Foley v. State

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RICK ALTON FOLEY,
Petitioner/Appellant,

v.

STATE OF ARIZONA, et al.,
Respondents/Appellees.

No. 1 CA-CV 15-0036
FILED 3-15-2016

Appeal from the Superior Court in Maricopa County
No. LC2014-000037-001
The Honorable Mark H. Brain, Judge

AFFIRMED

COUNSEL

Rick Alton Foley, Florence
Petitioner/Appellant

Arizona Attorney General’s Office, Phoenix
By Neil Singh
Counsel for Respondents/Appellees
 FOLEY v. STATE
Decision of the Court

MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kenton D. Jones joined.

O R O Z C O, Judge:

¶1 Rick Alton Foley appeals the superior court’s denial of special
action jurisdiction. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Foley is incarcerated with the Arizona Department of
Corrections (ADOC) in Florence, Arizona. On January 29, 2013, Foley was
cited for sending a certified letter to Arizona State Prison Complex (ASPC)
Major Josephowicz through the United States Postal Service (USPS) in
violation of ADOC Department Order (DO) 916 (Violation 1).

¶3 On February 19 and 27, Foley was again cited for violating
DO 916; this time for sending a stamped letter to both ASPC Sergeant D.
McClincy and Captain B. Shaw via the USPS (Violations 2 and 3,
respectively). On February 28, Foley was cited for attempting to mail
postage stamps to a private vendor as payment for legal research materials
in violation of DO 914.01 (Violation 4).

¶4 The ADOC held disciplinary hearings on all four citations,
and Foley was found guilty of each violation. Foley filed a First Level
appeal to the Deputy Warden pursuant to DO 803.09.1.2.4, requesting
review of the disciplinary hearing officers’ decisions in Violations 1, 2 and
3. The decisions in all three disciplinary hearings were upheld. Although
there is no evidence in the record on appeal that Foley filed a First Level
appeal on Violation 4, the ADOC nonetheless performed a review and
upheld the findings of the hearing officer.

¶5 Foley then filed a Second Level appeal on Violations 2 and 3,
pursuant to DO 803.09.1.2.5, permitting an appeal to the Director or a
designee. Following review, Foley’s Second Level appeals were denied on
March 4 and 20, 2013, respectively. Foley did not file a Second Level appeal
for Violation 1. There is no evidence in the record on appeal that Foley filed
a Second Level appeal on Violation 4.

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 FOLEY v. STATE
Decision of the Court

¶6 On January 22, 2014 Foley filed a special action petition in
superior court, claiming that the ADOC failed to follow certain disciplinary
procedures as to all four violations. The court declined to exercise special
action jurisdiction because Foley had not exhausted his administrative
remedies for Violations 1 and 4 and did not file his claim for Violation 1
promptly. Foley timely appealed, and we have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, Arizona Revised Statute
(A.R.S.) section 12-120.21.A.4 (West 2016),1 and Arizona Rule of Procedure
for Special Actions 8(a).

DISCUSSION

I. Special Action Jurisdiction

¶7 Foley argues the superior court erred by declining to exercise
special action jurisdiction. We review the superior court’s decision to
decline special action jurisdiction for an abuse of discretion. Files v. Bernal, 200 Ariz. 64, 65, ¶ 2 (App. 2001).

A. Exhaustion Requirement

¶8 “[A] party must exhaust his administrative remedies before
appealing to the courts.” Minor v. Cochise Cty., 125 Ariz. 170, 172 (1980).
Under DO 803.09, an inmate may file a First Level appeal from the result of
a disciplinary hearing to the Deputy Warden for further review. See DO
803.09.1.2.4. An inmate may file a Second Level appeal of the Deputy
Warden’s determination to the Director or designee. See DO 803.09.1.2.5.
After the Director or designee issues a decision on the Second Level appeal,
“all administrative remedies shall be considered exhausted[.]” DO
803.09.1.2.5.4.

¶9 Foley admits, and the superior court agreed, that he failed to
exhaust his remedies as to Violation 4. Therefore, denial of special action
jurisdiction as to Violation 4 was proper.

B. Timeliness of Special Action

¶10 The superior court may consider the timeliness of an action in
determining whether to accept jurisdiction of a special action petition. See
Cicoria v. Cole, 222 Ariz. 428, 430, ¶ 8 (App. 2009). The superior court

1 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.

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 FOLEY v. STATE
Decision of the Court

declined special action jurisdiction as to Violation 1 because it found Foley
did not file his petition for special action until almost a year after he
contends he exhausted his remedies. We find the superior court did not err
in declining jurisdiction for Violation 1, as a result of the delay.

¶11 While the superior court did not make specific findings as to
Violations 2 and 3, we uphold the court’s determination “for any valid
reason disclosed by the record.” State ex. rel. Ariz. Dep’t. of Econ. Sec. v.
Kennedy, 143 Ariz. 341, 345 (App. 1985). The record reflects Foley was
notified that the Second Level appeals filed for Violations 2 and 3 were
denied on March 3 and 20, 2013, respectively, yet he did not file his special
action with the superior court until almost a year later. On appeal, Foley
provides no explanation as to why he waited nearly a year to file his special
action petition, other than to say he was “not provided a copy of [the] final
level Appeal decision,” but he included copies of the Second Level appeal
responses from the ADOC for both Violations 2 and 3 in his petition for
special action. Although he argued in his reply brief that the prison
delivery system sometimes takes months, a handwritten note on ADOC’s
notification of the Second Level appeal denial attached to Foley’s special
action petition indicates the document was received on April 9, 2013. Based
on the record on appeal, we find that the superior court did not err in
declining special action jurisdiction as to Violations 2 and 3 for failure to
timely request relief.

CONCLUSION

¶12 For the foregoing reasons, we affirm the superior court’s
declination of special action jurisdiction.

:ama

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