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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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 NANCY LEWIS, 7 Plaintiff-Appellant, 8

v. NO. 29,607 9

ANTHONY SENA, JOSE GRIEGO, et al., 10 Defendants-Appellees. 11

APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA 12 Sheri A. Raphaelson, District Judge 13 Nancy Lewis 14 Espanola, NM 15 Pro Se Appellant 16 Long, Pound & Komer, P.A. 17 Little V. West 18 Santa Fe, NM 19 for Appellee 20 MEMORANDUM OPINION 21 BUSTAMANTE, Judge. 222 Plaintiff appeals from this dismissal of her complaint. We issued a notice of 1 proposed summary disposition, proposing to affirm. Plaintiff has filed a combined 2 motion to amend the docketing statemen t and memorandum in opposition, together 3 with a “proposed amended docketing statement” which we shall treat as an aspect of 4 the memorandum in opposition. After due c onsideration, we remain unpersuaded by 5 Plaintiff’s arguments. We therefore affirm. 6 Plaintiff contends that her complaint was improperly dismissed. [DS 1-4; PADS 7 1-6] We briefly reiterate the applicable st andards as follows. “A motion to dismiss 8 tests the legal sufficiency of the complaint.” Lohman v. Daimler-Chrysler Corp. , 9 2007-NMCA-100, ¶ 4, 142 N.M. 437, 166 P.3d 1091. “When th e plaintiff is pro se, 10 the pleadings must tell a story from which th e essential elements prerequisite to the 11 granting of the relief sought can befound or reasonably inferred.” Griffin v. Thomas , 12 1997-NMCA-009, ¶ 8, 122 N.M. 826, 932 P.2d 516. “A complaint should not be 13 dismissed [for failure to state a claim] unl ess there is a total failure to allege some 14 matter essential to the relief sought.” Lohman , 2007-NMCA-100, ¶ 4. In this context, 15 “we accept all well-pleaded facts as true and evaluate whether the claimant could 16 prevail under any state of facts which might be proven in accordance with the 17 allegations of the complaint.” Id. 183 In her original complaint, Plaintiff did not clearly identify which cause or 1 causes of action she was pursuing. [RP 1-3] However, the title referred to 2 “misrepresentation, lying, [and] dashing career.” [RP 1] We are unaware of any cause 3 of action for “dashing career” as such. Reading the complaint as broadly as possible, 4 we will treat it is attempting to state a claim for misrepresentation. 5 Misrepresentation may form a basis for a valid tort claim, either as fraud or as 6 negligent misrepresentation. A claim of e ither variety requires a false statement. See 7 UJI 13-1632 NMRA (describing the elements of negligent misrepresentation); UJI 8 13-1633 NMRA (describing the elements of fraud); Cain v. Champion Window Co. 9 of Albuquerque, LLC , 2007-NMCA-085, ¶ 22, 142 N.M . 209, 164 P.3d 90 (observing 10 that, to recover in fraud, a claimant must es tablish that he or she suffered damages that 11 were proximately caused by justifiabl e reliance on a misrepresentation). 12 Plaintiff’s complaint does not contain any allegation of a false statement. [RP 13 1-3] It merely indicates that Plaintiff received a copy of a memo. [RP 1-3] That memo 14 was addressed to “Adjunct facu lty,” and indicated generallythat orientation would be 15 taking place to assist part-time faculty inpreparing for the upcoming semester. [RP 16 23] Nothing contained within that memo appears to have been objectively untrue. 17 Although Plaintiff argues the memo “ became a false statement when [it was] mailed 18 to [her],” [PADS 2, emphasis in original , footnote omitted] we disagree. The memo 194 did not affirmatively state that Plaintiff w ould receive class assignments; as Plaintiff 1 acknowledged, she merely “assumed” that th is was the case. [RP 1] The fact that 2 Plaintiff may have drawn unwarranted in ferences from the memo does not render its 3 contents false. 4 In light of this deficiency, the di smissal of Plaintiff’s complaint was 5 appropriate. See Lohman , 2007-NMCA-100, ¶ 4 (observing that dismissal is 6 appropriate where there has been a total failure to allege so me essential matter). 7 However, we note that the Tort Claims Act supplies an additional and independent 8 basis for the district court’s ruling. [RP 54] 9 “Generally, the Tort Claims Act provides governmental entities and public 10 employees acting in their official capacities with immunity from tort suits unless the 11 Act sets out a specific waiver of that immunity.” Weinstein v. City of Santa Fe ex rel. 12 Santa Fe Police Dep’t , 121 N.M. 646, 649, 916 P.2d 1313, 1316 (1996). Insofar as 13 Defendants’ conduct, as alleged in the co mplaint, occurred in relation to activities 14 undertaken in their official capacities as pub lic employees, the Tort Claims Act would 15 appear to apply. 16 Below, Plaintiff identified no specific waiver of immunity in support of her 17 claim. Instead, she cited NMSA 1978, S ection 41-4-4 (2001), which is the provision 18 granting governmental immunity. [RP 30] See Electro-Jet Tool & Mfg. Co. v. City of 195 Albuquerque , 114 N.M. 676, 682, 845 P.2d 770, 776 (1992) (“Section 41-4-4 grants 1 a governmental entity and any public empl oyee acting within the scope of duty 2 immunity from liability for any tort excep t as waived elsewhere in the Act.”). 3 Plaintiff has never taken the position that any of the ensuing provisions, which 4 establish waivers in a variety of circumstances, should apply. 5 In her docketing statement, Plaintiff argued that Section 41-4-4(E) supplies a 6 waiver of immunity for the fraudulent and malicious acts of public employees. [DS 7 2] However, this is an indemnity provi sion, which “permit[s] the state to recover 8 defense and settlement costs from employees who have ‘acted fraudulently or with 9 actual intentional malice.’” Celaya v. Hall , 2004-NMSC-005, ¶ 25, 135 N.M. 115, 10 85 P.3d 239. It does not supply a waiver of immunity as against claims by third 11 parties such as Plaintiff. To the contrary, as specified in Section 41-4-4(A), only 12 Sections 41-4-5 through 41-4-12 of the Act supply waivers of immunity. 13 In her memorandum in opposition, Plain tiff now argues that the individual 14 Defendants should not be able to claim i mmunity because their conduct was unlawful, 15 such that it falls outside the scope of their employment. [PADS 3] Contrary to 16 Plaintiff’s suggestion, however, the factthat a public employee’s conduct may have 17 been improper does not automatically take it out side the course and scope of his or her 18 employment. See Seeds v. Lucero , 2005-NMCA-067, ¶ 10, 137 N.M. 589, 113 P.3d 196 859 (“Our case law establishes that a publicemployee may be within the scope of 1 authorized duty even if the employee’s act s are fraudulent, intentionally malicious, or 2 even criminal.”) (emphasis omitted). As a re sult, Plaintiff’s failure to demonstrate that 3 a waiver of immunity should apply remains a fatal deficiency. 4 Finally, we turn to Plaintiff’s motion to amend the docketing statement. Such 5 a motion will only be granted upon a showing that the supplemental issue is viable. 6 See State v. Moore , 109 N.M. 119, 128-29, 782 P.2d 91, 100-01 (Ct. App. 1989) 7 (providing that issues sought to be presented must be viable). By her motion to 8 amend, Plaintiff appears to seek to argue th at the district court erred in effectively 9 denying her motion to amend her complaint. For the reasons that follow, we conclude 10 that this issue is not viable. We therefore deny the motion. 11 “A district court's denial of a motion to amend is reviewed under an abuse of 12 discretion standard.” Alliance Health of Santa Teresa, In c. v. Nat’l. Presto Indus., Inc. , 13 2007-NMCA-157, ¶ 26, 143 N.M. 133, 173 P.3d 55. The denial of a motion to amend 14 a complaint does not constitute an abuse of discretion where the amendment would 15 have been futile. Id. (citing Stinson v. Berry , 1997-NMCA-076, ¶ 11, 123 N.M. 482, 16 943 P.2d 129). 17 We have reviewed Plaintiff’s proposedamended complaint, [RP 30-34] and 18 conclude that the amendment would not have remedied the deficiencies associated 197 with the original complaint. Although the amended complaint contains more factual 1 detail, the supplemental material does no mo re to supply the essentials than the 2 original complaint. No objectively false st atement is alleged and no basis for a waiver 3 of immunity is suggested. [RP 30-34] Because the amended complaint was no more 4 capable of withstanding a motion to dismiss than the original complaint, the 5 amendment would have been fu tile. We therefore conclude that the district court’s 6 implicit denial of the motion to amend was well within its discretion. 7 For the reasons stated above and in th e notice of proposed summary disposition, 8 we affirm. 9 IT IS SO ORDERED. 10
11 MICHAEL D. BUSTAMANTE, Judge 12 WE CONCUR: 13

14 JONATHAN B. SUTIN, Judge 15

16 LINDA M. VANZI, Judge 17