Opinion
1 CA-CV 11-0527 1 CA-CV 11-0669
05-10-2012
CHESTER LEE MARKS, Plaintiff/Appellant, v. MICHAEL ROBERT and NANCY ROBERT, as individuals and as owners of real property; ROBERT G. WEAVER, in his official capacity; MAREA DE NICE LAFOND, as an individual and in her official capacity; COMMUNITY LEGAL SERVICES; JUDGE RECECCA MACBETH, as an individual and in her official capacity; JUDGE DAVID FLETCHER, as an individual and in his official capacity; HENRICE TAYLOR, in her tenant capacity Defendants/Appellees.
Chester Lee Marks, In Propria Persona Michael Robert and Nancy Robert, In Propria Persona William G. Montgomery, Maricopa County Attorney By J. Scott Dutcher, Deputy County Attorney Attorneys for Defendants/Appellees Weaver, MacBeth, and Fletcher Osborn Maledon PA By Geoffrey M. T. Sturr Attorneys for Defendants/Appellees Community Legal Services and LaFond Henrice Taylor, In Propria Persona
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(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)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. CV2011-005709
The Honorable Jeanne M. Garcia, Judge
AFFIRMED
Chester Lee Marks, In Propria Persona
Phoenix
Michael Robert and Nancy Robert, In Propria Persona
Phoenix
William G. Montgomery, Maricopa County Attorney
By J. Scott Dutcher, Deputy County Attorney
Attorneys for Defendants/Appellees
Weaver, MacBeth, and Fletcher
Phoenix
Osborn Maledon PA
By Geoffrey M. T. Sturr
Attorneys for Defendants/Appellees
Community Legal Services and LaFond
Phoenix
Henrice Taylor, In Propria Persona
Phoenix NORRIS, Judge
¶1 Appellant Chester Lee Marks timely appeals the superior court's judgment dismissing his complaint against all appellees, and denying his motion to amend the complaint. We disagree with all of his arguments on appeal and affirm the superior court's judgment.
We amend the caption to list appellee Henrice Taylor "in her tenant capacity," and direct the Clerk of the Court to use the amended caption.
FACTS AND PROCEDURAL BACKGROUND
¶2 This case arises out of Marks' forcible eviction from a home owned by appellees Michael and Nancy Robert in a prior action in 2010 (the "eviction action"). Appellee Henrice Taylor rented the home from the Roberts and sublet a room to Marks. After Taylor sued to evict Marks, he consulted with appellee Marea de Nice LaFond, a paralegal employed by appellee Community Legal Services ("CLS"). Appellee Judge David Fletcher presided over the eviction action, sitting in appellee Judge Rebecca MacBeth's courtroom. Appellee Constable Robert Weaver served the writ of restitution on Marks.
¶3 Nearly a year after his eviction, Marks sued the appellees and asserted claims that were all grounded on his allegation he had been wrongfully evicted. Specifically, Marks claimed Taylor was not the proper party to evict him; the Roberts knew Taylor did not have the authority to evict him but allowed her to do so; Constable Weaver served the writ of restitution on Marks; and Judges Fletcher and MacBeth, CLS, and LaFond, conspired to deprive him of his rights under the Eighth Amendment to the United States Constitution to be free from cruel and unusual punishment. The superior court dismissed Marks' complaint in its entirety.
DISCUSSION
¶4 In reviewing the dismissal of a complaint for failure to state a claim pursuant to Arizona Rule of Civil Procedure ("Rule") 12(b)(6), we "accept [the] well-pled factual allegations in the complaint as true and resolve any conflicting inferences in favor of the non-moving party." Baker v. Dolphin Beach Rental & Mgmt., LLC, 224 Ariz. 523, 524 n.1, ¶ 1, 223 P.3d 636, 637 n.1 (App. 2010) (citation omitted).
I. Constable Weaver and Judges Fletcher and MacBeth
¶5 Marks sued Constable Weaver and Judges Fletcher and MacBeth in their official capacities. He also sued both judges individually. The superior court dismissed Marks' claims against these appellees because they were immune from suit. We agree.
The court also dismissed the claims against these appellees because Marks "failed to comply with [Arizona Revised Statutes ("A.R.S.") § 12-821.01(A) (2003)] which requires a notice of claim to be served [on public entities and employees]."
¶6 As an initial matter, we note Marks failed to address immunity in his opening brief, and we could affirm the superior court's dismissal on this basis alone. Childress Buick Co. v. O'Connell, 198 Ariz. 454, 459, ¶ 29, 11 P.3d 413, 418 (App. 2000) (citation omitted) (issues not clearly raised in appellate briefs waived). Even if not waived, the superior court properly held these appellees were immune from suit. Judges are "absolutely immune from damages lawsuits for their judicial acts, 'even when such acts are in excess of their jurisdiction or are alleged to have been done maliciously or corruptly.'" Burk v. State, 215 Ariz. 6, 9, ¶ 7, 156 P.3d 423, 426 (App. 2007) (footnote omitted) (quotation and citation omitted). Marks' allegations against Judges Fletcher and MacBeth arose entirely out of their actions in the adjudication of the eviction action. Thus, both are immune from Marks' claims. See id. at ¶¶ 7-8 (quotations and citations omitted).
¶7 Marks' allegation against Constable Weaver also arose entirely out of his service of the writ of restitution, an action he was required by law to perform. See A.R.S. § 22-131(A) (2008). Accordingly, he was also immune from Marks' claims. See Burk, 215 Ariz. at 9, ¶ 8, 156 P.3d at 426 (quotation and citation omitted) ("Judicial immunity is not limited to judges. Court officers, employees, and agents who perform functions 'intimately related to' or that are 'an integral part of the judicial process,' are also protected."); see generally Clark v. Campbell, 219 Ariz. 66, 72, ¶ 21, 193 P.3d 320, 326 (App. 2008) ("When a constable attends a court and serves process as directed by a court, the constable, like a sheriff, is acting as an officer of the court.").
II. CLS and LaFond
¶8 Marks also alleged CLS and LaFond conspired with the other appellees to deprive him of his Eighth Amendment right to be free from cruel and unusual punishment. The superior court properly dismissed Marks' conspiracy claims against CLS and LaFond for two reasons. First, the Eighth Amendment does not apply to civil proceedings. Olson v. Walker, 162 Ariz. 174, 182-83, 781 P.2d 1015, 1023-24 (App. 1989) (citations omitted). Second, Marks presented only the bald assertion, unsupported by any facts, that CLS and LaFond had conspired to deprive him of his constitutional rights "with the intent to inflict cruel and unusual punishment" on him. Without more, Marks' assertion failed to state a claim upon which relief may be granted. See Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7, 189 P.3d 344, 346 (2008) ("[M]ere conclusory statements are insufficient to state a claim upon which relief can be granted."). Thus, the superior court properly dismissed Marks' complaint against CLS and LaFond.
III. Taylor and the Roberts
¶9 Marks' claims against Taylor and the Roberts were grounded on assertions Taylor was not entitled to evict Marks, because the Roberts owned the house and Taylor was their tenant. Through these claims, Marks sought to re-litigate issues decided in the eviction action. Thus, as a matter of law, the superior court properly dismissed these claims under the doctrine of res judicata. Pima County Assessor v. Ariz. State Bd. of Equalization, 195 Ariz. 329, 335, ¶ 20, 987 P.2d 815, 821 (App. 1999) (citations omitted) (doctrine of res judicata provides final judgment conclusive to parties to judgment on "every issue raised by the record that the court could have decided," and bars future claims on those issues); Phoenix Newspapers, Inc. v. Dep't of Corrs., 188 Ariz. 237, 240, 934 P.2d 801, 804 (App. 1997) (citations omitted) (whether res judicata precludes cause of action question of law subject to de novo review).
IV. Leave to Amend
¶10 Finally, the superior court properly denied Marks' motion for leave to amend his complaint. First, Marks failed to provide the court with a copy of the proposed amended complaint as required by Rule 15(a)(2). Second, from his motion it appears Marks was seeking to amend his complaint to add an additional claim as to why Taylor was not entitled to evict him. Such a claim would have been barred by the doctrine of res judicata, see supra ¶ 9. Thus, amendment would have been futile, and the court did not abuse its discretion in denying Marks leave to amend. See ELM Ret. Ctr., LP v. Callaway, 226 Ariz. 287, 292, ¶ 26, 246 P.3d 938, 943 (App. 2010) (citation omitted).
CONCLUSION
Marks raises two other issues on appeal that he did not raise in the superior court. Accordingly, those issues are not properly before us. Nat'l Broker Assocs., Inc. v. Marlyn Nutraceuticals, Inc., 211 Ariz. 210, 216, ¶ 30, 119 P.3d 477, 483 (App. 2005) (citation omitted) ("We will not address issues raised for the first time on appeal.").
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¶11 For the foregoing reasons, we affirm the superior court's judgment. As the successful parties, we award the appellees their costs on appeal subject to their compliance with Arizona Rule of Civil Appellate Procedure 21 and, accordingly, we deny Marks' "Motion for Award of Attorneys' Fees and Non-Taxable Cost[s]."
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PATRICIA K. NORRIS, Judge
CONCURRING:
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ANN A. SCOTT TIMMER, Presiding Judge
DONN KESSLER, Judge