NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MATTHEW RONALD CREAMER, Plaintiff/Appellant,

v.

STATE OF ARIZONA; ARIZONA DEPARTMENT OF CORRECTIONS, a 

public entity; CHARLES L. RYAN, Director, Defendants/Appellees.

No. 1 CA-CV 13-0611

Appeal from the Superior Court in Maricopa County

No. LC2013-000236-001

The Honorable Katherine M. Cooper, Judge

AFFIRMED

COUNSEL

Matthew Ronald Creamer, Tucson

Plaintiff/Appellant

Arizona Attorney General’s Office, Tucson

By Claudia Acosta Collings

Counsel for Defendants/Appellees

MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which 

Presiding Judge Patricia K. Norris and Judge Lawrence F. Winthrop joined.
CREAMER v. STATE, et al.

Decision of the Court

2

G E M M I L L, Judge:

¶1 Arizona Department of Corrections (“ADOC”) inmate 

Matthew Ronald Creamer appeals from the superior court’s order 

dismissing with prejudice his complaint for special action. Because we 

conclude that the superior court did not abuse its discretion in declining to 

exercise special action jurisdiction, we affirm. 

FACTS 

¶2 Creamer is an Arizona prison inmate. On May 25, 2012, two

ADOC officers searched Creamer’s cell while he was out of the unit for a 

medical appointment. During the search, the officers found several 

unauthorized items, including various office supplies, a barber’s comb, and 

a stapler. The officers seized the unauthorized items and informed Creamer 

that they had been taken.

¶3 Upon hearing of the search, Creamer attempted to confront 

one of the officers. According to the ADOC, Creamer began to yell at the 

officer, at one point threatening to sue her. In response, the second officer 

alerted security staff. As a result of the incident, Creamer was placed on 

disciplinary report and charged with two major violations: one for 

disorderly conduct and the other for promoting prison contraband. 

¶4 Creamer pled not guilty to the two violations. After hearings 

before the ADOC Disciplinary Coordinator, Creamer was found guilty of 

both and issued punishment of increased duty time, loss of privilege, and 

placement in Parole Class III. As a result of his placement in Parole Class 

III, Creamer was required to forfeit “good-time” release credits, thereby 

impacting the duration of his sentence. Creamer could have filed for 

reinstatement of his good-time credits under ADOC Department Order 

1002, but chose not to do so. 

¶5 Creamer filed a complaint for special action in the superior 

court in Maricopa County, alleging the disciplinary proceedings violated 

his due process rights and requesting that the convictions be expunged and 

his good-time credits restored. The State filed a response and motion to 

dismiss the complaint, but Creamer did not file a response to the motion. 

The superior court found no extraordinary circumstances warranting 

special action relief because Creamer “had and has other remedies” 

through which he could seek relief. Accordingly, the superior court 
CREAMER v. STATE, et al.

Decision of the Court

3

declined to accept special action jurisdiction, granted the State’s motion, 

and dismissed the complaint with prejudice.

¶6 Creamer filed a timely notice of appeal. This court has 

appellate jurisdiction under Arizona Revised Statutes (“A.R.S.”) §§ 12-

120.21(A)(1), -2101(A)(1), and Arizona Rule of Procedure for Special

Actions 8(a). 

ANALYSIS

¶7 As a preliminary matter, the State argues that because 

Creamer did not respond to its motion to dismiss his special action 

complaint, he consented to the trial court’s dismissal. See Ariz. R. Civ. P. 

7.1(b) (explaining that the court may summarily dismiss a motion to which 

opposing party fails to respond); Ariz. R.P. Spec. Act. 7(i) (“To the extent 

they are not inconsistent with these rules, the Arizona Rules of Civil 

Appellate Procedure shall apply to special actions.”). Accordingly, the 

State argues that this court should summarily dismiss Creamer’s appeal. 

Although it is true that the superior court may summarily dismiss a claim 

for failure to respond, it is not required to do so. See Ariz. R. Civ. P. 7.1(a). 

In this case, the superior court did not dispose of Creamer’s complaint on 

the basis of his failure to respond. Instead, it dismissed his claim because it 

did not find extraordinary circumstances warranting an exercise of special 

action jurisdiction. We therefore review whether that decision was an 

abuse of the court’s discretion. 

¶8 The exercise of jurisdiction over a special action is “highly 

discretionary.” State ex rel. Romley v. Fields, 201 Ariz. 321, 323, ¶ 4, 35 P.3d 

82, 84 (App. 2001). Special action jurisdiction is appropriate in

extraordinary circumstances when there is no equally plain, speedy, or 

adequate remedy upon appeal. State ex rel. Romley v. Superior Court, 198 

Ariz. 164, 165, ¶ 4, 7 P.3d 970, 971 (App. 2000). This court reviews the

superior court’s decision declining to exercise special action jurisdiction for 

an abuse of discretion. Stout v. Taylor, 233 Ariz. 275, 277, ¶ 5, 311 P.3d 1088, 

1090 (App. 2013). On this record, we find no abuse of discretion. 

¶9 Before the superior court, Creamer claimed that the 

underlying circumstances of the search and disciplinary proceedings 

violated his right to due process. As a result, he argued that his placement 

in Parole Class III and resulting forfeiture of good-time credits extended the 

length of his confinement in violation of his due process rights.
CREAMER v. STATE, et al.

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¶10 Creamer cites Heck v. Humphrey, 512 U.S. 477 (1994) in support 

of his argument that the superior court should have exercised special action 

jurisdiction in this matter. But Heck does not mandate the exercise of 

special action jurisdiction here because, as the superior court reasonably 

concluded, Creamer had adequate alternative remedies available. 

¶11 Under Arizona Department of Corrections Department Order 

1002, inmates who lose good behavior time credits because of disciplinary 

violations may apply to rescind such order and to have those credits 

restored if they meet certain criteria. Arizona Dep’t of Corrections Dep’t

Order 1002.02. Creamer did not file such an application. Accordingly, 

Creamer’s special action was premature.

¶12 Creamer does not deny that he met the requirements to apply 

for rescission of his Class III placement and reinstatement of his good-time 

credit. Instead, Creamer argues that because the decision to grant rescission 

of Class III status is discretionary with the Director, he was not required to 

seek rescission and restoration. However, the need for a petitioner to first 

exhaust alternative remedies is not based on the certainty of the result, but 

on the need to follow appropriate administrative and judicial procedures. 

See Minor v. Cochise Cnty., 125 Ariz. 170, 172, 608 P.2d 309, 311 (1980) 

(explaining that when an administrative agency is empowered to act, it 

should be allowed to do so before the courts intervene). By failing to seek 

rescission of the ADOC order, Creamer did not avail himself of the 

available administrative remedy. The superior court did not abuse its 

discretion in declining to exercise jurisdiction regarding Creamer’s due 

process claims.

1

 

1 Creamer’s complaint also alleges that the search of his cell and resulting 

disciplinary proceedings were undertaken in retaliation against him for 

exercising his First Amendment rights and having recently entered into a 

settlement agreement with the ADOC. To the extent that Creamer is 

seeking damages for these alleged constitutional violations, the appropriate 

vehicle for such claims is an action under 42 U.S.C. § 1983. See Tripati v. 

State, 199 Ariz. 222, 226–27, ¶ 14, 16 P.3d 783, 787–88 (App. 2000); Neary v. 

Frantz, 141 Ariz. 171, 178, 685 P.2d 1323, 1330 (App. 1984).
CREAMER v. STATE, et al.

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CONCLUSION

¶13 For these reasons, the superior court acted within its 

discretion when it dismissed Creamer’s action. The order of dismissal with 

prejudice is modified, however, to a dismissal without prejudice.2

 

2 In the event Creamer exhausts his administrative remedies and files 

another special action in superior court seeking the same relief, it should

not be barred by the dismissal of this action because the factual foundation 

for the potential future action will have changed.