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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


          ANTHONY JAMES MERRICK, III, Plaintiff/Appellant,

                                        v.

              CHARLES L. RYAN, et al., Defendants/Appellees.

                             No. 1 CA-CV 19-0080
                              FILED 10-29-2019


           Appeal from the Superior Court in Maricopa County
                        No. LC 2018-000250-001
                 The Honorable David J. Palmer, Judge

                                  AFFIRMED


                               APPEARANCES

Anthony James Merrick, III, Florence
Appellant

Arizona Attorney General’s Office, Phoenix
By Daniel P. Schaack
Counsel for Defendants/Appellees
                       MERRICK, III v. RYAN, et al.
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Lawrence F. Winthrop
joined.


B R O W N, Judge:

¶1           Anthony Merrick, III, appeals the superior court’s orders
denying the relief Merrick sought in his special action petition and denying
his motion for reconsideration. For the following reasons, we affirm.

                              BACKGROUND

¶2            This is at least the sixth lawsuit Merrick has filed asserting
religious claims since he was first incarcerated in the Arizona Department
of Corrections (“ADC”) in 1994.1 Under Department Order 904, inmates in
ADC facilities are permitted to practice their religion of choice so long as
practices do not conflict with prison operations. To receive religious
accommodations, inmates must first designate their religious preferences.
The ADC then vets the accommodations request before approving it.

¶3            In 1994, Merrick designated his religious preference as the
Freedom Church of Revelation (“FCR”). Soon thereafter, he sued ADC
employees in federal district court, alleging they violated his religious
freedoms.2 The district court ultimately ruled against Merrick, finding that
his alleged religious beliefs were not sincerely held and that the church he
claimed to belong to was a “sham.” The Ninth Circuit summarily affirmed.

¶4          Merrick was released in 2006 but incarcerated again in 2011,
at which time he attempted to change his religious preference to the
Fundamental American Christian Temple (“FACT”). After filing several


1      See Luckette v. Lewis, 883 F. Supp. 471, 474 (D. Ariz. 1995); Merrick v.
Ryan, 1 CA-CV 14-0639, 2015 WL 5657296 (Ariz. App. Sept. 24, 2015) (mem.
decision); Merrick v. Inmate Legal Services, No. 13-CV-01094-SPL-BSB, 650
Fed. Appx. 333, 336 (9th Cir. May 16, 2016); Merrick v. Arpaio, No. 14-CV-
01033-RCBBSB; Merrick v. Ryan, No. CV-15-00820-PHX-SPL (BSB).

2      At the time, Merrick went by the name Paul Luckette.


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                       MERRICK, III v. RYAN, et al.
                         Decision of the Court

intervening actions, Merrick sued the Director of the ADC, the
Administrator of Pastoral Activities, and the Senior Chaplain (collectively
“Appellees”) in the district court in 2015, alleging they violated ADC policy
by refusing him various religious accommodations. The ADC explained
that it denied the requested accommodations because it was unable to
verify the authenticity of the FACT and concluded that Merrick was again
trying to designate a sham church as his religious preference, but this time
under a different name. The court entered summary judgment against
Merrick, concluding that his beliefs were insincere. It noted that Merrick’s
repeated refusal to provide credible evidence that his beliefs were sincere,
including providing at least four different addresses for the FACT, two of
which belonged to his mother and brother, was strong evidence that his
claims were fraudulent and that his beliefs were not sincerely held. The
Ninth Circuit affirmed.

¶5            In 2018, Merrick brought another action against the ADC.
Instead of alleging that he was improperly denied religious
accommodations or privileges, his special action petition sought an order
requiring the ADC to change his religious preference to the FACT. The
ADC filed a motion to dismiss, arguing that (1) claim preclusion bars
Merrick’s special action because his claims are identical to past claims, and
(2) even if they are not precluded, Merrick’s claims fail on the merits
because his religious preference for the FACT is a sham and his beliefs are
insincere.

¶6             The superior court accepted special action jurisdiction but
denied relief. Merrick filed a motion for a new trial, which the court treated
as a motion for reconsideration. After the court denied Merrick’s motion,
he filed a notice of appeal from the denial of his special action petition and
the denial of his motion for reconsideration. Because the order denying
Merrick’s motion for reconsideration was unsigned, we stayed the appeal
to allow the superior court to enter an appealable order, which it did.

                               DISCUSSION

¶7             To prevail on claims raised in a special action complaint, a
plaintiff must demonstrate: (1) “the defendant has failed to exercise
discretion which he has a duty to exercise; or to perform a duty required by
law as to which he has no discretion”; (2) “the defendant has proceeded or
is threatening to proceed without or in excess of jurisdiction or legal
authority”; or (3) a “determination was arbitrary and capricious or an abuse
of discretion.” Ariz. R.P. Spec. Act. 3. Because the superior court accepted
jurisdiction, we review the decision on the merits to determine whether the


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                        MERRICK, III v. RYAN, et al.
                          Decision of the Court

court abused its discretion. Hamilton v. Mun. Court of City of Mesa, 163 Ariz.
374, 377 (App. 1989).

¶8            Merrick argues the superior court erred by (1) ruling his
claims were barred by claim preclusion because his 2018 claim was different
than his 2015 claim, and (2) finding his special action petition lacked facial
merit based on erroneous facts and law.

¶9             “Federal law dictates the preclusive effect of a federal
judgment.” In re Gen. Adjudication of All Rights to Use Water In Gila River
Sys. & Source, 212 Ariz. 64, 69, ¶13 (2006). Claim preclusion applies when
the previous suit “(1) involved the same claim or cause of action as the later
suit, (2) reached a final judgment on the merits, and (3) involved identical
parties or privies.” Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th
Cir. 2005) (internal quotations omitted).

¶10           To determine whether two claims are the same, we consider:

       (1) whether rights or interests established in the prior
       judgment would be destroyed or impaired by prosecution of
       the second action; (2) whether substantially the same
       evidence is presented in the two actions; (3) whether the two
       suits involve infringement of the same right; and (4) whether
       the two suits arise out of the same transactional nucleus of
       facts.

Int’l Union of Operating Engineers-Employers Const. Indus. Pension, Welfare &
Training Tr. Funds v. Karr, 994 F.2d 1426, 1429 (9th Cir. 1993) (citation
omitted). The fourth factor is the most important. Id.; Mpoyo, 430 F.3d at
988 (explaining that the common-nucleus criterion (1) assures that the two
suits involve the same claim or cause of action and (2) it is often held to
outcome determinative). We apply the “transaction test to determine
whether the two suits share a common nucleus of operative fact.” Mpoyo,
430 F.3d at 987. Whether the events underlying two separate lawsuits are
“part of the same transaction or series depends on whether they are related
to the same set of facts and whether they could conveniently be tried
together.” Id. (citation omitted).

¶11           “[D]ifferences in the specific legal theory pled in the
subsequent suit are irrelevant so long as the claim could have been raised
in the prior action.” Howell v. Hodap, 221 Ariz. 543, 547, ¶20 (Ariz. App.
2009) (quotations omitted). “[Claim preclusion] bars relitigation of all
grounds of recovery that were asserted, or could have been asserted, in a
previous action between the parties, where the previous action was


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                       MERRICK, III v. RYAN, et al.
                         Decision of the Court

resolved on the merits.” U.S. ex rel. Barajas v. Northrop Corp., 147 F.3d 905,
909 (9th Cir. 1998). “It is immaterial whether the claims asserted
subsequent to the judgment were actually pursued in the action that led to
the judgment; rather, the relevant inquiry is whether they could have been
brought.” Id. A summary-judgment dismissal is a decision on the merits
for the purposes of claim preclusion. Mpoyo, 430 F.3d at 988.

¶12          Merrick sued the Director of the ADC, the Administrator of
Pastoral Activities, and the Senior Chaplain—the same parties he sued in
2015. And the decision in the 2015 case was on the merits because the court
granted summary judgment to the Appellees. The pertinent issues before
us are whether the 2015 and 2018 cases involve the same claims, and
whether Merrick could have brought his claims in the prior action.

¶13            The 2018 case involves the same claims as the 2015 case
because the claims arise out of the same set of facts. In the previous suit,
Merrick alleged that the Appellees denied him various religious
accommodations. Here, Merrick alleges that Appellees refuse to change his
religious designation to the same religion for which he previously sought
accommodations. Merrick contends that the claims are different because in
the previous suit he was seeking accommodations to practice his religion,
whereas here he is simply seeking its recognition. However, recognition of
the FACT as Merrick’s religious preference was necessarily at issue in the
2015 case because, under ADC policy, Merrick was required to register the
FACT as his religious preference in order to obtain the accommodations he
was asking for. Moreover, the federal district court issued a detailed order
where the legitimacy of the FACT and the sincerity of Merrick’s belief in it
were the central issues. The two suits share a common nucleus of operative
fact. As the superior court found, Merrick’s claims here are “merely a
different bite at the same apple.” Finally, the questions of whether Merrick
could designate the FACT as his religious preference and whether he was
entitled to seek accommodations for that religion could be conveniently
tried together, and Merrick could have raised both questions in the
previous suit.

¶14          The superior court did not err in finding that Merrick’s claims
are barred by claim preclusion. Accordingly, we do not address the court’s
determination that Merrick’s special action petition lacks merit on its face.




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                      MERRICK, III v. RYAN, et al.
                        Decision of the Court

                            CONCLUSION

¶15            We affirm the superior court’s orders dismissing Merrick’s
special action petition and denying his motion for reconsideration.




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

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