                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
              ARIZONA COURT OF APPEALS
                                DIVISION ONE


                          SHAKA, Plaintiff/Appellant,

                                        v.

    CHARLES L. RYAN, Director, Arizona Department of Corrections,
                       Defendant/Appellee.

                             No. 1 CA-CV 13-0602
                                FILED 11-18-14


             Appeal from the Superior Court in Yuma County
                        No. S1400CV201300067
              The Honorable Lawrence C. Kenworthy, Judge

                                  AFFIRMED


                                   COUNSEL




Shaka, San Luis
Plaintiff/Appellant

Arizona Attorney General’s Office, Tucson
By Paul E. Carter
Counsel for Defendant/Appellee
                            SHAKA v. RYAN
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge John C. Gemmill joined.


W I N T H R O P, Judge:

¶1            Shaka, an inmate in the custody of the Arizona Department
of Corrections (“ADOC”), appeals the superior court’s dismissal of his
complaint for special action and declaratory judgment.1 Shaka filed his
complaint against Charles L. Ryan (“Defendant”) in his professional
capacity as the Director of the ADOC. On appeal, Shaka’s briefs are almost
incomprehensible, but we construe them to allege the superior court
violated his rights to due process and religious freedom by requiring him
to exhaust administrative remedies before filing this action. For the
following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2             In 2006, the ADOC implemented a new policy contained in
Department Order 909 (“DO 909”), which allowed inmates to possess an
unlimited amount of religious books and ten non-religious books. Shaka
alleged that in late 2012, the ADOC issued, but did not post, an inmate
notification that rescinded the “unlimited religious book exception” to this
policy. The rescission of this exception effectively established a new policy
that allowed inmates to possess ten books total, whether religious or non-
religious. In accordance with ADOC grievance procedures, Shaka
submitted an inmate letter attempting to informally resolve his complaint
regarding the ten book limitation on January 14, 2013. Before receiving a
response from the ADOC, Shaka filed a complaint for special action and
declaratory judgment on January 25, 2013, alleging Defendant’s rescission
of the unlimited religious books policy would force Shaka to lose “all of his
non-religious books, or the majority of his [r]eligious [b]ooks.” In his
complaint, Shaka argued that the implementation of the new policy in DO
909 impermissibly hinders his exercise of religious freedom. Shaka further

1     Shaka was formerly known as Timothy Malumphy. See State v.
Malumphy, 105 Ariz. 200, 461 P.2d 677 (1969). He is currently serving two
concurrent life sentences and a concurrent fifty-year sentence.



                                     2
                            SHAKA v. RYAN
                           Decision of the Court

alleged that DO 909 allows an inmate to possess three storage boxes for
legal materials, and one storage box for personal and religious property.
Shaka alleged that he should be allowed to utilize all four boxes to store his
religious books, and that such construction of DO 909 would neither
frustrate the objective of that Order nor impair ADOC’s goal of prison
security.

¶3            After filing the complaint for special action and declaratory
judgment, Shaka received a response from his informal inmate letter on
February 5, 2013, which indicated the new policy had come from a higher
authority and could not be changed. Shaka then filed a formal grievance
on February 11, 2013. Based on the record before this court, it appears the
ADOC denied Shaka’s formal request for unlimited religious books that
same day, but Shaka did not receive the response until March 18, 2013.
Once he received the response, Shaka filed an inmate grievance appeal,
which was submitted to the Warden’s office on March 19, 2013. On March
29, 2013, the Warden responded to the appeal, indicating Shaka’s proposed
“solution” violated DO 909, and Shaka could appeal this response to the
Defendant within five days. Shaka appealed to the Defendant on April 2,
2013. The Defendant had thirty calendar days from receipt to respond.

¶4            While Shaka’s inmate grievance proceeded through the
ADOC’s administrative process, Defendant filed a response and motion to
dismiss Shaka’s complaint for special action in the superior court on April
5, 2013. Defendant alleged Shaka had not completed the ADOC’s grievance
process as a prerequisite to filing his special action. In addition, Defendant
stated Shaka was not entitled to special action relief, as the complained-of
policy had not been implemented or applied to him. Defendant then
responded to Shaka’s formal grievance with the ADOC on May 9, 2013,
stating Shaka had failed to demonstrate the ten book limit imposed a
burden on the exercise of his religious rights. On July 23, 2013, the superior
court declined jurisdiction over Shaka’s special action and granted
Defendant’s motion to dismiss, finding Shaka failed to demonstrate that the
challenged policy had been applied to him and that he had failed to exhaust
his administrative remedies before filing the special action. Shaka timely
appealed the superior court’s order. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) and – 2101
(A)(1) and Arizona Rules of Procedure for Special Actions 8(a).

                                ANALYSIS

¶5            Shaka alleges the superior court committed reversible error
by (1) refusing to apply “the invited error standard,” and (2) refusing to


                                      3
                             SHAKA v. RYAN
                            Decision of the Court

apply “the harmless error standard.” Despite Shaka’s proffered issues, we
find Shaka’s failure to comply with the ADOC’s grievance procedures
coupled with his failure to show harm by the challenged policy dispositive
of this appeal.

¶6            When the superior court declines jurisdiction to determine
the merits of a special action, this court will review the superior court’s
decision for an abuse of discretion. Bilagody v. Thorneycroft, 125 Ariz. 88, 92,
607 P.2d 965, 969 (1979). Courts retain the authority to limit the cases taken
based on jurisdiction when a party fails to exhaust all of the available
administrative remedies. Minor v. Cochise County, 125 Ariz. 170, 172, 608
P.2d 309, 311 (1980).

¶7             On January 14, 2013, in accordance with ADOC’s grievance
procedures, Shaka submitted an inmate letter to informally resolve his
complaint. Before receiving a response to his inmate letter, Shaka filed a
complaint for special action and declaratory judgment in the superior court.
Because Shaka failed to wait to receive a response and subsequently
exhaust the ADOC’s administrative grievance procedures, the superior
court properly declined jurisdiction over Shaka’s complaint. During the
superior court’s processing of Shaka’s complaint, however, Shaka’s inmate
grievance eventually worked its way through the ADOC grievance system.
Shaka ultimately received a decision from the Defendant, indicating Shaka
had failed to establish that the new policy instituting a ten book limit
imposed any burden on the exercise of his religious rights, and further, had
failed to establish he had purchased books “in excess of the 10 book limit.”
Accordingly, the Defendant denied Shaka’s request to possess more than
ten books.

¶8           Assuming if Shaka had waited to file his complaint for special
action and declaratory judgment until after he received his final
administrative response from the Defendant, on this record, his claim still
fails. Nothing in the record indicates the superior court abused its
discretion because Shaka has not suffered any harm as a result of the
challenged policy.2 Simply stated and as the superior court found, Shaka

2     In his response to the Defendant’s motion to dismiss, Shaka
provided a “Religious Property Inventory” from 2007, which listed
approximately 18 books. It is unclear, however, whether this list reflected
Shaka’s then current religious book inventory. Moreover, Shaka did not
present any evidence to the superior court that the ADOC staff had taken
any of these books, or that he has been forced to relinquish any of these
books from his possession because of the challenged policy.


                                       4
                             SHAKA v. RYAN
                            Decision of the Court

failed to show the policy had ever been enforced against him. Shaka
contends in his briefing on appeal that the policy had been enforced as to
other inmates; however, without any evidence that the policy has been
applied to him, Shaka simply has no standing to challenge the alleged
application of the policy to others. See generally Sears v. Hull, 192 Ariz. 65,
69, ¶ 16, 961 P.2d 1013, 1017 (1998) (“To gain standing to bring an action, a
plaintiff must allege a distinct and palpable injury. An allegation of
generalized harm that is shared alike by all or a large class of citizens
generally is not sufficient to confer standing.” (internal citation omitted)).
Based on this record, the superior court did not abuse its discretion.

                              CONCLUSION

¶9            For the foregoing reasons, we affirm.




                                   :jt

                                         5
