               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 39013

LACEY MARK SIVAK,                               )     2012 Unpublished Opinion No. 522
                                                )
       Plaintiff-Appellant,                     )     Filed: June 21, 2012
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
IDAHO DEPARTMENT OF                             )     THIS IS AN UNPUBLISHED
CORRECTIONS and JEFF ZMUDA,                     )     OPINION AND SHALL NOT
                                                )     BE CITED AS AUTHORITY
       Defendants-Respondents.                  )
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Deborah A. Bail, District Judge.

       Judgment of dismissal, affirmed.

       Lacey Mark Sivak, Boise, pro se appellant.

       Moore & Elia, LLP; Michael J. Elia, Boise, for respondents.
                ________________________________________________
GUTIERREZ, Judge
       Lacey Mark Sivak appeals from the district court’s judgment dismissing his civil rights
suit against the Idaho Department of Corrections and Jeff Zmuda. For the reasons set forth
below, we affirm.
                                               I.
                                 FACTS AND PROCEDURE
       In September 2010, Sivak filed a section 1983 1 civil rights complaint concerning his
medical care, naming the Idaho Department of Corrections (IDOC) and Jeff Zmuda, then the
warden at the Idaho Maximum Security Institution, as defendants. The only service of process
of the summons and complaint was on Brian Kane, Assistant Chief Deputy to Idaho Attorney
General, who accepted service on behalf of the IDOC. The IDOC and Zmuda (Respondents)
filed a motion to dismiss for failure to serve the summons and complaint on Zmuda and because

1
       42 U.S.C. § 1983


                                               1
the IDOC was an improper party to the suit pursuant to the Eleventh Amendment of the United
States Constitution. Following a hearing, during which Sivak represented himself, the district
court dismissed the suit on the grounds advanced by the Respondents. Sivak now appeals.
                                                  II.
                                            ANALYSIS
       Sivak advances several arguments on appeal challenging the dismissal of his suit against
the Respondents.     However, as the Respondents point out, significant portions of Sivak’s
appellate briefs are illegible. Thus, we only address Sivak’s specific claims to the extent they
can reasonably be ascertained by this Court.
       In reviewing the district court’s order granting the motion to dismiss, the standard of
review is the same as that used in summary judgment. McCabe v. Craven, 145 Idaho 954, 956,
188 P.3d 896, 898 (2008); Gibson v. Ada County, 142 Idaho 746, 751, 133 P.3d 1211, 1216
(2006). The standard of review on appeal from an order granting summary judgment is the same
standard that is used by the district court in ruling on the motion. McCabe, 145 Idaho at 956,
188 P.3d at 898; Baxter v. Craney, 135 Idaho 166, 170, 16 P.3d 263, 267 (2000). Summary
judgment is appropriate only when the pleadings, depositions, affidavits, and admissions on file
show there is no genuine issue of material fact and the movant is entitled to judgment as a matter
of law. Idaho Rule of Civil Procedure 56(c); McCabe, 145 Idaho at 956, 188 P.3d at 898.
       Sivak first contends the dismissal was improper as to Zmuda because the complaint
referred to the Respondents collectively as “one Defendant” and, therefore, correct service as to
the IDOC, which the Respondents concede on appeal, should have sufficed as to Zmuda. As the
Respondents point out, however, Sivak has cited no authority for the proposition that the two
named defendants should be considered as a single defendant in this case. Although Sivak
argued at the hearing on the motion to dismiss that he had listed the parties as one defendant and
intended them to be treated as such, there is no authority for the proposition that his intent that
they be considered one defendant makes it so. Accordingly, we do not consider the merits of this
assertion. Powell v. Sellers, 130 Idaho 122, 128, 937 P.2d 434, 440 (Ct. App. 1997) (holding
that a party waives an issue on appeal if either argument or authority is lacking).
       Sivak also contends the Respondents’ motion to dismiss was prohibited and must be
quashed because it was argued by an attorney who was not counsel of record. Again, Sivak cites
no authority for the proposition that this constitutes error entitling him to the requested relief. Id.


                                                  2
Furthermore, as the Respondents point out, Sivak has not shown he raised this issue below, and it
is well-settled that issues raised for the first time on appeal will not be addressed on appeal. See
Sanchez v. Arave, 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991). Accordingly, we do not
reach the merits of this contention.
       Sivak also asserts the district court’s order granting the Respondents’ motion to dismiss
failed to provide specifics of the ruling, thus, making the appeal “more complex.” To the extent
Sivak asserts this is reversible error, his argument is unavailing.          Idaho Rule of Civil
Procedure 52(a) provides that findings of fact and conclusions of law are unnecessary for
decisions made under Idaho Rule of Civil Procedure 12, the rule applicable to the Respondents’
motion to dismiss. Accordingly, Sivak has failed to show error in this regard.
         Sivak’s next issue appears to concern the courts listed on the title and caption page of
the Respondents’ motion to dismiss. While the exact nature of his claim is unclear, we cannot
ascertain that he raised an issue concerning the title and caption page in proceedings below, and
therefore, we do not address the issue for the first time on appeal. Sanchez, 120 Idaho at 322,
815 P.2d at 1062.
       Sivak also lists as an issue his contention that defense counsel “always” argues he has
named the wrong defendant. He then appears to argue that he has properly served the correct
parties, citing various rules and statutes to support his position.      None of his citations to
authority, however, demonstrate the district court erred in its bases for the dismissal. As to
Zmuda, Idaho Rule of Civil Procedure 4(d)(2) provides that service upon an individual is proper
if the summons and complaint are delivered to the individual personally or left at their residence
with an authorized person, or by delivering a copy of the summons and complaint to an agent
authorized by appointment or by law to receive service of process. Alternatively, the applicable
provision of the Idaho Administrative Code (IDAPA) governing the Board of Correction
instructs that all service of summons, complaints, and subpoenas against the IDOC or any
employee of the IDOC shall be made upon the deputy attorneys general assigned to the
Department. IDAPA 06.01.01.106. It was averred in this case that Zmuda was not served
personally or at home and none of the attorneys general assigned to the IDOC were served with




                                                 3
Sivak’s summons and complaint 2 and Sivak does not argue differently on appeal. Accordingly,
the district court’s finding that Zmuda was not properly served, and therefore dismissal was
appropriate, was not erroneous. 3 As to the claim against the IDOC, it is well settled in Idaho that
the State is not a “person” for purposes of section 1983 and the State and its agencies are
immune from a section 1983 civil rights suit pursuant to the immunity granted by the Eleventh
Amendment. See Kessler v. Barowsky, 129 Idaho 647, 655, 931 P.2d 641, 649 (1997); Herrera
v. Conner, 111 Idaho 1012, 1018, 729 P.2d 1075, 1081 (Ct. App. 1986). Thus, the dismissal of
the suit against the IDOC was proper.
       The Respondents request costs and attorney fees on appeal pursuant to Idaho Appellate
Rule 41(a) and Idaho Code § 12-121, contending Sivak’s appeal is without foundation and
merely asks this Court to second guess the district court’s decision without presenting any
substantial legal argument or supporting evidence. Pursuant to Idaho Rule of Civil Procedure
54(e)(1), attorney fees may only be awarded under section 12-121 when the court determines the
case was brought, pursued or defended frivolously, unreasonably, or without foundation.
Because we conclude this standard is satisfied here, attorney fees on appeal are awarded to the
Respondents. See Drennon v. Hales, 138 Idaho 850, 854, 70 P.3d 688, 692 (Ct. App. 2003)
(awarding attorney fees pursuant to section 12-121 against inmate who brought a civil rights
complaint against a court clerk). Costs are awarded to the Respondents as a matter of course
pursuant to Idaho Appellate Rule 40.
       Chief Judge GRATTON and Judge MELANSON CONCUR.




2
       Brian Kane, who accepted service for the IDOC, was not assigned to the IDOC such that
he could accept service of process for Zmuda.
3
        To the extent Sivak argues he did not intend to sue Zmuda in his individual capacity, but
in his official capacity as a representative of the IDOC, dismissal of Sivak’s claim would
nonetheless be proper as a section 1983 civil rights suit against Zmuda in his official capacity
would be barred for the same reason a section 1983 civil rights suit against the IDOC is barred,
as we discuss above. See Kessler v. Barowsky, 129 Idaho 647, 655, 931 P.2d 641, 649 (1997)
(holding that a suit against a state official acting in an official capacity is nothing more than a
suit against the state, and state officials acting in their official capacity are not “persons” under
section 1983).

                                                 4
