Ryan Baker v. Charles Ryan ( 2020 )

FILED
NOT FOR PUBLICATION
MAR 13 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RYAN ROBERT BAKER, No. 18-16699
Plaintiff-Appellant, D.C. No. 4:18-cv-00064-JGZ
v.
MEMORANDUM*
CHARLES L. RYAN,
Defendant-Appellee,
and
UNKNOWN PARTIES, named as 1-100,
Members of the Protective Custody
Committee; et al.,
Defendants.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Argued and Submitted February 6, 2020
Phoenix, Arizona
Before: O’SCANNLAIN, GRABER, and HURWITZ, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Plaintiff Ryan Baker timely appeals the dismissal of his 42 U.S.C. § 1983action against Defendant Charles Ryan, Director of the Arizona Department of
Corrections. The district court held that an earlier state-court judgment bars
Plaintiff’s claim. Reviewing de novo, Wojciechowski v. Kohlberg Ventures, LLC,
923 F.3d 685, 689 (9th Cir. 2019), we reverse and remand for further proceedings.
We must apply the Arizona law of claim preclusion. Migra v. Warren City
Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984) (citing 28 U.S.C. § 1738). Under
Arizona law, "a final judgment on the merits rendered without fraud or collusion
by a court of competent jurisdiction in a prior suit involving the same parties bars a
second lawsuit based on the same cause of action." Norriega v. Machado, 878 P.2d
1386, 1389 (Ariz. Ct. App. 1994).
Claim preclusion does not apply here because the prior state-court judgment
was not "on the merits." As to Defendant, the state court held that Plaintiff had
failed to accomplish service of process. Failure to accomplish service of process
deprives the Arizona courts of personal jurisdiction over the defendant. Bank of
N.Y. Mellon v. Dodev, 433 P.3d 549, 558 (Ariz. Ct. App. 2018). Accordingly, the
judgment against Defendant was not "on the merits." See Phillips Petro. Co. v.
Shutts, 472 U.S. 797, 805 (1985) ("[A] judgment issued without proper personal
jurisdiction over an absent party is not entitled to full faith and credit elsewhere
2
and thus has no res judicata effect as to that party."); see also Ruiz v. Snohomish
Cty. Pub. Util. Dist. No. 1, 824 F.3d 1161, 1164 (9th Cir. 2016) (holding that a
dismissal for lack of personal jurisdiction is not "on the merits" for purposes of
claim preclusion).
Nor was the state court’s judgment against the State of Arizona "on the
merits."1 Arizona Revised Statutes section 31-201.01(L) defines the scope of the
State’s waiver of sovereign immunity for suits like Plaintiff’s state action.
Relevant here, Arizona has provided that Plaintiff "may not bring a cause of action
. . . unless the complaint alleges specific facts from which the court may conclude
that the plaintiff suffered serious physical injury or the claim is authorized by a
federal statute." Ariz. Rev. Stat. § 31-201.01(L). We understand the state court to
have dismissed the action because Plaintiff did not allege a serious physical injury
and because the State was not a proper defendant under § 1983. That is, the State
had not waived its sovereign immunity. The judgment was thus not "on the
merits." Ruiz, 824 F.3d at 1164-66; cf. F.D.I.C. v. Meyer, 510 U.S. 471, 475
(1994) ("Sovereign immunity is jurisdictional in nature.").
1
Plaintiff declined to argue this precise point but, because the question is a
legal one and because Defendant had an opportunity to argue the point and did so,
we exercise our discretion to address the issue. Phillips v. E.I. DuPont de Nemours
& Co. (In re Hanford Nuclear Reservation Litigation), 534 F.3d 986, 1007 (9th Cir.
2008) ("We have discretion . . . to overlook any waiver.").
3
We need not, and do not, reach any other issues.
REVERSED and REMANDED for further proceedings.
4
FILED
Baker v. Ryan, No. 18-16699
MAR 13 2020
O’SCANNLAIN, J., dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
The majority decides this case on the basis that there was no adjudication on
the merits in state court. However, Baker never argued, either at the district court
or before this Court, that the prior state court judgment was not an adjudication on
the merits as to the State. And this Court “will not ordinarily consider matters on
appeal that are not specifically and distinctly argued in appellant's opening brief.”
Miller v. Fairchild Industries, Inc., 797 F.2d 727, 738 (9th Cir. 1986). In fact,
even in open court, Baker’s counsel conceded that the issue was never raised and
did not even attempt to make the argument, despite the Court’s invitations. In
respectful disagreement with the majority’s statement in footnote 1, I am reluctant
to overlook Baker’s waiver, and thus I respectfully dissent.
In any event, I am persuaded that Ryan, in his official capacity, was in
privity with the State. Ariz. Downs v. Super. Ct. of Ariz., Maricopa Cty., 623 P.2d
1229, 1232 (Ariz. 1981). Baker sought the same injunctive relief against the State
that he now seeks against Ryan. Indeed, at oral argument, Baker’s counsel even
conceded that there was privity. Furthermore, Baker’s claims stem from identical
facts, and the complaints in both suits are virtually identical.
I would affirm the decision of the district court.
1