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

JOHN C. MUSSELMAN, 

Plaintiff/Appellant, 

v.

STATE OF ARIZONA, 

Defendant/Appellee. 

No. 1 CA-CV 14-0168 

 

Appeal from the Superior Court in Maricopa County 

No. LC2013-000058-001 

The Honorable Maria del Mar Verdin, Judge 

AFFIRMED 

COUNSEL 

Law Office of Gary Lassen, PLC, Mesa 

By Gary L. Lassen 

Co-Counsel for Plaintiff/Appellant 

Fowler St Clair, PLLC, Mesa 

By Sean P. St. Clair 

Co-Counsel for Plaintiff/Appellant 

Arizona Attorney General’s Office, Phoenix 

By Michael E. Gottfried, Daniel P. Schaack 

Counsel for Defendant/Appellee
MUSSELMAN v. STATE 

Decision of the Court 

2 

MEMORANDUM DECISION 

Judge Patricia A. Orozco delivered the decision of the Court, in which 

Presiding Judge Samuel A. Thumma and Judge Michael J. Brown joined. 

O R O Z C O, Judge: 

¶1 Appellant John C. Musselman appeals the trial court’s 

decision to decline jurisdiction over his special action complaint. We 

determine that the trial court did not abuse its discretion, and therefore 

affirm. 

FACTUAL AND PROCEDURAL BACKGROUND 

¶2 Musselman, an inmate in the Lewis Complex Prison in 

Buckeye has been in the custody of the Arizona Department of Corrections 

(ADOC) since 1999. Musselman is a Type I diabetic and requires regular 

insulin injections to maintain proper blood sugar levels. Musselman 

contends ADOC staff, at various times, have failed to provide him a full 

meal within thirty minutes following his insulin injection and in turn,

compromising his health and subjecting him and other Type I diabetic 

inmates to “intermittent [medical] crisis.” Musselman filed suit against the 

State and the Director of the ADOC (Director) seeking a writ of mandamus 

requiring the Director to (1) enact a policy to require feeding of insulindependent inmates within thirty minutes of receiving an insulin injection 

and (2) establish a progressive penalty schedule should ADOC violate said 

policy in the future.1 

¶3 The Director moved to dismiss Musselman’s claims, 

contending his grievances do not justify special action relief. The Director 

also filed a separate “Motion to Decline Jurisdiction” arguing that Arizona 

Revised Statutes (A.R.S.) section 31-201.01.L (West 2015)2 bars Musselman 

 

1 Musselman also petitioned this Court directly for the same writ. We 

declined to exercise jurisdiction over Musselman’s petition. 

2 We cite the current version of applicable statutes when no revisions 

material to this decision have since occurred. 
MUSSELMAN v. STATE 

Decision of the Court 

3 

from seeking special action relief in this case.3 Following the completion of 

briefing on both motions, the trial court issued a minute entry “declining 

jurisdiction in this matter and dismissing the First Amended Complaint for 

the reasons enumerated by the State.” Musselman timely appealed. We 

have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution 

and A.R.S. § 12-2101.A.1 (West 2015).4

DISCUSSION 

¶4 A party seeking a writ of mandamus must proceed via special 

action. Kelley v. Ariz. Dep’t of Corr., 154 Ariz. 476, 479 (1987). On appeal, we 

first must determine whether the superior court accepted jurisdiction of the 

merits. Bilagody v. Thorneycroft, 125 Ariz. 88, 92 (App. 1979). If so, then we 

may review the merits of the case. Id. If not, the only issue before us is 

whether the trial court abused its discretion by declining jurisdiction. Id. 

Here, the trial court declined to exercise jurisdiction over Musselman’s 

complaint. We therefore confine our review to whether the trial court 

abused its discretion in doing so. 

¶5 Jurisdiction over a special action should be accepted only in 

extraordinary circumstances, where justice cannot be satisfactorily 

obtained by other means. Williams v. Miles, 212 Ariz. 155, 156, ¶ 9 (App. 

2006); Pompa v. Superior Court, 187 Ariz. 531, 533 (App. 1997). Musselman 

sought special action relief to enforce the Director’s purported duty to 

provide him adequate medical care. But claims for inadequate medical care 

while in custody can be addressed in a conventional civil lawsuit, most 

frequently under 42 U.S.C. § 1983 (West 2015). See Zuck v. State, 159 Ariz. 

37, 42 (App. 1988) (inmate alleging unreasonable delay in providing 

medication could pursue negligence and § 1983 claims). 

¶6 Indeed, Musselman concedes he has other potential remedies 

when he relies on federal Eighth Amendment case law to establish the 

Director’s “duty to provide medical and health services for ... prisoners,” 

and when he asserts that he “will also establish a violation of the Eighth 

Amendment.” Because Musselman’s allegations can be addressed in a 

 

3 Because the Director withdrew his § 31-201.01.L arguments on 

appeal, we do not address them. 

4 The trial court signed its January 9, 2014 minute entry on January 13, 

2014; however, the minute entry did not include language of finality as 

required by Arizona Rule of Civil Procedure 54(c). The trial court provided 

a Rule 54(c) certification on August 18, 2014. 
MUSSELMAN v. STATE 

Decision of the Court 

4 

conventional civil lawsuit, the trial court did not abuse its discretion by 

declining to exercise jurisdiction. 

¶7 Musselman claims he is not required to file a conventional 

lawsuit, and that the superior court abused its discretion in declining 

jurisdiction over his special action complaint seeking mandamus relief on 

three grounds. He first argues that Article 6, Section 18 of the Arizona 

Constitution does not expressly require him to show there are no other 

available remedies before proceeding with a special action.5 By case law 

and statute, however, relief by mandamus or special action is only available 

“when there is no plain, speedy and adequate remedy at law.” State Bd. of 

Technical Registration v. Bauer, 84 Ariz. 237, 239 (1958) (“It is well settled in 

this jurisdiction, by statute and court decisions interpreting same, that 

mandamus will only lie ... when there is no plain, speedy and adequate remedy 

at law.”) (Emphasis in original); A.R.S. § 12-2021 (“A writ of mandamus may 

be issued ... when there is not a plain, adequate and speedy remedy at 

law[.]”). And Musselman has not shown how this authority is inconsistent 

with the directives of Article 6, Section 18.

¶8 Musselman next argues that a Section 1983 claim would not 

address the Director’s alleged violations of state law. The state law 

Musselman references is Article 2, Section 15 of the Arizona Constitution, 

which mirrors the Eighth Amendment. Musselman does not offer any 

reasons why the Arizona provision would be interpreted differently from 

its federal counterpart. We therefore treat them as being coterminous. See 

State v. Long, 207 Ariz. 140, 144 n.2 (App. 2004) (citing State v. Noble, 171 

Ariz. 171, 173 (1992)).

¶9 Finally, Musselman argues that a conventional lawsuit would 

not be a plain, adequate and speedy remedy because it would be time 

consuming and would “follow[] the processes of a traditional court action.” 

Musselman, however, has not shown how the superior court abused its 

discretion in rejecting this argument. See Neary v. Frantz, 141 Ariz. 171, 177 

(App. 1984) (“A remedy does not become inadequate merely because more 

time would transpire by pursuing a conventional action.”). 

 

5 “The superior court or any judge thereof may issue writs of 

mandamus, quo warranto, review, certiorari, prohibition, and writs of 

habeas corpus on petition by or on behalf of a person held in actual custody 

within the county. Injunctions, attachments, and writs of prohibition and 

habeas corpus may be issued and served on legal holidays and non-judicial 

days.” Ariz. Const. art. 6, § 18. 
MUSSELMAN v. STATE 

Decision of the Court 

5 

¶10 Because Musselman did not prevail on appeal, we deny his 

request for attorney fees and costs pursuant to A.R.S. §§ 12-2030.A and -

348.A.4. 

CONCLUSION 

¶11 Assuming arguendo that Musselman has properly stated the 

Director’s duty to provide medical care to inmates – an issue we do not 

reach – he has other plain, adequate and speedy remedies at law. The trial 

court did not abuse its discretion by declining to exercise jurisdiction over 

Musselman’s First Amended Complaint. We therefore affirm.