Malek v. Bigelow

2015 UT App 221

THE UTAH COURT OF APPEALS

LOUIS MALEK,
Appellant,
v.
A.C. BIGELOW, ET AL.,
Appellees.

Per Curiam Decision
No. 20140676-CA
Filed September 3, 2015

Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 130905472

Louis Malek, Appellant Pro Se
Sean D. Reyes, Nancy L. Kemp, and Amanda N.
Montague, Attorneys for Appellees

Before JUDGES STEPHEN L. ROTH, JOHN A. PEARCE, and
KATE A. TOOMEY.

PER CURIAM:

¶1 Louis Malek appeals the trial court’s order granting
summary judgment in favor of A.C. Bigelow, et al.,
(Respondents) and denying his petition for relief under rule 65B
of the Utah Rules of Civil Procedure. We affirm.

¶2 Malek is incarcerated in the Utah State Prison. He filed a
complaint citing Title 42, section 1983 of the United States Code
as the basis for the complaint and alleging causes of action based
on allegations of unnecessary rigor and deliberate indifference
regarding his treatment in prison. Although he stated that the
proceeding was “a civil action for damages” he did not serve the
complaint or further prosecute it as a civil action. Instead, the
matter sat idle for about a year.
Malek v. Bigelow

¶3 Prompted by a notice from the trial court of an ex parte
communication, Malek filed a letter to the court stating that the
“petition was filed pursuant to rule 65B of the Utah Rules of
Civil Procedure.” Malek further noted that under rule 65B, the
court must determine after an initial review whether to serve the
petition on Respondents. Shortly after receiving the letter, the
court issued a ruling requiring the petition to be served and
ordering Respondents to answer the petition. In that ruling, the
trial court stated,

although the complaint purports to bring an action
against the prison warden and various employees,
a summons was not issued or served . . . .
Furthermore, the content of the documents
accompanying and filed since his complaint speak
to the conditions of his confinement, specifically
the prison staff’s treatment of his medical needs
and are not consistent with his intent to sue the
prison. Since the complaint was not served nor
prosecuted as a complaint, this court will instead
treat Mr. Malek’s filings as an extraordinary writ
under rule 65B.

Accordingly, from that point on and without objection from
Malek, the proceedings in the trial court were prosecuted as a
petition for extraordinary relief under rule 65B.

¶4 Respondents moved for summary judgment, supporting
the motion with several affidavits. After the motion was fully
briefed, the trial court entered its ruling and order on May 7,
2014. The trial court ruled that Malek’s claims failed as a matter
of law and, accordingly, denied relief. Malek appeals.

¶5 Malek argues that the trial court erred in construing his
complaint as “solely” a petition under rule 65B. However, Malek
specifically notified the trial court that the pleading was filed
under that rule. Because Malek invited the alleged error of which

20140676-CA 2 2015 UT App 221
Malek v. Bigelow

he now complains, appellate review is precluded. State v.
Winfield, 2006 UT 4, ¶ 15, 128 P.3d 1171. It is well settled that “a
party cannot take advantage of an error committed at trial when
that party led the trial court into committing the error.” Id.
(citation and internal quotation marks omitted). Moreover, even
if Malek did not invite the alleged error, at the very least he
consented to his complaint moving forward as a rule 65B
petition and did not object at any point, as noted by the trial
court in its final order.1 This failure to preserve the issue also
precludes appellate review. 438 Main St. v. Easy Heat, Inc., 2004
UT 72, ¶ 51, 99 P.3d 801.

¶6 Malek also argues that disputed material facts preclude
summary judgment. He challenges the sufficiency of the
affidavits regarding the prison’s asbestos abatement program.
However, given the narrow scope of the petition for relief, there
is no material fact in dispute. Malek asserts that the affidavits
regarding the abatement program do not cover relevant years of
potential exposure earlier in his incarceration. This purported
dispute of fact is not material, however, because those years
relate only to his personal injury claims, which are beyond the
scope of the rule 65B petition. There is no dispute of material fact
regarding the current conditions or possibility of exposure to

1. Malek argues that the case should have moved forward as a
mixed claim proceeding, such as when both tort and contract
claims are presented in a single action. However, that does not
comport with the limited scope of a petition for extraordinary
relief, which is available only where no other plain, speedy, or
adequate remedy is available. Utah R. Civ. P. 65B(a). Pursuing a
civil action for tort claims is a separate remedy and cannot be
combined with a request for extraordinary relief in a rule 65B
petition. Furthermore, a petition for extraordinary relief “is not
an appropriate or available remedy for damages claims.” Wolff v.
McDonnell, 418 U.S. 539, 554 (1974).

20140676-CA 3 2015 UT App 221
Malek v. Bigelow

asbestos in the prison. The trial court determined that Malek’s
claim for relief from asbestos exposure was moot “since he has
presented . . . no evidence that he is currently being subjected to
asbestos exposure, or [that he] has been since the asbestos
abatement procedures” took place.

¶7 In sum, Malek has not shown that the trial court erred in
denying his petition for extraordinary relief on a summary
judgment motion.2

¶8 Affirmed.

2. Malek asserts other issues on appeal, which we determine to
be without merit. We do not address them further. See Carter v.
State, 2012 UT 69, ¶ 16 n.7, 289 P.3d 542(“*T+his court need not
analyze and address in writing each and every argument, issue,
or claim raised.”).

20140676-CA 4 2015 UT App 221