                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                DALE FRANK MAISANO, Plaintiff/Appellant,

                                         v.

            KENNETH MERCHANT, et al., Defendants/Appellees.

                              No. 1 CA-CV 15-0106
                                FILED 12-22-2015


            Appeal from the Superior Court in Maricopa County
                           No. CV2014-010842
               The Honorable Lori Horn Bustamante, Judge

               AFFIRMED IN PART; DISMISSED IN PART


                                    COUNSEL

Dale Frank Maisano, Florence
Plaintiff/Appellant

Renaud Cook Drury Mesaros, PA, Phoenix
By J. Scott Conlon
Counsel for Defendant/Appellee Merchant

Arizona Attorney General’s Office, Phoenix
By Michael E. Gottfried
Counsel for Defendant/Appellee the State of Arizona
                     MAISANO v. MERCHANT, et al.
                         Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Jon W. Thompson and Judge Lawrence F. Winthrop joined.


H O W E, Judge:

¶1             Dale Frank Maisano appeals the trial court’s order dismissing
his complaint against the State of Arizona and Dr. Kenneth Merchant. For
the following reasons, we affirm with regards to the State, but dismiss the
appeal as it relates to Dr. Merchant.

                FACTS AND PROCEDURAL HISTORY

¶2             Maisano is incarcerated at an Arizona prison in Maricopa
County. In May 2014, he sued the State of Arizona and Dr. Merchant, an
employee of Corizon Health who examined Maisano in prison, because
Maisano was not provided “a reasonable level of healthcare as required by
law.” As supporting authority, Maisano cites the Civil Rights Act, Walmart
Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), Estelle v. Gamble, 429 U.S. 97
(1976), and Casey v. Lewis, 834 F. Supp. 1477 (D. Ariz. 1993). Maisano
complained of many ailments, including that he had “no mental health
care,” had been “denied [access to a] facility to accommodate his needs,”
lacked “food that would not make [him] ill,” and was suffering from hand,
finger, eye, kidney, and dental issues. Among others forms of relief, he
requested “proper care and correction of all medical issues,” placement “in
a proper medical unit,” “payment for lack of care,” and “trillions of U.S.
Dollars.”

¶3            The State moved to dismiss Maisano’s complaint for lack of
jurisdiction over the subject matter and failure to state a claim under
Arizona Rule of Civil Procedure 12(b)(1) and (6), respectively. The State
argued that the trial court did not have jurisdiction over it because
constitutional claims under 42 U.S.C. § 1983 can only be brought against
individual defendants, not a state. The State also argued that Maisano
presented no claims against the State other than an allegation that
Dr. Merchant worked for Corizon Health, “whom is contracted for by the
State of Arizona, which are as well Defendants.” The State also noted that
Maisano was a “notorious, vexatious litigant who has a vexatious litigant
order against him in the United States District Court for the District of


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                      MAISANO v. MERCHANT, et al.
                          Decision of the Court

Arizona for his repeated, relentless, abusive, frivolous filings.” The State
attached the district court’s 1992 vexatious litigant order against Maisano
to its motion. The trial court granted the State’s motion with prejudice
because “no amendment will cure the Plaintiff’s alleged claim(s).” The
court also “declar[ed] the Plaintiff’s pleading to be without substantial
justification.”

¶4             Dr. Merchant, appearing specially to contest jurisdiction, also
moved for dismissal, as relevant here, for failure to state a claim.
Dr. Merchant argued that Maisano’s complaint merely “disagrees with the
course of treatment chosen by the prison medical providers and does not
attribute any conduct by Dr. Merchant that violated his constitutional
rights.” In an unsigned minute entry, the trial court granted Dr. Merchant’s
motion to dismiss.

¶5            Maisano prematurely appealed. The trial court subsequently
issued an Arizona Rule of Civil Procedure 54(b) final judgment in the State’s
favor, but not one relative to the claim against Dr. Merchant.

                                DISCUSSION

¶6             As an initial matter, this Court “has a duty to review its
jurisdiction and, if jurisdiction is lacking, to dismiss the appeal.” Davis v.
Cessna Aircraft Corp., 168 Ariz. 301, 304, 812 P.2d 1119, 1122 (App. 1991).
Although Maisano prematurely appealed the trial court’s minute entries,
the court’s subsequent entry of a Rule 54(b) judgment in favor of the State
provides this Court with jurisdiction over it. See Craig v. Craig, 227 Ariz. 105,
107 ¶ 13, 253 P.3d 624, 626 (2011) (providing that a prematurely filed notice
of appeal is nonetheless effective if the trial court has made a final decision
and the only remaining task is merely ministerial); Robinson v. Kay, 225 Ariz.
191, 192–93 ¶¶ 4–5, 236 P.3d 418, 419–20 (App. 2010) (providing that
although our jurisdiction is generally limited to final judgments that
disposes of all claims and all parties, Rule 54(b) permits a trial court to enter
an appealable final judgment on fewer than all the claims). But because no
signed final judgment was entered in favor of Dr. Merchant with Rule 54(b)
language, we do not have jurisdiction over him and accordingly dismiss the
appeal against him. See A.R.S. § 12–2101(A)(1) (providing that an appeal
may be taken from “a final judgment”); Madrid v. Avalon Care Ctr.-Chandler,
L.L.C., 236 Ariz. 221, 224 ¶ 8, 338 P.3d 328, 332 (App. 2014) (“[T]his court
lacks jurisdiction over an appeal from a judgment that does not resolve all
claims as to all parties and that does not include Rule 54(b) language.”).




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                      MAISANO v. MERCHANT, et al.
                          Decision of the Court

¶7             As another initial matter, the State attached a district court
order to its motion to dismiss. This ordinarily transforms a motion to
dismiss into a motion for summary judgment. Drew v. Prescott Unified School
Dist., 233 Ariz. 522, 524 ¶ 7, 314 P.3d 1277, 1280 (App. 2013). However, the
extrinsic matters “neither add[ed] to nor subtract[ed] from the [alleged]
deficiency of the pleading” and do not provide additional information
concerning the merits of Maisano’s claims. See Brosie v. Stockton, 105 Ariz.
574, 576, 468 P.2d 933, 935 (1970). Further, the record contains no indication
that the trial court relied on or considered the additional material—and
instead continued to treat the motion as one to dismiss the complaint.
Maisano’s right under Rule 12(b) to a reasonable opportunity to present all
material made pertinent to such a motion by Arizona Rule of Civil
Procedure 56 includes the right to some indication from the court that it is
treating the Rule 12(b) motion as one for summary judgment. Gatecliff v.
Great Republic Life Ins. Co., 154 Ariz. 502, 508, 744 P.2d 29, 35 (App. 1987).
Because this was not the case here, we therefore treat the motion to dismiss
as a motion to dismiss under Rule 12(b).

¶8             On appeal, Maisano does not argue that the trial court erred
in granting the State’s motion to dismiss on ground of lack of jurisdiction
or failure to state a claim. Instead, he maintains that he has not received
constitutionally-required medical care in prison under federal law, citing
various federal statutes and cases. Because Maisano does not argue that the
court improperly dismissed his case on his federal law claims, he has
abandoned them. See State v. Moody, 208 Ariz. 424, 452 ¶ 101 n.9, 94 P.3d
1119, 1147 n.9 (2004) (providing that failure to argue a claim constitutes
abandonment and waiver of that claim).

¶9             Regardless of the waiver, as best we understand Maisano’s
argument and to the extent that the complaint asserts federal claims under
42 U.S.C. § 1983, the trial court did not err in dismissing the complaint for
lack of jurisdiction and failure to state a claim. Section 1983 provides that
“[e]very person who, under color of any statute . . . , shall be liable to the
party injured in an action at law.” 42 U.S.C. § 1983. Accordingly, to state a
claim for relief in an action brought under § 1983, a plaintiff must establish
that a “person” acting under color of state law deprived him of a right
secured by the United States Constitution or laws of the United States and
that the alleged deprivation was committed under color of state law.
42 U.S.C. § 1983; Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999).

¶10           States, or their officials acting in their official capabilities,
however, are not “persons” within the meaning of § 1983, and therefore,
they are not proper parties to a state court action brought under that statute.


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                      MAISANO v. MERCHANT, et al.
                          Decision of the Court

Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989); see also Garcia v.
State, 159 Ariz. 487, 488, 768 P.2d 649, 650 (App. 1988) (holding that the State
of Arizona was properly dismissed from a suit for the wrongful death of a
prisoner under § 1983 because a state is not a person within the meaning of
that statute). Because the State is not a “person” within the meaning of
§ 1983, Maisano’s complaint failed to state a claim against it and the trial
court did not have subject matter jurisdiction over it. Accordingly, the trial
court properly dismissed the State pursuant to Rule 12(b)(1) and (6).

                            CONCLUSION

¶11          For the foregoing reasons, we affirm with regards to the State
and dismiss the appeal against Dr. Merchant.




                                   :ama




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