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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                 ALAN D. FELICIANO, Plaintiff/Appellant,

                                        v.

         MCSO SHERIFF PENZONE, et al., Defendants/Appellees.

                             No. 1 CA-CV 18-0161
                               FILED 12-13-2018


           Appeal from the Superior Court in Maricopa County
                          No. CV2017-012745
                The Honorable Teresa A. Sanders, Judge

      AFFIRMED IN PART; VACATED IN PART; REMANDED


                               APPEARANCES

Alan D. Feliciano, Phoenix
Plaintiff/Appellant

Maricopa County Attorney’s Office, Phoenix
By Sherle R. Flaggman, Maxine S. Mak, Joseph J. Branco
Counsel for Defendants/Appellees
                     FELICIANO v. PENZONE, et al.
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge James P. Beene delivered the decision of the Court, in
which Judge Michael J. Brown and Judge James B. Morse Jr. joined.


B E E N E, Judge:

¶1            Alan D. Feliciano appeals from the dismissal of his complaint.
For the following reasons, we affirm in part, vacate in part, and remand for
further proceedings.

             FACTS AND PROCEDURAL BACKGROUND

¶2             According to Feliciano, while he was incarcerated at the
Maricopa County Fourth Avenue Jail, he sustained a painful spider bite to
his hand. He did not receive medical treatment for three days, other than a
single dose of Tylenol. Thereafter, Dr. Gale Steinhauser made an incision
in his right thumb, without anesthetic, causing him intense pain. He was
later treated at the Maricopa County Hospital where a surgeon removed
infected tissue from his thumb.

¶3             Feliciano filed a lawsuit against Maricopa County (the
“County”), the County Sheriff Paul Penzone, Dr. Steinhauser, and Dr.
Jeffrey Alvarez, the Correctional Health Services (“CHS”) medical director
(collectively “Defendants”). He also used fictitious names to identify two
detention officers, two nurses, and several other unidentified CHS
employees. Feliciano asserted claims for negligence, medical malpractice,
assault and battery, and violation of his state constitutional rights.

¶4           The Defendants moved to dismiss the claims against them
pursuant to Arizona Rules of Civil Procedure (“Rules”) 12(b)(6) and 12(c).
In response, Feliciano moved to amend his complaint. His proposed
amended complaint included the true names of the detention officers and
asserted additional claims under the United States Constitution.

¶5             The superior court denied Feliciano’s motion to amend and,
thereafter, granted Defendants’ motions to dismiss. Feliciano, then, moved
to amend his complaint a second time. However, before the superior court
ruled on his motion, he withdrew it.




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                       FELICIANO v. PENZONE, et al.
                            Decision of the Court

¶6           Thereafter, the superior court entered judgment in favor of
the Defendants, dismissing all of Feliciano’s claims with prejudice.
Feliciano timely appealed, and we have jurisdiction pursuant to Arizona
Revised Statutes (“A.R.S.”) section 12-2101(A)(1).

                                DISCUSSION

¶7          On appeal, Feliciano challenges the denial of his motion to
amend and the dismissal of his claims.

I.     The Superior Court Abused Its Discretion by Denying Feliciano’s
       Motion to Amend.

¶8           Feliciano argues the superior court abused its discretion by
not giving him “one chance to amend his complaint.”

¶9            “Leave to amend must be freely given when justice requires.”
Ariz. R. Civ. P. 15(a)(2). As our supreme court has explained, trial on the
merits is favored; therefore, “amendment will be permitted unless there has
been undue delay, dilatory action or undue prejudice.” See Owen v. Superior
Court (Moroney), 133 Ariz. 75, 79 (1982). We review the denial of a motion
to amend for an abuse of discretion. MacCollum v. Perkinson, 185 Ariz. 179,
185 (App. 1996). “Misapplication of the law can constitute an abuse of
discretion.” Id. (citing City of Phoenix v. Geyler, 144 Ariz. 323, 329 (1985)).

¶10             Pursuant to Rule 15, Feliciano had the right to amend his
complaint without court permission. See Ariz. R. Civ. P. 15(a)(1)(B). This
rule authorizes a plaintiff to amend his complaint “once as a matter of
course . . . no later than 21 days after a responsive pleading is served . . . or,
if a motion under Rule 12(b), (e), or (f) is served, on or before the date on
which a response to the motion is due, whichever is earlier.” Ariz. R. Civ.
P. 15(a)(1)(B). Here, Dr. Alvarez and Dr. Steinhauser jointly moved to
dismiss under Rule 12(b) on November 8, 2017. Sheriff Penzone moved to
dismiss under Rule 12(b) on November 20, 2017. The County moved to
dismiss under Rule 12(b) on November 29, 2017. Feliciano moved to amend
his complaint on November 21, 2017, before his responses to Defendants’




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                      FELICIANO v. PENZONE, et al.
                           Decision of the Court

motions were due.1 Under Rule 15, he had the right to amend his complaint
absent court permission.

¶11         Feliciano, however, did seek permission. His motion to
amend expressly indicated that he sought to include the true names of the
previously unidentified detention officers. His proposed amended
complaint, which he attached to his motion, included the officers’ names.

¶12           Rule 10(d) permits a plaintiff to identify a defendant by a
fictitious name if he does not know his or her true name. See Ariz. R. Civ.
P. 10(d); Gonzalez v. Tidelands Motor Hotel Co., Inc., 123 Ariz. 217, 218 (App.
1979). The Rule further provides that when the “defendant’s true name is
discovered, the pleading or proceeding should be amended accordingly.”
Ariz. R. Civ. P. 10(d) (emphasis added). Feliciano sought to comply with
Rule 10 by naming the detention officers in his amended complaint.

¶13         In addition, Feliciano’s motion to amend indicated that he
was asserting “more and/or different” legal claims. His proposed
amended complaint alleged violations of the United States Constitution.

¶14          Feliciano’s motion to amend was neither dilatory nor would
have caused undue delay or prejudice to Defendants. Leave to amend
should have been granted to allow Feliciano the opportunity to identify the
two detention officers by name and assert his federal constitutional claims.2
Accordingly, we vacate the court’s denial of Feliciano’s motion to amend
and remand to provide him the opportunity to file an amended complaint.




1      Feliciano’s response to the first motion to dismiss was due on
November 23, 2017, which was ten days after the filing of Dr. Alvarez and
Dr. Steinhauser’s motion to dismiss, excluding weekends and holidays. See
Ariz. R. Civ. P. 7.1(a)(3) (a response must be filed within ten days after
service); Ariz. R. Civ. P. 6(a)(2) (intermediate Saturdays, Sundays, and legal
holidays are excluded if the period is less than eleven days).

2      Because the court granted the parties’ motions to dismiss after it
denied Feliciano’s attempt to amend his complaint, Feliciano’s subsequent
withdrawal of his second amended complaint caused no waiver of
Feliciano’s right to amend the original complaint “once as a matter of
course.” See Ariz. R. Civ. P. 15(a)(1).


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                      FELICIANO v. PENZONE, et al.
                           Decision of the Court

II.    Dismissal of Claims.

¶15          Feliciano also argues that the superior court erred by
dismissing his claims.

¶16            We review the grant of a motion to dismiss de novo. See
Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 8 (2012). We assume the facts
pleaded in the complaint are true and “will not affirm the dismissal unless
satisfied as a matter of law that [the plaintiff] would not be entitled to relief
under any interpretation of the facts susceptible of proof.” Fid. Sec. Life Ins.
Co. v. State, Dep’t of Ins., 191 Ariz. 222, 224, ¶ 4 (1998).

       A.     Constitutional Claims.

¶17           Feliciano’s original complaint alleged that Defendants
violated his due process rights and made him suffer cruel and unusual
punishment. He mistakenly referred to the Eighth and Fourteenth
Amendments of the Arizona Constitution, although it is the Eighth and
Fourteenth Amendments to the United States Constitution that establish
the right to due process and guarantee against cruel and unusual
punishment.3 See U.S. Const. amend. VIII, XIV, § 1. Under the Arizona
Constitution, those rights are protected by Article 2, Sections 4 and 15. See
Ariz. Const. art. 2, §§ 4, 15.

¶18           Defendants moved to dismiss Feliciano’s state constitutional
claims arguing that Arizona law does not support a private right of action
under the Arizona Constitution. Feliciano’s proposed amended complaint,
however, also alleged violations of the United States Constitution, which
are actionable under 42 U.S.C. § 1983. See Braillard v. Maricopa County, 224
Ariz. 481, 489, ¶ 20 (App. 2010). In Braillard, this Court acknowledged that
“deliberate indifference to serious medical needs of prisoners” is
unconstitutional whether exhibited by prison doctors responding to a
prisoner’s need or by prison guards “intentionally denying or delaying
access to medical care.” Id. (quoting Estelle v. Gamble, 429 U.S. 97, 104-05
(1976)). This deliberate indifference can form the basis for a § 1983 claim.4


3      On appeal, Feliciano acknowledged that he should have also
referenced Article 2, Sections 4 and 15, of the Arizona Constitution.

4      Feliciano’s proposed amended complaint did not specifically invoke
§ 1983. Although, the United States Supreme Court has held that a plaintiff
need not invoke § 1983 expressly to state a claim for relief, Feliciano may



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                     FELICIANO v. PENZONE, et al.
                          Decision of the Court

See id. As this Court has previously explained, a constitutional claim may
arise if a prisoner has experienced discomfort associated with physical pain
“even in the absence of any serious bodily injury to the plaintiff.” Wilkie v.
State, 161 Ariz. 541, 545 (App. 1989).

¶19           Because Feliciano will have the opportunity to amend his
complaint to assert claims pursuant to the Eighth and Fourteenth
Amendments of the United States Constitution, we vacate the superior
court’s dismissal of his constitutional claims.

       B.     Assault and Battery Claim.

¶20           Feliciano’s complaint also alleged that Defendants committed
assault and battery. Defendants moved to dismiss this claim on the basis
that Arizona law does not authorize a claim for medical assault and battery.

¶21            Pursuant to A.R.S. § 12-562, a medical malpractice action filed
“against a licensed health care provider shall not be based upon assault and
battery.” A.R.S. § 12-562(B). Accordingly, Feliciano’s claim for assault and
battery was properly dismissed against all Defendants because the facts
pleaded in Feliciano’s original complaint do not support a claim of non-
medical assault and battery.

       C.     Medical Malpractice Claim.

¶22          Feliciano’s complaint further alleged that Defendants
committed medical malpractice. Dr. Steinhauser, Dr. Alvarez, and the
County moved to dismiss this claim on the basis that Feliciano failed to
submit the expert certification required by A.R.S. § 12-2603(A).

¶23            Section 12-2603 requires a plaintiff bringing a claim for
medical malpractice to file and serve a written certification indicating
whether or not expert opinion testimony is necessary to prove the standard
of care or liability. A.R.S. § 12-2603(A). Although Feliciano did not file a
written certification with his complaint, he did so after Defendants filed




wish to amend his complaint to add a reference to § 1983 on remand. See
Johnson v. City of Shelby, Miss., 135 S. Ct. 346, 347 (2014).



                                      6
                      FELICIANO v. PENZONE, et al.
                           Decision of the Court

their motions to dismiss. Therefore, failure to comply with § 12-2603 was
not a proper basis for dismissal.5

¶24           The County also moved to dismiss the medical malpractice
claim against it by arguing that it is not a “licensed health care provider” as
defined by A.R.S. § 12-561(1) and, therefore, cannot be sued for medical
malpractice. See Sahf v. Lake Havasu City Ass’n for the Retarded &
Handicapped, 150 Ariz. 50, 58 (App. 1986) (explaining that Lake Havasu is
not a “licensed health care provider”). We affirm the dismissal of the
medical malpractice claim against the County.

       D.     Negligence Claim.

¶25           Feliciano’s complaint also alleged negligence.         Sheriff
Penzone moved to dismiss Feliciano’s claim for negligence against him by
arguing that he is not responsible for health care in the jail. He relies on
A.R.S. § 11-291, which states that the County Board of Supervisors may
provide medical care “to persons under the supervision of a county
corrections agency.” A.R.S. § 11-291(A) (“[T]he board of supervisors may
provide for the hospitalization and medical care of . . . .”). This statute,
thus, does not absolve the Sheriff from allegations of negligence.

¶26           In Braillard, this Court acknowledged that a sheriff may be
responsible for training his officers to recognize and respond to prisoners’
medical needs. See Braillard, 224 Ariz. at 492, ¶¶ 27, 29. Other jurisdictions
have recognized that prison authorities owe a duty to prisoners to protect
them from harm. See, e.g., Hardy v. Foti, 812 So. 2d 792, 794 (La. Ct. App.
2002) (addressing a claim for negligence based on an inmate’s spider bite).
Based on this limited record, we cannot affirm the dismissal of Feliciano’s
negligence claim against Sheriff Penzone. Other Defendants did not move
to dismiss Feliciano’s negligence claims. To the extent the judgments
purported to dismiss the negligence claims against the remaining
Defendants, we vacate the judgments.

III.   Pro Se Representation.

¶27            Feliciano argues the superior court should have considered
that he is a “layman to the law” rather than a licensed attorney and should
have applied “less stringent standards” in reviewing his complaint. Under

5      Moreover, this Court has previously explained that a plaintiff’s
failure to comply with § 12-2603 does not authorize dismissal with
prejudice. Boswell v. Fintelmann, 242 Ariz. 52, 54, ¶ 8 (App. 2017).



                                      7
                     FELICIANO v. PENZONE, et al.
                          Decision of the Court

Arizona law, a pro se party “is entitled to no more consideration than if he
had been represented by counsel, and he is held to the same familiarity with
required procedures and the same notice of statutes and local rules as
would be attributed to a qualified member of the bar.” Copper State Bank v.
Saggio, 139 Ariz. 438, 441 (App. 1983) (citations omitted).

                              CONCLUSION

¶28           For the foregoing reasons, we affirm the superior court’s
dismissal of the assault and battery claim against all Defendants and the
dismissal of the medical malpractice claim against the County. We vacate
the superior court’s dismissal of Feliciano’s remaining claims. We also
vacate the superior court’s order denying Feliciano leave to amend his
complaint and remand to the superior court to provide Feliciano with an
opportunity to file his amended complaint as to the remaining claims.




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




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