Lewis v. State ( 2021 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
JESSIE LEWIS, Plaintiff/Appellant,
v.
STATE OF ARIZONA, et al., Defendants/Appellees.
No. 1 CA-CV 20-0285
FILED 3-16-2021
Appeal from the Superior Court in Maricopa County
No. CV2019-094250
The Honorable David J. Palmer, Judge
AFFIRMED
COUNSEL
Jessie Lewis, Florence
Plaintiff/Appellant
Arizona Attorney General’s Office, Phoenix
By Lindsey Gilman, Connie Tororica Gould
Counsel for Defendants/Appellees State of Arizona and Mark Brnovich
Phoenix City Attorney’s Office, Phoenix
By Leslie S. Tuskai
Counsel for Defendants/Appellees Dusten Mullen and Jeri Williams
LEWIS v. STATE, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Cynthia J. Bailey joined.
W I N T H R O P, Judge:
¶1 Jessie Lewis appeals the superior court’s dismissal of his
claims against the State of Arizona and Attorney General Mark Brnovich
(collectively, “the State Defendants”) and against Phoenix Chief of Police
Jeri Williams and Phoenix police officer Dusten Mullen (collectively, “the
City Defendants”). Because Lewis did not properly file a notice of claim in
compliance with Arizona Revised Statutes (“A.R.S.”) section 12-821.01, we
affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In 2015, Lewis was convicted of Misconduct Involving
Weapons, a class 4 felony with six prior felony convictions, and sentenced
to eleven years in prison. This court reviewed and affirmed Lewis’ 2015
conviction and sentence. State v. Lewis, 1 CA-CR 15-0301, 2016 WL 4045317(Ariz. App. July 28, 2016) (mem. decision). In 2017, Lewis sought habeas
corpus relief in the federal district court, which was denied in February 2018.
His request for a certificate of appealability from that denial was likewise
rejected by the Ninth Circuit in July 2018. The allegations in this civil action
arise from Lewis’ arrest, trial, and conviction in the 2015 criminal case.
¶3 In July 2019, Lewis filed a civil complaint in Maricopa County
Superior Court alleging several public employees conspired to falsify and
tamper with the evidence in the 2015 criminal case and took actions that
violated his state and federal constitutional rights. The State Defendants
removed the action to federal court, following which, Lewis filed a first
amended complaint (“FAC”) in which he dropped his federal claims. The
district court remanded the action back to the superior court.
¶4 In his FAC, Lewis alleged the Defendants (1) violated Article
2, Section 4, of the Arizona Constitution by failing to allow him to obtain
certain evidence in the 2015 case and thus depriving him of his right to due
process, (2) committed “fraud” in violation of A.R.S. §§ 13-2311, -2407 by
offering a redacted version of an exhibit, which was then admitted at trial
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LEWIS v. STATE, et al.
Decision of the Court
over Lewis’ objection, (3) violated Article 2, Section 12, of the Arizona
Constitution by committing “fraud” that deprived him of “his religious
freedom, regarding [the unredacted Exhibit] and March 19th of 2015 trial
transcript,” and (4) violated Article 2, Section 26, of the Arizona
Constitution by failing to formally provide him notice that he was a
prohibited possessor pursuant to A.R.S. § 13-3101(A)(7) and/or hold an
appropriate hearing as to the applicability of such statute, thus depriving
him of his right to bear arms.
¶5 The State Defendants moved to dismiss and argued, among
other things, that Lewis had not served them with a timely notice of claim
and had failed to serve defendant Brnovich personally. The City
Defendants joined in that motion and additionally noted that Lewis had
failed to serve defendants Mullen and Williams personally. In April 2020,
the superior court dismissed Lewis’ complaint, with prejudice, against the
Defendants. The court found that Lewis had not filed a valid, timely notice
of claim as to any of the Defendants and that Lewis’ claims against all
Defendants were untimely pursuant to A.R.S. § 12-821.
¶6 Lewis filed a timely notice of appeal, and we have jurisdiction
pursuant to A.R.S. § 12-2101(A)(1).
ANALYSIS
I. Standard of Review
¶7 As a preliminary matter, we note the Defendants attached
several documents in connection with the motion to dismiss, including
sworn declarations in support of their notice-of-claim defense.1 These
documents converted the motion to dismiss into one for summary
judgment. See Ariz. R. Civ. P. (“Rule”) 12(d) (“If, on a motion under Rule
12(b)(6) or (c), matters outside the pleadings are presented to, and not
excluded by, the court, the motion must be treated as one for summary
judgment under Rule 56.”); see also Vasquez v. State, 220 Ariz. 304, 308, ¶ 8
(App. 2008). Accordingly, we review the judgment de novo and will only
affirm if there is no genuine issue of material fact, viewing the facts in the
light most favorable to the party against whom judgment is entered. See
1 Although the superior court does not mention the attached
documents specifically in the order granting Defendants’ motion to
dismiss, the court stated it reviewed “the record in this matter, including
the pleadings filed” relative to the notice-of-claim issue. Based on this, we
infer the superior court did consider the attachments.
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LEWIS v. STATE, et al.
Decision of the Court
Yollin v. City of Glendale, 219 Ariz. 24, 27, ¶ 6 (App. 2008); Mousa v. Saba, 222
Ariz. 581, 585, ¶ 15 (App. 2009); see also Jones v. Cochise Cnty., 218 Ariz. 372,
375, ¶ 7 (App. 2008) (“We review de novo a trial court’s determination that
a party’s notice of claim failed to comply with [A.R.S.] § 12-821.01.”).
II. Notice of Claim Pursuant to A.R.S. § 12-821.01
¶8 A person with a claim against a public entity or public
employee must file a notice of claim with the public entity “within one
hundred eighty days after the cause of action accrues.” A.R.S. § 12-
821.01(A). If a proper notice “is not filed within one hundred eighty days
after the cause of action accrues,” then the claim “is barred and no action
may be maintained thereon.” Id.
¶9 Here, Lewis alleges he mailed a notice of claim to the State
Defendants in November 2018 and the City Defendants in January 2019.
All claims asserted by Lewis in his FAC, supra ¶ 4, arise out of and occurred
in connection with his 2015 criminal trial and conviction. Thus, irrespective
of any other deficiencies in the notices of claim, the notices were inadequate
as a matter of law because they were provided far outside the 180-day
window mandated by A.R.S. § 12-821.01(A).
¶10 Lewis argues the notices of claim were timely because he did
not realize he had been damaged until July 13, 2018, when the Ninth Circuit
Court of Appeals denied a certificate of appealability in his habeas corpus
proceeding. We disagree. A cause of action pursuant to A.R.S. § 12-821.01
accrues “when the damaged party realizes he or she has been damaged and
knows or reasonably should know the cause, source, act, event,
instrumentality or condition that caused or contributed to the damage.”
A.R.S. § 12-821.01(B). In other words, the cause of action accrues when the
damaged party reasonably knows what the injury is and who caused it. See
Lawhon v. L.B.J. Institutional Supply, Inc., 159 Ariz. 179, 183 (App. 1988); see
also Little v. State, 225 Ariz. 466, 469, ¶ 9 (App. 2010) (explaining “accrual”
under A.R.S. § 12-821.01 “is construed in accordance with the common law
discovery rule”).
¶11 Lewis’ FAC claims revolve around access to and admission of
certain evidence and other events during his 2015 criminal case, which he
alleges resulted in the deprivation of his constitutional rights. Lewis was
sentenced to prison on May 1, 2015. At that point, he either knew or
reasonably should have known about any injury related to the actions taken
during the trial, including submission of exhibits and evidentiary rulings,
and the deprivation of rights resulting from his conviction and sentence.
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LEWIS v. STATE, et al.
Decision of the Court
Accordingly, as a matter of law, any cause of action arising out of such
events accrued no later than one hundred eighty days after the date of his
sentencing, i.e., no later than October 28, 2015. This remains true even
though Lewis did not find out until July 13, 2018, that the Ninth Circuit
Court of Appeals had denied his request for a certificate of appealability
from the denial of habeas corpus relief.
¶12 Therefore, Lewis’ notices of claim were untimely and
statutorily barred. See A.R.S. § 12-821.01(A). The superior court did not
err.2
CONCLUSION
¶13 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
2 Because we may affirm summary judgment if it is correct for any
reason supported by the record, we do not address other deficiencies in the
notices of claim nor address Lewis’ failure to comply with the one-year
statute of limitations for actions against a public entity or public employee
mandated by A.R.S. § 12-821. See KB Home Tucson, Inc. v. Charter Oak Fire
Ins. Co., 236 Ariz. 326, 329, ¶ 14 (App. 2014).
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