                                                  I attest to the accuracy and
                                                   integrity of this document
                                                     New Mexico Compilation
                                                   Commission, Santa Fe, NM
                                                  '00'05- 10:44:12 2014.02.06
Certiorari Denied, January 17, 2014, No. 34,282

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2014-NMCA-018

Filing Date: July 16, 2013

Docket No. 31,130

DR. CHITRA BHANDARI,

       Plaintiff-Appellee,

v.

ARTESIA GENERAL HOSPITAL and
VHA SOUTHWEST COMMUNITY
HEALTH CORPORATION,

       Defendants-Appellants.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
J. Richard Brown, District Judge

Civerolo, Gralow, Hill & Curtis, P.A.
Lisa Entress Pullen
Angela Chavez-Adkins
Albuquerque, NM

for Appellee

Greenberg Traurig, LLP
Mary-Olga Lovett
Houston, TX

Sandenaw Law Firm, P.C.
Thomas A. Sandenaw, Jr.
CaraLyn Banks
Las Cruces, NM

for Appellants

                                        OPINION

                                           1
KENNEDY, Chief Judge.

{1}      Plaintiff Dr. Chitra Bhandari (Bhandari) and her husband were both doctors at
Artesia General Hospital (the Hospital). At a meeting to terminate her husband from the
Hospital, Bhandari was told that her husband would be allowed to resign if she did so as well
and, if she did not, he would be fired. She was not the subject of any personnel action by the
Hospital. Prior to the meeting, the Hospital’s general counsel had prepared a memorandum
concerning the termination process and scripting the matter of forcing Bhandari’s
resignation. The district court ruled that the memorandum was not privileged and therefore
discoverable and admitted the memorandum into evidence. The Hospital appeals the district
court’s ruling regarding the memorandum.

{2}     Additionally, the district court, relying in part on the memorandum in question, found
that the Hospital had maliciously and willfully breached its contract with Bhandari by using
her husband’s situation to pressure her to resign, even though she was not the subject of any
personnel action. The district court awarded her compensatory and punitive damages. As
we determine that the memorandum constitutes unprivileged business advice, and the district
court did not err in admitting or considering it, we affirm the district court. The district court
correctly assessed the basis for its award of damages, and we also affirm the district court’s
award of punitive damages.

I.      BACKGROUND

{3}    Bhandari and her husband accepted positions at the Hospital in March 2005. The
Hospital is operated by VHA Southwest Community Health Corporation (the Corporation),
which leased the Hospital facility from the Artesia Special Hospital District. The
Corporation employed Kenneth Randall as the Chief Executive Officer of the Hospital. It
also employed David Butler, who served as Senior Vice President and General Counsel for
the Corporation.

{4}     The Hospital began to investigate Bhandari’s husband in the summer of 2006.
Randall, Butler, and attorneys from Butler’s legal department were involved in the
investigation. They concluded that her husband had violated his contract and determined the
Hospital should terminate him. The Hospital scheduled a meeting to discuss the termination.

{5}      On September 26, 2006, the meeting took place between Bhandari, her husband,
Randall, and Butler. Randall had staff summon both Bhandari and her husband to the
meeting. The parties dispute the substance and tone of the meeting. Randall and Butler
testified that the meeting was businesslike and resulted in Bhandari and her husband
agreeing to resign independent of the terms of their individual separation agreements.
Bhandari testified that there was much conflict at the meeting, and Butler and Randall told
her they would terminate her husband for cause unless she accepted the “[s]eparation
[a]greement” herself. A draft of the separation agreement was given to Bhandari at this

                                                2
meeting by Butler and Randall.

{6}    Prior to Butler’s arrival for the termination meeting, he and his staff had created the
disputed memorandum containing “talking points” to prepare for the meeting with Bhandari
and her husband. This memorandum was essentially a script designed to direct the
Hospital’s representatives toward their goal of forcing Bhandari’s resignation, although the
Hospital had no reason to do so apart from its desire to rid itself of both Bhandari and her
husband. The parties dispute whether the memorandum constitutes legal or business advice,
and whether it was used during the meeting.

{7}    The district court found that the termination of Bhandari and her husband was
planned “well in advance.” Butler testified that his goal in going to Artesia was to “seek and
obtain” Bhandari’s resignation. Bhandari and her husband closed their practices at the
Hospital immediately after the meeting.

{8}      Bhandari sued the Hospital and the Corporation for breach of contract, economic
coercion/bad faith, and misrepresentation. Bhandari sought to use the memorandum as
evidence. During discovery, the Hospital claimed that the memorandum was shielded by the
attorney-client privilege. The district court ruled that the privilege did not apply and that the
memorandum was discoverable, along with other documents pertaining to her, but not her
husband’s, separation from the Hospital. The district court found that Butler’s involvement
and communications setting up the separation of Bhandari were materially different from the
investigation leading to the termination of her husband and facilitated business-related
decisions, while his involvement with her husband’s separation primarily amounted to legal
advice. The Hospital again claimed the privilege when Bhandari tried to admit the
memorandum at trial, and the district court again ruled that the document was unprivileged
and admitted it. At the conclusion of the bench trial, the district court awarded Bhandari
compensatory damages for the Hospital’s breach of her contract, representing her lost salary
and benefits over the remaining life of her contract in the amount of $194,048.05. The
district court also awarded punitive damages in the same amount as the compensatory
damages award. The Hospital appealed.

II.     DISCUSSION

A.      The Memorandum Was Not Privileged

{9}    “Generally, we review discovery orders for abuse of discretion.” Santa Fe Pac. Gold
Corp. v. United Nuclear Corp., 2007-NMCA-133, ¶ 9, 143 N.M. 215, 175 P.3d 309. The
burden is on the party claiming the privilege to show that the communication falls within its
scope. Id. ¶ 13. “Although a misapplication of the law is considered an abuse of discretion,
our courts review de novo the initial decision of whether the correct legal standard has been
applied.” Brooks v. Norwest Corp., 2004-NMCA-134, ¶ 7, 136 N.M. 599, 103 P.3d 39.
“Accordingly, we may characterize as an abuse of discretion a discretionary decision that
is premised on a misapprehension of the law.” N.M. Right to Choose/NARAL v. Johnson,

                                               3
1999-NMSC-028, ¶ 7, 127 N.M. 654, 986 P.2d 450 (alteration, internal quotation marks, and
citations omitted); Aragon v. Brown, 2003-NMCA-126, ¶ 9, 134 N.M. 459, 78 P.3d 913
(“[T]he trial court abuses discretion when . . . its discretionary decision is premised on a
misapprehension of the law.”). Upon review, we conclude that the evidence in this case
supports the district court’s determination that the memorandum in question is business
advice and does not fall under the privilege Defendants claimed. Therefore, the district court
did not abuse its discretion.

{10} The attorney-client privilege is designed to permit clients to keep communications
with their attorneys confidential, so they may freely seek legal advice. 1 Paul R. Rice,
Attorney-Client Privilege in the United States § 2:1, at 6 (2d ed. 1999). The rule is intended
to operate by encouraging clients to disclose more information to their attorneys. Id. § 2:3,
at 14-15. When clients are uninhibited by the fear of their statements to an attorney
becoming evidence, an attorney may provide more thorough and accurate legal advice. Id.;
Hunt v. Blackburn, 128 U.S. 464, 470 (1888); Gregory C. Sisk & Pamela J. Abbate, The
Dynamic Attorney-Client Privilege, 23 Geo. J. Legal Ethics 201, 215 (2010) (“The
confidential nature of the attorney-client relationship is the foundation for everything the
lawyer does.”).

{11} Rule 11-503 NMRA governs the scope of the attorney-client privilege in New
Mexico. The rule states that “[a] client has a privilege to refuse to disclose and to prevent
any other person from disclosing confidential communications made for the purpose of
facilitating the rendition of professional legal services to the client[.]” Rule 11-503(B).
“The elements of attorney-client privilege . . . are . . . a communication . . . made in
confidence . . . between privileged persons . . . for the purpose of facilitating the attorney’s
rendition of professional legal services to the client.” Santa Fe Pac., 2007-NMCA-133, ¶
14. The question in this case turns on the final factor—whether Butler was providing legal
services to his client, the Hospital, when creating the memorandum.

{12} The parties do not dispute that a client may “refuse to disclose confidential
communications between certain persons if the communications were made for the purpose
of acquiring legal advice for the client.” Id. ¶ 13. “The privilege protects communications
generated or received by an attorney giving legal advice but does not protect
communications derived from an attorney giving business advice or acting in some other
capacity.” Id. ¶ 23. Attorneys for businesses also provide non-legal services, such as
“negotiating contracts, analyzing potential corporate transactions, and investigating potential
claims.” Sisk, supra, at 210 (internal quotation marks and citations omitted).

{13} This Court in Santa Fe Pacific foresaw the complications arising from the dual nature
of an in-house attorney, such as Butler, who may provide his client with both legal and
business advice. 2007-NMCA-133, ¶ 27 (“Application of the privilege can be difficult when
the client is a corporation seeking legal advice regarding a business transaction and when
the client’s attorney is in-house counsel who wears ‘two hats’ by performing a dual role of
legal advisor and business advisor.” (citation omitted)). We relied on Duplan Corp. v.

                                               4
Deering Milliken, Inc., which stated more specifically that “the attorney-client privilege does
not attach where the . . . attorney is giving technical or business, as opposed to legal,
advice.” 397 F. Supp. 1146, 1167 (D.S.C. 1974).

{14} Bhandari’s position is that Butler’s role in her separation from the Hospital involved
no legal advice, and the memorandum was solely business advice. Bhandari also claims that
because the memorandum replicated testimony already admitted at trial, it could not be
prejudicial even if wrongly admitted. She rightly points out that the burden is on the party
claiming the privilege to prove the communication is confidential. The district court’s
findings support this position. The district court clearly distinguished between Butler’s role
in investigating Bhandari’s husband to support his termination for cause and Butler’s actions
to secure Bhandari’s separation when no reason existed to terminate her. The district court
ultimately found that the amount of planning undertaken to secure the resignation of
Bhandari without cause, and Butler’s admission that he attended the meeting specifically to
secure that result, both supported a business purpose divorced from any legal concern when
it came to Bhandari.

{15} There is scant New Mexico law distinguishing legal advice from business advice, and
the district court recognized the difficulty in applying the privilege. Both parties cite
Gingrich v. Sandia Corp., 2007-NMCA-101, 142 N.M. 359, 165 P.3d 1135. In that case,
Sandia hired an outside attorney to investigate alleged wrongdoing inside the corporation.
Id. ¶ 3. Both attorney-client privilege and work-product immunity were at issue, and we
concluded that the disputed documents were protected because the investigation was
conducted in anticipation of litigation. Id. ¶ 11. This reasoning reflects work-product
protections and parallels the district court’s reasoning in its discovery order and later
findings regarding the Hospital’s position relative to terminating Bhandari’s husband. See
id. ¶ 9. However, because Gingrich is rooted in work-product immunity, rather than
attorney-client privilege, as well as our determination that attorney-client privilege was
waived, it provides meager guidance for Bhandari’s situation. Id. ¶ 20.

{16} Although New Mexico has not defined the contours of when the privilege may be
invoked for in-house counsel who provide both legal and business advice, other jurisdictions
have settled that

       [i]f the primary purpose of a communication is to solicit or render advice on
       non-legal matters, the communication is not within the scope of the attorney-
       client privilege. Only if the attorney is “acting as a lawyer” giving advice
       with respect to the legal implications of a proposed course of conduct may
       the privilege be properly invoked. In addition, if a communication is made
       primarily for the purpose of soliciting legal advice, an incidental request for
       business advice does not vitiate the attorney-client privilege.

Hercules, Inc. v. Exxon Corp., 434 F. Supp. 136, 147 (D. Del. 1977); see In re Cnty. of Erie,
473 F.3d 413, 421 (2d Cir. 2007); Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 152 F.R.D.

                                              5
132, 137 (N.D. Ill. 1993); United States v. Int’l Bus. Machs. Corp., 66 F.R.D. 206, 212
(S.D.N.Y. 1974); Oil Chem. & Atomic Workers Int’l Union (OCAWIU) v. Am. Home Prods.,
790 F. Supp. 39, 41 (D.P.R. 1992) (“Even though in[-]house counsel may also benefit from
the attorney-client privilege, it must be in situations where legal and not technical advice is
at issue.”); Upjohn Co. v. United States, 449 U.S. 383, 396 (1981).

{17} We agree with the analysis by these other courts and conclude that “[a]n in-house
counsel’s communications regarding business matters, management decisions, and business
advice, which neither solicit or predominantly deliver legal advice, are not privileged.”
Anaya v. CBS Broad., Inc., 251 F.R.D. 645, 650 (D.N.M. 2007). However, “[t]he law
provides no standards beyond these generalities for distinguishing legal from non[-]legal
advice.” 1 Rice, supra, § 7:9, at 68.

{18} We find Lindley v. Life Investors Insurance Co. of America particularly useful for its
analysis of how to untangle an in-house attorney’s legal and business advice. 267 F.R.D.
382 (N.D. Okla. 2010). The court in Lindley acknowledged that an in-house attorney is
frequently presumed to be providing business advice, while outside counsel is presumed to
provide legal advice, but it does not base its decision solely on that distinction. Id. at 390-
91. Besides the status of the attorney, the court considered the nature of the advice given,
the context, content, and purpose of the communication when determining whether the
communication was legal advice. Id. at 391. If the communication involves both business
and legal issues, the court must determine the “primary or predominate purpose” of the
communication. 1 Rice, supra, § 7:5, at 44. The Lindley court explained a balancing test
for when the legal and business purposes are “inextricably intertwined” when the primary
purpose cannot be ascertained, “the entire communication is privileged only if the legal
purpose outweighs the business purpose.” 267 F.R.D. at 392. In short, a court faced with
a situation where the primary purpose of a communication is not clearly legal or business
advice should conclude the communication is for a business purpose, unless evidence clearly
shows that the legal purpose outweighs the business purpose.

{19} Against this backdrop, we examine the district court’s treatment of the memorandum
in this matter to determine whether its primary purpose was to provide legal advice. At the
outset, we note again that only Bhandari’s husband was being terminated. Bhandari was not
the subject of any personnel action, yet was summoned to a meeting at which the Hospital
had planned to execute a plan to force her to resign, so as to remove them both from its
employ. Although the memorandum bears a heading that states it is “[c]onfidential [and]
subject to attorney-client privilege,” it is essentially a script for securing Bhandari’s
resignation, couched as “[t]alking points for termination interview with . . . Bhandari [and
her husband].” In no particular detail, it outlines that Bhandari’s husband would be
terminated for cause, the reasons why the Hospital believed he had breached the contract,
and the process by which they would both leave their jobs. The memorandum states that,
if the employee being terminated storms out, the Hospital is still required to mail some
notices to him. The memorandum is clearly directed at securing Bhandari’s separation. It
also states that the basic terms of the severance agreement are “contingent on both doctors

                                              6
resigning and agreeing to the separation agreement.” Clearly, the Hospital contemplated the
severance agreement to encompass the otherwise uninvolved Bhandari.

{20} The district court based its decision to admit the memorandum on its finding that
Butler’s role with respect to Bhandari was primarily business-related, while his role was
legal with respect to her husband. The district court’s findings reflect the “delicate problems
for the Hospital” posed by both doctors sharing office space and “[m]ost importantly” being
husband and wife. These are not legal concerns, but rather management problems where
Bhandari is concerned. The strategic requirement that two resignations were necessary for
the separation agreement supports the district court’s conclusion that the memorandum was
business advice. The district court noted in its findings that this term supported Bhandari’s
testimony of what terms the Hospital offered at the meeting. The memorandum also listed
the “[n]ext steps” that the Hospital would take, such as asking Bhandari’s husband to remove
his property immediately and transition patients, although it mentioned that Bhandari’s own
termination might be delayed to complete such a transition.

{21} The district court found that the Hospital’s preparation for the meeting proved their
intention to force Bhandari’s resignation despite the fact that they had no cause to terminate
her employment as Butler and Randall testified. When Butler prepared the memorandum
for the meeting, he was providing legal advice to the Hospital concerning Bhandari’s
husband’s failure to comply with the Hospital’s policies and employment contract.
However, he was advising the Hospital, as a business matter, how to best secure a
resignation from Bhandari, who was not the target of any personnel action, but whose
resignation would be convenient for the Hospital from a business standpoint. Some legal
contingencies were planned for. Butler was acting in dual roles: (1) in a legal capacity, as
general counsel for the Corporation; and (2) in a business capacity, as Senior Vice President
of the Corporation. Although Butler had both a legal and a business interest in making sure
the termination did not omit necessary procedures for Bhandari’s husband, he sought to
promote the purely business interest in making sure that she and her husband no longer
worked at the Hospital by the end of the meeting. Bhandari’s unjustified and forced
participation in a joint separation with dual resignations furthered the Hospital’s business
interest. The memorandum provided an outline for the Hospital to reach its business goals.
He admitted that one of his goals was to “seek and obtain” Bhandari’s resignation, although
Bhandari had not violated her contract. We agree with the district court that, in such context,
securing her resignation was a business, not a legal, decision. The Hospital was trying to
end its business relationship with her at the meeting. Butler provided the memorandum as
a mixture of legal and business advice in his capacity as both in-house counsel and a senior
vice president of the Corporation. We hold that the memorandum is business advice and
thus unprivileged. The district court did not abuse its discretion in permitting discovery of
the memorandum or admitting it at trial.

B.     The District Court Did Not Err in Awarding Punitive Damages

{22}   The district court awarded Bhandari punitive damages in the amount equal to the sum

                                              7
of the compensatory damages it awarded for breach of contract because it found that

       [the Hospital] acted with conscious awareness that their treatment of . . .
       Bhandari was wrongful and harmful to her[.] . . . [The Hospital] acted
       maliciously and recklessly by placing . . . Bhandari in a situation where she
       had to choose between first, continuing her contract at the risk of her
       husband’s professional reputation, and second, resigning and accepting [the]
       terms.

Relying on Gonzales v. Sansoy, 103 N.M. 127, 129, 703 P.2d 904, 906 (Ct. App. 1984), the
Hospital first argues that the district court erroneously based the punitive damages on
different conduct than for which the compensatory damages were allowed. Although the
Hospital recognizes that the district court’s findings that the Hospital “contrived [a] strategy
to coerce [Bhandari] to resign[,]” leveraged her marriage to secure her resignation, and
insisted on her presence at the meeting underlie its award of punitive damages, we point out
that these circumstances are all of a piece. The Hospital’s conduct supporting both
compensatory and punitive damages is consequently the same. The Hospital argues that the
breach of Bhandari’s contract occurred when the Hospital accepted Bhandari’s resignation
as final. This is a gross misstatement of the court’s conclusion in two regards. First, the
district court concluded that the Hospital breached the contract by “excluding her from her
office, closing her practice, and terminating her salary and benefits among other things.”
Second, the district court specifically concluded that Bhandari did not resign, but that the
Hospital had wrongfully terminated her contract. We also reject the Hospital’s narrow
interpretation of Gonzales.

{23} New Mexico cases have addressed the inappropriateness of awarding punitive
damages against a party solely when there are no compensatory damages related to their
behavior. See Sanchez v. Clayton, 117 N.M. 761, 767, 877 P.2d 567, 573 (1994); see also
In re Consol. Vista Hills Retaining Wall Litig., 119 N.M. 542, 554, 893 P.2d 438, 450
(1995). The compensatory damages in this case were awarded based on the Hospital’s
unjustified conduct, which breached Bhandari’s contract by coercing her resignation without
cause or any consideration of her position. The punitive damages were as well, and the
district court did not err in awarding them.

{24} The Hospital next argues that the evidence at trial did not support a finding that its
behavior constituted bad faith or reckless disregard, and that the district court erroneously
relied heavily on the disputed memorandum in reaching its decision.

{25} The district court’s decision to impose punitive damages is amply supported by the
evidence. The district court concluded the Hospital acted maliciously and recklessly in its
treatment of Bhandari. It concluded that the Hospital’s conduct in forcing Bhandari to resign
was “inconsistent with legitimate business interests, violates community standards of
decency, and works to undermine the stability of expectations essential to contractual
relationships.” Those conclusions are not contrary to what is demanded by the facts of the

                                               8
case. The record and testimony reflect that Butler and Randall knew they could not
terminate Bhandari for cause. Evidence of the meeting, although sometimes contradictory,
shows that the Hospital forced Bhandari’s presence at the meeting that concerned her
husband and then pressured her to resign by forcing her to weigh her resignation against her
husband’s professional reputation. Even though the Hospital argues that Bhandari’s
behavior at the meeting and after could be interpreted as willing participation in her
resignation, the district court found no such willingness. When “reasons both supporting and
detracting from a trial court decision [exist], there is no abuse of discretion.” Talley v.
Talley, 115 N.M. 89, 92, 847 P.2d 323, 326 (Ct. App. 1993). To the extent that the Hospital
argues the district court relied unduly on the memorandum in awarding punitive damages,
we restate the memorandum was relevant to the punitive damages, was properly admitted,
and the district court was free to give it such weight as it believed was merited.

C.     The District Court Did Not Err by Refusing to Reduce Punitive Damages or
       Grant a New Trial

{26} The Hospital argues that the amount of punitive damages awarded is not
proportionate to its behavior and violates due process. When reviewing an award of punitive
damages, we apply de novo review, making an independent assessment of the record in order
to determine whether the award of punitive damages is comparatively reasonable. Aken v.
Plains Elec. Generation & Transmission Coop., Inc., 2002-NMSC-021, ¶ 19, 132 N.M. 401,
49 P.3d 662. When reviewing an award of punitive damages for reasonableness, we are
guided by three criteria: “(1) the reprehensibility of the defendant’s conduct, or the enormity
and nature of the wrong; (2) the relationship between the harm suffered and the punitive
damages award; and (3) the difference between the punitive damages award and the civil and
criminal penalties authorized or imposed in comparable cases.” Chavarria v. Fleetwood
Retail Corp., 2006-NMSC-046, ¶ 36, 140 N.M. 478, 143 P.3d 717. The third factor has been
marginalized “as ineffective and very difficult to employ.” Aken, 2002-NMSC-021, ¶ 25.

{27} As to the first factor, “the degree of reprehensibility of [a d]efendant’s conduct is the
most important indicium of the reasonableness of a punitive damages award.” Jolley v.
Energen Res. Corp., 2008-NMCA-164, ¶ 32, 145 N.M. 350, 198 P.3d 376 (internal quotation
marks and citation omitted). In considering reprehensibility, we determine whether

       the harm caused was physical as opposed to economic; the tortious conduct
       evinced an indifference to or a reckless disregard of the health or safety of
       others; the target of the conduct had financial vulnerability; the conduct
       involved repeated actions or was an isolated incident; and the harm was the
       result of intentional malice, trickery, or deceit, or mere accident.

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003). “[P]unitive damages
should only be awarded if the defendant’s culpability, after having paid compensatory
damages, is so reprehensible as to warrant the imposition of further sanctions to achieve
punishment or deterrence.” Id. “New Mexico law allows a plaintiff who establishes a cause

                                              9
of action in law to recover punitive damages as long as the wrongdoer’s conduct is willful,
wanton, malicious, reckless, oppressive, or fraudulent and in bad faith.” Bogle v. Summit
Inv. Co., 2005-NMCA-024, ¶ 28, 137 N.M. 80, 107 P.3d 520. In Bogle, an investment
company breached its contract with a company it had contracted to serve as a buying agent
in order to avoid paying the agent company its promised commission. Id. ¶ 6. We upheld
an award of punitive damages because the breaching party’s actions were sufficiently
egregious and exceeded legitimate business reasons for a breach of contract. Id. ¶ 32.
Regarding the first factor in the analysis of the amount of damages, we stated:

       Punitive damages are intended to punish the defendant and to deter future
       wrongdoing. Absent an award of punitive damages in this case, [the
       defendant] would have no incentive to refrain from cheating those with
       whom it does business in the future. Therefore, we find that [the
       defendant]’s conduct was sufficiently reprehensible to support the relatively
       modest punitive damages award imposed by the district court.

Id. ¶ 34 (internal quotation marks and citation omitted).

{28} First, substantial evidence supports the district court’s conclusions that the Hospital
was aware its deliberate treatment of Bhandari was wrongful. The Hospital acted
“maliciously and recklessly by placing . . . Bhandari in a situation where she had to choose
between first, continuing her contract at the risk of her husband’s professional reputation,
and second, resigning and accepting [the] terms.” The Hospital’s conduct is “inconsistent
with legitimate business interests, violates community standards of decency, and works to
undermine the stability of expectations essential to contractual relationships.” To execute
its bad motives, the Hospital planned and executed a method by which to coerce Bhandari
into resigning by leveraging her husband’s career against her resignation.

{29} The district court found that “Defendants took advantage of . . . Bhandari’s marriage
to Defendants’ benefit and her detriment[,]” and they “necessarily contrived their strategy
to coerce her to resign[.]” The district court found that the testimony supported Bhandari’s
position that she did not immediately agree to resign at the meeting and was surprised to find
her office being cleaned out, her locks changed, and her cell phone confiscated when she
returned from lunch after the meeting. The district court found that this reinforced that
Defendants “acted knowingly and intentionally” to effect their strategy of terminating her
contract without cause. Although the resulting harm was economic, not physical, it still
damages Bhandari. We conclude that the behavior was reprehensible enough to warrant
punitive damages, particularly to avoid future similar manipulations by employers.

{30} “The test under the second guidepost in New Mexico is that the amount of an award
of punitive damages must not be so unrelated to the injury and actual damages proven as to
plainly manifest passion and prejudice rather than reason or justice.” Chavarria, 2006-
NMSC-046, ¶ 38 (alteration, internal quotation marks, and citation omitted). There is no
bright-line rule about the ratio of punitive to compensatory damages. Bogle, 2005-NMCA-

                                             10
024, ¶ 35. In Bogle, the punitive damages award in question was one and one-half times the
amount of compensatory damages, which we upheld as “relatively modest.” Id. As the ratio
in this case is one-to-one and because the punitive damages were awarded in the same
amount as the compensatory damages, we hold the amount to be proportional and uninflated
by passion or prejudice.

{31} The third guidepost on the amount of punitve damages and the least important is “a
comparison between [the p]laintiffs’ punitive damages award and potential civil and criminal
sanctions.” Chavarria, 2006-NMSC-046, ¶ 39. “[W]hen statutory penalties for the conduct
in question are low or do not exist, a consideration of the statutory penalty does little to aid
in a meaningful review of the excessiveness of the punitive damages award.” Aken, 2002-
NMSC-021, ¶ 25 (internal quotation marks and citations omitted). No party has discussed
if any civil or criminal sanctions apply to the Hospital’s behavior. Bhandari argues that we
should compare the issue here with the penalty for deceptive trade practices under New
Mexico’s Unfair Trade Practices Act that permits treble damages. However, Bhandari has
no explanation of how the Hospital’s actions would fall under that statute. The third
guidepost, therefore, is of little help. However, the award passes scrutiny under the first two
guideposts, and we therefore affirm the award of punitive damages because the amount did
not violate the Hospital’s constitutional due process rights.

D.      The Hospital Fails to Support Its Argument That Bhandari Resigned or
        Reformed Her Contract

{32} The Hospital argues that Bhandari orally amended her written contract at the meeting
and thus properly resigned. However, it fails to point to any evidence in the record that
contradicts the district court’s findings. Pursuant to Rule 12-213(A)(3) NMRA, an appellant
is required to provide a summary of proceedings that includes the evidence bearing upon the
proposition that the appellant argues is unsupported by substantial evidence. When an
appellant does not assert that “any finding made by the trial court was error, nor . . . referred
to any requested conclusions refused by the trial court[,] . . . those findings are the facts
before us.” Adams v. Thompson, 87 N.M. 113, 117, 529 P.2d 1234, 1238 (Ct. App. 1974).
Because the Hospital fails to identify which findings are unsupported by substantial evidence
or to explain how so, we do not consider this issue further.

III.    CONCLUSION

{33} The memorandum prepared by the Corporation’s general counsel in anticipation of
the termination meeting was not shielded by attorney-client privilege. The district court
properly found it discoverable and admissible at trial. The district court’s award of punitive
damages was not in error, and the amount did not violate constitutional due process. We
affirm.

{34}    IT IS SO ORDERED.

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                                         ____________________________________
                                         RODERICK T. KENNEDY, Chief Judge

WE CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

____________________________________
LINDA M. VANZI, Judge

Topic Index for Bhandari v. Artesia Gen. Hosp., No. 31,130

APPEAL AND ERROR
Standard of Review

ATTORNEYS
Attorney-Client Privilege

CONTRACTS
Breach

EMPLOYMENT LAW
Employment Contract
Termination of Employment
Voluntary Leaving

EVIDENCE
Admissibility of Evidence
Attorney-Client Privilege
Privileges
Spousal Testimony

JUDGES
Abuse of Discretion

REMEDIES
Compensatory Damages
Punitive Damages

                                        12


215 P.3d 983 (2009)
Lisa GATES, Respondent,
v.
PORT OF KALAMA, a Washington Municipal Corporation and Lam Management, Inc., a Washington Corporation, dba Allen & Associates Property Management, Appellant.
No. 37758-6-II.
Court of Appeals of Washington, Division 2.
September 1, 2009.
Gregory Brian Curwen, Attorney at Law, Elizabeth Anne Camer Thompson, Gierke Curwen Dynan Jones, Tacoma, WA, for Appellant.
Dennis J. La Porte, Krilich La Porte West & Lockner, Tacoma, WA, for Defendant.
Kurt Allen Anagnostou, Attorney at Law, Longview, WA, for Respondent.
VAN DEREN, C.J.
¶ 1 The Port of Kalama appeals from a denial of its summary judgment motion, arguing that Lisa Gates failed to comply with a statutory requirement to file a personally verified administrative claim before commencing her personal injury case. Based on the plain language of the statute in effect when Gates filed her claim, we affirm the trial court's denial of the Port's summary judgment motion and remand for further proceedings.

FACTS[1]
¶ 2 According to Gates,[2] on October 22, 2004, she slipped and fell on steps while viewing a rental property owned by the Port of Kalama (Port). Gates said that she fell backwards and hit the back of her head and neck, injuring both. As a result of the fall, she alleged that she suffered various medical problems, incurred substantial medical bills, and lost wages due to her inability to work.
¶ 3 On January 28, 2005, Gates sent a letter to the Port, according to claim filing instructions it gave her, describing what had occurred and her resulting injuries. She signed the letter but she did not verify its contents. An adjuster for the Port contacted *984 her to obtain additional information. When the adjuster asked for a recorded statement, Gates hired an attorney, Kurt Anagnostou. On October 5, the Port's attorney conducted and recorded a telephone interview.
¶ 4 Anagnostou sent a letter dated August 10, 2007, to the Port's Finance Manager and Auditor, Stuart Shelby, detailing Gates's claim and proposing a settlement. Gates did not sign that letter.
¶ 5 In October 2007, Anagnostou contacted the Cowlitz County Auditor's Office to determine the identity of the Port's designated agent for service of claims.[3] A deputy auditor told Anagnostou that the Port had not designated an agent and that the county's computer system contained information on public agencies' designated agents for service from 1987 forward. To verify that the computer's records were current, Anagnostou asked for the identity of the Port of Longview's agent, which the auditor's computer system listed. Anagnostou's legal assistant then manually searched the auditor's records to determine whether the Port had appointed an agent for service but was unable to locate any such designation.
¶ 6 Gates filed this lawsuit on October 17, 2007, within the three year statute of limitations,[4] and served both the Port and LAM Management Inc., the Port's leasing agent doing business as Allen & Associates Property Management. The Port's answer raised Gates's failure to comply with the claim-filing statute, RCW 4.96.020,[5] as one of several affirmative defenses.
¶ 7 On January 7, 2008, Gates filed an application for preliminary hearing regarding service on the Port or, in the alternative, a motion to enlarge time. This application stated that the auditor had finally located the Port's resolution naming its "Finance Manager/Auditor," Shelby, as its agent for service of claims. Clerk's Papers at 28. Anagnostou had already sent the claim to Shelby on August 10, 2007, more than 60 days before Gates filed the lawsuit on October 17. The Port responded on January 9, 2008, arguing that Gates had failed to personally verify her claim. The same day, Anagnostou filed an amended notice of claim with Shelby that was signed by Gates and notarized.
¶ 8 The Port unsuccessfully moved for summary judgment on the basis that Gates failed to comply with the statutory claim filing requirements. Gates unsuccessfully moved to nullify the service of her complaint on the Port to allow her to serve her complaint 60 days after she had refiled the claim on January 9 and still fall within the tolling period.
¶ 9 The trial court certified its decision for discretionary review and the Port appeals.

ANALYSIS

I. Standard of Review
¶ 10 We review a trial court's rulings on statutory construction de novo. Dep't. of Ecology v. Campbell & Gwinn, L.L.C., 146 Wash.2d 1, 9, 43 P.3d 4 (2002). When reviewing a summary judgment order, we make the same inquiries as the trial court. Cowlitz Stud Co. v. Clevenger, 157 Wash.2d 569, 573, 141 P.3d 1 (2006); Safeco Ins. Co. of *985 Am. v. Butler, 118 Wash.2d 383, 394, 823 P.2d 499 (1992). We consider all the facts and reasonable inferences in the light most favorable to the nonmoving party, that is, Gates.[6]Ranger Ins. Co. v. Pierce County, 164 Wash.2d 545, 552, 192 P.3d 886 (2008). Summary judgment is appropriate if "there is no genuine issue as to any material fact" and the moving party shows that he or she is "entitled to a judgment as a matter of law." CR 56(c). "A genuine issue of material fact exists where reasonable minds could differ on the facts controlling the outcome of the litigation." Ranger Ins. Co., 164 Wash.2d at 552, 192 P.3d 886.

II. Claim Filing Requirements
¶ 11 The Port contends that the trial court erred by denying summary judgment because Gates failed to either file a personally verified administrative claim with the Port before filing her lawsuit or establish equitable estoppel. Gates contests the view that former RCW 4.96.020(3) (2006) required claim verification. We agree with Gates.
¶ 12 In 1967, Washington's legislature abolished sovereign immunity for the state's political subdivisions by enacting chapter 4.96 RCW. Sievers v. City of Mountlake Terrace, 97 Wash.App. 181, 183, 983 P.2d 1127 (1999). This chapter established the requirements for filing tort claims against local governmental entities. Sievers, 97 Wash.App. at 183, 983 P.2d 1127. As a municipal corporation, the Port is one such governmental body. See RCW 4.96.010(2); RCW 39.50.010.
¶ 13 "Filing a claim for damages within the time allowed by law shall be a condition precedent to the commencement of any action claiming damages." RCW 4.96.010(1).
All claims for damages arising out of tortious conduct must locate and describe the conduct and circumstances which brought about the injury or damage, describe the injury or damage, state the time and place the injury or damage occurred, state the names of all persons involved, if known, and shall contain the amount of damages claimed, together with a statement of the actual residence of the claimant at the time of presenting and filing the claim and for a period of six months immediately prior to the time the claim arose. If the claimant is incapacitated from verifying, presenting, and filing the claim in the time prescribed or if the claimant is a minor, or is a nonresident of the state absent therefrom during the time within which the claim is required to be filed, the claim may be verified, presented, and filed on behalf of the claimant by any relative, attorney, or agent representing the claimant.
Former RCW 4.96.020(3) (2006). Verification means attesting to the truth of the matter under oath. See Haynes v. City of Seattle, 87 Wash. 375, 377-78, 151 P. 789 (1915). RCW 9A.72.085 permits verification of unsworn written statements by signing and certifying, under penalty of perjury, that the information is true and providing the date and place of signing. After filing a claim with the entity's designated agent, the claimant must wait 60 days before filing the lawsuit, during which the statute of limitations is tolled. Former RCW 4.96.020 (2006).
¶ 14 In Schoonover v. State, 116 Wash.App. 171, 175-76, 64 P.3d 677 (2003), a plaintiff appealed the trial court's dismissal of his civil suit against the State. Although counsel signed the claim on Schoonover's behalf after the client executed a durable power of attorney, the trial court nevertheless dismissed the case because Schoonover failed to personally verify his claim under former RCW 4.92.100 (2002).[7]Schoonover, 116 Wash.App. *986 at 175-76, 177 n. 1, 64 P.3d 677. We affirmed the dismissal based on the clear statutory language requiring claim verification and his failure to establish equitable estoppel. Schoonover, 116 Wash.App. at 178, 180-81, 64 P.3d 677. We also rejected Schoonover's equal protection challenge, which he raised by comparing former RCW 4.92.100 (2002) with former RCW 4.96.020(3) (2001)respectively, the filing requirements for claims against the State and local governments. Schoonover, 116 Wash.App. at 181-84, 64 P.3d 677. We held:
[A]lthough RCW 4.96.020 does not expressly require verification of a tort claim against a local governmental agency, it does contain language from which we can infer such a requirement. The language describing the requirements for tort claims is identical in RCW 4.96.020 and RCW 4.92.100. Both statutes require verification by the claimant of the claim unless the claimant meets one of the three statutory exceptions. Reviewing the statutory scheme as a whole to the end of maintaining the integrity of the respective statutes, we conclude that RCW 4.96.020 has the same verification requirements as RCW 4.92.100 and Schoonover does not present an adequate equal protection challenge.
Schoonover, 116 Wash.App. at 184, 64 P.3d 677. But we respectfully disagree with our learned colleagues in Schoonover that the plain language of former RCW 4.96.020 (2001) required claim verification and diverge from their holding here.[8]
¶ 15 We must first determine whether the plain language of former RCW 4.96.020(3) (2006) required claim verification. See Christensen v. Ellsworth, 162 Wash.2d 365, 372-73, 173 P.3d 228 (2007). We look to the statute itself, its context, its related provisions, and the entire statutory scheme. Christensen, 162 Wash.2d at 373, 173 P.3d 228. We also construe statutes "`so that all the language used is given effect, with no portion rendered meaningless or superfluous.'" State v. Roggenkamp, 153 Wash.2d 614, 624, 106 P.3d 196 (2005) (internal quotation marks omitted) (quoting State v. J.P., 149 Wash.2d 444, 450, 69 P.3d 318 (2003)). If a plain meaning analysis fails to resolve the issue, we look to legislative history and relevant case law to discern legislative intent. Christensen, 162 Wash.2d at 373, 173 P.3d 228.
¶ 16 We conclude that former RCW 4.96.020(3) (2006) did not require claim verification. The statute provided only that "[a]ll claims ... must locate and describe" the related facts and context of the claimant's injuries. Former RCW 4.96.020(3) (2006). It mentioned verification permissively only "[i]f the claimant is incapacitated from verifying, presenting, and filing the claim in the time prescribed or if the claimant is a minor, or is a nonresident of the state absent therefrom during the time within which the claim is required to be filed." Former RCW 4.96.020(3) (2006). Then, "the claim may be verified, presented, and filed on behalf of the claimant." Former RCW 4.96.020(3) (emphasis added). This permissive language *987 failed to require verification even in these three exceptional cases. See former RCW 4.96.020(3) (2006).
¶ 17 Moreover, the legislative history of RCW 4.96.020 supports our interpretation that it did not require Gates to verify her claim. We are mindful that our "fundamental objective is to ascertain and carry out the [l]egislature's intent." Campbell & Gwinn, 146 Wash.2d at 9, 43 P.3d 4. In 1993, lawmakers removed the verification requirement from RCW 4.96.020(3). Laws of 1993, ch. 449, § 3. Because our review of the legislative record from 1993 to the 2009 change, reinstating the verification requirement, found no other relevant indicia of intent, we conclude that the 1993 amendment signaled the legislature's unmistakable intent to differentiate between claims filed against local governments and those filed against the State.
¶ 18 Even though the statute's plain language resolves this issue, we compare it to former RCW 4.92.100 (2002), the statute addressing tort claims against the State. Former RCW 4.92.100(2002) plainly required that "[a]ll such claims shall be verified." While we seek statutory harmony, we nevertheless deem that the legislature intended a different meaning when it employed different terms and "`meant exactly what it said.'" Roggenkamp, 153 Wash.2d at 623-25, 106 P.3d 196 (internal quotation marks omitted) (quoting In re Recall of Pearsall-Stipek, 141 Wash.2d 756, 767, 10 P.3d 1034 (2000)).
¶ 19 Although the trial court ostensibly denied the Port summary judgment because Gates substantially complied with this statute, we can affirm the trial court on any basis supported by the parties' pleadings and the proof. See Niven v. E.J. Bartells Co., 97 Wash.App. 507, 513, 983 P.2d 1193 (1999). Here, Gates sent a January 2005 letter to the Port describing the accident and her injuries. Gates's counsel also filed a claim with the Port's designated agent (even though the auditor did not provide that name) on August 10, 2007, detailing Gates's claim according to the statute.
¶ 20 Under these circumstances, we hold that Gates complied with the applicable statutory requirements to "locate and describe" the circumstances of her injury and satisfied the conditions precedent to bringing suit against the Port. See RCW 4.96.010; former RCW 4.96.020(3) (2006). Therefore, because the Port has not demonstrated that it is entitled to judgment as a matter of law, we affirm the denial of summary judgment and remand for further proceedings.
We concur: BRIDGEWATER and PENOYAR, JJ.
NOTES
[1]  Gates consecutively numbered each document in the clerk's papers and cites, not to the page number, but generally to the document number. Accordingly, Gates's brief fails to follow RAP 10.4(f) citation requirements and it fails to direct us to specific parts of the record that support her arguments. But we do not impose sanctions under RAP 18.9(a) on this occasion, expecting that she will not repeat the error.
[2]  We accepted discretionary review before trial and, thus, rely on the alleged facts.
[3]  Former RCW 4.96.020(2) (2006) required "the governing body of each local entity to appoint an agent to receive any claim for damages made under this chapter."
[4]  This state requires plaintiffs to commence actions for personal injury within three years, unless a special statute of limitations applies. See RCW 4.16.080(2); 16 David K. DeWolf & Keller W. Allen, Washington Practice: Tort Law and Practice § 9.10, at 286-87 (3d ed.2006).
[5]  In March 2006, the governor signed into law amendments to former RCW 4.96.020 (2001) that expanded the agents of local government who may benefit from these statutory protections and provided that a local government's failure to comply with the statute precluded its ability to raise that statutory defense. Laws of 2006, ch. 82, § 3. These amendments became effective in June 2006. 2 Legislative Digest and History of Bills, 59th Leg., at 657 (2d ed., Wash.2006). Here, Gates filed her claims before and after June 2006 but, throughout the opinion, we cite to the June 2006 version of the statute.

In May 2009, the governor signed into law a bill revising former RCW 4.96.020 (2006) and former RCW 4.92.100 (2006) to explicitly require verification of claims against local governments and the State. Laws of 2009, ch. 433, § 1. These new amendments became effective on July 26, 2009, and do not apply here. Laws of 2009, ch. 433, § 1.
[6]  The trial court made findings of fact in the order denying summary judgment. But findings of fact entered in summary judgment proceedings are "merely superfluous and of no prejudice" to the Port on appeal; therefore, the Port's failure to assign error to them does not make them verities. State ex rel. Carroll v. Simmons, 61 Wash.2d 146, 149, 377 P.2d 421 (1962); see Chelan County Deputy Sheriffs' Ass'n. v. County of Chelan, 109 Wash.2d 282, 294 n. 6, 745 P.2d 1 (1987). Because the trial court found that Gates's actions did not comply with the statute, its ruling implied that she substantially complied or that her compliance was excused.
[7]  Former RCW 4.92.100 (2002) read:

All claims against the state for damages arising out of tortious conduct shall be presented to and filed with the risk management division. All such claims shall be verified and shall accurately describe the conduct and circumstances which brought about the injury or damage, describe the injury or damage, state the time and place the injury or damage occurred, state the names of all persons involved, if known, and shall contain the amount of damages claimed, together with a statement of the actual residence of the claimant at the time of presenting and filing the claim and for a period of six months immediately prior to the time the claim arose. If the claimant is incapacitated from verifying, presenting, and filing the claim or if the claimant is a minor, or is a nonresident of the state, the claim may be verified, presented, and filed on behalf of the claimant by any relative, attorney, or agent representing the claimant.
With respect to the content of such claims this section shall be liberally construed so that substantial compliance will be deemed satisfactory.
[8]  Citing Schoonover, Division One has held that former RCW 4.96.020(3) (2006) required personal verification, absent one of the statutory exceptions. Johnson v. King County, 148 Wash.App. 220, 226-27, 198 P.3d 546 (2009); Delos Reyes v. City of Renton, 121 Wash.App. 498, 503-04, 86 P.3d 155 (2004). Reyes pointed out that the legislature removed an explicit verification requirement from RCW 4.96.020 in 1993. See Delos Reyes, 121 Wash.App. at 503, 86 P.3d 155; see also Laws of 1993, Ch. 449, § 3. Division One rejected these statutory and legislative history arguments, ruling that its interpretation provided harmony and gave effect to every word. Delos Reyes, 121 Wash.App. at 504, 86 P.3d 155. Thus, we recognize that our opinion here respectfully diverges from the Division One holdings as well.


92 F.3d 1201
U.S.v.Wright*
NO. 95-9015
United States Court of Appeals,Eleventh Circuit.
July 12, 1996

1
Appeal From:  M.D.Ga., No. 94-00030-7-CR-WDO

2
AFFIRMED.

*
 Fed.R.App.P. 34(a);  11th Cir.R. 34-3


43 F.3d 1474
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.James Paul CLAYTON-EL, also known as CARMICHAEL MORRISONPlaintiff/Appellant,v.Scott CLARK, et al., Defendants/Appellees.
No. 92-4153.
United States Court of Appeals, Seventh Circuit.
Submitted Dec. 14, 1994.*Decided Dec. 20, 1994.Rehearing Denied Jan. 30, 1995.

Before BAUER, RIPPLE and ROVNER, Circuit Judges.

ORDER

1
James P. Clayton-El appeals the district court's dismissal of his complaint brought pursuant to 42 U.S.C. Sec. 1983.  Clayton-El, an inmate at Pontiac correctional facility, alleges that his constitutional right of access to the courts was violated by various correctional officials.  He claims that legal materials pertaining to a hearing on his petition for a writ of habeas corpus were confiscated, thereby prejudicing him.  For the reasons stated by the district court in the attached order, except for those as to Gramley, we AFFIRM the district court's judgment.

2
Clayton-El claims that the warden was personally involved in the alleged unconstitutional deprivation because a prison staff member informed him of the situation.  Clayton-El alleges that the district court erred by not subpoenaing the staff member to testify.  Given our agreement with the district court that Clayton-El's constitutional rights were not violated, the district court did not err in failing to subpoena the witness.  Thus, summary judgment was properly granted in favor of Gramley, albeit for a different reason.

ATTACHMENT
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS

3
James Paul Clayton-el, Plaintiff,

4
vs.

5
Scott Clark, et al., Defendants.

No. 91-2454
ORDER

6
The plaintiff, a state prisoner, has brought this civil rights action pursuant to 42 U.S.C. Sec. 1983.  The plaintiff claims that the defendants, various Pontiac correctional officials, violated the plaintiff's constitutional rights by interfering with his access to the courts.  More specifically, the plaintiff alleges that after he had packed boxes of legal documents in preparation for a hearing on his habeas corpus petition, the defendants confiscated some of the legal materials.  The plaintiff maintains that his meritorious petition for a writ of habeas corpus was prejudiced due to the defendants' actions.  This matter is before the court for consideration of the parties' cross-motions for summary judgment.  For the reasons stated in this order,

7
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."   Fed.R.Civ.P. 56(c);  Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);  Herman v. National Broadcasting Co., Inc., 744 F.2d 604, 607 (7th Cir.1984), cert. denied, 470 U.S. 1028 (1985).  "[I]n determining whether factual issues exist, a reviewing court must view all the evidence in the light most favorable to the non-moving party."  Black v. Henry Pratt Co., 778 F.2d 1278, 1281 (7th Cir.1985).

8
However, Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."  Celotex, 477 U.S. at 322.  "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party there is no 'genuine' issue for trial."  Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359 (7th Cir.1988).

FACTS

9
The following facts are uncontested:  The plaintiff, James Paul Clayton-El (also known as Carmichael Morrison) is a state prisoner, confined at the Pontiac Correctional Center at all times relevant to the complaint.  The plaintiff was sentenced to the Illinois Department of Corrections in 1982.  Each of the defendants is or was a Pontiac employee at the time of the events giving rise to the complaint.1

10
The plaintiff was scheduled to appear in the Circuit Court of Cook County on October 22, 1991, regarding his petition for a writ of habeas corpus.   The defendants Petri, Smith, Thacker and Clark,2 Pontiac correctional officers, were assigned to escort the plaintiff to Chicago.  Pursuant to correctional policy, the defendants searched the plaintiff's belongings prior to leaving the institution.

11
Apparently, the plaintiff wished to take to court all ten years' worth of his legal materials, which consisted of some eight thousand pages filling three boxes.  The defendants informed the plaintiff that he would not be able to take items with him that did not pertain to the Cook County habeas case.  In spite of the plaintiff's protests, the defendants removed all records and documents which did not bear the caption, "Clayton v. Gramley ".  The property the plaintiff was not allowed to take on the writ was returned to his cell, where he had access to the materials the next day.

12
At the plaintiff's hearing, the judge appointed counsel to represent the plaintiff.3  The judge continued the proceedings for fourteen days.  The plaintiff maintains that he was forced to continue serving his "illegal imprisonment" for an additional two weeks due to the defendants' actions.

DISCUSSION

13
No material facts are in dispute, and the court concludes that the defendants are entitled to judgment as a matter of law.  It was constitutionally permissible for the defendants to forbid the plaintiff from transporting materials not pertinent to the case in which the plaintiff had a hearing.  Even if the defendants did confiscate documents which were, in fact, relevant, no reasonable person could find an intent to obstruct the plaintiff's litigation.  Furthermore, the plaintiff has not shown any actual prejudice due to the defendants' actions.  The plaintiff also has failed to establish a triable claim of denial of equal protection.  Moreover, the record does not indicate any personal involvement on the part of the defendant Gramley.

14
The temporary deprivation of legal documents apparently unrelated to the plaintiff's habeas action did not violate the plaintiff's constitutional rights.  The parties agree that the Constitution guarantees prison inmates a right to meaningful access to the courts.  Bounds v. Smith, 430 U.S. 817, 821 (1977).  Nevertheless, prison officials may "reasonably" regulate the time, place, and manner in which library facilities are utilized.  Isaac v. Jones, 529 F.Supp. 175, 178 (N.D.Ill.1981);  see also, Lindquist v. Idaho State Board of Corrections, 776 F.2d 851, 858 (9th Cir.1985).  "The constitutionally relevant benchmark is meaningful, not total or unlimited access."  Caldwell v. Miller, 790 F.2d 589, 606 (7th Cir.1986), citing Bounds, 430 U.S. at 823.  Even "highly restrictive" procedures do not violate constitutional mandates if inmates still have "meaningful access" to the courts.  Hossman v. Spradlin, 812 F.2d 1019, 1021 (7th Cir.1987).  The plaintiff had no constitutional right to keep all of his legal papers with him at all times, absent some need.

15
As it turned out, the documents may have been relevant to the plaintiff's habeas case, since the habeas action concerned the plaintiff's other cases, namely, his criminal convictions.  However, the record does not raise an inference that the defendants intentionally impeded the plaintiff's prosecution of his habeas petition.  A plaintiff alleging interference with his access to the courts must show that the deprivation was intentional.  Kincaid v. Vail, 969 F.2d 594, 602 (7th Cir.1992).

16
While the defendants intentionally prohibited the plaintiff from taking certain documents to the court, the facts described here do not indicate an intentional denial of access to the courts.  The defendants removed only documents they believed did not pertain to the pending habeas case;  furthermore, they returned the documents to the plaintiff's cell, where he had access to those materials the following day.  "Although summary judgment is usually not appropriate in a case involving a weighing of conflicting questions of motive and intent, summary judgment is proper where the plaintiff presents no indication of motive and intent supportive of his position."   Id. (citations omitted).  The apparently isolated incident of which the plaintiff complains can be attributed to mere overzeal, mistake, or lack of due care.

17
In any case, the plaintiff has not shown that the defendants' actions caused any actual detriment.  The courts have consistently held that a finding that prison officials have deprived an inmate of meaningful access to the courts cannot be sustained in the absence of some showing of prejudice.  Shango v. Jurich, 965 F.2d 289 (7th Cir.1992);  Bruscino v. Carlson, 854 F.2d 162, 167 (7th Cir.1988), cert. denied, 491 U.S. 907 (1989).  Such an allegation must be more than merely conclusory;  a complaint is inadequate if it "offers no specific facts to support these allegations--no court dates missed;  no inability to make timely filings;  no denial of legal assistance to which he was entitled;  and no loss of a case which could have been won."  Martin v. Davies, 917 F.2d 336, 340 (7th Cir.1990), cert. denied, 111 S.Ct. 2805 (1991).

18
The plaintiff maintains that he was prejudiced in several ways.  He asserts that (1) the judge had to continue the hearing because no one knew certain information that was available in the plaintiff's papers;  (2) the plaintiff was forced to continue serving an "illegal imprisonment" because he was not granted habeas relief that day;  and (3) the plaintiff was denied bail in a subsequent criminal case because he is already serving a sentence.  None of the plaintiff's allegations constitutes genuine evidence of prejudice.

19
There is no triable issue that the hearing was continued because the plaintiff did not have all his legal materials.  The transcripts from the October 22, 1991, hearing show that Judge Fitzgerald continued the matter for many reasons, including review of the case by an attorney the court appointed that day.  The judge made no mention of the missing papers.  This court rejects the plaintiff's argument that the "real" reason was because the judge was confused, and that the plaintiff could have clarified any misunderstandings had he the documents in his possession.4  The judge explicitly stated that no legal issues would be decided before the court and all the parties had a complete understanding of the case.

20
Regardless of the actual reasons for the continuance, the court conceives of no prejudice stemming from the fourteen-day delay.  The plaintiff had no potential of receiving an immediate discharge from prison (in fact, he is still incarcerated to date);  furthermore, even if the plaintiff had been granted immediate resentencing, the fourteen-delay was irrelevant for all practical purposes.

21
At the hearing on April 28, 1992, the plaintiff's own attorney admitted that there was no "urgency" with regard to the plaintiff's habeas petition, conceding, "[E]ven with the resentencing, I believe what the court would find reasonable is just we would be looking at the elimination of ... the extended term, leaving Mr. Clayton with another couple of years before his out date, even with the resentencing."  (Plaintiff's Exhibit O, Tr. at 3.)5  The plaintiff's argument that he was forced to continue serving what he terms an "illegal imprisonment" due to his non-possession of papers for one day is groundless.

22
In the same token, the denial of bond because the plaintiff was already serving a sentence cannot be attributed to the absence of the legal papers.  Again, the court will not, in the context of this lawsuit, evaluate whether the plaintiff is entitled to habeas relief.  Irrespective of the fact that the plaintiff challenges his sentence and conviction, he was incarcerated when he was denied bond and remains incarcerated.  The denial of bond cannot be deemed as prejudice stemming from either the one-day deprivation of legal papers, or the fourteen-day continuance.  In short, even if the defendants intentionally interfered with the plaintiff's access to the courts (which the plaintiff has not shown), the plaintiff cannot prevail because he has not shown any actual damages.

23
The plaintiff further maintains that the defendants discriminated against him, in that other inmates have routinely been permitted to take all pertinent legal papers and records with them to court.  However, as discussed above, rather than intentionally interfering with the plaintiff's lawsuit, the defendants appear simply to have erred in confiscating documents not bearing the caption of the plaintiff's habeas case.  The plaintiff's contention that other inmates have had no such problems supports the defendants' defense that the confiscation was an isolated lapse.  In any case, "a person bringing an action under the Equal Protection Clause must show intentional discrimination against him because of his membership in a particular class, not merely that he was treated unfairly as an individual."  See Huebschen v. Dept. of Health and Social Services, 716 F.2d 1167, 1171 (7th Cir.1983), relying on Personnel Administrator v. Feeney, 442 U.S. 256, 279 (1979).  The plaintiff does not have a separate cause for action for a denial of equal protection.

24
Regardless of the merit of the plaintiff's claims, the plaintiff has not stated a cause of action against the defendant Gramley.  The plaintiff has alleged no facts establishing Gramley's direct, personal involvement, as required by Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir.1981).  Nor has the plaintiff shown that the alleged violation of his constitutional rights occurred at Gramley's direction or with his knowledge and consent.  See Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir.1982).

25
The mere fact that Gramley is the warden at Pontiac is insufficient to establish liability, as the doctrine of respondeat superior (supervisory liability) does not apply to actions filed under 42 U.S.C. Sec. 1983.  See Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir.1983);  Adams v. Pate, 445 F.2d 105 (7th Cir.1972).  Notwithstanding the plaintiff's unsupported assertions that Gramley "knew of the improprieties being undertaken by his staff," the plaintiff has failed to show that Gramley was personally involved in the alleged circumstances giving rise to the complaint.

26
In conclusion, no outcome-determinative facts are in dispute, and the court finds that the defendants are entitled to judgment as a matter of law.  No reasonable person could find that the defendants intended to interfere with the plaintiff's access to the courts by prohibiting him from transporting materials apparently not pertinent to the case in which the plaintiff had a court appearance.  In any event, the plaintiff is unable to show some quantum of detriment to pending or contemplated litigation due to the defendants' actions.  The plaintiff likewise has failed to establish a triable claim that the defendants denied him equal protection.  Moreover, the record does not indicate any personal involvement on the part of the defendant Gramley.  Summary judgment must be granted in favor of the defendants.

27
IT IS THEREFORE ORDERED that the defendants' motion for summary judgment (docket # 22) is allowed and the plaintiff's motion for summary judgment (docket # 17) is denied.  The Clerk of the court is directed to enter judgment in favor of the defendants and against the plaintiff pursuant to Fed.R.Civ.P. 56.  The case is terminated.  The parties are to bear their own costs.

28
IT IS THEREFORE ORDERED that the plaintiff's motion for issuance of a trial subpoena (docket # 23) is denied.

29
Enter this 3rd day of December, 1992.

30
/s/ Harold A. Baker

HAROLD A. BAKER
United States District Judge

*
 After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case.  The notice provided that any party might file a "Statement as to Need of Oral Argument."   See Fed.R.App.P. 34(a);  Cir.R. 34(f).  No such statement having been filed, the appeal is submitted on the briefs and the record

1
 According to the court's docket, the plaintiff never obtained service on the defendants Baremore and Whitaker

2
 The plaintiff states that Clark was part of the transportation team;  the defendants do not.  The court will assume, for purposes of this motion, that Clark participated in the transportation process

3
 The plaintiff emphasizes that the judge "imposed" an attorney over the plaintiff's objections;  he preferred to proceed pro se

4
 The defendants concede that there has been "some degree of confusion surrounding [the procedural dimensions of the] plaintiff's habeas corpus petitions in both the federal and state courts."   The plaintiff has a lengthy criminal history.  The U.S. District Court for the Northern District of Illinois has found that the trial judge, when sentencing the plaintiff on one of his convictions, improperly imposed an extended term sentence.  (See Exhibit A to plaintiff's response to the defendants' motion for cross-summary judgment.)   Presumably, the plaintiff has now been resentenced in accordance with the district court's decision.  The U.S. District Courts for the Central District of Illinois have twice denied the plaintiff's petitions for a writ of habeas corpus.  (Clayton-El v. Gramley, 92-1168;  petition denied August 4, 1992;  Clayton-El v. Chrans, 86-2289 (mixed habeas /civil rights action):  summary judgment granted in favor of the defendants on October 3, 1990.  Both cases are currently on appeal.)   This court will not attempt to evaluate the plaintiff's habeas claims in the context of this civil rights action

5
 The plaintiff contends that his court-appointed public defender was incompetent.  However, as with the plaintiff's habeas claims, this court will not delve into that entirely separate, unrelated issue