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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAVIER MURRIETA, Plaintiff/Appellant,

v.

STATE OF ARIZONA, et al., Defendant/Appellee.

No. 1 CA-CV 24-0395
FILED 09-30-2025

Appeal from the Superior Court in Maricopa County
No. CV2023-010731
The Honorable Bradley H. Astrowsky, Judge

AFFIRMED

COUNSEL

Adelayo Law Firm PLLC, Phoenix
By Bamidele Adelayo
Counsel for Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Jennifer Rethemeier
Counsel for Defendant/Appellee State

Broening Oberg Woods & Wilson PC, Phoenix
By Sarah L. Barnes, Kelley M. Jancaitis
Counsel for Defendant/Appellee NaphCare
 MURRIETA v. STATE, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Andrew M. Jacobs delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge Michael S. Catlett joined.

J A C O B S, Judge:

¶1 Javier Murrieta appeals the superior court’s denial of his
motion for a new trial under Arizona Rule of Civil Procedure (“Rule”) 59,
which sought reconsideration of its denial of his petition for pre-suit
discovery under Rule 27. We affirm the court’s denial of Murrieta’s Rule
59 motion for new trial.

FACTS AND PROCEDURAL HISTORY

A. Murrieta Claims He Is Ill and Files a Verified Petition
Under Rule 27 for Pre-Suit Discovery for an IME.

¶2 Murrieta is an inmate at the Arizona State Prison Lewis
Complex, which is managed by Arizona Department of Corrections
Rehabilitation and Reentry (“ADCRR”). He alleges he has been “suffering
from ongoing abdominal pain and other gastrointestinal medical illnesses.”
Murrieta has sought care through NaphCare, ADCRR’s contracted
healthcare provider.

¶3 In August 2023, Murrieta petitioned the superior court under
Rule 27 for medical records and an independent medical examination
(“IME”), so he could file actions under 42 U.S.C. § 1983 and A.R.S. § 31-
201.01 for “the unnecessary and wanton infliction of pain.” Murrieta
alleges ADCRR and NaphCare have refused to provide him adequate
medical care. He alleges he “is unable to proceed further in the evaluation
of the viability of a potential action to obtain appropriate treatment in the
absence of discovery.” Further, he states he “requires his complete medical
file and [an IME] in order to obtain a preliminary medical expert affidavit
pursuant to A.R.S. § 12-2603 as necessary to file or maintain an action.” He
claims he “requires medical and administrative records to establish that he
has exhausted his available administrative remedies.” Murrieta alleges his
“condition is becoming progressively worse and without adequate medical
treatment it is expected to substantially shorten his life expectancy.”

2
 MURRIETA v. STATE, et al.
Decision of the Court

¶4 He requested the superior court set an accelerated hearing
and issue a subpoena under Rule 45 allowing him to obtain discovery of
documents and records. Lastly, Murrieta asked the court to issue an order
under Rule 35 directing the State “to produce him to a third party for [IMEs]
and tests.”

B. The Court Holds a Show Cause Hearing, Murrieta
Withdraws the Request for Medical Records, and the Court
Denies the Petition as to Both the IME and Records.

¶5 In September 2023, the court held a hearing on Murrieta’s
petition. It began by questioning how Murrieta’s requests fell under Rule
27—that the requested materials needed to be preserved before they were
unavailable. The court allowed that the request for an IME might fall under
Rule 27 but questioned whether Murrieta justified that request.

¶6 Murrieta withdrew his request for records but argued he
should be permitted an IME. He argued the court should allow the IME
because the Arizona district court “has said that NaphCare has provided
unconstitutional inadequate medical treatment to inmates.” Murrieta
contended some of the records provided by it were inadequate. He argued
relief under Rule 27 was proper because it “allows . . . [him] to be able to
develop a basis for litigation.”

¶7 In response, the State argued Rule 27 was not the proper
vehicle for the remedies sought by Murrieta, as “he needs to bring a
complaint.” The State argued Murrieta: could seek an IME under Rule 35
after filing suit; is not required to obtain an expert’s opinion before filing
suit; and did not meet Rule 27’s or Rule 35’s requirements for physical and
mental examinations.

¶8 NaphCare argued that if the court granted this petition, “[it]
would open floodgates like you’ve never seen. Every single inmate would
be coming to state court and saying I need an IME.” NaphCare argued
Murrieta should instead bring the records he has to an expert to determine
if he isn’t properly being treated and have that expert execute any
preliminary affidavit he claims he needs.

¶9 On September 6, 2023, the court denied Murrieta’s petition.
The court denied his request for records because Murrieta (1) withdrew the
request orally at the hearing, (2) did not demonstrate the lack of other
means to obtain the records, and (3) showed no risk they would be
destroyed. The court denied the request for an IME as there was no

3
 MURRIETA v. STATE, et al.
Decision of the Court

“showing that the evidence that is sought is [in] danger of being lost by
delay.”

¶10 Murrieta attached with a motion filed in this court the
transcript of the order to show cause hearing. The parties refer to the
hearing and transcript in their briefing without objection. We treat these
uses of the transcript as a stipulated request to supplement the record with
the transcript, which we grant. See ARCAP 11(g)(1).

C. The Court Denies Murrieta’s Motion for a New Trial.

¶11 Arguing the court applied the wrong legal standard, Murrieta
moved for a new trial under Rule 59(a)(1)(F), (G), (H), and (2). Murrieta
argued the court should have followed cases under Federal Rule of Civil
Procedure 27, and found: (1) he sufficiently explained what the anticipated
testimony would show; (2) he cannot file a notice of claim he contends he
must before filing suit because he cannot exhaust his administrative
remedies and cannot secure a medical affidavit; and (3) evidence
establishing his medical condition will be lost without an IME, and that his
condition was worsening.

¶12 The State and NaphCare argued Murrieta’s motion merely
reasserted arguments he already made. NaphCare argued Murrieta
waived his federal law arguments, distinguished his federal authorities,
and asserted Murrietta had “presented no evidence he is dying.”

¶13 On April 12, 2024, the court denied the Rule 59 motion,
finding no ground existed for a new trial, as Rule 59’s “purpose . . . is to
address . . . issues of inequity or error in a prior hearing, which do not exist
in this case.” The court agreed the motion “simply re-asserted the claims
that were made in his Rule 27 hearing, which the [c]ourt already denied.”

¶14 On May 1, 2024, Murrieta appealed “all orders, rulings, and
judgments entered by the honorable Judge Bradley Astrowsky . . . on April
12, 2024.” In June 2025, he filed an amended notice of appeal, omitting the
April 12 date, apparently intending to reach back before the April 2024
denial of his Rule 59 motion to the denial of his petition in September 2023.

4
 MURRIETA v. STATE, et al.
Decision of the Court

DISCUSSION

I. We Lack Jurisdiction Over the Denial of Murrieta’s Rule 27
Petition But Have Jurisdiction Over the Denial of His Rule 59
Motion.

¶15 Murrieta argues we have jurisdiction over the September 2023
denial of his Rule 27 petition by virtue of his June 2025 amended notice of
appeal. The State and NaphCare argue Murrieta’s original notice of appeal
limited this appeal to the April 2024 denial of Murrieta’s Rule 59 motion.
The State and NaphCare are right.

¶16 To create appellate jurisdiction, a notice of appeal must be
filed “no later than 30 days after entry of the judgment from which the
appeal is taken.” ARCAP 9(a); see also James v. State, 215 Ariz. 182, 185 ¶ 11
(App. 2007) (collecting cases). Murrieta’s amended notice of appeal, filed
21 months after the denial of his Rule 27 petition, is untimely. We lack
jurisdiction to review the judgment denying the Rule 27 petition. In re
Marriage of Thorn, 235 Ariz. 216, 218-19 ¶¶ 5-10 (App. 2014) (holding we lack
jurisdiction where amended notice of appeal is untimely).

¶17 Murrieta’s amended notice also doesn’t aid him, because an
appellant may only amend their notice of appeal in accordance with
ARCAP 9(e), which states an amended notice of appeal may be filed if the
superior court rules on a motion listed in ARCAP 9(e)(1). Murrieta points
to no judgment disposing of a motion in the superior court that would have
permitted him to amend his notice of appeal under ARCAP 9(e)(3).

¶18 Despite that, we have jurisdiction over the denial of
Murrietta’s motion for new trial, because his May 1, 2024 notice of appeal
of the April 12, 2024 denial was timely. Ariz. Const. art 6, § 9; A.R.S. §§ 12-
120.21(A)(1), -2101(A)(5)(a).

II. The Court Did Not Err by Denying Murrieta’s Rule 59 Motion for
New Trial.

¶19 Murrieta contends the court erred by denying his motion for
new trial under Rule 59(a)(1)(F), (G), (H), and (2). We review the denial of
a Rule 59 motion for new trial for an abuse of discretion. Paz v. City of
Tucson, 256 Ariz. 391, 396 ¶ 16 (App. 2023) (citations omitted). A court
abuses its discretion where its judgment is “manifestly unreasonable, or
exercised on untenable grounds, or for untenable reasons.” Quigley v. City
of Tucson, 132 Ariz. 35, 37 (App. 1982). For the reasons stated below,
Murrieta has not shown an abuse of discretion.

5
 MURRIETA v. STATE, et al.
Decision of the Court

A. The Court Did Not Err by Denying the Rule 27 Petition.

¶20 Murrieta asserts the superior court abused its discretion by
determining he did not need the IME to sue the State or NaphCare. The
State and NaphCare argue the court did not err because Murietta did not
demonstrate he could not bring a claim without an IME or that a delay in
justice would occur. The State and NaphCare are correct.

¶21 First, Arizona’s claim statute does not apply to Murrieta’s
potential Section 1983 claim, which is a creature of federal law. See Morgan
v. City of Phoenix, 162 Ariz. 581, 584 (App. 1989) (holding plaintiff’s Section
1983 claim not subject to Arizona’s notice of claim statute); Crook v. Ryan,
No. CV-15-02610-PHC-JAT(ESW), 2017 WL 744423, at *2 (D. Ariz. Feb. 27,
2017) (finding A.R.S. § 12-2603 is not applicable to Section 1983 claims); see
also Felder v. Casey, 487 U.S. 131, 152 (1988) (holding state notice of claim
statutes cannot bar federal claim that is otherwise proper to assert).

¶22 Second, Murrieta contends he cannot bring his Section 1983
claim because he “requires an [IME] to effectively participate in the ADCRR
administrative grievance process.” He is correct that the Prison Litigation
Reform Act, 42 U.S.C. § 1997, requires him to exhaust ADCRR
administrative remedies before he may bring a claim. See 42 U.S.C. §
1997e(a). But Murrieta does not explain why his medical records are
insufficient and keep him from engaging in the administrative grievance
process. See City of Phoenix v. Peterson, 11 Ariz. App. 136, 141 (1969) (Rule
27 should not be “used to discover a cause of action and frame [the] original
complaint.” (cleaned up)).

¶23 Third, even if one assumes Murrieta sought to bring a state
court claim (even though on appeal he only claims to be contemplating a
Section 1983 claim), Murrieta only conclusorily asserts an IME is necessary.
He does not explain why the information he already has is insufficient to
seek an expert affidavit. He merely argues that the Arizona district court
previously found “NaphCare . . . [had been] systemically failing to keep
adequate medical records and provide constitutionally inadequate medical
treatment,” an argument raised at the hearing. That general statement does
not relieve Murrieta of the burden to show what specific deficiencies in his
records an IME would cure. It thus fails to establish an abuse of discretion
in denying him a pre-suit IME.

¶24 For these reasons, we cannot say the court abused its
discretion by finding that no delay in justice would result from the denial
of the Rule 27 petition.

6
 MURRIETA v. STATE, et al.
Decision of the Court

B. Murrieta’s Argument Concerning Federal Rule of Civil
Procedure 27 Suggests No Abuse of Discretion.

¶25 Murrieta contends the denial of the Rule 59 motion was error
because the court applied the law incorrectly when denying his Rule 27
petition. Specifically, Murrieta argued the court should have relied on
federal caselaw interpreting Rule 27’s federal analog, Federal Rule of Civil
Procedure 27. We disagree.

¶26 Murrieta’s Rule 59 motion contended the court should have
relied on federal caselaw which provides three elements for a Rule 27
petition to be granted. See Arizona v. California, 292 U.S. 341, 347-48 (1934)
(holding petitioner must (1) provide an explanation of what they anticipate
from the discovery, (2) demonstrate in good faith they expect to bring a
cognizable claim but presently cannot, and (3) make a showing that without
ruling evidence will be lost). Although it did not mechanically apply the
elements for Rule 27’s federal analog, the superior court correctly applied
the Rule 27 standard—whether failing to preserve evidence “may prevent
a failure or delay of justice”—and considered factors similar to those in
federal caselaw, including whether Murrieta could presently bring a claim
and if there were other means to obtain the requested evidence. See Ariz.
R. Civ. P. 27(a)(5)(A). Accordingly, the superior court did not run afoul of
federal case law through its ruling. And in any event, despite the relevance
of analogies to comparable federal rules of procedure, the superior court
was not required to apply federal caselaw. See State v. Gunnison, 127 Ariz.
110, 112 (1980) (stating federal law is persuasive in procedural matters).

CONCLUSION

¶27 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

7