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Baker v. Bradley

Court of Appeals of Arizona, First Division, Department E

September 12, 2013

JOHN P. BAKER, Plaintiff/Appellant,
v.
DEPUTY WARDEN BRADLEY; CO IV BASURTO; and ANNE REEDER, Defendants/Appellees.

Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure

Appeal from the Superior Court in Maricopa County Cause No. CV2010-029521 The Honorable Edward O. Burke, Judge (Retired)

John P. Baker Appellant In Propria Persona Buckeye.

Thomas C. Horne, Arizona Attorney General By Paul E. Carter, Assistant Attorney General Attorneys for Defendants/Appellees Tucson.

MEMORANDUM DECISION

MARGARET H. DOWNIE, Judge.

¶1 John P. Baker appeals the dismissal of his complaint against Arizona Department of Corrections ("ADOC") Deputy Warden Bradley, CO IV Basurto, and former Deputy Warden Anne Reeder. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In June 2008, Baker, a prison inmate, was threatened by other inmates. He requested protective segregation, and officials placed him in a detention unit. Baker was later transferred to a "super-maximum custody unit." Baker filed a grievance regarding his transfer and concomitant loss of privileges. Bradley, Basurto, and Reeder, among others, were involved with his grievances and appeals.

¶3 Before completing the grievance process, Baker filed a "civil rights" action ("Baker I") against the ADOC Director, Bradley, and Basurto ("Baker I Defendants"). The Baker I Defendants moved to dismiss pursuant to Rule 12(b), Arizona Rules of Civil Procedure ("Rule"), and based on Baker's failure to exhaust administrative remedies before filing suit. The Pima County Superior Court granted the motion, dismissing Baker's complaint with prejudice. Baker appealed.

¶4 On September 30, 2009, Division Two of this Court affirmed the dismissal with prejudice of Baker's state law claims but held that any federal claims alleged in Baker I should have been dismissed without prejudice. The mandate in Baker I issued on March 5, 2010.

¶5 In October 2010, Baker filed a new complaint challenging his 2008 transfer and asserting a violation of his federal constitutional rights. Basurto and Bradley waived service. Baker attempted to serve Reeder by mail but was informed she no longer worked for ADOC. Baker then filed a Motion for Deferral for Service by Publication, which the superior court granted. Reeder, though, was never served.

¶6 Basurto and Bradley moved to dismiss the complaint, alleging it was not timely filed under the savings statute and that it failed to state a claim upon which relief could be granted. The trial court granted the motion on several grounds, including the untimeliness of the complaint under the savings statute. Baker appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1).

DISCUSSION

¶7 Arizona's savings statute, A.R.S. § 12-504, provides, in relevant part:

A. If an action is commenced within the time limited for the action, and the action is terminated in any manner other than by abatement, voluntary dismissal, dismissal for lack of prosecution or a final judgment on the merits, the plaintiff, or a successor or personal representative, may commence a new action for the same cause after the expiration of the time so limited and within six months after such termination. . . .
B. The provisions of subsection A apply to judgments on appeal. The date of issuance of the mandate by the appellate court constitutes the date of termination of the action for the purposes of computing the time limited for commencement of the new action.

(Emphasis added.)

¶8 Re-filing under § 12-504(A) "must be accomplished within a maximum of six months" after the preceding action terminates. Roller Vill., Inc. v. Superior Court (Dow), 154 Ariz. 195, 197, 741 P.2d 328, 330 (App. 1987) (emphasis added). "[I]f there is an appeal, termination does not occur until the appellate court issues its mandate." Id.

¶9 The mandate in Baker I issued on March 5, 2010. Baker therefore had until September 6, 2010, to file his new complaint. See Ariz. R. Civ. P. 6(a) (when calculating prescribed time periods within which a party must act, the first day is excluded). Baker, though, did not verify his complaint until October 4, 2010, and it was filed on October 20, 2010.[1]

¶10 Baker claims he was unaware of the savings statute, had no "access to it, " and that the statute "should be overlooked in this important case." However, litigants representing themselves in propria persona are entitled to no more consideration than if represented by counsel, and they are held to the same level of knowledge regarding required procedures and applicable laws as lawyers. See Smith v. Raab, 95 Ariz. 49, 53, 386 P.2d 649, 652 (1963) (citations omitted); Ackerman v. S. Ariz. Bank & Trust Co., 39 Ariz. 484, 486-87, 7 P.2d 944, 944-45 (1932). We are not faced here with an inartfully worded pleading, but with a failure to comply with a specific statutory deadline. Baker's ignorance of the savings statute and its requirements cannot excuse his failure to file a timely complaint.

CONCLUSION

¶11 Baker's complaint was properly dismissed as untimely. Based on this determination, we need not address the additional grounds for dismissal found by the superior court. We affirm the judgment of dismissal.

CONCURRING: LAWRENCE F. WINTHROP, Presiding Judge, JON W. THOMPSON, Judge.


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