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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                           RALPH JOHN CHAPA,
                             Plaintiff/Appellant,

                                        v.

                           MATTHEW B. BARKER.
                             Defendant/Appellee,

                             No. 1 CA-CV 13-0052
                               FILED 1-8-2015


           Appeal from the Superior Court in Maricopa County
                          No. CV2011-019767
                The Honorable Lisa Daniel Flores, Judge

                                  AFFIRMED


                                   COUNSEL

Law Office of William D. Trusler, Chandler
By William D. Trusler
Counsel for Plaintiff/Appellant

Maricopa County Attorney’s Office, Phoenix
By Joseph I. Vigil
Counsel for Defendant/Appellee
                            CHAPA v. BARKER
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Maurice Portley joined.


O R O Z C O, Judge:

¶1          Ralph John Chapa appeals from the trial court’s dismissal of
his complaint for failure to state a claim. We affirm for the following
reasons.

             FACTS AND PROCEDURAL BACKGROUND

¶2             While in the custody of the Maricopa County Sheriff’s Office
(MCSO), Chapa filed a pro per complaint that seemingly alleged prisoner
abuse against the MCSO for issues Chapa claimed were related to his
“severe bilateral carpal tunnel syndrome.” Despite finding that Chapa had
not clearly stated a claim for relief, the trial court gave Chapa thirty days to
file an amended complaint. Chapa soon after requested a time extension,
and also filed an “Emergency Motion” requesting counsel be appointed to
assist him with filing an amended complaint. The trial court granted the
extension but declined to appoint counsel on Chapa’s behalf.

¶3            After a second extension was requested and granted, Chapa
filed an amended complaint. The amended complaint stated that Chapa
suffers from “severe chronic neurological disorder” and “bilateral severe
carpal tunnel syndrome.” Chapa alleged that he “was forced to suffer
severe chronic pain unnecessarily” because defendant Matthew B. Barker,
a physician’s assistant employed by Maricopa County, “[denied] Mr.
Chapa medical wrist braces ordered by a state licensed neurologist.” The
complaint sought damages because Barker’s alleged refusal to provide
wrist braces caused, according to Chapa, “further nerve damage and daily
pain” and was “a gross malpractice of medicine.”

¶4            The trial court dismissed Chapa’s amended complaint under
Arizona Rule of Civil Procedure (Rule) 12(b)(6). Chapa timely appealed,
and he moved this court for appointment of counsel, this time citing his
mental illness as “extraordinary cause.” This court stayed the appeal and
revested jurisdiction in the trial court to allow Chapa to file a Rule 17(g)
motion asking for the appointment of a guardian ad litem (GAL).



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                            CHAPA v. BARKER
                            Decision of the Court

Accordingly, Chapa filed the Rule 17(g) motion and the trial court
appointed a GAL to investigate “whether [Chapa] is in need of
guardianship or conservatorship[.]” A permanent conservator was
ultimately appointed for Chapa, and the conservator now pursues this
appeal on Chapa’s behalf. We have jurisdiction pursuant to Article 6,
Section 9 of the Arizona Constitution and Arizona Revised Statutes (A.R.S.)
sections 12-120.21.A.1 and -2101.A.1 (West 2014).1

                               DISCUSSION

I.     Dismissal of the Amended Complaint Under Rule 12(b)(6)

¶5             Chapa argues the trial court erred by dismissing the amended
complaint under Rule 12(b)(6) because he “pled sufficient facts” to state a
medical malpractice claim.2 We review de novo a complaint’s dismissal
under Rule 12(b)(6). Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶ 7, 284
P.3d 863, 866-67 (2012). Arizona follows a “notice pleading standard,”
requiring that a pleading provide an opposing party “fair notice of the
nature and basis of the claim and indicate generally the type of litigation
involved.” Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 6, 189 P.3d
344, 346 (2008) (internal quotation marks and citations omitted).
Complaints stating only legal conclusions without any supporting factual
allegations do not meet Arizona’s notice pleading standard. Id. at ¶ 7. If
supporting factual allegations are present, however, we assume them as
true, and dismissal is appropriate only if “plaintiffs would not be entitled
to relief under any interpretation of the facts susceptible of proof.” Fid. Sec.
Life Ins. Co. v. State Dept. of Ins., 191 Ariz. 222, 224, ¶ 4, 954 P.2d 580, 582
(1998).




1     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.

2      As reflected in the minute entry dismissing Chapa’s complaint and
the responsive briefing to this court, both the trial court and the Appellee
have stated that Chapa’s amended complaint also alleged cruel and
unusual punishment. However, Chapa has not argued that the amended
complaint included a cruel and unusual punishment claim or that such a
claim was well pled. If any such claim existed, Chapa has waived the claim
by abandoning it. See Vortex Corp. v. Denkewicz, 235 Ariz. 551, 556, ¶ 16, 334
P.3d 734, 739 (App. 2014) (declining to address an issue abandoned on
appeal).


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                            CHAPA v. BARKER
                            Decision of the Court

¶6             Medical malpractice is a type of negligence claim established
by statute in Arizona. See A.R.S. §§ 12-561.2 (defining the cause of action)
and -563 (listing the required elements). The Arizona Supreme Court has
previously interpreted these statutes, noting that “[i]n medical malpractice
actions, as in all negligence actions, the plaintiff must prove the existence of
a duty, a breach of that duty, causation, and damages.” Seisinger v. Siebel,
220 Ariz. 85, 94, ¶ 32, 203 P.3d 483, 492 (2009). Chapa argues that he pled
sufficient facts to meet both Arizona’s notice pleading standard and the
elements of a medical malpractice claim.

¶7            Although Chapa’s amended complaint provides sufficient
notice of a medical malpractice claim, it does not contain sufficient facts to
support a conclusion that Barker committed medical malpractice. Chapa
notes, for example, that he was first diagnosed with “severe carpal tunnel
syndrome” in 2009 and that his physician accordingly “recommended” he
wear wrist braces. However, Chapa later asserts that he was denied wrist
braces “ordered by a state licensed neurologist,” before again stating that
his diagnosis “recommended” wrist braces. The difference between a
“recommended” treatment and an “ordered” treatment is significant
because Chapa does not specify whether the braces were required or merely
suggested. Furthermore, the amended complaint never states why wrist
braces are medically necessary. The absence of such facts and the
inconsistencies within the facts alleged make it impossible to determine the
relevant scope of Barker’s duty “to exercise that degree of care, skill and
learning expected of a reasonable, prudent health care provider” or how
Barker may have breached that duty. See A.R.S. § 12-563.1.

¶8             Finally, because the amended complaint did not explain the
medical necessity of the wrist braces, insufficient facts exist to determine
whether Barker’s refusal to provide wrist braces proximately caused the
pain and suffering allegedly occurring under Barker’s care. See A.R.S. § 12-
563.2. The record before us indicates that Chapa was an inmate in the
county jail on multiple occasions, and from the facts presented, it is
impossible to tell whether Chapa’s alleged pain and suffering occurred as
a result of one of those stays, or whether his condition worsened after he
was released but before he returned. Whether Barker committed medical
malpractice by not giving Chapa wrist braces only because the wrist braces
were previously “ordered” or “recommended” is merely a conclusion that
fails to factually link the denial of Chapa’s requested treatment with the
pain and suffering he allegedly endured during the relevant time period.
Accordingly, the trial court did not err in dismissing the amended
complaint under Rule 12(b)(6).



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                             CHAPA v. BARKER
                             Decision of the Court

II.    Denial of Chapa’s Request for Appointment of Counsel

¶9              Chapa contends the trial court erred by denying his request
for appointed counsel, and that because a conservator was eventually
appointed on his behalf, the trial court likewise erred by dismissing the
amended complaint before the conservator could “investigate [Chapa’s]
need for and right to assistance.” An indigent person’s right to counsel
exists only in particular legal contexts. See Lassiter v. Dep’t of Soc. Servs. of
Durham Cnty., North Carolina, 452 U.S. 18, 25 (1981) (stating that the right to
counsel generally “exist[s] only where the litigant may lose his physical
liberty if he loses the litigation”); Zarabia v. Bradshaw, 185 Ariz. 1, 4, 912 P.2d
5, 8 (1996) (noting that an indigent person’s right to counsel is required in
the criminal justice system when liberty interests are at stake); Denise H. v.
Ariz. Dep’t of Econ. Sec., 193 Ariz. 257, 259, ¶ 6, 972 P.2d 241, 243 (App. 1998)
(commenting on an indigent parent’s right of counsel when facing
severance of parental rights).

¶10            Although Chapa has a right to avail himself of the courts in
bringing a well-pled claim for medical malpractice, adjudicating Chapa’s
claim, regardless of the outcome, would not impact Chapa’s physical
liberty. Thus, he is not entitled to counsel at the taxpayers’ expense, and
the trial court did not err in denying the request for appointed counsel.

¶11           Because Chapa had no right to counsel in this matter, the trial
court was not under any duty to ensure a GAL or conservator was
appointed before dismissing the amended complaint. Chapa asserts that
A.R.S. § 14-5401.A.2.(a) afforded him the right to have the ultimately-
appointed conservator prosecute claims on his behalf, and he likewise
claims that an order in an unrelated criminal matter finding him
incompetent for trial shows that a GAL or conservator was needed before
the amended complaint’s dismissal. We note, however, that this
incompetency determination was made well after the amended complaint’s
dismissal, and the judge in Chapa’s conservatorship proceeding found that
Chapa’s inability to manage his affairs was due to confinement and that
Chapa “remains competent to prosecute his cases on his own behalf.”3
Chapa’s reliance on A.R.S. § 14-5401.A.2(a) is also to no avail because the
statute establishes only that “[a]ppointment of a conservator . . . may be
made” under certain circumstances. (Emphasis added.) Because the trial

3      We take judicial notice of these findings from other proceedings. See
Regan v. First Nat’l. Bank, 55 Ariz. 320, 327, 101 P.2d 214, 217 (1940) (“courts
[may] take judicial notice of other actions involving similar parties and
issues[.]”)


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                           CHAPA v. BARKER
                           Decision of the Court

court was in the best position to assess Chapa’s ability to proceed, see
MacMillan v. Schwartz, 226 Ariz. 584, 592, ¶ 38, 250 P.3d 1213, 1221 (App.
2011) (“the trial court is in the best position to observe and assess the
conduct of the parties before it”), we conclude the trial court did not err by
dismissing Chapa’s amended complaint before appointing a GAL.

                              CONCLUSION

¶12           We affirm the dismissal of Chapa’s amended complaint.




                                    :ama




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