Opinion
No. 1 CA-CV 13-0155
01-07-2014
ERNIE PETE ORTEGA, Plaintiff/Appellant, v. STATE OF ARIZONA, Defendant/Appellee.
Ernie Pete Ortega, San Luis Plaintiff/Appellant in propria persona Arizona Attorney General, Phoenix By Mark P. Brookholder Counsel for Defendant/Appellee
NOTICE: NOT FOR PUBLICATION.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. CV2012-012792
The Honorable Katherine M. Cooper, Judge
AFFIRMED AS MODIFIED/ REMANDED
COUNSEL
Ernie Pete Ortega, San Luis
Plaintiff/Appellant in propria persona
Arizona Attorney General, Phoenix
By Mark P. Brookholder
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which Judge Samuel A. Thumma and Chief Judge Diane M. Johnsen joined. OROZCO, Judge:
¶1 Ernie Pete Ortega (Ortega) appeals the superior court's dismissal of his claims. For the following reasons we affirm as modified and remand.
FACTS AND PROCEDURAL HISTORY
¶2 In February 2003, Ortega was found guilty of reckless manslaughter, a class two felony and sentenced to a lengthy prison term. His conviction was affirmed on appeal and on three separate occasions, Ortega sought post-conviction relief pursuant to Arizona Rules of Criminal Procedure Rule 32. Each request was denied.
See State v. Ortega, 1 CA-CR 03-0199 (Ariz. App. Dec. 4, 2003) (mem. decision).
¶3 Ortega then filed this civil suit seeking acquittal or complete reversal of his sentence and monetary damages, alleging a "[d]enial of a fair trial, denial of effective [assistance] of counsel, presentation of fruits from the poisonous tree and violation of Supreme Court law Rule 42, Rule 81, and equal protection of the law." The complaint named the State of Arizona as "the real party of interest" and also listed several state employees as defendants. Ortega attempted to serve the state employee defendants by mailing a copy of the summons and complaint to the Attorney General's Office. The State did not object to service in this manner.
Pursuant to the Arizona Rules of Civil Procedure, Ortega should have personally served the state employee defendants within 120 days. Because he never properly served the employee defendants, and the time for service has passed, they are not parties to this appeal. See Ariz. Rules of Civ. Proc. 4.1(d) and 4(i).
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¶4 The State filed a motion to dismiss the complaint on the grounds that (1) the State is immune for the acts of its employees in the exercise of a judicial function; (2) Ortega failed to file a notice of claim with the State, (3) the applicable statute of limitations barred Ortega's claims, and (4) Ortega's convictions were not subject to collateral attack. Ortega filed a response; however, he did not address any of the legal issues raised by the State and instead focused on his criminal convictions. Agreeing with each of the State's arguments, the superior court granted the State's motion and dismissed Ortega's claims with prejudice.
¶5 Ortega filed a timely appeal. We have jurisdiction pursuant to Arizona Revised Statute (A.R.S.) section 12-2101 (Supp. 2012).
DISCUSSION
¶6 On appeal, Ortega fails to challenge the legal conclusions upon which the superior court rested its decision. Instead, Ortega again raises state law and due process arguments pertaining to his criminal trial. Also Ortega's opening brief does not comply with our Arizona Rules of Civil Appellate Procedure (ARCAP). See ARCAP 13.4, 13.6 (an opening brief must include citations to relevant parts of the record, as well as the authorities and statutes relied upon). Failure to properly raise an argument on appeal, in most cases, results in waiver of that argument. See Schabel v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 167, 920 P.2d 41, 47 (App. 1996). Moreover, "it is not incumbent upon the court to develop an argument for a party." See Ace Auto. Products, Inc. v. Van Duyne, 156 Ariz. 140, 143, ¶ 9, 750 P.2d 898, 901 (App. 1987) (citation omitted).
¶7 Ortega's pro se opening brief can be viewed as arguing the superior court erred by dismissing his (1) claims arising under state law, and (2) claims arising under 42 U.S.C. § 1983. While we may find these arguments waived on appeal, in our discretion, we address both. I. Claims Arising Under State Law
¶8 Under A.R.S. § 12-821.01, a person who has a claim against a public entity or public employee must file a notice of claim within 180 days after the cause of action accrues. Failure to comply with this requirement will result in a dismissal of the claim. Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, 295, ¶ 6, 152 P.3d 490, 492 (2007). We review the superior court's dismissal for failure to comply with a notice of claim de novo. Jones v. Cochise Cnty., 218 Ariz. 372, 375, ¶ 7, 187 P.3d 97, 100 (App. 2008).
¶9 In his response to the State's motion to dismiss, Ortega failed to address the State's contention that he did not file a notice of claim. In his opening brief, however, Ortega argues his "claim cannot be dismissed . . . simply because a notice of claim wasn't filed" and, without citation to the record, also states he has "now complied with" the notice of claim requirement. However, compliance with A.R.S. § 12-821.01 is a prerequisite to initiating a lawsuit. Moreover, in his brief, Ortega alleges the prison authorities would not allow him to mail the notice of claim to "risk management." However, § 12-821.01 does not require service on risk management but on the party or its counsel, i.e., the office of the Attorney General.
¶10 Nevertheless, because Ortega does not assert he complied with the statute before filing this lawsuit, the superior court properly dismissed his claims arising under state law. Having found that the superior court properly dismissed those claims for failure to file a notice of claim, we need not decide whether the statute of limitations had expired or if absolute immunity applies. II. Claims Arising Under 42 U.S.C. § 1983
¶11 In his response to the State's motion to dismiss and in his opening brief, Ortega alleges due process violations based on the United States Supreme Court's decision in Brady v. Maryland, 373 U.S. 83 (1963). We hold the superior court correctly concluded it lacked jurisdiction over any such claim.
¶12 Ortega's claim seeking to overturn his conviction and sentence fails because a civil action may not be used to collaterally attack a conviction. Heck v. Humphrey, 512 U.S. 477, 484-87 (1994). Also, because his conviction and sentence have been affirmed on appeal, and not overturned through any post-conviction proceeding, Ortega cannot seek monetary damages. Id. As such, we hold his claims are not cognizable under § 1983 unless and until his conviction is "reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus." Id. at 489.
¶13 Because Ortega's § 1983 claims are not yet cognizable, they should be dismissed without prejudice. Although Heck did not directly hold that the § 1983 claim barred by its holding must be dismissed without prejudice, the Supreme Court stated: "Even a prisoner who has fully exhausted available state remedies has no cause of action under § 1983 unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus." Id. at 489 (emphasis added). Several federal courts have interpreted this language to mean that "[w]hen a § 1983 claim is dismissed under Heck, the dismissal should be without prejudice." Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996); accord Perez v. Sifel, 57 F.3d 503, 504 (7th Cir. 1995); Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995); Schaffer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995). Accordingly, the dismissal of such claims here should be without prejudice. Without expressing any view on the merits of any post-conviction petition, if Ortega should be successful in overturning his conviction, he then could file his § 1983 claims. In ordering the dismissal of his complaint without prejudice, we emphasize that Ortega's claims are not cognizable under § 1983 unless and until his conviction is invalidated.
CONCLUSION
¶14 We affirm the trial court's order dismissing Ortega's complaint as modified and remand with direction that the dismissal of the § 1983 claims be without prejudice.