GOLDWATER v. BREWER

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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. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 DIVISION ONE FILED: 6/25/2013 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE EDWARD GOLDWATER, Plaintiff/Appellant, v. JAN BREWER, Defendant/Appellee. ) ) ) ) ) ) ) ) ) ) ) No. 1 CA-CV 12-0496 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2011-070095 The Honorable Jose S. Padilla, Judge AFFIRMED Edward George Goldwater In Propria Persona Buckeye Thomas C. Horne, Arizona Attorney General by James B. Bowen, Assistant Attorney General Attorneys for Defendant/Appellee Phoenix S W A N N, Judge ¶1 Edward Goldwater appeals from the superior court s dismissal of his complaint against Governor Jan Brewer. We affirm because the complaint fails to state a claim against the Governor as a matter of law. FACTS AND PROCEDURAL HISTORY ¶2 a On October 17, 2011, Goldwater, a prison inmate, filed complaint defendants. against The the Governor complaint and and various summons were fictitious served on the Governor on November 1, 2011. ¶3 The complaint alleged three counts. Count I, entitled Access to the Courts, alleged that Arizona was engaged in a conspiracy with lawyers to deny legal services to criminal defendants, that the defendants in Goldwater s complaint set up a program to torture and drug criminal defendants to force pleas, that the state supreme court set up a star chamber to deny Goldwater access to the courts, that the state court of appeals and supreme court set up a program to deny all pro se criminal defendants any relief, that the state convicts criminal defendants based on probable cause rather than beyond a reasonable doubt, that the state courts do not grant habeas corpus petitions, and that the state legislature has failed to review statutes governing habeas corpus since 1977. Count II, entitled Fraud, alleged that Arizona has not had a balanced budget for constitution Arizona years, by that the establishing Cardinals football defendants programs team, 2 that to the violated give the gifts state state to the lottery was bankrupt Medicaid and a sham, coverage defendants are that to defendants unmarried unconstitutionally refused to individuals, provide and privatizing that prisons exchange for donations from private organizations. in Count III, entitled Trespass, alleged that the state courts have a policy of denying review or any type of relief to pro se inmates, that defendants refuse to read Goldwater s criminal court petitions, and that the state supreme court refuses to comply with certain constitutional requirements and court rules. ¶4 On November 18, 2011, Goldwater filed entry of default, which he dated November 22. a notice of On November 21, the Governor filed a motion to dismiss the complaint for failure to state a claim. The Governor argued, inter alia, that the complaint was merely a list of grievances and personal beliefs that alleged directed no particular primarily to conduct conduct by by the Governor government and was branches not controlled by the Governor. ¶5 On November 25, Goldwater filed a demand for judgment by default. A month later, he renewed the demand and also responded to and Goldwater contended moved that to the strike the Governor motion had to defaulted dismiss. by not timely responding to the complaint, and argued generally that the Governor was liable on the claims asserted in his complaint 3 because she was constitutionally required to ensure the faithful execution of all laws. ¶6 After granted appeals. the holding Governor s oral argument, motion to the dismiss. superior court Goldwater timely We have jurisdiction under A.R.S. § 12-2101(A)(1). DISCUSSION I. THE GOVERNOR DID NOT DEFAULT. ¶7 Goldwater first contends that the dismissal of the complaint was error because the Governor defaulted by failing to timely respond to the complaint.1 A defendant must file an answer within twenty days of the service of a complaint and summons. Ariz. R. Civ. P. 12(a). The plaintiff may apply for entry of default if the defendant fails to plead or otherwise defend within the twenty-day period. Ariz. R. Civ. P. 55(a). Default is entered upon the clerk of the court s acceptance of the plaintiff s application. Id. The default does not become effective, however, until ten days later. Id. If the defendant pleads or otherwise defends before the expiration of those ten days, the entry of default does not become effective. 1 Id.; Goldwater also contends that the Governor filed her motion to dismiss in the wrong court. His contention is unsupported by the record. Further, he fails to explain how such an error might constitute grounds for reversal or other action by this court. 4 Corbet v. Superior Court (Turco/K.A.S.I.E.), 165 Ariz. 245, 247, 798 P.2d 383, 385 (App. 1990). ¶8 According November 1, 2011. to Goldwater, he served the Goldwater s November 18 application for entry of default was premature. filed her on The Governor was therefore required to answer or otherwise defend by November 21. timely Governor motion to dismiss on November The Governor 21, thereby satisfying the otherwise defends requirement of Rule 55(a). Prutch v. Town of Quartzsite, 231 Ariz. 431, 436, ¶ 17, 296 P.3d 94, 99 (App. 2013). II. ¶9 No grounds for entry of default existed. THE COMPLAINT FAILED TO STATE A CLAIM AGAINST THE GOVERNOR. Goldwater next contends that the superior court erred by concluding that the complaint failed to state a claim.2 2 A Goldwater also contends that the superior court was biased; that the superior court refused to enforce the Code of Judicial Conduct; and that Goldwater was entitled to declaratory judgment because the State refused to respond to [his] demand for sanctions due to criminal perjury [and] fraud, the State s motion to dismiss should have been treated as a motion for summary judgment, and the State s entire set of pleadings were unreliable [and] hearsay. (Emphases omitted.) But Goldwater also asserts that his entire arguments are in exhibits attached to his opening brief. Those exhibits, which consist of the Governor s motion to dismiss and Goldwater s response, do not include arguments related to the judicial bias, judicial ethics, or declaratory judgment issues. We limit our review to the actual arguments presented and do not consider the issues for which Goldwater presented no argument. See Torrez v. Knowlton, 205 Ariz. 550, 552 n.1, 73 P.3d 1285, 1287 n.1 (App. 2003) (issues not argued on appeal are deemed abandoned); Nationwide Res. Corp. v. Massabni, 134 Ariz. 557, 565, 658 P.2d 210, 218 (App. 1982) (appellate court is not obliged to develop argument for a party). 5 complaint must set forth a short, plain statement showing that the pleader is entitled to relief. Ariz. R. Civ. P. 8(a). It must give the defendant fair notice of the nature and basis of the claim and indicate the type of litigation involved. Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 6, 189 P.3d 344, 346 (2008). This requires the sufficient to support the claim. ¶10 plaintiff to plead facts Id. at ¶ 7. In reviewing the dismissal of a complaint for failure to state a claim pursuant to Rule 12(b)(6), we accept as true the facts alleged in the complaint and will affirm the dismissal only if the plaintiff would not be entitled to relief under any interpretation of the facts susceptible of proof. Fidelity Sec. Life Ins. Co. v. State Dep t of Ins., 191 Ariz. 222, 224, ¶ 4, 954 P.2d 580, 582 (1998). We resolve all reasonable inferences from those facts in favor of the plaintiff. McDonald v. City of Prescott, 197 Ariz. 566, 567, ¶ 5, 5 P.2d 900, 901 (App. 2000). We consider only the facts alleged. Don Kelland Materials, Inc., v. Langel, 114 Ariz. 374, 375, 560 P.2d 1281, 1282 (App. 1977). We do not accept as true allegations consisting of conclusions necessarily of law, implied inferences by or deductions well-pleaded facts, that are not unreasonable inferences or unsupported conclusions from such facts, or legal conclusions alleged as facts. Ariz. 386, 389, ¶ 4, 121 Jeter v. Mayo Clinic Ariz., 211 P.3d 6 1256, 1259 (App. 2005). Conclusory statements without supporting factual allegations do not establish a claim on which relief can be granted. 218 Ariz. at 419, ¶ 7, 190 P.3d at 346. Cullen, The possibility that the plaintiff might later produce facts in support of his claim does not save from dismissal a complaint based on conclusions. Dube v. Likins, 216 Ariz. 406, 424, ¶ 14, 167 P.3d 93, 111 (App. 2007). The test is whether what is stated in the complaint would entitle the plaintiff to relief upon some theory to be developed at trial. Guerrero v. Copper Queen Hosp., 112 Ariz. 104, 106, 537 P.2d 1329, 1331 (1975). ¶11 Goldwater s complaint consists of many generalized accusations and conclusions asserting conspiracies, corruption, and unconstitutional conduct by lawyers, the legislature, and the judiciary. But entirely absent from the complaint are any factual allegations to support these claims. And the complaint does not articulate any facts to describe the circumstances of the injuries that Goldwater alleged he suffered. Further, the complaint is silent as to any particular conduct by the Governor that could give rise to liability to Goldwater. 7 CONCLUSION ¶12 For the reasons stated above, we affirm the superior court s dismissal of Goldwater s complaint. /s/ ___________________________________ PETER B. SWANN, Presiding Judge CONCURRING: /s/ ____________________________________ DIANE M. JOHNSEN, Judge /s/ ____________________________________ RANDALL M. HOWE, Judge 8

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