiff does make numer ous allegations in his brief in chief 11 regarding operative facts that were not raised below in his complaint and are not 12 supported by the record. We decline to consider these allegations and note that 13 “reference to facts not before the district court and not in the record is inappropriate 14 and a violation of our Rule s of Appellate Procedure.” Durham v. Guest , 15 2009-NMSC-007, ¶ 10, 145 N.M. 694, 204 P.3d 19. 16 We find Plaintiff’s remaining two arguments impossible to address based on the 17 record before us. Plaintiff makes several allegations regarding the lack of overlap of 18 evidence and witnesses in the two lawsu its; however, because the record does not 1914 contain a copy of the complaint from the Fe deral Case and Plaintiff does not cite to 1 evidence in the record to support his clai m, we decline to address his argument. 2 Plaintiff’s Argument Regarding Full and Fair Opportunity to Litigate 3 Finally, Plaintiff appears to argue that he did not have a fu ll and fair opportunity 4 to litigate his claim in the Fe deral Case. We interpret Plaintiff’s arguments regarding 5 this issue to be as follows: (1) that the Martinez Report ordered by the federal court 6 painted an “unflattering picture” of Plainti ff; (2) Plaintiff was disadvantaged in the 7 Federal Case because he was acting pro se; and (3) Defendants misrepresented facts 8 in the Federal Case. 9 The MartinezReport is not included in the record before this Court and, 10 therefore, we will not consider Plai ntiff’s allegations regarding it. See Fed. Nat’l 11 Mortgage Ass’n v. Rose Realty, Inc. , 79 N.M. 281, 281-82, 442 P.2d 593, 593-94 12 (1968) (stating that this Court will not cons ider references to materials not included 13 in the record and properly certified by the clerk of the district court). 14 As to Plaintiff’s contention that he was disadvantaged by appearing pro se, we 15 note that the federal court specifically found that Plaintiff had a lengthy history of pro 16 se lawsuits both in federal and state court and, therefore, was experienced at 17 representing himself. The federal court alsonoted that Plaintiff was able to present 18 his arguments in a manner that enabled the court to understand his pleadings. The 19 federal court stated that Plaintiff represented himself in a capable manner and that the 2015 assistance of counsel would not materially affect the court’s analysis of his claims or 1 alter the court’s recommendations. 2 Because Plaintiff cites no evidence to support his claim that Defendants 3 misrepresented facts in the Federal Case, we decline to address this allegation. 4 In summary, we reiterate that Plaintiff has not met his burden on appeal to 5 demonstrate error by the district court through discussion of the facts and presentation 6 of arguments based on those facts. BecausePlaintiff does not develop his arguments 7 or point to any evidence in the record to support his arguments, we rely on the district 8 court’s decision in this matter. See Farmers, Inc., v. Dal Mach. & Fabricating, Inc. , 9 111 N.M. 6, 8, 800 P.2d 1063, 1065 (1990) (“Th e presumption upon review favors the 10 correctness of the trial court’s actions. Appellant must affirmatively demonstrate its 11 assertion of error.”). 12 CONCLUSION 13 For the reasons set forth above, we affirm the district court’s order granting 14 summary judgment in favor of Defendants. 15 IT IS SO ORDERED. 16

__________________________________ 17 LINDA M. VANZI, Judge 18 WE CONCUR: 1916 _________________________________ 1 RODERICK T. KENNEDY, Judge 2

_________________________________ 3 MICHAEL E. VIGIL, Judge 4