CROCKETT v. MCSO et al.

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 CHARLES CROCKETT, ) ) Plaintiff/Appellant, ) ) v. ) ) MARICOPA COUNTY SHERIFF'S ) OFFICE; COUNTY OF MARICOPA; ) FULTON BROCK; ANDREW KUNASEK; ) DON STAPLEY; MAX WILSON; MARY ) ROSE WILCOX; DAVID SMITH; JOSEPH ) ARPAIO; EDWARD CESOLINI; D/O ) CROCK, ) ) Defendants/Appellees. ) ) __________________________________) 1 CA-CV 12-0253 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) DIVISION ONE FILED: 04/02/2013 RUTH A. WILLINGHAM, CLERK BY: GH Appeal from the Superior Court of Maricopa County Cause No. CV2011-020227 The Honorable George H. Foster, Jr., Judge REVERSED AND REMANDED MayesTelles PLLC By J. Blake Mayes And David V. Telles Attorneys for Plaintiff/Appellant Phoenix, AZ William G. Montgomery, Maricopa County Attorney By Peter Muthig, Deputy County Attorney Attorneys for Defendants/Appellees Phoenix, AZ T H O M P S O N, Judge ¶1 Appellant Charles Crockett (Crockett) was a prisoner at Lower Buckeye jail in 2011. a complaint in detention In November 2011, Crockett filed superior court officer employed against by Maricopa Mark Crock County, (Crock), a the Maricopa County Sheriff s Office, the State of Arizona, Maricopa County, the City of Phoenix, and various government officials.1 alleged that Crock arbitrarily and vindictively Crockett closed his cell door on him on March 9, 2011, causing him a severe shoulder injury, and then prevented him from obtaining medical treatment. ¶2 Crock filed a motion to dismiss pursuant to Arizona Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)). that Crockett failed to adequately He argued state a claim upon which relief could be granted, and failed to comply with Arizona s notice statute, Arizona Revised Statutes (A.R.S.) section 12821.01. The trial court agreed and dismissed the complaint. Crockett timely appealed. ¶3 When reviewing the trial court s judgment granting a Rule 12(b)(6) motion to dismiss, we view the facts alleged in the complaint as true and will uphold the dismissal only if [the] plaintiff would not be entitled to relief under any facts susceptible of proof under the claim stated. Mattison v. Johnston, 152 Ariz. 109, 114, 730 P.2d 286, 291 (App. 1986) 1 The trial court dismissed all of the defendants. appeals only as to the dismissal of defendant Crock. 2 Crockett (citation omitted). We review the legal issues under a de novo standard of review. Mulleneaux v. State, 190 Ariz. 535, 538, 950 P.2d 1156, 1159 (App. 1997) (citation omitted). ¶4 Rule 8(a), Arizona Rules of Civil Procedure, requires a complaint to contain [a] short and plain statement of the claim showing that the pleader is entitled to relief. hand-written complaint, Crockett alleged that In his Crock intentionally hurt him by closing the cell door on him and then ignored his requests for severe shoulder injury. medical assistance, causing him a Viewing the alleged facts as true, as we must, it is clear that Crockett has adequately pled, at a minimum, a tort claim.2 Crock argues that we should affirm because could the trial court have summarily dismissed the complaint pursuant to Arizona Rule of Civil Procedure 7.1(b)3 after Crockett failed to file a timely response to the motion to dismiss. In granting the motion to dismiss, the trial court did 2 In the answering brief, Crock argues, Crockett s complaint does not allege that Crock closed the cell door on Crockett intentionally, or that he did so intending to cause Crockett harm. But the complaint alleges that Crock arbitrarily and vindictively closed the cell door without warning, severely injuring Crockett s right shoulder. Vindictively means proceeding from or showing a revengeful spirit. Random House Dictionary of the English Language 2123 (2d ed. 1987). 3 Rule 7.1 provides, in relevant part: If . . . the opposing party does not serve and file the required answering memorandum . . . such non-compliance may be deemed a consent to the denial or granting of the motion, and the court may dispose of the motion summarily. (Emphasis added.) 3 not proceed under Rule 7.1(b).4 Although we would deferentially review the trial court s decision had it chosen to exercise its discretion and dismiss under Rule 7.1(b), we decline to affirm for this reason when the trial court did not do so. Accordingly, we reverse the trial court s dismissal based on a failure to state a claim against Crock. ¶5 Crock Crockett failed further to argues comply that with we should Arizona s statute, A.R.S. § 12-821.01 (2003).5 affirm notice of because claim A.R.S. § 12-821.01 requires persons who have claims against a public employee to file a claim with the person or persons authorized to accept service for the . . . public employee as set forth in the Arizona rules of civil procedure within [180] days after the cause of action accrues. The trial court found that Crockett failed to properly serve any of the county defendants, including Crock, pursuant to Arizona Rule of Civil Procedure 4.1(i), and that the notice of claim failed to state sufficient facts to allow the 4 In his reply, Crockett argues that the trial court abused its discretion when it summarily dismissed Crockett s complaint for failing to file a response. However, the minute entry ruling does not address dismissal based on Rule 7.1(b), nor is the argument made in the motion to dismiss. 5 To the extent that Crockett s complaint can be viewed as stating a claim under 42 U.S.C. § 1983, the notice of claim statute does not apply. See Mulleneaux v. State, 190 Ariz. 535, 540, 950 P.2d 1156, 1161 (App. 1997). 4 defendants to understand the basis of their liability. Crockett submitted a notice of claim on August 29, 2011. ¶6 Crockett served one copy of his notice of claim on the Maricopa County Sheriff s Office s Legal Liaison (and one copy on the clerk of the Board of Supervisors). A cover sheet on the notice of claim specifically directed the notice of claim to Sheriff J. Crock. Arpaio, Captain Cesolini, and Detention Officer On the notice of claim form, in a box titled Person or Entity Against Whom the Claim is Asserted, Crockett wrote See attached paper entitled Persons and Entities Against Whom the Claim is Asserted, and then attached a list of fifteen individuals and entities including Crock. ¶7 Liaison Crock would admits be on proper appeal as to that either service Crock on or the the Legal Maricopa County Sheriff s Office, had Crockett not provided just one copy of the notice of claim to the Legal Liaison. He argues that there was no clear indication as to what entity or individual was being served with the single Notice of Claim. the original.) We disagree. (Emphasis in The notice of claim was addressed to Crock and served on the Legal Liaison, who was authorized to accept service for its deputy Crock. Service of the notice of claim was proper. ¶8 Finally, Crock argues that the notice of claim failed to state sufficient facts to allow him to understand the basis 5 for his alleged liability. shall contain employee to sufficient understand claimed. ). entities facts The will See A.R.S. § 12-821.01 ( The claim he claim is intended claimants, just permit basis statute investigate requirement to upon enough be a to . which anticipates claims, to the and the . public liability that light the is government supporting relatively facilitate . facts burden on government s investigation. Yollin v. City of Glendale, 219 Ariz. 24, 32, ¶ 25, 1040, 191 P.3d 1048 (App. 2008) (citation omitted). Crockett s notice of claim, similar to the complaint, alleged that on closed injury. ¶9 court s March his 9, cell 2011 door on Crock him arbitrarily causing him and a vindictively severe shoulder We find that the notice of claim was sufficient. For the decision foregoing dismissing reasons, Crockett s we reverse complaint the trial pursuant to Rule 12(b)(6) and remand for further proceedings. /s/ ________________________________ JON W. THOMPSON, Judge CONCURRING: /s/ _____________________________________ JOHN C. GEMMILL, Presiding Judge /s/ _____________________________________ DONN KESSLER, Judge 6 7

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