                     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        UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
           PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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


                           JOHN C. MUSSELMAN,
                              Plaintiff/Appellant,

                                         v.

                            STATE OF ARIZONA,
                              Defendant/Appellee.

                             No. 1 CA-CV 14-0168
                              FILED 6-2-2015


           Appeal from the Superior Court in Maricopa County
                        No. LC2013-000058-001
              The Honorable Maria del Mar Verdin, Judge

                                  AFFIRMED


                                     COUNSEL

Law Office of Gary Lassen, PLC, Mesa
By Gary L. Lassen
Co-Counsel for Plaintiff/Appellant

Fowler St Clair, PLLC, Mesa
By Sean P. St. Clair
Co-Counsel for Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Michael E. Gottfried, Daniel P. Schaack
Counsel for Defendant/Appellee
                         MUSSELMAN v. STATE
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Michael J. Brown joined.


O R O Z C O, Judge:

¶1           Appellant John C. Musselman appeals the trial court’s
decision to decline jurisdiction over his special action complaint. We
determine that the trial court did not abuse its discretion, and therefore
affirm.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2             Musselman, an inmate in the Lewis Complex Prison in
Buckeye has been in the custody of the Arizona Department of Corrections
(ADOC) since 1999. Musselman is a Type I diabetic and requires regular
insulin injections to maintain proper blood sugar levels. Musselman
contends ADOC staff, at various times, have failed to provide him a full
meal within thirty minutes following his insulin injection and in turn,
compromising his health and subjecting him and other Type I diabetic
inmates to “intermittent [medical] crisis.” Musselman filed suit against the
State and the Director of the ADOC (Director) seeking a writ of mandamus
requiring the Director to (1) enact a policy to require feeding of insulin-
dependent inmates within thirty minutes of receiving an insulin injection
and (2) establish a progressive penalty schedule should ADOC violate said
policy in the future.1

¶3             The Director moved to dismiss Musselman’s claims,
contending his grievances do not justify special action relief. The Director
also filed a separate “Motion to Decline Jurisdiction” arguing that Arizona
Revised Statutes (A.R.S.) section 31-201.01.L (West 2015)2 bars Musselman


1      Musselman also petitioned this Court directly for the same writ. We
declined to exercise jurisdiction over Musselman’s petition.

2     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.




                                     2
                          MUSSELMAN v. STATE
                           Decision of the Court

from seeking special action relief in this case.3 Following the completion of
briefing on both motions, the trial court issued a minute entry “declining
jurisdiction in this matter and dismissing the First Amended Complaint for
the reasons enumerated by the State.” Musselman timely appealed. We
have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution
and A.R.S. § 12-2101.A.1 (West 2015).4

                               DISCUSSION

¶4             A party seeking a writ of mandamus must proceed via special
action. Kelley v. Ariz. Dep’t of Corr., 154 Ariz. 476, 479 (1987). On appeal, we
first must determine whether the superior court accepted jurisdiction of the
merits. Bilagody v. Thorneycroft, 125 Ariz. 88, 92 (App. 1979). If so, then we
may review the merits of the case. Id. If not, the only issue before us is
whether the trial court abused its discretion by declining jurisdiction. Id.
Here, the trial court declined to exercise jurisdiction over Musselman’s
complaint. We therefore confine our review to whether the trial court
abused its discretion in doing so.

¶5           Jurisdiction over a special action should be accepted only in
extraordinary circumstances, where justice cannot be satisfactorily
obtained by other means. Williams v. Miles, 212 Ariz. 155, 156, ¶ 9 (App.
2006); Pompa v. Superior Court, 187 Ariz. 531, 533 (App. 1997). Musselman
sought special action relief to enforce the Director’s purported duty to
provide him adequate medical care. But claims for inadequate medical care
while in custody can be addressed in a conventional civil lawsuit, most
frequently under 42 U.S.C. § 1983 (West 2015). See Zuck v. State, 159 Ariz.
37, 42 (App. 1988) (inmate alleging unreasonable delay in providing
medication could pursue negligence and § 1983 claims).

¶6           Indeed, Musselman concedes he has other potential remedies
when he relies on federal Eighth Amendment case law to establish the
Director’s “duty to provide medical and health services for … prisoners,”
and when he asserts that he “will also establish a violation of the Eighth
Amendment.” Because Musselman’s allegations can be addressed in a


3     Because the Director withdrew his § 31-201.01.L arguments on
appeal, we do not address them.

4      The trial court signed its January 9, 2014 minute entry on January 13,
2014; however, the minute entry did not include language of finality as
required by Arizona Rule of Civil Procedure 54(c). The trial court provided
a Rule 54(c) certification on August 18, 2014.


                                       3
                          MUSSELMAN v. STATE
                           Decision of the Court

conventional civil lawsuit, the trial court did not abuse its discretion by
declining to exercise jurisdiction.

¶7             Musselman claims he is not required to file a conventional
lawsuit, and that the superior court abused its discretion in declining
jurisdiction over his special action complaint seeking mandamus relief on
three grounds. He first argues that Article 6, Section 18 of the Arizona
Constitution does not expressly require him to show there are no other
available remedies before proceeding with a special action.5 By case law
and statute, however, relief by mandamus or special action is only available
“when there is no plain, speedy and adequate remedy at law.” State Bd. of
Technical Registration v. Bauer, 84 Ariz. 237, 239 (1958) (“It is well settled in
this jurisdiction, by statute and court decisions interpreting same, that
mandamus will only lie … when there is no plain, speedy and adequate remedy
at law.”) (Emphasis in original); A.R.S. § 12-2021 (“A writ of mandamus may
be issued … when there is not a plain, adequate and speedy remedy at
law[.]”). And Musselman has not shown how this authority is inconsistent
with the directives of Article 6, Section 18.

¶8             Musselman next argues that a Section 1983 claim would not
address the Director’s alleged violations of state law. The state law
Musselman references is Article 2, Section 15 of the Arizona Constitution,
which mirrors the Eighth Amendment. Musselman does not offer any
reasons why the Arizona provision would be interpreted differently from
its federal counterpart. We therefore treat them as being coterminous. See
State v. Long, 207 Ariz. 140, 144 n.2 (App. 2004) (citing State v. Noble, 171
Ariz. 171, 173 (1992)).

¶9             Finally, Musselman argues that a conventional lawsuit would
not be a plain, adequate and speedy remedy because it would be time
consuming and would “follow[] the processes of a traditional court action.”
Musselman, however, has not shown how the superior court abused its
discretion in rejecting this argument. See Neary v. Frantz, 141 Ariz. 171, 177
(App. 1984) (“A remedy does not become inadequate merely because more
time would transpire by pursuing a conventional action.”).



5     “The superior court or any judge thereof may issue writs of
mandamus, quo warranto, review, certiorari, prohibition, and writs of
habeas corpus on petition by or on behalf of a person held in actual custody
within the county. Injunctions, attachments, and writs of prohibition and
habeas corpus may be issued and served on legal holidays and non-judicial
days.” Ariz. Const. art. 6, § 18.


                                       4
                         MUSSELMAN v. STATE
                          Decision of the Court

¶10           Because Musselman did not prevail on appeal, we deny his
request for attorney fees and costs pursuant to A.R.S. §§ 12-2030.A and -
348.A.4.

                              CONCLUSION

¶11           Assuming arguendo that Musselman has properly stated the
Director’s duty to provide medical care to inmates – an issue we do not
reach – he has other plain, adequate and speedy remedies at law. The trial
court did not abuse its discretion by declining to exercise jurisdiction over
Musselman’s First Amended Complaint. We therefore affirm.




                                 :ama




                                     5
