                         NOTICE: NOT FOR PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


          MATTHEW RONALD CREAMER, Plaintiff/Appellant,

                                        v.

STATE OF ARIZONA; ARIZONA DEPARTMENT OF CORRECTIONS, a
   public entity; CHARLES L. RYAN, Director, Defendants/Appellees.

                             No. 1 CA-CV 13-0611
                                FILED 1-8-2015


           Appeal from the Superior Court in Maricopa County
                        No. LC2013-000236-001
              The Honorable Katherine M. Cooper, Judge

                                  AFFIRMED


                                   COUNSEL

Matthew Ronald Creamer, Tucson
Plaintiff/Appellant

Arizona Attorney General’s Office, Tucson
By Claudia Acosta Collings
Counsel for Defendants/Appellees



                       MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Lawrence F. Winthrop joined.
                        CREAMER v. STATE, et al.
                          Decision of the Court

G E M M I L L, Judge:

¶1            Arizona Department of Corrections (“ADOC”) inmate
Matthew Ronald Creamer appeals from the superior court’s order
dismissing with prejudice his complaint for special action. Because we
conclude that the superior court did not abuse its discretion in declining to
exercise special action jurisdiction, we affirm.

                                  FACTS

¶2            Creamer is an Arizona prison inmate. On May 25, 2012, two
ADOC officers searched Creamer’s cell while he was out of the unit for a
medical appointment. During the search, the officers found several
unauthorized items, including various office supplies, a barber’s comb, and
a stapler. The officers seized the unauthorized items and informed Creamer
that they had been taken.

¶3             Upon hearing of the search, Creamer attempted to confront
one of the officers. According to the ADOC, Creamer began to yell at the
officer, at one point threatening to sue her. In response, the second officer
alerted security staff. As a result of the incident, Creamer was placed on
disciplinary report and charged with two major violations: one for
disorderly conduct and the other for promoting prison contraband.

¶4           Creamer pled not guilty to the two violations. After hearings
before the ADOC Disciplinary Coordinator, Creamer was found guilty of
both and issued punishment of increased duty time, loss of privilege, and
placement in Parole Class III. As a result of his placement in Parole Class
III, Creamer was required to forfeit “good-time” release credits, thereby
impacting the duration of his sentence. Creamer could have filed for
reinstatement of his good-time credits under ADOC Department Order
1002, but chose not to do so.

¶5           Creamer filed a complaint for special action in the superior
court in Maricopa County, alleging the disciplinary proceedings violated
his due process rights and requesting that the convictions be expunged and
his good-time credits restored. The State filed a response and motion to
dismiss the complaint, but Creamer did not file a response to the motion.
The superior court found no extraordinary circumstances warranting
special action relief because Creamer “had and has other remedies”
through which he could seek relief. Accordingly, the superior court




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                         CREAMER v. STATE, et al.
                           Decision of the Court

declined to accept special action jurisdiction, granted the State’s motion,
and dismissed the complaint with prejudice.

¶6            Creamer filed a timely notice of appeal. This court has
appellate jurisdiction under Arizona Revised Statutes (“A.R.S.”) §§ 12-
120.21(A)(1), -2101(A)(1), and Arizona Rule of Procedure for Special
Actions 8(a).

                                  ANALYSIS

¶7             As a preliminary matter, the State argues that because
Creamer did not respond to its motion to dismiss his special action
complaint, he consented to the trial court’s dismissal. See Ariz. R. Civ. P.
7.1(b) (explaining that the court may summarily dismiss a motion to which
opposing party fails to respond); Ariz. R.P. Spec. Act. 7(i) (“To the extent
they are not inconsistent with these rules, the Arizona Rules of Civil
Appellate Procedure shall apply to special actions.”). Accordingly, the
State argues that this court should summarily dismiss Creamer’s appeal.
Although it is true that the superior court may summarily dismiss a claim
for failure to respond, it is not required to do so. See Ariz. R. Civ. P. 7.1(a).
In this case, the superior court did not dispose of Creamer’s complaint on
the basis of his failure to respond. Instead, it dismissed his claim because it
did not find extraordinary circumstances warranting an exercise of special
action jurisdiction. We therefore review whether that decision was an
abuse of the court’s discretion.

¶8            The exercise of jurisdiction over a special action is “highly
discretionary.” State ex rel. Romley v. Fields, 201 Ariz. 321, 323, ¶ 4, 35 P.3d
82, 84 (App. 2001).        Special action jurisdiction is appropriate in
extraordinary circumstances when there is no equally plain, speedy, or
adequate remedy upon appeal. State ex rel. Romley v. Superior Court, 198
Ariz. 164, 165, ¶ 4, 7 P.3d 970, 971 (App. 2000). This court reviews the
superior court’s decision declining to exercise special action jurisdiction for
an abuse of discretion. Stout v. Taylor, 233 Ariz. 275, 277, ¶ 5, 311 P.3d 1088,
1090 (App. 2013). On this record, we find no abuse of discretion.

¶9             Before the superior court, Creamer claimed that the
underlying circumstances of the search and disciplinary proceedings
violated his right to due process. As a result, he argued that his placement
in Parole Class III and resulting forfeiture of good-time credits extended the
length of his confinement in violation of his due process rights.




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                        CREAMER v. STATE, et al.
                          Decision of the Court

¶10           Creamer cites Heck v. Humphrey, 512 U.S. 477 (1994) in support
of his argument that the superior court should have exercised special action
jurisdiction in this matter. But Heck does not mandate the exercise of
special action jurisdiction here because, as the superior court reasonably
concluded, Creamer had adequate alternative remedies available.

¶11           Under Arizona Department of Corrections Department Order
1002, inmates who lose good behavior time credits because of disciplinary
violations may apply to rescind such order and to have those credits
restored if they meet certain criteria. Arizona Dep’t of Corrections Dep’t
Order 1002.02. Creamer did not file such an application. Accordingly,
Creamer’s special action was premature.

¶12            Creamer does not deny that he met the requirements to apply
for rescission of his Class III placement and reinstatement of his good-time
credit. Instead, Creamer argues that because the decision to grant rescission
of Class III status is discretionary with the Director, he was not required to
seek rescission and restoration. However, the need for a petitioner to first
exhaust alternative remedies is not based on the certainty of the result, but
on the need to follow appropriate administrative and judicial procedures.
See Minor v. Cochise Cnty., 125 Ariz. 170, 172, 608 P.2d 309, 311 (1980)
(explaining that when an administrative agency is empowered to act, it
should be allowed to do so before the courts intervene). By failing to seek
rescission of the ADOC order, Creamer did not avail himself of the
available administrative remedy. The superior court did not abuse its
discretion in declining to exercise jurisdiction regarding Creamer’s due
process claims.1




1 Creamer’s complaint also alleges that the search of his cell and resulting
disciplinary proceedings were undertaken in retaliation against him for
exercising his First Amendment rights and having recently entered into a
settlement agreement with the ADOC. To the extent that Creamer is
seeking damages for these alleged constitutional violations, the appropriate
vehicle for such claims is an action under 42 U.S.C. § 1983. See Tripati v.
State, 199 Ariz. 222, 226–27, ¶ 14, 16 P.3d 783, 787–88 (App. 2000); Neary v.
Frantz, 141 Ariz. 171, 178, 685 P.2d 1323, 1330 (App. 1984).




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                        CREAMER v. STATE, et al.
                          Decision of the Court

                             CONCLUSION

¶13           For these reasons, the superior court acted within its
discretion when it dismissed Creamer’s action. The order of dismissal with
prejudice is modified, however, to a dismissal without prejudice.2




                                 :ama




2  In the event Creamer exhausts his administrative remedies and files
another special action in superior court seeking the same relief, it should
not be barred by the dismissal of this action because the factual foundation
for the potential future action will have changed.


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