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        UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
           PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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


                ROBERT A. MATTISON, Plaintiff/Appellant,

                                        v.

            CITY OF SCOTTSDALE, et al., Defendants/Appellees.

                             No. 1 CA-CV 15-0479
                               FILED 8-30-2016


           Appeal from the Superior Court in Maricopa County
                          No. CV2015-003572
                The Honorable Douglas Gerlach, Judge

                                  AFFIRMED


                                   COUNSEL

Robert A. Mattison, San Luis
Plaintiff/Appellant

Scottsdale City Attorney’s Office, Scottsdale
By Lori S. Davis
Counsel for Defendants/Appellees


                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Chief Judge Michael J. Brown
joined.
                     MATTISON v. SCOTTSDALE et al.
                         Decision of the Court

J O N E S, Judge:

¶1           Robert Mattison appeals the trial court’s order dismissing his
complaint against Appellees (collectively, the City). For the following
reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             In January 2011, Mattison was arrested by City of Scottsdale
police officers and charged with one count of aggravated driving under the
influence (DUI) and one count of possession or use of marijuana. Mattison
made an initial appearance in November 2011 and entered a not guilty plea
in January 2012, after hand-delivering a letter of complaint to the City of
Scottsdale Mayor’s office and personally complaining to a prosecutor about
the arresting officer’s behavior. More than three years later, in March 2015,
Mattison filed a civil complaint against the City seeking relief arising from
the City’s conduct in relation to his arrest and prosecution, including
negligent investigation, failure to preserve and disclose exculpatory
evidence, prosecutorial misconduct, failure to adequately train its
employees, and use of excessive force.1

¶3            In June 2015, the City filed a motion to dismiss asserting
Mattison failed to state a claim upon the grounds that: (1) the claims were
barred by the statute of limitations; (2) the facts alleged did not entitle
Mattison to the relief sought; (3) Mattison did not serve a timely notice of
claim upon the municipal entity and employee pursuant to Arizona
Revised Statutes (A.R.S.) section 12-821.01(A)2; and (4) service was
defective. See Ariz. R. Civ. P. 12(b)(5), (6). The trial court granted the
motion, and Mattison timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).


1       Although not identified within the caption of his complaint,
Mattison also alleged claims against Maricopa County Inmate Legal
Services (MCILS). Because MCILS was never served with the complaint, it
is not a party to this appeal. See McHazlett v. Otis Eng’g Corp., 133 Ariz. 530,
532 (1982) (holding that unserved defendants are not “parties” within the
meaning of the Arizona Rules of Civil Procedure).

2     Absent material changes from the relevant date, we cite a statute’s
current version.




                                       2
                     MATTISON v. SCOTTSDALE et al.
                         Decision of the Court

                                DISCUSSION

¶4             We review a trial court’s dismissal of a complaint for failure
to state a claim de novo.3 Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶¶ 7-
8 (2012). In doing so, we will “assume the truth of the well-pled factual
allegations and indulge all reasonable inferences from those facts.” Id. at
356, ¶ 9 (citing Cullen v. Auto-Owners Ins., 218 Ariz. 417, 419, ¶ 7 (2008)).
However, we will not “speculate about hypothetical facts that might entitle
the plaintiff to relief.” Cullen, 218 Ariz. at 420, ¶ 14. Nor will we “accept as
true allegations consisting of conclusions of law, inferences or deductions
that are not necessarily implied by well-pleaded facts, unreasonable
inferences or unsupported conclusions from such facts, or legal conclusions
alleged as facts.” Jeter v. Mayo Clinic Ariz., 211 Ariz. 386, 389, ¶ 4 (App. 2005)
(citations omitted).

¶5             Mattison argues the dismissal of the complaint deprived him
of his rights of access to the courts and a trial by jury.4 However, a party to
a civil action is specifically authorized to request dismissal where the
complaint “[f]ail[s] to state a claim upon which relief can be granted.” Ariz.
R. Civ. P. 12(b)(6). The purpose of a motion under Rule 12(b) is to test the

3       Although the City attached copies of the January 2011 arrest report
and correspondence from Mattison to the Scottsdale Police Department to
its motion to dismiss, the trial court did not rely upon the extrinsic
information in reaching its decision and we do not treat the motion as one
for summary judgment. See Belen Loan Inv’rs, L.L.C. v. Bradley, 231 Ariz. 448,
452, ¶ 7 (App. 2012) (“[I]f extraneous matters neither add to nor subtract
from the deficiency of the pleading, the motion need not be converted.”)
(citing Strategic Dev. & Constr., Inc. v. 7th & Roosevelt Partners, L.L.C., 224
Ariz. 60, 61, ¶¶ 10, 13-14 (App. 2010)). Additionally, the court was
authorized to take judicial notice of the court records of the criminal
prosecution of Mattison in considering the merits of the City’s motion. See
Strategic Dev., 224 Ariz. at 64 (“[A] Rule 12(b)(6) motion that presents a
document that is a matter of public record need not be treated as a motion
for summary judgment.) (citations omitted).
4      Mattison’s opening brief does not comply with ARCAP 4 (outlining
the appropriate format for an appellate brief) or 13 (requiring an appellate
brief to contain a detailed statement of the facts, including appropriate
references to the record, as well as a citation to legal authorities supporting
the arguments presented for review). Because we prefer to decide cases on
the merits, Clemens v. Clark, 101 Ariz. 413, 414 (1966), in our discretion we
address Mattison’s arguments as best as we can understand them.


                                        3
                     MATTISON v. SCOTTSDALE et al.
                         Decision of the Court

sufficiency of the complaint. See Colboch v. Aviation Credit Corp., 64 Ariz. 88,
92 (1946). If a plaintiff is not entitled to relief “under any facts susceptible
of proof in the statement of the claim,” a motion to dismiss may be granted
and the litigation ended. ELM Ret. Ctr., L.P. v. Callaway, 226 Ariz. 287, 289,
¶ 5 (App. 2010) (quoting Mohave Disposal, Inc. v. City of Kingman, 186 Ariz.
343, 346 (1996)). A complaint fails to state a claim if it is not brought in a
timely fashion. See, e.g., Pivotal Colo. II, L.L.C. v. Ariz. Pub. Safety Pers. Ret.
Sys., 234 Ariz. 369, 374, ¶ 22 (App. 2014) (affirming dismissal of a complaint
filed after the expiration of the applicable statute of limitations).

¶6            Pursuant to A.R.S. § 12-821, “[a]ll actions against any public
entity or public employee shall be brought within one year after the cause
of action accrues and not afterward.” For purposes of this section, a cause
of action accrues when the injured party “realizes he or she has been
damaged and knows or reasonably should know the cause, source, act,
event, instrumentality or condition that caused or contributed to the
damage.” A.R.S. § 12-821.01(B); Dube v. Likins, 216 Ariz. 406, 411, ¶ 7 (App.
2007) (citing Long v. City of Glendale, 208 Ariz. 319, 325, ¶ 9 (App. 2004)).
When the complaint, on its face, reflects the action is barred by the statute
of limitations, the plaintiff bears the burden of proving the statute was
tolled. McCloud v. Ariz. Dep’t of Pub. Safety, 217 Ariz. 82, 85, ¶ 8 (App. 2007)
(citing Anson v. Am. Motors Corp., 155 Ariz. 420, 421 (App. 1987), and Baden-
Winterwood v. Life Time Fitness, 484 F. Supp. 2d 822, 826 (S.D. Ohio 2007)). If
he cannot do so, the action should be dismissed. See id.

¶7             Mattison was arrested in January 2011. To the extent he
believed he was injured by the arresting officers, that information was
immediately available to him. Additionally, Mattison knew he was facing
criminal charges as a result of that arrest by November 2011 and
acknowledges having complained to the City of Scottsdale Mayor and the
prosecutor about the City’s purported misconduct in 2011, and again in
January 2012. Mattison does not explain the additional two-year delay in
filing his complaint and failed to meet his burden of proving the statute of
limitations was tolled. The record reflects the one-year statute of limitations
on Mattison’s claims expired no later than January 2013, and we find no
error in the dismissal of Mattison’s complaint.5


5      Because we affirm the dismissal of Mattison’s complaint on other
grounds, we need not and do not address Mattison’s argument that the City
thwarted his attempts to serve a notice of claim in compliance with A.R.S.
§ 12-821.01(A). See Sw. Non-Profit Hous. Corp. v. Nowak, 234 Ariz. 387, 391,



                                        4
                  MATTISON v. SCOTTSDALE et al.
                      Decision of the Court

                            CONCLUSION

¶8          The trial court’s order granting the City’s motion to dismiss is
affirmed.




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




¶ 10 (App. 2014) (“[W]e may affirm if the dismissal is correct for any
reason.”) (citing Dube, 216 Ariz. at 406 n.3).


                                       5
