 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
 3   also note that this electronic memorandum opinion may contain computer-generated errors or other
 4   deviations from the official paper version filed by the Court of Appeals and does not include the
 5   filing date.

 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 JOHN GROH,

 8          Plaintiff-Appellant,

 9 v.                                                                                  NO. 30,719

10   CITY OF AZTEC, COUNTY OF
11   SAN JUAN, TOM HAVEL, JIM
12   CALHOUN, SJCDC SERGEANTS
13   SMART and MARTINEZ, and
14   SJCDC OFFICER RUTLEDGE,

15          Defendants-Appellees.

16 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
17 Thomas J. Hynes, District Judge

18 John Groh
19 Roswell, NM

20 Pro Se Appellant

21   Klecan & Childress
22   Ronald J. Childress
23   Elaine R. Dailey
24   Albuquerque, NM

25 Brennan & Sullivan PA
26 Michael W. Brennan
27 Santa Fe, NM
1 for Appellees




                  2
 1                             MEMORANDUM OPINION

 2 VIGIL, Judge.

 3        Plaintiff filed suit based on his claim of neglect after he was detained pursuant

 4 to a bench warrant. We issued two calendar notices proposing to affirm. We have

 5 received memoranda in opposition to both notices. We have duly considered

 6 Plaintiff’s arguments, but we find them unpersuasive. We affirm.

 7        Plaintiff continues to claim that he was entitled to a jury instruction on

 8 negligence per se regarding his right to a telephone call and that he was entitled to an

 9 instruction on loss or destruction of evidence. In our calendar notice, we explained

10 that Plaintiff had not demonstrated harm or injury of the general type that was to be

11 prevented by the statute granting a right to a telephone call. Plaintiff was required to

12 demonstrate injury and to show that his injuries were caused by Defendants’ wrongful

13 conduct in violating the statute. See Johnstone v. City of Albuquerque, 2006-NMCA-

14 119, ¶ 18, 140 N.M. 596, 145 P.3d 76. Plaintiff cannot simply allege harm or injury.

15 See Acosta v. City of Santa Fe, 2000-NMCA-092, ¶ 15, 129 N.M. 632, 11 P.3d 596.

16 In response to our explanation, Plaintiff again points to his allegations of various

17 problems he claims to have experienced as a result of the violation of the statute

18 including, lost muscle mass, inability to sleep, and loss of enjoyment. [MIO 2-4] An

19 assertion of prejudice is not a showing of prejudice, In re Ernesto M., Jr., 1996-


                                              3
 1 NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318. We hold that Plaintiff did not

 2 demonstrate that he suffered harm or injury.

 3        Plaintiff also claims that, while he was testifying, he was cut off and interrupted

 4 by the district court. There is nothing to indicate that his claims are supported by the

 5 record. State v. Reynolds, 111 N.M. 263, 267, 804 P.2d 1082, 1086 (Ct. App. 1990)

 6 (“Matters outside the record present no issue for review.”). In fact, as discussed by

 7 Plaintiff, during his testimony, the district court only reminded Plaintiff to refer to

 8 relevant facts and to limit argument to closing. The district court must exercise

 9 reasonable control over the interrogation of witnesses and the presentation of

10 evidence. Rule 11-611 NMRA. Admission of evidence is within the discretion of the

11 district court. See State v. Worley, 100 N.M. 720, 723, 676 P.2d 247, 250 (1984).

12 Plaintiff has not demonstrated error by the district court.

13        In our calendar notice, we proposed to agree with the district court’s decision

14 to dismiss Plaintiff’s claim of destruction of evidence on grounds that Plaintiff failed

15 to state a claim. We explained that, if matters outside the pleadings are considered,

16 on a motion to dismiss for failure to state a claim, the motion becomes a motion for

17 summary judgment. Knippel v. N. Commc’ns, Inc., 97 N.M. 401, 402, 640 P.2d 507,

18 508 (Ct. App. 1982). We concluded that Plaintiff had failed to show that the failure

19 to preserve booking tapes caused him damage or prevented him from presenting a


                                               4
 1 defense. In response, Plaintiff states that, because the tapes were lost, he could not be

 2 sure about the identity one of those he made claims against and he “would probably

 3 have prevailed” [MIO 9] on one claim if he had the tapes to make a positive

 4 identification. Plaintiff also claims that the tapes “would disprove” the defenses, and

 5 would show whether he had shoes, whether he had been given telephone calls, and

 6 whether he was fed. [MIO 10] Again, these are only assertions and cannot be used

 7 to show prejudice or harm. Moreover, Plaintiff was available to testify about the

 8 person he claims was laughing at him and was available to testify about his other

 9 claims. Plaintiff has not demonstrated that he was harmed by the loss of the tapes.

10        For the reasons discussed in this opinion and in our two calendar notices, we

11 affirm.

12        IT IS SO ORDERED.


13                                          __________________________________
14                                          MICHAEL E. VIGIL, Judge
15 WE CONCUR:


16 _________________________________
17 JAMES J. WECHSLER, Judge



18 _________________________________
19 LINDA M. VANZI, Judge


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