D'Ambrosio v. Maricopa

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE MARY F. D AMBROSIO, ) ) Plaintiff-Appellant, ) ) v. ) ) MARICOPA COUNTY; MARICOPA COUNTY ) SUPERIOR COURT JUDGE JOHN REA; ) ZWILLINGER & GREEK, an Arizona ) professional corporation, ) ) Defendants-Appellees. ) ) MARY F. D AMBROSIO, ) ) Plaintiff-Appellant, ) ) v. ) MARICOPA COUNTY; ZWILLINGER & GREEK, ) ) ) Defendant-Appellees. _____________________________________) 1 CA-CV 10-0562 1 CA-CV 10-0706 (Consolidated) DIVISION ONE FILED: 11/22/2011 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT T MEMORANDUM DECISION (Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2010-004815 The Honorable Robert Carter Olson, Judge AFFIRMED Mary F. D Ambrosio Pro Se Plaintiff/Appellant Phoenix Maricopa County Office of General Litigation Services Phoenix By Scott H. Zwillinger Sara Witthoft Attorneys for Defendant/Appellee Maricopa County Terry Goddard, Attorney General By Daniel P. Schaack, Assistant Attorney General Attorneys for Defendant/Appellee Judge Rea Phoenix Zwillinger Greek Zwillinger & Knecht P.C. By Scott H. Zwillinger Sara Witthoft Attorneys for Defendant/Appellee Zwillinger Phoenix H A L L, Judge ¶1 Mary dismissal of D Ambrosio her appeals complaint. For from the the superior following court s reasons, we affirm. ¶2 In 2007, D Ambrosio filed a complaint against Maricopa County (the County) in which she claimed to have been beaten by detention officers at the County jail (2007 Case). Zwillinger and Greek represented the County in the 2007 Case, which County Superior record Court does not Judge John reflect Rea that subsequently D Ambrosio dismissed. appealed from The Judge Rea s dismissal order. ¶3 against On February the County, (collectively, 24, 2010, Zwillinger Defendants), in D Ambrosio and which filed Greek, she and a complaint Judge raised Rea various allegations of fraud, misconduct and abuses by the judicial 2 system in connection with the 2007 Case s dismissal.1 The case was assigned to Pinal County Judge Robert Carter Olson. The Defendants successfully moved to dismiss, arguing among other things that D Ambrosio failed to state claims upon which relief could be granted. See Ariz. R. Civ. P. 12(b)(6). This appeal followed. ¶4 Arizona Rule of Civil Procedure 8(a)(2) requires that a complaint setting forth a claim for relief shall contain . . . [a] short and plain statement of the claim showing that the pleader is entitled to relief. comport with dismissal of this the requirement complaint upon A plaintiff s failure to entitles the defendant motion. Ariz. R. Civ. to P. 12(b)(6). ¶5 We review de novo a trial court s decision granting a motion to dismiss for failure to state a claim. Canyon Ambulatory Surgery Ctr. v. SCF Arizona, 225 Ariz. 414, 417, ¶ 7, 239 P.3d 733, 736 (App. 2010). We assume the complaint s allegations are true and will uphold dismissal only if the plaintiff [ ] would not be entitled to relief under any facts susceptible of proof in the statement of the claim. Id. (quoting T.P. Racing, L.L.L.P. v. Ariz. Dep't of Racing, 223 1 The complaint also names the City of Phoenix (City) as a defendant, but the record reveals the City was never served, and has never appeared in this case. None of the allegations in the complaint specifically apply to the City. 3 Ariz. 257, 259, ¶ 8, 222 P.3d 280, 282 (App. 2009) (citation omitted)). Because Arizona courts evaluate a complaint s well- pled facts, mere conclusory statements are insufficient to state a claim upon which relief can be granted. Cullen v. Auto- Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7, 189 P.3d 344, 346 (2008). ¶6 We have read D Ambrosio s complaint and conclude it violates Rule 8.2 diatribe reflect against The complaint is essentially an inflammatory Defendants D Ambrosio s (and incorrect others), belief and that it she appears is to somehow entitled to a settlement from the County in connection with the 2007 Case. The complaint contains improper conclusory assertions about alleged conduct by Defendants, and it otherwise fails to state any cognizable claim. 2 For example, the complaint The complaint also appears to be an improper collateral attack on the judgment dismissing the 2007 Case. See Duncan v. Progressive Preferred Ins. Co. ex rel. Estate of Pop, 228 Ariz. 3, 7, ¶ 13, 261 P.3d 778, 782 (App. 2011) (noting a collateral attack on a judgment is an effort to obtain another and independent judgment which will destroy the effect of the former judgment[,] and unless a judgment is void because the court lacked jurisdiction, the judgment cannot be collaterally attacked even if it is erroneous or wrong, so that it could be reversed on appeal or set aside on direct attack. ) (citations omitted). Further, regarding Judge Rea s order of dismissal in 2007, judicial immunity shields him from liability. See Acevedo by Acevedo v. Pima County Adult Prob. Dept., 142 Ariz. 319, 321, 690 P.2d 38, 40 (1984) (noting judges of courts of general jurisdiction are not liable in a civil action for damages for their judicial acts, even when such acts are in excess of their jurisdiction or are alleged to have been done maliciously or corruptly ). 4 states: [counsel for the County] said, the County did not want to settle record has the case[,] been FRAUD tainted to has show occurred[,] that Civil [T]he court Procedure was followed, I am appalled to find conflict of interest in the judges protect paychecks. are their employer, the County to continue their These and other similar assertions in the complaint insufficient to survive a motion to dismiss under Rule 12(b)(6). ¶7 Accordingly, we granting Defendants their affirm the respective superior motions court s to order dismiss. D Ambrosio s pending motion to settle the actions is dismissed as moot. /s/ PHILIP HALL, Judge CONCURRING: _/s/_ MICHAEL J. BROWN, Presiding Judge /s/ LAWRENCE F. WINTHROP, Judge 5

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