Mercadov.State

ARIZONA COURT OF APPEALS DIVISION ONEJun 11, 2019
No. 1 CA-CV 18-0470 (Ariz. Ct. App. Jun. 11, 2019)

No. 1 CA-CV 18-0470

06-11-2019

JOSE F. MERCADO, Plaintiff/Appellant, v. STATE OF ARIZONA, et al., Defendants/Appellees.

COUNSEL Jose F. Mercado, Buckeye Plaintiff/Appellant Arizona Attorney General's Office, Phoenix By Michael E. Gottfried 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. LC2018-000168-001
The Honorable Rosa Mroz, Judge

AFFIRMED

COUNSEL Jose F. Mercado, Buckeye
Plaintiff/Appellant
Arizona Attorney General's Office, Phoenix
By Michael E. Gottfried
Counsel for Defendants/Appellees

MEMORANDUM DECISION

Chief Judge Samuel A. Thumma delivered the decision of the Court, in which Judge Paul J. McMurdie and Vice Chief Judge Peter B. Swann joined. THUMMA, Chief Judge:

¶1 Jose F. Mercado appeals from a final judgment dismissing his special action complaint against the Arizona Department of Corrections (ADC). Because Mercado has shown no error, the judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 Mercado, who is serving prison terms for murder and other offenses, was cited for inappropriate actions during a visit with his "common law wife/girlfriend." After a disciplinary hearing, ADC found the citation had been proven and imposed consequences, including a loss of earned release credits and suspension of visits with this individual for a time.

¶3 Mercado filed a special action complaint in superior court, alleging ADC violated his due process rights by: (1) basing its findings upon reports authored by an ADC employee who lacked personal knowledge; (2) denying Mercado a fair and impartial process by relying on the reports; and (3) denying Mercado's request to examine the reports. ADC moved to dismiss for failure to state a claim. The court accepted special action jurisdiction but denied relief, granted ADC's motion and dismissed the complaint. This court has jurisdiction over Mercado's timely appeal pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1) and -2101(A)(1)(2019).

Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.

DISCUSSION

¶4 Mercado argues for the first time on appeal that ADC deprived him of due process by: (1) failing to present Mercado's witness statements at the disciplinary hearing; (2) applying A.R.S. §§ 41-1604(A)(1), -1604.07(A) and/or -1604.10(A)(3) to his case; and (3) finding Mercado guilty of a rule violation that was not an ADC or institutional rule. Mercado also seeks to rely on the Arizona Constitution's due process provisions. Ariz. Const. art 2, § 24. Because Mercado did not raise these issues in the superior court, they are waived. Delgado v. Manor Care of Tucson AZ, LLC, 242 Ariz. 309, 314 ¶ 30 (2017).

¶5 Where a superior court accepts special action jurisdiction and addresses the merits, this court looks to whether that court abused its discretion in granting or denying special action relief. See Files v. Bernal, 200 Ariz. 64, 65 ¶ 2 (App. 2001). Legal conclusions are reviewed de novo. Merlina v. Jejna, 208 Ariz. 1, 3 ¶ 6 (App. 2004). Whether the court properly granted a motion to dismiss for failure to state a claim is reviewed de novo. Conklin v. Medtronic, 245 Ariz. 501, 504 ¶ 7 (2018).

¶6 A prisoner facing a loss of earned release credits has a due process right to: (1) "advance written notice of the disciplinary charges;" (2) "an opportunity, [absent circumstances not present here], to call witnesses and present documentary evidence on his [or her] defense;" and (3) "a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action." Superintendent v. Hill, 472 U.S. 445, 454 (1985) (citation omitted). "[S]ome evidence" must support the decision to revoke earned release credits. Id. at 455. The prisoner, however, has no confrontation or cross-examination rights at such a hearing. Wolff v. McDonnell, 418 U.S. 539, 568 (1974).

¶7 Mercado has not shown his due process rights were violated. To the contrary, his complaint and response to the motion to dismiss admit that he received "advance written notice of the disciplinary charges," had "an opportunity . . . to call witnesses and present documentary evidence on his [or her] defense," and received "a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action." Hill, 472 U.S. at 454 (citation omitted).

¶8 Mercado argues the "advanced written notice" was insufficient because it informed him of a "sexual contact" violation rather than a violation of "any Department or Institution rule," the latter of which ADC found was proven. He also argues the "written statement by the factfinder" was inadequate because ADC did not list the video footage that the reporting officer relied upon in making the report.

¶9 Although the advanced written notice did not notify Mercado of an alleged violation of "any Department or Institution rule," that allegation and the violation of which Mercado was notified are similar enough to have provided Mercado minimally-adequate notice of the claim against him. See State v. Branch, 108 Ariz. 351, 354-55 (1972) ("A fundamental element of due process of law is that an accused be advised of the charges against him."). The ADC Department Order Manual defines a "sexual contact" violation, of which Mercado was notified, as "[i]ntentionally or knowingly engaging in sexual contact, which includes kissing, masturbation or any contact that can be construed as sexual in nature." The Manual defines "violating any Department or Institution rule" as "violation of any Published Department or Institution Rule—Including Department Orders, Director's Instructions, and Institution Directives." ADC Department Order 911 prohibits "[g]yrating or thrusting with the pelvic regions, in a standing or sitting position" during visitation. On the record presented, the two provisions are substantially similar, meaning the written notice provided Mercado adequate notice of the charge.

Mercado also fails to show how the change of charges prejudiced him. See Volk v. Brame, 235 Ariz. 462, 470 ¶ 26 (App. 2014) ("Due process errors require reversal only if a party is thereby prejudiced."). --------

¶10 Although the "written statement by the factfinder" did not refer to the video footage of the incident, it noted that two witness statements were provided. Contrary to Mercado's argument, one such witness viewed his conduct on a surveillance video and accordingly properly could testify. See State v. Ahumada, 225 Ariz. 544, 549 ¶ 16 (App. 2010) (witness testifying regarding the contents of a surveillance video). Mercado has not shown that a witness had to personally observe his conduct, as opposed to having been made aware of it by the video footage.

¶11 Mercado's argument that the motion to dismiss "contained misleading statements, omitted relevant facts, and untruths" does not alter the conclusion. He does not develop this argument or show resulting prejudice. Accordingly, Mercado has not shown that reversal on this ground is warranted. See Volk v. Brame, 235 Ariz. 462, 470 ¶ 26 (App. 2014).

CONCLUSION

¶12 The final judgment dismissing Mercado's complaint for special action is affirmed.