Rogut v. City of Surprise

1

NATHAN B. ROGUT, Plaintiff/Appellant, v. CITY OF SURPRISE, Defendant/Appellee.

No. 1 CA-CV 23-0740

Court of Appeals of Arizona, First Division

August 13, 2024

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. CV2023-051392 The Honorable Steven C. Moss, Judge

Nathan Rogut, Scottsdale Plaintiff/Appellant

Jellison Law Offices, PLLC, Scottsdale By James M. Jellison Counsel for Defendant/Appellee

Judge Paul J. McMurdie delivered the Court's decision, in which Presiding Judge Jennifer B. Campbell and Judge Kent E Cattani joined.

MEMORANDUM DECISION

McMURDIE, Judge

¶1 Plaintiff Nathan Rogut appeals from the superior court's orders dismissing his complaint, denying his other requests for relief, and denying his motion for reconsideration. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 This case started from a family law dispute between Rogut and his ex-wife that led to criminal prosecutions against Rogut for violating protective orders.

¶3 On April 17, 2023, Rogut sued the City of Surprise ("City") and many other defendants, including his ex-wife, his ex-wife's boyfriend, City police officers City prosecutors, City and Maricopa County Superior Court judges and commissioners, Maricopa County, the State of Arizona, and the State's Attorney General. Rogut sued the City under A.R.S. § 1-602 (Parents' Bill of Rights), A.R.S. § 38-260 (beneficiaries of bond), breach of contract, and "for claims arising in tort." Rogut imputed liability to the City for the alleged actions of a judge, prosecutors, and police officers. Rogut sued the other defendants for several claims, including breach of contract, defamation, intentional infliction of emotional distress, negligence, obstruction of criminal investigations or prosecutions, false reporting to law enforcement, perjury, public records tampering, malicious prosecution, and actions under A.R.S. §§ 1-602 and 38-260, and 42 U.S.C. § 1983.

¶4 The common thread in Rogut's complaints was that the defendants' illegal conduct deprived him of his constitutional parenting rights. Rogut sought damages and requested "more time to amend the complaint to include additional Defendants and, if necessary, enumerate each individual cause of action and claim for relief for each defendant." On May 16, 2023, Rogut mailed the City the notice of claim, the summons, and the complaint.

¶5 The City moved to dismiss the complaint. First, the City argued that Rogut violated A.R.S. § 12-821.01, which it argued required Rogut to submit the notice of claim to the City before suing and within 180 days of the claims' accrual. Second, the City argued it was not vicariously liable for actions against City judges, and the City judge and prosecutors were immune from liability. Third, the City asserted that A.R.S. § 12-821's one-year statute of limitation barred Rogut's claims against the City arising from police officers' actions. Finally, the City asserted that Rogut failed to allege facts supporting any cause of action.

¶6 Rogut responded. He argued that he had pled sufficient factual allegations and alternatively requested leave to amend his complaint.

¶7 Meanwhile, Rogut requested service accommodations. He conceded that several defendants had not received a copy of the summons or complaint. Rogut requested "that the Court waive individual service for Defendants appearing as individuals and in their official capacity" and that the court accept service by email. He also asked the court to waive costs and filing fees because he was a self-represented litigant. Rogut also moved for sanctions, or an order that the City follow ethical rules, and Rogut moved for an order to show cause for failure to disclose evidence. He filed another motion requesting more time to serve the other defendants and fee waivers.

¶8 In August, the superior court held a status conference.^[1] Rogut argued he had served the City,^[2] the State, and the County by emailing and mailing the complaint and notice of claim, but he admitted he had served no individual defendant. Rogut explained he thought sending certified mail was sufficient service for all defendants, and now he needed more time to effect service lawfully.

¶9 Before the court ruled on any of the above motions, Rogut moved for declaratory relief and a default judgment. He sought orders about legal decision-making, parenting time, and property possession, a protective order for his child against his ex-wife, an order appointing him the sole conservator of his child's estate, and over $20 million in damages from the City, Maricopa County, and the State.

¶10 The superior court denied Rogut's service accommodation requests for lack of good cause. The court dismissed the complaint without prejudice to all defendants except the City and its employees "for lack of proper or timely service of process."

¶11 The court dismissed the complaint with prejudice for the City and its employees. It found that the City, its judges, and prosecutors were immune from Rogut's claims. It also reasoned that because Rogut submitted his notice of claim in May 2023, he could only complain of actions taken after November 2022. See A.R.S. § 12-821.01(A). The court found that the only actions allegedly taken after November were "by a judge and prosecutor in the performance of their duties."

¶12 The court also noted that Rogut submitted his notice of claim after filing the complaint, which was untimely. Moreover, because of the one-year statute of limitation for claims against a public entity or employee, Rogut's claims from actions before April 17, 2022, were barred. See A.R.S. § 12-821.

¶13 The court assumed without deciding that the City had vicarious liability for judicial officers. The court found "that the bulk of Plaintiff's claims [against the City] [fell] foul of the one-year statute of limitations, that all of Plaintiff's claims [against the City] [fell] foul of the notice of claim statute, and that all claims as to [City] judicial officers and prosecutors [were] barred by the immunity defenses." The court denied Rogut's other requests for relief.

¶14 Rogut moved for reconsideration, which the court denied. The court entered a final judgment under Arizona Rule of Civil Procedure 54(c), and Rogut appealed. We have jurisdiction to review the dismissal of the claims against the City and its employees under A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1).

DISCUSSION

¶15 We review the superior court's dismissal of a complaint for failure to state a claim de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). We accept the complaint's well-pled factual allegations, and all reasonable inferences from the facts, as true. Id. at 356, ¶ 9. Here, dismissal of the complaint was appropriate if Rogut "would not be entitled to relief under any interpretation of the facts susceptible to proof." See id. at 356, ¶ 8.

A. Immunity Barred Rogut's Claims Against the City, the Judge, and the Prosecutors.

¶16 Rogut contests the court's findings that the City, the judge, and the prosecutors were immune from liability in the suit.^[3]

¶17 Under A.R.S. § 12-820.01, a public entity is not liable for its employee's conduct if the employee exercises "a judicial or legislative function." And judges have "absolute immunity for acts performed in their official capacities." Widoff v. Wiens, 202 Ariz. 383, 386, ¶ 9 (App. 2002); see also Burk v. State, 215 Ariz. 6, 9, ¶ 7 (App. 2007) ("Judges are absolutely immune from damages lawsuits for their judicial acts."). And prosecutors are immune from civil liability when they act in their official capacity, within the scope of their authority, and in a quasi-judicial capacity. State v. Superior Court (Ford), 186 Ariz. 294, 297 (App. 1996). Initiating a prosecution, conducting discovery, and presenting a case on behalf of the State are quasi-judicial functions. See id. at 297-98.

¶18 Rogut alleged that the City's prosecuting office committed perjury when filing criminal complaints, and the City court "violated [Rogut's] constitutionally protected rights and/or committed public records tampering" when adjudicating the matters. Rogut cited when prosecutors filed criminal complaints, filed disclosures for trial, and submitted motions and pleadings to the court. And Rogut cited instances when the City court ruled on motions, held trials, and entered judgments. The conduct alleged in the complaint fell within the scope of judicial immunity as the prosecutors and the court acted in a judicial or quasi-judicial capacity and within their authority. See Widoff, 202 Ariz. at 386, ¶ 9; Ford, 186 Ariz. at 297-98.

¶19 Rogut's only immunity argument on appeal is that A.R.S. § 1-601 et seq. (Parents' Bill of Rights) limits immunity application. Rogut claims that despite immunity, he "has a statutory right to file claims against any governmental actor and/or any government entity that interfered with, or usurped, his parental rights."

¶20 A parent may sue a governmental entity or official for usurping or interfering with fundamental parenting rights. A.R.S. § 1-602(E). In the action, the governmental entity or official has the burden of proving "[t]hat the interference or usurpation is essential to accomplish a compelling government interest of the highest order" and the government's interference or usurpation "is narrowly tailored and is not otherwise served by a less restrictive means." Id. § 1-602(F)(1) (2). The government may usurp or interfere with fundamental parental rights only by proving both elements. Id. § 1-602(G). But the Parents' Bill of Rights does not "prohibit courts, law enforcement officers or employees of a government agency responsible for child welfare from acting in their...