Dunlap v. Shinn

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LARRY DONNELL DUNLAP, Plaintiff/Appellant,

v.

DAVID SHINN, et al., Defendants/Appellees.

No. 1 CA-CV 22-0679
FILED 01-16-2024

Appeal from the Superior Court in Maricopa County
No. CV2022-091040
The Honorable Peter A. Thompson, Judge

AFFIRMED

COUNSEL

Larry Donnell Dunlap, Florence
Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Daniel P. Schaack
Counsel for Defendants/Appellees

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Andrew M. Jacobs joined.
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Decision of the Court

P A T O N, Judge:

¶1 Larry Donnell Dunlap appeals the superior court’s dismissal
of his complaint against former Governor Douglas Ducey, former Arizona
Department of Corrections, Rehabilitation and Reentry (“ADCRR”)
Director David Shinn, Keefe Commissary Corporation (“Keefe”), Officer D.
Schell, and Sergeant Holten, relating to the confiscation of food items he
ordered while incarcerated. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 While incarcerated in a state prison located in Pinal County,
Dunlap ordered fancy cashews, chocolate bridge mix, and a cranberry nut
ring cake from an outside vendor. When the items arrived and he did not
receive them, he filed a complaint against the defendants seeking the
release of his food items, compensation for destroyed food items, and
compensatory and punitive damages.

¶3 After filing the complaint, Dunlap asked the Maricopa
County Sheriff’s Office (“MCSO”) to serve each defendant. Ducey and
Shinn were successfully served but Schell, Holten, and Keefe were not after
the Arizona Attorney General’s Office declined to accept service. Dunlap
told the superior court MCSO refused to serve Schell, Holten, and Keefe
because the addresses he provided for them were in Pinal County.

¶4 Dunlap contends he then asked the Pinal County Sheriff’s
Office (“PCSO”) to serve Schell, Holten, and Keefe. He claims PCSO told
him it would not serve them because it would not honor the Maricopa
County Superior Court’s deferral of service fees, his case was not active in
Pinal County, and it would not serve ADCRR staff. Dunlap filed a motion
for a telephonic hearing regarding service, outlining his efforts to date and
requesting a hearing. It does not appear from the record that a hearing took
place.

¶5 Meanwhile, Ducey and Shinn successfully moved to dismiss
under Arizona Rule of Civil Procedure (“Rule”) 12(b)(6), arguing that state
and federal laws barred the claims against them. See Ariz. R. Civ. P.
12(b)(6). Dunlap requested additional time to serve Schell, Holten, and
Keefe, which the superior court granted—giving him an additional 30 days.
More than 30 days later, Dunlap had not served them or taken any other
action, including filing of a motion suggesting good cause for his failure to
serve Schell, Holten, and Keefe, and seeking additional time within which
to serve them. See Ariz. R. Civ. P. 4(i) (requiring the court to “extend the

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time for service for an appropriate period” upon a showing of “good cause
for the failure” to serve within the previously allowed period). The court
then dismissed his claims against them.

¶6 Dunlap timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) Section 12-120.21(A)(1).

DISCUSSION

¶7 Dunlap challenges the superior court’s orders granting Ducey
and Shinn’s motion to dismiss and its dismissal of his claims against Schell,
Holten, and Keefe for failure to serve.

I. The superior court properly granted Ducey and Shinn’s motion to
dismiss since Dunlap’s claims are either barred or fail under state
and federal law.

¶8 We review dismissals under Rule 12(b)(6) de novo. Conklin v.
Medtronic, Inc., 245 Ariz. 501, 504, ¶ 7 (2018). Dismissal under Rule 12(b)(6)
is appropriate when the plaintiff is not “entitled to relief under any
interpretation of the facts susceptible of proof.” CVS Pharmacy, Inc. v.
Bostwick, 251 Ariz. 511, 576–77, ¶ 10 (2021) (quoting Fid. Sec. Life Ins. Co. v.
Ariz. Dep’t of Ins., 191 Ariz. 222, 224, ¶ 4 (1998)). We treat well-pleaded
material allegations as admitted but do not rely on legal conclusions or
unwarranted deductions of fact. Johnson Int’l, Inc. v. City of Phoenix, 192
Ariz. 466, 470, ¶ 19 (App. 1998).

¶9 Dunlap’s complaint alleges Ducey injured him by approving
an exclusive contract with Keefe. He also claims Ducey told Shinn to stop
or discourage inmates from ordering food items from outside vendors
which led to ADCRR staff confiscating his food items.

¶10 Dunlap alleges Shinn injured him by approving a policy
permitting him to buy food from an outside vendor and that prison staff
confiscated the food for violating a different policy. He also asserts Shinn
injured him by refusing to answer his grievance forms.

A. State law bars Dunlap’s claims against Ducey and Shinn
unless authorized by federal law.

¶11 Ducey and Shinn argue that Dunlap’s claims fail under
Section 31-201.01(L), which provides that a prisoner serving a sentence for
a felony offense may only sue the state or its officers, employees, or agencies
if “the complaint alleges specific facts from which the court may conclude

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that the plaintiff suffered serious physical injury or the claim is authorized
by a federal statute.” A.R.S. § 31-201.01(L).

¶12 As a threshold matter, Ducey and Shinn argue Section
201.01(L) applies, and Dunlap does not dispute its application, thus
conceding that he is serving a sentence for a felony conviction. See Britz v.
Kinsvater, 87 Ariz. 385, 388 (1960). “Serious physical injury” is defined as
“an impairment of physical condition that creates a substantial risk of death
or that causes serious disfigurement, prolonged impairment of health or
prolonged loss or impairment of the function of any bodily organ.” A.R.S.
§ 31-201.01(O)(3).

¶13 Dunlap’s state law claims fail because he does not allege a
serious physical injury anywhere in his complaint. He alleges only that the
defendants confiscated certain property items belonging to him. Section
31-201.01(L) bars such claims. See Tripati v. State, 199 Ariz. 222, 225, ¶ 9
(App. 2000).

B. Dunlap’s federal claims against Ducey and Shinn fail
because Dunlap does not allege either of them had personal
involvement or knowledge of prison officers confiscating
his food items.

¶14 Federal law permits an individual to bring a cause of action
against state officials when their actions violate a constitutional right. 42
U.S.C. § 1983. The claimant must allege the official personally participated
in the constitutional deprivation. Tripati, 199 Ariz. at 225–26, ¶ 11. A
supervisor is liable for the constitutional violations of his subordinates if he
participated in, directed, or knew of and failed to prevent the violation. Id.
at 226, ¶ 13.

¶15 Dunlap does not allege that Ducey deprived him of his
property or knew of the deprivation and failed to act on it, only that Ducey
approved of an “exclusive clause” in the contract with Keefe. Dunlap
claims Ducey ordered Shinn to stop inmates from placing orders with
vendors other than Keefe. We take well-pleaded material allegations as
admitted but do not rely on legal conclusions or unwarranted deductions
of fact. Johnson Int’l., Inc., 192 Ariz. at 470, ¶ 19. Dunlap makes no factual
allegations about Ducey being personally involved in confiscating the food
items at issue. Thus, Dunlap’s Section 1983 claims against Ducey fail.

¶16 Similarly, Dunlap makes no specific factual allegations about
Shinn. He claims Shinn enacted a policy permitting him to order the food
which conflicts with another policy prohibiting the order. This claim does

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not allege Shinn participated in, directed, or knew that prison staff
unlawfully confiscated the food items.

¶17 Because Dunlap fails to establish that Ducey and Shinn
participated in or were even aware of any confiscated food items, his claims
against Ducey and Shinn fail. The superior court properly granted their
motion to dismiss.

II. The superior court properly dismissed the claims against Schell,
Holten, and Keefe after Dunlap failed to serve them.

¶18 Dunlap also appeals the superior court’s dismissal of his
claims against Schell, Holten, and Keefe, after he failed to serve them. Upon
filing a complaint, a plaintiff has 90 days to serve any defendants. Ariz. R.
Civ. P. 4(i). After this period, the superior court must dismiss the action or
give the plaintiff more time to serve the defendants. Ariz. R. Civ. P. 4(i); see
also Sholem v. Gass, 248 Ariz. 281, 286, ¶ 17 (2020). We review the superior
court’s dismissal of claims for failure to serve for an abuse of discretion. See
id. at 289, ¶ 32.

¶19 Dunlap argues he attempted to serve Schell, Holten, and
Keefe using both MCSO and PCSO. MCSO attempted to serve Schell,
Holten, and Keefe at the Attorney General’s Office but it declined to accept
service on their behalf. And according to Dunlap, MCSO declined to serve
Dunlap’s complaint to Schell, Holten, and Keefe because their service
addresses were located in Pinal County.

¶20 Dunlap states he then asked PCSO to serve Schell, Holten,
and Keefe, but PCSO would not serve them because (1) PCSO refused to
honor the Maricopa County Superior Court deferral of fees, (2) PCSO said
that since Dunlap does not have a case in Pinal County, it would not serve
the defendants, and (3) PCSO would not serve prison employees. Even
taking these allegations as true, Dunlap did not pursue any enforcement
action in the superior court—as by mandamus or a motion to compel—nor
did he request to transfer the deferral order to the Pinal County Superior
Court if, as he argued, PCSO refused to honor it. As such, Dunlap failed to
exhaust his remedies in the superior court. See Arnold v. Cesare, 137 Ariz.
48, 52 (App. 1983) (a remedy not requested at the superior court is waived
on appeal). And although he claims he moved for service by publication
on May 8, 2022, the record does not reflect that he filed a motion on that
date, and even if he did, he similarly did not seek a ruling from the court
on any motion for service by publication.

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¶21 The superior court granted Dunlap’s motion for more time to
serve Schell, Holten, and Keefe, and gave him an additional 30 days to serve
them. It dismissed Dunlap’s claims against them when he failed to serve
them within those 30 days and took no other action. Rule 4(i) requires the
superior court to dismiss an action without prejudice when a defendant is
not served with process within 90 days after the complaint is filed. Ariz. R.
Civ. P. 4(i). This rule gives the superior court discretion to either dismiss a
case or grant an extension when the plaintiff fails to serve the defendant
and no good cause is shown. See Sholem, 248 Ariz. at 286, ¶¶ 17–18. When
Dunlap failed either to serve the defendants or show good cause for his
failure to do so, the superior court had discretion to dismiss the claims
against the remaining defendants.

CONCLUSION

¶22 We affirm the superior court’s dismissal of Dunlap’s claims.

AMY M. WOOD • Clerk of the Court
FILED: TM

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