                          NOTICE: NOT FOR PUBLICATION.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


                      PETER MAASSEN, a single man,
                            Plaintiff/Appellant,

                                        v.

                            STATE OF ARIZONA,
                              Defendant/Appellee.

                             No. 1 CA-CV 15-0206
                               FILED 8-18-2016


           Appeal from the Superior Court in Maricopa County
                          No. CV 2012-011495
               The Honorable David O. Cunanan, Judge

                                  AFFIRMED


                                   COUNSEL

Peter David Maassen, Tucson
Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Kelley J. Morrissey
Counsel for Defendant/Appellee
                           MAASSEN v. STATE
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Jon W. Thompson joined.


D O W N I E, Judge:

¶1         Peter Maassen appeals from the superior court’s entry of
summary judgment against him. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Maassen, an inmate with the Arizona Department of
Corrections (“ADC”), was assaulted by another inmate on August 26,
2011.    He suffered serious injuries, including head trauma, facial
lacerations, and tripod and mandible fractures. Maassen underwent
reconstructive surgery in early September 2011. He thereafter submitted
numerous “Health Needs Requests” (“HNRs”) to ADC, complaining of
“botched” surgery, vision loss, sensitivity to light, inadequate pain
management, and ongoing pain.

¶3            After filing a notice of claim that did not resolve the issue,
Maassen sued ADC and its employees (collectively, “Defendants”),
alleging gross negligence relating to the inmate attack and failure to
“provide the necessary medical treatment.” Defendants moved for
summary judgment, arguing Maassen: (1) could not establish gross
negligence related to the inmate assault;1 and (2) lacked expert testimony
to support his claims of inadequate medical care.

¶4          After briefing and oral argument, the superior court granted
Defendants’ motion. Maassen timely appealed. We have jurisdiction


1 By statute, Maassen was required to prove that Defendants either
intended to cause his injury or were grossly negligent. See A.R.S. § 12-
820.02(A)(4) (addressing injuries “caused by a prisoner to any other
prisoner”).




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                            Decision of the Court

pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1)
and -2101(A)(1).

                               DISCUSSION

¶5            We review a grant of summary judgment de novo to
determine whether the superior court properly applied the law and
whether any genuine issues of material facts exist, viewing the facts in the
light most favorable to the non-moving party. Ponce v. Parker Fire Dist.,
234 Ariz. 380, 382, ¶ 9 (App. 2014). In considering a grant of summary
judgment, we consider only the evidence that was before the superior
court when it ruled on the motion. Phoenix Baptist Hosp. & Med. Ctr., Inc.,
v. Aiken, 179 Ariz. 289, 292 (App. 1994).

¶6           Maassen has not challenged the dismissal of his claim that
Defendants failed to protect him from or prevent the inmate assault. We
therefore do not address that basis for the summary judgment ruling. See
MT Builders, L.L.C. v. Fisher Roofing, Inc., 219 Ariz. 297, 304 n.7, ¶ 19 (App.
2008) (arguments not developed on appeal are waived).

¶7            Turning to Maassen’s remaining allegation, the complaint
alleged that Defendants failed to “provide the necessary medical
treatment . . . for the injuries suffered on 08/26/2011.” In moving for
summary judgment, Defendants argued Maassen could not prove this
claim without expert testimony. Maassen did not dispute this assertion.
Indeed, he had previously advised that he would retain an expert
regarding the “applicable standard of care regarding the provision of
healthcare services to inmates” and the “applicable standard of care
required of healthcare providers in treating patients with similar injuries
and conditions as [Maassen].”

¶8            In responding to Defendants’ summary judgment motion,
however, Maassen offered no expert evidence about either the standard of
care or causation. See, e.g., Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007)
(To establish negligence, “a plaintiff must prove four elements: (1) a duty
requiring the defendant to conform to a certain standard of care; (2) a
breach by the defendant of that standard; (3) a causal connection between
the defendant’s conduct and the resulting injury; and (4) actual
damages.”).2 He instead provided post-assault medical records; HNRs he


2 Maassen’s briefing focused on his pain and suffering, which relates to
the damages element of his negligence claim. As explained supra,



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                           Decision of the Court

had submitted; reports from an unrelated case involving allegedly
substandard healthcare within ADC, with no linkage to his own case; and
medical records of Dr. James Plotnik. Although Maassen’s disclosure
statement indicated Dr. Plotnik would testify that “permitting significant
delays in the treatment to and care of Mr. Maassen . . . caused Mr.
Maassen to unnecessarily experience physical pain and suffering,”
Maassen did not submit an affidavit or other admissible evidence to this
effect from Dr. Plotnik. See Ryan v. San Francisco Peaks Trucking Co., 228
Ariz. 42, 49, ¶¶ 25–26 (App. 2011) (disclosure statements alone do not
satisfy a plaintiff’s burden of proving negligence); see also Ariz. R. Civ. P.
56(e). Dr. Plotnik’s medical records do not discuss delays in treatment,
substandard medical care, or any alleged negligence by Defendants.

¶9            Additionally, in moving for summary judgment, Defendants
submitted a report from Dr. Wayne Bixenman, who examined Maassen
and reviewed Dr. Plotnik’s records. Dr. Bixenman opined, inter alia, that
Maassen does not have traumatic optic neuropathy or a convergence
insufficiency. But even if he does suffer from traumatic optic neuropathy,
according to Dr. Bixenman, that condition was caused by the assault itself,
and “there is no basis to state in any manner that his residual visual field
defect arose or remains because of any treatment or non-treatment,
management or mismanagement that he experienced under the auspices
of the AZ Dept. Of Corrections.” Dr. Bixenman further opined that
assuming Maassen does have a convergence insufficiency, “it would in no
manner constitute a visual handicap nor be in any manner a gradable
visual disability.” Maassen submitted no controverting expert evidence
and thus failed to create a genuine issue of material fact as to causation.
See Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 358 (1985) (when reasonable
persons could not differ on the question of causation given the evidence
presented, the superior court “may direct a verdict on the issue”).

¶10           “[A] party moving for summary judgment need merely
point out by specific reference to the relevant discovery that no evidence
existed to support an essential element of the claim.” Orme Sch. v. Reeves,
166 Ariz. 301, 310 (1990). If a moving party meets its burden in doing so,
the burden shifts to the non-movant to produce sufficient evidence in
rebuttal. Nat’l Bank of Ariz. v. Thurston, 218 Ariz. 112, 119, ¶ 26 (App.
2008). “If the party with the burden of proof on the claim or defense
cannot respond to the motion by showing that there is evidence creating a

however, Maassen was required to establish triable issues of fact as to all
four elements of the negligence claim — something he failed to do.



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                          MAASSEN v. STATE
                          Decision of the Court

genuine issue of fact on the element in question, then the motion for
summary judgment should be granted.” Orme Sch., 166 Ariz. at 310.
When a party opposing a motion for summary judgment fails to present,
either by affidavit or other competent evidence, facts that controvert the
moving party’s evidence, the facts alleged by the moving party may be
considered as true. GM Dev. Corp. v. Cmty. Am. Mort. Corp., 165 Ariz. 1, 5
(App. 1990). Based on the record before it, the superior court properly
entered summary judgment in favor of Defendants.

                              CONCLUSION

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




                         Amy M. Wood • Clerk of the court
                         FILED: AA




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