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Merrick v. Ryan

Court of Appeals of Arizona, First Division

September 24, 2015

ANTHONY JAMES MERRICK, III, Plaintiff/Appellant,
v.
CHARLES RYAN; LANCE HETMER; GREG FIZER; MIKE LINDERMAN; SENIOR CHAPLAIN R. WEBSTER; CHAPLAIN KIDWELL; SENIOR CHAPLAIN HENDERSON; CHAPLAIN MISER; M. STEPHAN; OFFICER ZABORSKY; Defendants/Appellees.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. CV2013-013507, The Honorable J. Richard Gama, Judge.

Anthony James Merrick, III, San Luis Plaintiff/Appellant

Arizona Attorney General's Office, Phoenix By Daniel P. Schaack Counsel for Defendants/Appellees

Judge Patricia A. Orozco delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Maurice Portley joined.

MEMORANDUM DECISION

OROZCO, JUDGE.

¶1 Appellant Anthony James Merrick, III, appeals from the superior court's dismissal of his claims against the director of the Arizona Department of Corrections (ADOC) and other ADOC employees. Because Merrick failed to name the proper defendants in his lawsuit, we affirm the dismissal of his complaint.

FACTS AND PROCEDURAL HISTORY

¶2 Merrick, an inmate in ADOC custody, filed a complaint in superior court alleging that he was denied the right to certain religious materials and practices.[1] The complaint alleged violations of 42 United States Code (U.S.C.) section 1983 and violations of Arizona Revised Statutes (A.R.S.) section 41-1493.01, [2] which is also known as Arizona's Free Exercise of Religion Act (FERA). Merrick also asserted common law tort claims of "trespass, aiding and abetting, civil conspiracy, and joint venture." Merrick named ten individuals as defendants, including the director of the ADOC, the prison warden, the deputy warden, the administrator of pastoral activities for the ADOC, four chaplains, and two correctional officers. Merrick did not name the State of Arizona or the ADOC.

¶3 Because Merrick's complaint alleged violations of federal law, Appellees removed the case to federal court pursuant to 28 U.S.C. § 1441(a). Merrick filed a motion to amend his complaint to "eliminate any and all federal statutes and laws" and a request for remand to superior court. The district court granted Merrick's motion and remanded the case, which now involved state law claims only, to superior court.

¶4 Upon return to superior court, Appellees moved to dismiss Merrick's complaint for failure to state a claim. See Ariz. R. Civ. P. 12(b)6. The court granted Appellees' motion, and this appeal followed.[3] We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and CA.R.S. § 12-2101.A.1 (West 2015).

DISCUSSION

¶5 We review de novo the superior court's dismissal of a complaint under Arizona Rule of Civil Procedure (Rule) 12(b)6. Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶¶ 7-8 (2012). We will affirm the superior court's decision granting appellees' motion to dismiss if it is correct for any reason. Rutledge v. Ariz. Bd. of Regents, 147 Ariz. 534, 552 (App. 1985).

¶6 Here, the superior court granted appellees' motion and dismissed the case with prejudice because Merrick failed to timely file a notice of claim against appellees as required by A.R.S. § 12-821.01.[4] On appeal, appellees abandon their argument that dismissal is proper on that basis, explaining that "Merrick's sworn statements that he timely filed Notices of Claim with each of the Defendants . . . create a triable issue of fact." Based on this court's decision in Lee v. State, 225 Ariz. 576, 580, ΒΆ 15 (App. 2010), we agree that whether Merrick complied with the notice of claim requirements is an issue for the factfinder to determine. Nevertheless, we will affirm the dismissal of Merrick's claims ...


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