Baker v. Pratt, 1 CA-CV 10-0169

Decision Date20 January 2011
Docket NumberNo. 1 CA-CV 10-0169,1 CA-CV 10-0169
PartiesJOHN P. BAKER, Plaintiff/Appellant, v. RICHARD PRATT; THOMAS SCHAFF; C.O. III KOKEMOR, Defendants/Appellees.
CourtArizona Court of Appeals
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz. R. Supreme Court 111(c); ARCAP 28(c);

Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION

(Not for Publication-Rule 28, Arizona Rules of Civil Appellate Procedure)

Appeal from the Superior Court in Maricopa County

Cause No. CV2008-029273

The Honorable Edward O. Burke, Judge

AFFIRMED IN PART; REVERSED IN PART AND REMANDED

John P. Baker

In Propria Persona

Terry Goddard, Attorney General

By A. J. Rogers, Assistant Attorney General

Attorneys for Defendants/Appellees

JOHNSEN, Judge

¶1 John P. Baker, an inmate in the Arizona Department of Corrections ("ADOC"), appeals from the superior court'sdismissal of his complaint. For the reasons that follow, we affirm in part, reverse in part and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

¶2 On November 14, 2008, Baker filed a complaint against various ADOC employees and Janice K. Brewer in her capacity as then-Secretary of State. After the superior court issued a notice of intent to dismiss for lack of service, Baker moved for an extension of time to serve the defendants. The court granted Baker's motion, giving him until June 30, 2009, to complete service. On July 1, 2009, Baker filed a second motion to extend time for service. On August 19, 2009, court administration placed the case on the inactive calendar.

¶3 On September 8, 2009, Brewer moved to dismiss based on abatement and failure to state a claim; the court granted that motion on October 13. Meanwhile, Baker effected service on Richard Pratt and Dr. E. Vinluan on September 16. Baker served two more defendants, J. Kokemor and Thomas Schaff, on October 8 and November 6, 2009, respectively. On October 13, Baker moved to continue the case on the inactive calendar and on November 9, the court issued a minute entry granting that motion. The court's order stated: "IT IS ORDERED continuing this case on the Inactive Calendar until June 1, 2010, at which timePlaintiff will have had 1½ years to accomplish service of process."

¶4 On November 27, Pratt, Schaff and Kokemor moved to dismiss the complaint "in its entirety." After considering Baker's response, the court granted the motion.

¶5 Baker timely appealed.1 We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") section 12-2101(B) (2003)."2

DISCUSSION
A. Standard of Review.

¶6 We review the grant of a motion to dismiss for failure to state a claim de novo. Jeter v. Mayo Clinic Ariz., 211 Ariz. 386, 391, ¶ 18, 121 P.3d 1256, 1261 (App. 2005). We accept as true all well-pled factual allegations and will affirm the dismissal only if Baker "would not be entitled to relief under any interpretation of the facts susceptible of proof." Fid. Sec. Life Ins. Co. v. State, 191 Ariz. 222, 224, ¶ 4, 954 P.2d 580, 582 (1998).

B. Dismissal of the State-Law Claims.3

¶7 Arizona law precludes convicted felons from suing for damages or equitable relief against the State, its officers or employees "unless the complaint alleges specific facts from which the court may conclude that the plaintiff suffered serious physical injury or the claim is authorized by a federal statute." A.R.S. § 31-201.01(L) (1996). "Serious physical injury" is defined as "an impairment of physical condition that creates a substantial risk of death or that causes serious disfigurement, prolonged impairment of health or prolonged loss or impairment of the function of any bodily organ." A.R.S. § 31-201.01(N)(2).

¶8 Baker's complaint purported to allege medical malpractice due to medical conditions that were left untested and untreated. He contended certain defendants did not follow up on pre-cancerous polyps, which "could have been a life issue." Further, Baker alleged that certain defendants were late in following up on his thyroid condition, that if he does not receive the proper medication "he could die," and that hiscondition causes breathing problems. None of these allegations alleged serious physical injury within the meaning of A.R.S. § 31-201.01(N)(2).4

¶9 Baker also alleged he has cataracts in both eyes, which, if not removed, will cause him to be blind. This allegation is not that Baker has suffered a serious physical injury, but that he may have an injury in the future. Moreover, Baker's allegation that he is on medication for his feet, but the pain never goes away, does not constitute "serious physical injury" within the meaning of A.R.S. § 31-201.01(N)(2).5

¶10 Finally, Baker does not assert his medical malpractice claim is authorized by any federal statute. Accordingly, the superior court properly dismissed this claim. See Tripati v. State, 199 Ariz. 222, 225, ¶ 9, 16 P.3d 783, 786 (App. 2000).

¶11 Baker's complaint also fails to state a claim under A.R.S. §§ 41-1493.01 (2004),-1493.02 (2004). Those statutes prohibit the government from substantially burdening a person's exercise of religion and apply to "all state and local laws and ordinances." A.R.S. §§ 41-1493.01(B),-1493.02(A). Baker only alleged a violation of these statutes in connection with two defendants' "refus[al] to assist in the matter of the Kosher diet problems" and not taking "an interest in all the violations of the Kosher diet." The complaint alleged that the Kosher diet problems arose from another defendant's failure to follow ADOC policies. Because the alleged violations are not a result of state or local laws or ordinances, dismissal of the claim was proper.

C. Dismissal of the Federal-Law Claims.
1. Religious rights.

¶12 Baker's complaint alleged his religious practices "were either stopped or hampered by some of the Defendants" in violation of the First Amendment, the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1 (2006), and A.R.S. §§ 41-1493.01,-1493.02. Specifically, Baker alleged that certain defendants have "[t]amper[ed] with" his Kosher diet in a manner that requires him to eat his breakfast and lunch at the same time on weekends. He also alleged thatwhile prisoners who are on medical diets may bring back food to their cells, inmates who are on Kosher diets may not.

¶13 There is no right to recover damages for a constitutional violation by state officials other than through 42 U.S.C. § 1983 (2006). Wilkie v. State, 161 Ariz. 541, 546, 779 P.2d 1280, 1285 (App. 1989). Section 1983 imposes liability upon one who, under color of state law, deprives another of federally protected rights. 42 U.S.C. § 1983. Accordingly, such deprivation "must be caused by the exercise of some right or privilege created by the government or a rule of conduct imposed by the government." Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999) (quoting Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982)).

¶14 Baker did not allege any ADOC policy prohibiting the free exercise of his religion. Indeed, Baker asserted one of the defendants deprived him of his First Amendment rights by failing to follow ADOC policy. Because the complaint did not allege any defendant acted under color of state law in depriving Baker of his right to free exercise of religion, it stated no First Amendment violation.

¶15 The RLUIPA, 42 U.S.C. § 2000cc-1(a), prohibits government from imposing a substantial burden on "the religious exercise of a person residing in or confined to an institution." A cause of action under the RLUIPA exists against "agovernment," defined as "(i) a State, county, municipality, or other governmental entity created under the authority of a State; (ii) a branch, department, agency, instrumentality, or official of an entity listed in [clause (i)]; and (iii) any other person acting under color of state law." Harris v. Schriro, 652 F. Supp. 2d 1024, 1029 (D. Ariz. 2009) (quoting 42 U.S.C. § 2000cc-5 (2006)). Many circuit courts have held that individuals may not be sued for damages under the RLUIPA. Id.; accord Rupe v. Cate, 688 F. Supp. 2d 1035, 1044-46 (E.D. Cal. 2010); Shilling v. Crawford, 536 F. Supp. 2d 1227, 1234-35 (D. Nev. 2008).

¶16 Baker's complaint did not allege that any defendant violated the RLUIPA by acting under color of state law. Moreover, his one mention of RLUIPA is vague and conclusory, and therefore, does not state a claim. See Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) ("Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.").

2. Ex post facto and double-punishment claims.

¶17 Baker's complaint also alleged that a classification policy enacted in October 2005 violates the Ex Post Facto Clause of the United States Constitution because it takes into account prior disciplinary infractions when classifying inmates. SeeU.S. Const. art. 1, § 9. He also argues the policy violates A.R.S. § 13-116 (2010).6

¶18 A law violates the Ex Post Facto Clause when it "changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." Calder v. Bull, 3 U.S. 386, 390 (1798). Section 13-116 prohibits double punishment for the same criminal act.

¶19 This claim by Baker fails because it did not identify any specific prison policy. See Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7, 189 P.3d 344, 346 (2008) (when considering a motion to dismiss, courts consider only the well-pled facts). Moreover, inmates have no constitutional right to a particular security classification. Meachum v. Fano, 427 U.S. 215, 224-25 (1976). Indeed, "[w]ide discretion is vested in correctional authorities in matters of internal [prison] administration." Cardwell v. Hogan, 23 Ariz. App. 475, 476, 534 P.2d 283-84 (1975). Likewise, no due-process violation...

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