BAKER v. BRADLEY, 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. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE JOHN P. BAKER, ) ) Plaintiff/Appellant, ) ) v. ) ) DEPUTY WARDEN BRADLEY; CO IV ) BASURTO; and ANNE REEDER, ) ) Defendants/Appellees. ) __________________________________) DIVISION ONE FILED: 9/12/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-CV 11-0389 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2010-029521 The Honorable Edward O. Burke, Judge (Retired) AFFIRMED John P. Baker Appellant In Propria Persona Buckeye Thomas C. Horne, Arizona Attorney General By Paul E. Carter, Assistant Attorney General Attorneys for Defendants/Appellees Tucson D O W N I E, Judge ¶1 John P. Baker appeals the dismissal of his complaint against Arizona Department of Corrections ( ADOC ) Deputy Warden Bradley, CO IV Basurto, and former Deputy Warden Anne Reeder. For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 by In June 2008, Baker, a prison inmate, was threatened other inmates. officials placed He him requested in a protective detention segregation, unit. Baker transferred to a super-maximum custody unit. grievance regarding privileges. his transfer and was and later Baker filed a concomitant loss of Bradley, Basurto, and Reeder, among others, were involved with his grievances and appeals. ¶3 Before completing the grievance process, Baker filed a civil rights action ( Baker I ) against the ADOC Director, Bradley, and Defendants Basurto moved to ( Baker dismiss I Defendants ). pursuant to Rule The Baker 12(b), I Arizona Rules of Civil Procedure ( Rule ), and based on Baker s failure to exhaust administrative remedies before filing suit. County Superior Court granted complaint with prejudice. ¶4 On affirmed the claims but September dismissal held that the motion, The Pima dismissing Baker s Baker appealed. 30, 2009, with any Division prejudice federal of claims Two of Baker s alleged should have been dismissed without prejudice. this Court state in law Baker I The mandate in Baker I issued on March 5, 2010. ¶5 In October 2010, Baker filed a new complaint challenging his 2008 transfer and asserting a violation of his federal constitutional rights. Basurto 2 and Bradley waived service. Baker attempted to serve Reeder informed she no longer worked for ADOC. Motion for Deferral superior court granted. ¶6 for Service by by mail but was Baker then filed a Publication, which the Reeder, though, was never served. Basurto and Bradley moved to dismiss the complaint, alleging it was not timely filed under the savings statute and that it failed to state a claim upon which relief could be granted. The trial court granted the motion on several grounds, including the untimeliness of the complaint under the savings statute. Baker appealed. We have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) section 12-2101(A)(1). DISCUSSION ¶7 Arizona s savings statute, A.R.S. § 12-504, provides, in relevant part: A. If an action is commenced within the time limited for the action, and the action is terminated in any manner other than by abatement, voluntary dismissal, dismissal for lack of prosecution or a final judgment on the merits, the plaintiff, or a successor or personal representative, may commence a new action for the same cause after the expiration of the time so limited and within six months after such termination. . . . B. The provisions of subsection A apply to judgments on appeal. The date of issuance of the mandate by the appellate court constitutes the date of termination of the action for the purposes of computing the time limited for commencement of the new action. 3 (Emphasis added.) ¶8 Re-filing within a maximum terminates. under of six § 12-504(A) months must after the be accomplished preceding action Roller Vill., Inc. v. Superior Court (Dow), 154 Ariz. 195, 197, 741 P.2d 328, 330 (App. 1987) (emphasis added). [I]f there is an appeal, termination does not occur until the appellate court issues its mandate. ¶9 Id. The mandate in Baker I issued on March 5, 2010. therefore complaint. had until See September Ariz. R. 6, Civ. P. 2010, 6(a) to file (when Baker his new calculating prescribed time periods within which a party must act, the first day is excluded). Baker, though, did not verify his complaint until October 4, 2010, and it was filed on October 20, 2010. 1 ¶10 Baker claims he was unaware of the savings statute, had no access to it, and that the statute should be overlooked in this important case. themselves in propria However, litigants representing persona 1 are entitled to no more The motion to dismiss stated that Baker mailed his complaint on October 4, 2010. Baker did not dispute that date, but instead summarily claimed his complaint was timely under the prison mail rule. We disagree. The prison mail rule allows a legal document filed by a pro se inmate to be deemed filed when the inmate properly addresses and delivers it to prison authorities to mail. Cf. Mayer v. State, 184 Ariz. 242, 244, 908 P.2d 56, 58 (App. 1995). Even assuming Baker gave the complaint to prison authorities on the day that he verified it, that date was outside the six-month period dictated by the savings statute. 4 consideration than if represented by counsel, and they are held to the same level of knowledge regarding required procedures and applicable laws as lawyers. See Smith v. Raab, 95 Ariz. 49, 53, 386 P.2d 649, 652 (1963) (citations omitted); Ackerman v. S. Ariz. Bank & Trust Co., 39 Ariz. 484, 486-87, 7 P.2d 944, 944-45 (1932). We are not faced here with an inartfully worded pleading, but with a failure to comply with a specific statutory deadline. Baker s requirements ignorance of excuse his cannot the savings failure to statute file and a its timely complaint. CONCLUSION ¶11 Baker s complaint was properly dismissed as untimely. Based on this determination, we need not address the additional grounds for dismissal found by the superior court. We affirm the judgment of dismissal. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ LAWRENCE F. WINTHROP, Presiding Judge /s/ JON W. THOMPSON, Judge 5

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