Opinion
No. 1 CA-CV 14-0280
06-09-2015
RICK A. FOLEY, Plaintiff/Appellant, v. ARIZONA DEPARTMENT OF CORRECTIONS; CHARLES RYAN, Defendants/Appellees.
COUNSEL Rick A. Foley, Florence Plaintiff/Appellant Arizona Attorney General's Office, Phoenix By Daniel P. Schaack Counsel for Defendants/Appellees
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2013-007294
The Honorable Lisa Daniel Flores, Judge
AFFIRMED
COUNSEL Rick A. Foley, Florence
Plaintiff/Appellant
Arizona Attorney General's Office, Phoenix
By Daniel P. Schaack
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined. SWANN, Judge:
¶1 Plaintiff Rick A. Foley, an inmate housed in an Arizona Department of Corrections ("ADOC") prison, appeals from the superior court's judgment dismissing ADOC and its director as defendants. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Foley filed a complaint in April 2013 alleging that on numerous occasions, he was denied medical treatment at the Eyman prison complex, where he is currently incarcerated. As defendants, he named the State, ADOC and its director, prison security personnel, ADOC "Medical review Committee Members," and individual health care providers at Eyman. Foley served ADOC, its director (collectively, "Appellees"), and one other individual defendant who is apparently a prison officer. Foley did not serve the other defendants.
In his docketing statement, Foley listed only ADOC and its director as the appellees in this case.
¶3 Appellees moved to dismiss for failure to state a claim. See Ariz. R. Civ. P. 12(b)(6). The court granted the motion and dismissed Appellees as defendants. Foley appealed. But because the court's order was not signed and did not resolve the claims against the remaining defendants, this court dismissed the appeal for lack of jurisdiction. Foley subsequently obtained a final appealable order. See Ariz. R. Civ. P. 54(c). This appeal followed.
We note that in his original complaint, Foley cites 42 U.S.C. § 1983, which could have stated a colorable claim against one of the named defendants. However, because Foley did not raise any argument with regard to that claim on appeal, we do not address it. See State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101 (2004) (quoting State v. Carver, 160 Ariz. 167, 175 (1989)) ("In Arizona, opening briefs must present significant arguments, supported by authority, setting forth an appellant's position on the issues raised. Failure to argue a claim usually constitutes abandonment and waiver of that claim.").
DISCUSSION
¶4 We review de novo the court's dismissal on Rule 12(b)(6) grounds. Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 8 (2012). We will affirm the superior court's decision if it is correct for any reason. Espil Sheep Co. v. Black Bill & Doney Parks Water Users Ass'n, 16 Ariz. App. 201, 203-04 (1972).
¶5 Foley's failure to serve the State is fatal to his claims against Appellees. Regarding the ADOC director, Foley's tort claims run only against the State. See A.R.S. § 31-201.01(F) ("Any and all causes of action which may arise out of tort caused by the director, prison officers or employees of the department, within the scope of their legal duty, shall run only against the state."). As for ADOC, its enabling statutes do not give it the power to sue or be sued. See A.R.S. §§ 41-1601 to -1684. Thus, ADOC is a non-jural entity, and as such, its dismissal from this case was proper. See Alexander v. Fund Manager, Pub. Safety Pers. Ret. Sys., 166 Ariz. 589, 592 (App. 1990) (noting "administrative agencies . . . possess only the power delegated to them by the Legislature"); Yamamoto v. Santa Cruz Cnty. Bd. of Supers, 124 Ariz. 538, 539 (App. 1979) ("A court has no jurisdiction until a party is brought before it who legally exists and is legally capable of being sued."). Accordingly, as a matter of law, the court did not err in dismissing Appellees. See Coleman, 230 Ariz. at 356, ¶ 8 ("Dismissal is appropriate under Rule 12(b)(6) only if 'as a matter of law [ ] plaintiffs would not be entitled to relief under any interpretation of the facts susceptible of proof.'") (quoting Fid. Sec. Life Ins. Co. v. State Dep't of Ins., 191 Ariz. 222, 224, ¶ 4 (1998)).
Foley agrees that his claims sound in tort.
In addition to dismissing Appellees as defendants, the superior court dismissed some of Foley's claims because they accrued more than one year before the complaint was filed. See A.R.S. § 12-821. ("All actions against any public entity or public employee shall be brought within one year after the cause of action accrues and not afterward."). The court dismissed other claims because they accrued more than 180 days before Foley filed a notice of claim. See A.R.S. § 12-821.01(A) ("Any claim that is not filed within one hundred eighty days after the cause of action accrues is barred and no action may be maintained thereon."). Based on our determination that Appellees are not proper defendants, we need not address the propriety of these rulings.
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CONCLUSION
¶6 For the foregoing reasons, we affirm.