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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


             WILLIAM CHAPMAN MACH, Plaintiff/Appellant,

                                         v.

 STATE OF ARIZONA; ARIZONA DEPARTMENT OF CORRECTIONS;
       CORIZON, INC.; WEXFORD HEALTH SOURCES, INC.,
                      Defendants/Appellees.

                              No. 1 CA-CV 14-0486
                               FILED 5-14-2015


            Appeal from the Superior Court in Maricopa County
                           No. CV 2013-002562
                 The Honorable Michael J. Herrod, Judge

                                   AFFIRMED



                                    COUNSEL

William Chapman Mach, West End, N.C.
Plaintiff/Appellant in Propria Persona

Arizona Attorney General’s Office, Phoenix
By Daniel Schaack
Counsel for Defendant/Appellee State of Arizona/Arizona Department of
Corrections

Renaud, Cook, Drury, Mesaros, P.A., Phoenix
By J. Scott Conlon
Counsel for Defendant/Appellee Corizon, Inc.
Jones Skelton & Hochuli, P.L.C., Phoenix
Edward G. Hochuli, Brandi Christine Blair, Jonathan Paul Barnes, Jr.
Counsel for Defendant/Appellee Wexford Health Sources, Inc.



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kenton D. Jones and Judge Jon W. Thompson joined.


D O W N I E, Judge:

¶1           William Chapman Mach appeals the dismissal of his
complaint against the State of Arizona (“the State”), the Arizona
Department of Corrections (“ADOC”), Charles Ryan, the director of
ADOC (“Ryan”), Corizon, Inc. (“Corizon”), and Wexford Health Sources,
Inc. (“Wexford”) (collectively, “Appellees”). For the following reasons,
we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            While an ADOC inmate, Mach sued the State, ADOC, Ryan,
and Wexford for negligence, breach of contract, Eighth Amendment
violations, and claims arising under 42 U.S.C. § 1983. The claims were
based on Appellees’ alleged failure to properly treat Mach’s knee, which
had been diagnosed with “arthritic changes.” Mach subsequently filed an
amended complaint (“First Amended Complaint”) that added Corizon as
a defendant.

¶3          Appellees removed the case to federal district court
pursuant to 28 U.S.C. § 1441(a). The district court dismissed the First
Amended Complaint but granted Mach leave to file an amended
complaint, which he did (“Second Amended Complaint”). The Second
Amended Complaint omitted Ryan as a defendant and did not carry
forward the Eighth Amendment or § 1983 claims. Because the Second
Amended Complaint included only state-law claims, the district court
remanded the case to the superior court.

¶4          The State moved to dismiss the Second Amended Complaint
under Arizona Rule of Civil Procedure 12(b)(6) for failure to state a claim


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                          MACH v. STATE, et al.
                          Decision of the Court

upon which relief could be granted, and Wexford joined in that motion.
Corizon filed a separate motion to dismiss under Rule 12(b)(6). After
ruling that the Second Amended Complaint was the operative pleading,
the superior court granted the State’s motion to dismiss. It also granted
Corizon’s motion to dismiss the breach of contract count, but gave Mach
until May 30, 2014 to file a statutorily compliant physician’s affidavit
regarding the negligence claim against Corizon. After Mach failed to do
so, the court dismissed the case in its entirety.

¶5           Mach timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S”) sections 12-120.21(A)(1) and
-2101(A)(1).

                               DISCUSSION

¶6            “Dismissal of a complaint under Rule 12(b)(6) is reviewed de
novo.” Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7, 284 P.3d 863, 866
(2012). “In determining if a complaint states a claim on which relief can be
granted, courts must assume the truth of all well-pleaded factual
allegations and indulge all reasonable inferences from those facts, but
mere conclusory statements are insufficient.” Id. at 356, ¶ 9, 284 P.3d at
866.

I.     The Operative Pleading

¶7            Mach first argues the district court remanded only
jurisdiction to the superior court and not “the court file developed in
federal court,” including the Second Amended Complaint. His argument
centers on the difference between 28 U.S.C. § 1446, which governs the
procedure for removal to federal court, and 28 U.S.C. § 1447, which
provides procedures for remanding a case to state court. Section 1446
requires the removing party to provide the federal court with all process,
pleadings, and orders served upon it in state court. In contrast, § 1447
only discusses the federal court providing the state court with a “certified
copy of the order of remand.” Accordingly, Mach argues, the state court
“need not concern itself with anything that happened in federal court.”
We disagree.

¶8             An amended complaint supersedes and takes the place of
previously filed complaints. Campbell v. Deddens, 21 Ariz. App. 295, 297,
518 P.2d 1012, 1014 (1974). This Court has recognized the superior court’s
ability to consider pleadings filed in federal court on remand. Sullivan v.
Pulte Home Corp., 231 Ariz. 53, 56, ¶ 9, 290 P.3d 446, 449 (App. 2012),
vacated in part on other grounds, Sullivan v. Pulte Home Corp., 232 Ariz. 344,


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                            MACH v. STATE, et al.
                            Decision of the Court

306 P.3d 1 (2013); see also State ex. rel Village of Los Ranchos de Albuquerque v.
City of Albuquerque, 119 N.M. 169, 172, ¶ 9, 889 P.2d 204, 207 (App. 1993),
remanded on other grounds, 119 N.M. 150 (1994) (“It is generally recognized
that pleadings filed in federal court, while the federal court has
jurisdiction, become part of the state court record on remand.”). Thus,
Mach’s assertion that the superior court “should have proceeded with the
case as it stood just prior to removal” lacks legal support. The superior
court correctly deemed the Second Amended Complaint the operative
pleading.

II.    Ryan’s Dismissal

¶9           The Second Amended Complaint did not include Ryan as a
defendant. Therefore, the superior court correctly ruled that Mach could
not proceed against Ryan.

III.   Negligence Claim

¶10           Count one of the Second Amended Complaint alleged
negligence against the State, Wexford, and Corizon for “denying
reasonable medical care to [Mach’s] right knee.” The superior court
dismissed the negligence claim against the State because it was barred by
A.R.S § 31-201.01(L), which prevents incarcerated felons from seeking
damages for injury by the State or its agencies “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.” “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(N)(2).

¶11           Mach argues “[a] fair reading of the pleadings will disclose
allegations of a serious knee condition . . . which caused [him] unceasing
severe pain and prolonged impairment of function.” He also suggests his
complaint established “a claim authorized by federal statute.” However,
Mach’s argument relies primarily on the First Amended Complaint, which
is not the operative pleading. The Second Amended Complaint does not
allege facts necessary to satisfy the requirements of A.R.S. § 31-201.01(L).
It includes only conclusory statements, such as “the injury is a medical
condition which [Appellees] were required by law to treat, but which they
negligently failed to treat.” Furthermore, Mach expressly identified the
negligence claim in the Second Amended Complaint as a “state claim,”



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                           MACH v. STATE, et al.
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not one arising under federal law. Under these circumstances, the
superior court properly dismissed the negligence claim against the State.

¶12           In its motion to dismiss, Corizon argued count one was a
medical negligence claim because Mach was contending “his medical care
providers [were] not providing the requisite care for his medical
conditions.” Accordingly, Corizon argued, Mach was required to comply
with A.R.S. § 12-2603 by providing a preliminary expert affidavit. In
response, Mach filed an affidavit from Brian Leslie Finkel. Appellees
objected that Finkel’s affidavit was insufficient because it did not establish
Finkel was licensed to practice medicine in Arizona. The superior court
agreed and ordered Mach to provide an affidavit in compliance with
statutory requirements. When Mach failed to do so, the court dismissed
his complaint.

¶13           Mach argues he did not assert a claim governed by A.R.S. §
12-2603. He further contends his “claim in tort” alleged all of the requisite
elements. Once again, though, his argument is based on information not
included in the Second Amended Complaint. The negligence count of the
Second Amended Complaint contains only conclusory statements.
Nonetheless, the superior court did not dismiss the claim outright, gave
Mach “the benefit of all inferences” which his complaint could reasonably
support, and gave Mach an opportunity to present a competent
physician’s affidavit. See Gatecliff v. Great Republic Life Ins. Co., 154 Ariz.
502, 508, 744 P.2d 29, 35 (App. 1987) (court gives plaintiffs benefit of all
inferences when considering Rule 12(b)(6) motions). Mach failed to
comply, and the court properly dismissed the negligence claim against
Corizon and Wexford.

IV.    Breach of Contract

¶14          Mach suggests the court erroneously dismissed his breach of
contract claim because he “properly stated an action for breach of
contract” and because he is a third-party beneficiary of contracts with
Wexford and Corizon. We disagree.

¶15           The Second Amended Complaint alleges the State and
ADOC contracted with Wexford and Corizon to provide healthcare to all
inmates and established rates for inmate healthcare services. Because of
his status as an inmate charged for healthcare services, the complaint
alleges Mach was “a direct contracting party and/or a third-party
beneficiary.”




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                           MACH v. STATE, et al.
                           Decision of the Court

¶16            Even read broadly, the Second Amended Complaint fails to
state a viable contract claim. Mach did not allege facts establishing the
existence of a contract between himself and any other party, and he also
failed to allege facts suggesting he is a legally cognizable third party
beneficiary of the contracts. See Norton v. First Fed. Sav., 128 Ariz. 176, 178,
624 P.2d 854, 856 (1981) (“[F]or a person to recover as a third-party
beneficiary of a contract, an intention to benefit that person must be
indicated in the contract itself . . . . The contemplated benefit must be both
intentional and direct.”). The fact that inmates are subject to fees for
medical visits does not make Mach a third party beneficiary to the entirety
of the contracts between the State, Wexford, and Corizon. Moreover, the
allegation in the Second Amended Complaint is that Mach did not receive
medical care — not that he paid for, but did not receive, such care. The
superior court properly dismissed Mach’s breach of contract claim.

                              CONCLUSION1

¶17          For the foregoing reasons, we affirm the judgment of the
superior court.




                                     :ama




1     Based on our determination that Mach failed to state claims upon
which relief may be granted, we need not separately address whether
ADOC was properly dismissed as a non-jural entity.



                                       6
