Opinion
2 CA-CV 2012-0131
04-18-2013
MARSHALL MARTINEZ, Plaintiff/Appellant, v. CORRECTIONS CORPORATION OF AMERICA and its agents at the SAGUARO CENTER, and BEN GREIGO and TODD THOMAS, in their individual and official capacities, Defendants/Appellees.
Marshall Martinez Struck Weineke & Love, P.L.C. By Daniel P. Struck and David C. Lewis
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Not for Publication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, Rules of Civil
Appellate Procedure
APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY
Cause No. S1100CV201100720
Honorable Bradley M. Soos, Judge Pro Tempore
AFFIRMED
Marshall Martinez Eloy
In Propria Persona
Struck Weineke & Love, P.L.C.
By Daniel P. Struck and David C. Lewis
Chandler
Attorneys for Defendants/Appellees
ESPINOSA, Judge. ¶1 Marshall Martinez appeals from the dismissal of his retaliation claim against Corrections Corporation of America and several prison officials. For the reasons stated below, we affirm.
Factual Background and Procedural History
¶2 Martinez is incarcerated at the privately owned Saguaro Correctional Center in Eloy, Arizona. In February of 2011, he filed an action against the prison's owner, Corrections Corporation of America, and several prison officials (collectively, "CCA") alleging, inter alia, that they had threatened his life and violated his constitutional rights in retaliation for his having previously filed a separate civil complaint against them. After his action was filed, Martinez requested an "emergency preliminary injunction order," alleging it was needed to prevent CCA from retaliating against him for exercising his right to petition the court. The trial court denied this motion and, noting Martinez's difficulties in serving any of the named defendants, sent a courtesy copy of the motion and order to CCA's former counsel and directed that Martinez complete service of process on or before June 15, 2011. The court granted Martinez's subsequent request for additional time to complete service, but CCA ultimately waived service. In October, Martinez requested a permanent injunction against CCA's alleged retaliation, which also was denied. In its ruling, the court instructed Martinez to familiarize himself and comply with the Arizona Rules of Civil Procedure. ¶3 Martinez did not serve written discovery or take depositions from October 2011 to May 2012. He did sign a Joint Alternative Dispute Resolution Statement, filed in February 2012 and on June 13, 2012, filed a "Notice for Temporary Restraining Order." On June 20, the trial court issued an order summarily denying Martinez's "Notice for Temporary Restraining Order" because he had failed to specify the relief he was requesting. The court further ordered the case be placed on the inactive calendar and set it for dismissal pursuant to Rule 38.1, Ariz. R. Civ. P., on August 27. ¶4 On July 11, Martinez filed an objection to dismissal and requested a hearing regarding his sentence, which he contended was unconstitutional. The trial court denied the motion on August 14, due to Martinez's failure to make any "cognizable legal argument" and attaching "irrelevant legal rulings and memoranda from Hawaii." On August 27, the court dismissed Martinez's complaint for failure to prosecute, in accordance with Rule 38.1(d). We have jurisdiction over this appeal pursuant to A.R.S. § 12-2101(A)(3).
Martinez was sentenced in Hawaii in 1984. In 1988, he was resentenced and later transferred to Saguaro Correctional Center.
Notably, the trial court dismissed Martinez's complaint without prejudice; therefore, he is not entitled to appeal the order unless it in effect determined the action and would prevent judgment from which an appeal might be taken. See § 12-2101(A)(3); Garza v. Swift Transp. Co., 222 Ariz. 281, ¶¶ 15-16, 213 P.3d 1008, 1011 (2009) (dismissal without prejudice generally not appealable because not final judgment). Although neither party addresses the issue of our appellate jurisdiction, this court has a duty to independently do so. Harris v. Cochise Health Sys., 215 Ariz. 344, ¶ 7, 160 P.3d 223, 226 (App. 2007). It appears from the record that the dismissal without prejudice effectively precludes Martinez from obtaining an ultimate judgment, at least as to his tort claims, because the applicable two-year statute of limitations has run. See A.R.S. § 12-542(1); Garza, 222 Ariz. 281, ¶¶ 15-16, 213 P.3d at 1011 (jurisdiction accepted by court of appeals when dismissal precludes party from obtaining ultimate judgment); see also Maher v. Urman, 211 Ariz. 543 ¶ 20 & n.6, 124 P.3d 770, 777 & n.6 (App. 2005) (implicitly finding jurisdiction over appeal where complaint dismissed after statute of limitations expired). Because the dismissal was an order that "in effect determine[d] the action and prevents judgment," § 12-2101(A)(3), we have jurisdiction to consider this appeal.
Discussion
¶5 Martinez asserts the dismissal of his complaint should be set aside, arguing he was unable to read a portion of Rule 38.1 due to his "being legally blind," Rule 38.1 should not apply because it is "unreasonable" and "bias[ed]," and because he is self-represented. We will not disturb a dismissal for failure to prosecute absent an abuse of discretion. See BCAZ Corp. v. Helgoe, 194 Ariz. 11, ¶ 13, 976 P.2d 260, 263 (App. 1998) (reviewing dismissal under former Rule V(e)(2), Ariz. Super. Ct. Unif. R. Prac.); see also Ariz. R. Civ. P. 38.1 2000 bar committee note (Rule 38.1 incorporates provisions of former Rule V(e)(2)). ¶6 Martinez, who is "held to the same familiarity with required procedures . . . as would be attributed to a qualified member of the bar," despite his pro se status, does not assert he failed to receive notice of the dismissal. Copper State Bank v. Saggio, 139 Ariz. 438, 441, 679 P.2d 84, 87 (App. 1983). Neither does he claim he complied with Rule 38.1 by filing a Motion to Set and Certificate of Readiness or motion for additional time. See BCAZ Corp., 194 Ariz. 11, ¶ 28, 976 P.2d at 266 (although dismissal not justified when party complies with rule, lack of vigorous pursuit of case may foreclose relief from dismissal). Finally, Martinez cites no legal authority to support his arguments. See Ariz. R. Civ. App. P. 13(a)(6). We generally disregard unsupported arguments. Cullum v. Cullum, 215 Ariz. 352, n.5, 160 P.3d 231, 234 n.5 (App. 2007). Accordingly, Martinez has not demonstrated the trial court abused its discretion in dismissing his complaint.
Martinez has attached to his brief copies of medical records, purportedly demonstrating his deteriorating vision. But we do not consider matters outside the record on appeal. See Gravel Res. of Ariz. v. Hills, 217 Ariz. 33, ¶ 9, 170 P.3d 282, 285-86 (App. 2007).
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Disposition
¶7 For the reasons stated above, the dismissal of Martinez's complaint is affirmed.
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PHILIP G. ESPINOSA, Judge
CONCURRING: ______________
GARYE L. VÁSQUEZ, Presiding Judge
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VIRGINIA C. KELLY, Judge