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Lacey Mark Sivak v. Idaho Department of

June 21, 2012

LACEY MARK SIVAK, PLAINTIFF-APPELLANT,
v.
IDAHO DEPARTMENT OF CORRECTIONS AND JEFF ZMUDA, DEFENDANTS-RESPONDENTS.



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

The opinion of the court was delivered by: Gutierrez, Judge

2012 Unpublished Opinion No. 522

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Judgment of dismissal, affirmed.

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*fn1 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 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.

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 ...


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