Opinion
No. 1 CA-CV 12-0698
01-16-2014
JOSE A. FIERRO, Plaintiff/Appellant, v. STATE OF ARIZONA; WARDEN TARA DIAZ; CO II PERRY; CO IV BARRIER; MICHAEL MCCARVILLE; CO II CHIU; CO II K. HEATHER; CO III BADILLA, Defendants/Appellees.
Jose A. Fierro, Florence Plaintiff/Appellant In Propria Persona Arizona Attorney General's Office, Phoenix By Katherine E. Watanabe Counsel for Defendants/Appellees
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CV2011-014658
The Honorable Robert H. Oberbillig, Judge
AFFIRMED
COUNSEL
Jose A. Fierro, Florence
Plaintiff/Appellant In Propria Persona
Arizona Attorney General's Office, Phoenix
By Katherine E. Watanabe
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in which Judge Donn Kessler and Judge Michael J. Brown joined. GOULD, Judge:
¶1 Jose A. Fierro ("Fierro") appeals from an order dismissing his complaint against the State of Arizona and Arizona Department of Corrections ("ADOC") employees, Warden Tara Diaz, CO II Perry, CO IV Barrier, Deputy Warden Michael McCarville, CO II Chiu, CO II K. Heather, and CO III Badilla (collectively "Defendants"). For the reasons stated below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Fierro, an inmate in ADOC custody, filed a complaint alleging negligent handling of his personal property and failure to follow the grievance procedure. Fierro alleged his personal property was lost, stolen, destroyed or damaged while under ADOC control. He also claimed the prison officials failed to follow the appropriate procedures for inventorying his property when he was transferred, in violation of ADOC Department Order ("DO") 909.05, and deliberately failed to follow the grievance policy in handling his grievance for the lost property.
¶3 The trial court granted Defendants' motion to dismiss, citing Arizona Revised Statutes ("A.R.S.") section 31-201.01(C) (Supp. 2012). However, Defendants' motion to dismiss relied on §§ 31-201.01(L) and 31-201.01(F) and did not cite § 31-201.01(C). On appeal, Defendants argue the trial court's reference to § 31-201.01(C) is a typographical error. Alternatively, Defendants re-urge the arguments raised in the motion to dismiss, including their reliance on A.R.S. §§ 31-201.01(L) and (F). Fierro filed a timely notice of appeal from the order dismissing his complaint. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1) (Supp. 2012).
DISCUSSION
¶4 Initially, we note that both parties attached exhibits in support of the motion to dismiss and response. The trial judge stated that he read these pleadings and, presumably, the attached exhibits. "Because evidence extrinsic to the pleadings was offered to and relied on by the trial judge in making this decision, the motion to dismiss should have been treated as one for summary judgment." Frey v. Stoneman, 150 Ariz. 106, 109, 722 P.2d 274, 277 (1986) (citing Rule 12(b), Arizona Rules of Civil Procedure ("Ariz. R. Civ. P.")). Accordingly, we will affirm the dismissal if there were no genuine issues of material fact and if Defendants were entitled to judgment as a matter of law. Frey, id.; see also Ariz. R. Civ. P. 56(c)(1).
Fierro contends the trial court erred by not reviewing his motion for permission to file exhibits. In granting the motion to dismiss, the trial court did not list this motion as one of the documents it reviewed in reaching its decision. However, Fierro states in this motion that he filed it solely because the attached exhibits may get lost upon his prison transfer. Fierro, therefore, did not submit this pleading in opposition to the motion to dismiss, and the court's failure to review the attachments was not error. Moreover, some of the attachments were included as exhibits to Fierro's substantive response.
¶5 The trial court found that Fierro's property damage claims were barred by A.R.S. § 31-201.01(C) and found it unnecessary to rule on any other issues. However, § 31-201.01(C) addresses an issue that has nothing to do with Fierro's claims: the authority of the Director of the Department of Corrections to institute prisoner rehabilitation programs.As a result, neither Defendants nor Fierro ever cited § 31-201.01(C) in any of their pleadings or motions. This statute, therefore, does not provide a proper basis for dismissing Fierro's claims. Nonetheless, we are obligated "to affirm where any reasonable view of the facts and law might support the judgment. . . . If such grounds are apparent in the record, then we should affirm even though the trial court may have reached the right result for the wrong reason." City of Phoenix v. Geyler, 144 Ariz. 323, 330, 697 P.2d 1073, 1080 (1985). I. Section 31-201.01(L)
Section 31-201.01(C) states: "The director may institute and pursue programs which promote the rehabilitation of the prisoners in the director's charge."
A. Loss of Property Claim
¶6 Defendants argue that Fierro's loss of property claim does not allege serious physical injury, nor is it a claim authorized by a federal statute, as required by A.R.S. § 31-201.01(L). This statute limits a prisoner's "tort claims against the State to those involving serious personal injury or ones authorized by federal statute." Tripati v. State, 199 Ariz. 222, 225, ¶ 9, 16 P.3d 783, 786 (App. 2000).
Section 31-201.01(L) provides that a prisoner
may not bring a cause of action seeking damages or equitable relief from the state or its political subdivisions, agencies, officers or employees for injuries suffered while in the custody of the state or its political subdivisions or agencies unless the complaint alleges specific facts from which the court may conclude that the plaintiff suffered serious physical injury or the claim is authorized by a federal statute.
¶7 We conclude A.R.S. § 31-201.01(L) bars Fierro's property claim that Defendants negligently lost his property as a matter of law. Absent from Fierro's complaint is any allegation that he suffered a serious physical injury; the only compensation he seeks is for his lost property. Moreover, the negligent loss of property by ADOC does not amount to a denial of due process supporting a federal cause of action. Merrick v. Lewis, 191 Ariz. 71, 73, 952 P.2d 309, 311 (App. 1997) (holding that guarantee of due process applies to deliberate decisions of government officials and that negligent loss of property by ADOC does not constitute a denial of due process), vacated on other grounds, Merrick v. Lewis, 192 Ariz. 272, 964 P.2d 473 (1998).
Alternatively, the tort claims against the individual defendants were properly dismissed pursuant to A.R.S. § 31-201.01(F), which provides that any tort claims against prison employees acting within the scope of their employment must be brought against the state. Fierro did not allege the individual defendants were acting outside the scope of their employment. Accordingly, we would affirm the dismissal of the tort claims against the individual defendants on this basis.
¶8 To the extent Fierro's complaint alleged a federal claim for deliberate deprivation of his property, this claim also fails. Prisoners must exhaust all administrative remedies before bringing a suit based on federal law. See 42 U.S.C. § 1997e; Woodford v. Ngo, 548 U.S. 81, 91, 93 (2006). Here, Fierro's original written grievance solely concerned his claim for lost property. Pursuant to DO 802.05(1.8), Fierro was required to file an appeal regarding his lost property claim with the Director in order to exhaust all available administrative remedies. However, while Fierro did file an appeal with the Director, this appeal was not based on Fierro's lost property claim. Rather, Fierro's final appeal to the Director only sought relief for Defendants' failure to follow prison grievance procedures. Thus, Fierro failed to exhaust his administrative remedies as to his lost property claim and, therefore, cannot assert a federal claim on these grounds.
¶9 Fierro argues that he is deemed to have exhausted his administrative remedies because he did not receive any responses to his inmate grievances and was, therefore, unable to appeal. See Mattress v. Taylor, 487 F. Supp. 2d 665, 671 (D.S.C. 2007) (holding that a grievance may be considered exhausted when a prisoner files a grievance but does not receive a timely decision from the prison and citing additional cases). We disagree. Even if we accept as true Fierro's allegation that Defendants did not respond to his inmate grievances, this clearly did not prevent him from exhausting his administrative remedies. To the contrary, the record shows that (1) Fierro filed multiple appeals all the way up to the Director and (2) none of his appeals were denied as untimely, e.g., as a result of untimely responses/failure to respond by prison officials.
II. Notice of Claim
¶10 Defendants also argue that the dismissal was proper because Fierro failed to file a notice of claim that complied with A.R.S. § 12-821.01(A). Defendants provided an affidavit from the Attorney General's office stating it had no record of a notice of claim from Fierro regarding claims for lost property or failure to follow grievance procedures. Fierro admitted that he did not mail a notice of claim to the Attorney General's office, but gave his notice of claim (dated January 10, 2011) to CO Badilla pursuant to DO 909.09. Fierro claims he does not know what happened to the notice of claim after he gave it to CO Badilla.
Section 12-821.01(A) provides, in relevant part:
Persons who have claims against a public entity or a public employee shall file claims with the person or persons authorized to accept service for the public entity or public employee as set forth in the Arizona rules of civil procedure within one hundred eighty days after the cause of action accrues.
This DO directs inmates with claims for lost property to provide the "Notice of Claim Against the State of Arizona (Risk Management form for Attorney General's Office)" to the Grievance Coordinator, who is directed to "[f]orward the completed claim packet to the Business Office/Risk Management Coordinator." See ADOC DO 909.09(1.3.1) & (1.4.3). The Division/Institution Risk Management Coordinator shall log the claims, assign tracking numbers to each, and "adjust" all proven claims. Id. 909.09(1.5.2). The Department Orders say nothing about unproven claims or sending Notices of Claim to the Attorney General's Office.
¶11 Pursuant to the prisoner mailbox rule, a pro se prisoner is deemed to have filed a pleading at the time the inmate delivers a properly addressed pleading to the proper prison authorities for the purpose of filing. See State v. Goracke, 210 Ariz. 20, 22, ¶ 5, 106 P.3d 1035, 1037 (App. 2005); see also Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (holding prisoner mailbox rule applies to § 1983 suits filed by pro se prisoners). Fierro did not provide his notice of claim to the prison official for mailing to the Attorney General, the appropriate party; rather, Fierro gave his notice of claim to CO Badilla for delivery to the grievance coordinator pursuant to DO 909.09. However, we need not determine whether Fierro's actions constituted filing under the prisoner mailbox rule because we conclude dismissal was warranted on other grounds. See City of Phoenix, 144 Ariz. at 330, 697 P.2d at 1080.
¶12 Here, the notice of claim only referenced Fierro's lost property claim; it did not address Defendants' alleged failure to follow grievance procedures or Fierro's retaliation claim. Failure to include all claims in a notice of claim bars the claim. See Crum v. Superior Court (Cutler), 186 Ariz. 351, 353, 922 P.2d 316, 318 (App. 1996). Without proper notice of all claims, the state is unable to investigate the claim or assess its liability in an attempt to settle the claim. See Mammo v. State, 138 Ariz. 528, 531, 675 P.2d 1347, 1350 (App. 1983) (purpose of notice of claim statute is to allow the state agency the opportunity to investigate and assess liability; to attain settlement and avoid litigation; and to advise the legislature when settlement cannot be reached). Thus, Fierro's claims based on Defendants' failure to follow grievance procedures or retaliation are barred because he failed to include them in his notice of claim.
To the extent these claims may constitute § 1983 claims, the notice of claim statute is inapplicable. Morgan v. City of Phoenix, 162 Ariz. 581, 584, 785 P.2d 101, 104 (App. 1989). However, as noted above, Fierro's § 1983 claims are barred by his failure to exhaust all administrative remedies before filing suit. See, supra, ¶ 8. Moreover, we also conclude the trial court correctly dismissed any section 1983 claims relating to Defendants' failure to follow grievance procedures because prison employees' disregard of grievance procedures does not give rise to a section 1983 claim. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); Flournoy v. Fairman, 897 F. Supp. 350, 354 (N.D. Ill. 1995).
CONCLUSION
¶13 Fierro's claim for lost property is precluded by A.R.S. § 31-201.01(L) and his claims for failure to follow grievance procedures and/or retaliation are precluded by A.R.S. § 12-821.01. We affirm the order dismissing this action.
Fierro also asks this court to remove a memorandum from his transportation file. This is not an appropriate request for relief in this appeal from an order dismissing Fierro's compliant.
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