Opinion
No. 1 CA-CV 14-0639
09-24-2015
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.
COUNSEL Anthony James Merrick, III, San Luis 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CV2013-013507
The Honorable J. Richard Gama, Judge
AFFIRMED
COUNSEL Anthony James Merrick, III, San Luis
Plaintiff/Appellant
Arizona Attorney General's Office, Phoenix
By Daniel P. Schaack
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Maurice Portley joined. 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. 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, 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.
Merrick is a member of the Fundamental American Christian Temple Church and seeks access to the following: prayer blanket, tobacco ceremonies, no shaving, head coverings, remembrance book, elder scrolls, gatherings, feasts and festivals, education, vow of poverty, and family relations.
Absent material revisions after the relevant dates, we cite to the current version of a statute unless otherwise indicated.
¶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. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and © A.R.S. § 12-2101.A.1 (West 2015).
The ruling from which Merrick appealed did not contain a Rule 54(c) certification. Subsequently, the court entered a final judgment with the requisite certification that vested jurisdiction in this court. See Barassi v. Matison, 130 Ariz. 418, 422 (1981) (holding that "a premature appeal from a minute entry order in which no appellee was prejudiced and in which a subsequent final judgment was entered over which jurisdiction may be exercised need not be dismissed").
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. 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, ¶ 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 if proper on other grounds. See Rutledge, 147 Ariz. at 552 ("The reasons for orders of dismissal are surplusage and only the correctness of the judgment will be considered on appeal."). I. Tort Claims
The court also concluded that "claims occurring prior to January 25, 2013, are barred by the statute of limitations as those claims were not timely filed [within 180 days pursuant to A.R.S. § 12-821.01.A]."
¶7 In his complaint, Merrick asserts tort claims, including the "common law torts of trespass, aiding and abetting, civil conspiracy, and joint venture." Pursuant to 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.(Emphasis added). The statute is clear and unambiguous in its requirement that, for tort claims against prison officials and employees acting within the scope of their employment, the plaintiff must sue the State. Because the statute is "subject to only one reasonable interpretation, we apply it without further analysis." Glazer v. State, 237 Ariz. 160, 163, ¶ 12 (2015).
Merrick argues that A.R.S. § 31-201.01.F only applies to acts performed within the employees' scope of duty. Merrick's complaint, however, does not allege that appellees acted outside the scope of their duties.
¶8 Here, Merrick failed to name the State as a defendant. Accordingly, because his tort claims run against the State only, the dismissal of his claims was proper. II. Statutory Claim
Appellees also argue that Merrick's complaint fails to allege "serious physical injury" as required by A.R.S. § 31-201.01.L. In light of our decision that Merrick's failure to name the State is fatal to his tort claims, we need not reach this issue. See Freeport McMoRan Corp. v. Langley Eden Farms, LLC, 228 Ariz. 474, 478, ¶ 15 (App. 2011) (explaining that this court does not issue advisory opinions or decide unnecessary issues). --------
¶9 Merrick's complaint also asserts a claim under FERA, © A.R.S. § 41-1493.01, which provides a statutory remedy for persons asserting violations to their freedom of religion. "The legislature passed FERA in 1999 to protect Arizona citizens' right to exercise their religious beliefs free from undue governmental interference." State v. Hardesty, 222 Ariz. 363, 365, ¶ 8 (2009). Section 41-1493.01.D provides in relevant part:
A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.(Emphasis added). "Government" is statutorily defined as "this state and any agency or political subdivision of this state." A.R.S. § 41-1493.3.
¶10 Merrick has not named the State as a party, or "any agency or political subdivision of the State." Rather, he named ten individual employees of ADOC as defendants. Accordingly, because Merrick failed to name the proper defendants, the dismissal of his FERA claim is supported by the law.
CONCLUSION
¶11 For the foregoing reasons, we affirm the superior court's judgment of dismissal.