Free Motion for Judgment - District Court of Arizona - Arizona

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John T. Masterson, Bar #007447 Jennifer L. Holsman, Bar #022787 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7846 [email protected] [email protected] Attorneys for Defendants Brad Weekley and Guy Gorman UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA James W. Field, Plaintiff, v. County of La Paz, et al., Defendants. LA PAZ COUNTY DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW CV 03-2214-PHX SRB

Pursuant to FED. R. CIV. P. 50(a)(1), Defendants Brad Weekley and Guy Gorman ("La Paz County Defendants"), through counsel, move for judgment as a matter of law as follows: (1) Plaintiff has not presented any evidence that the electrical conditions on his property did not present a health and safety hazard to the public on October 30, 2002; (2) Plaintiff has failed to establish that La Paz County had any authority to terminate the electrical service to his property, that they "ordered" Defendant Arizona Public Service ("APS") to terminate the electrical service, or that they terminated the electrical service themselves1; and (3) Plaintiff has failed to establish an official capacity claim against either Defendant Weekley or Gorman.
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See generally, Wimmer v. Suffolk County Police Dept., 176 F.3d 125, 134 (2d Cir. 1999); CVI/Beta Ventures, Inc. v. Tura LP, 112 F.3d 14, 1146, 1152 (Fed. Cir. 1997) (pursuant to Rule 50(a), if there is not sufficient evidence to

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I. Authorities.

This Motion is supported by the following Memorandum of Points and MEMORANDUM OF POINTS AND AUTHORITIES LEGAL ANALYSIS Pursuant to the Court's April 27, 2006 Order on Defendants' Motion for Summary Judgment, there remains but one issue to be determined by the jury related to the La Paz County Defendants, who have been sued in their official capacities: Whether the La Paz County Defendants believed that the conditions on Plaintiff's property posed a health and safety hazard to the public.2 If there were health and safety hazards on the property, Plaintiff was not entitled to due process before the La Paz County Defendants recommended termination of his electrical service to APS. During this second trial, Plaintiff has failed to present any evidence that there were: (1) not health and safety hazards on Plaintiff's property, such that he should have been given "notice" before the La Paz County recommended termination of his electrical service; (2) that the La Paz County Defendants had any authority to terminate electrical service to Plaintiff's property, that that they "ordered" Defendant Arizona Public Service ("APS") to terminate the electrical service, or that they terminated the electrical service themselves3; or (3) that La Paz County was the "moving force" behind the deprivation of his alleged constitutional rights. Accordingly, Defendants are entitled to judgment as a matter of law.

raise a genuine factual controversy, the court may take a case away from the jury by entering a judgment). 2 The La Paz County Defendants deny that there is an "immediacy" requirement. However, if the Court applies this higher standard, Defendants are still entitled to judgment as a matter of law. 3 In reviewing a judgment as a matter of law, the evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must be drawn in favor of that party. See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 149-50, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
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A.

No Evidence There Were Not Health and Safety Hazards on Plaintiff's Property. Due process generally requires notice and an opportunity to be heard prior

to the deprivation of a protected property interest.4 Due process is a flexible concept and "calls for such procedural protections as the particular situation demands."5 As noted in Gilbert, "where a State must act quickly, or where it would be impractical to provide predeprivation process, post-deprivation process satisfies the requirements of the due process clause."6 Generally, no pre-deprivation process is legally due when government officials have reasonable grounds to believe that public safety is in jeopardy. For example, in Patel v. Midland Memorial Hospital and Medical Center, two incidents regarding medical care provided by Dr. Patel caught the attention of the hospital's medical executive committee.7 After the committee convened regarding these incidents, it was determined that due to safety concerns, Dr. Patel's non-cardiac peripheral privileges would be revoked. At the request of Dr. Patel, a post-suspension hearing was subsequently convened so that additional review of Dr. Patel's medical practice could be evaluated.8 After the hearing, Dr. Patel's medical privileges were restored, although the hearing officers found that the suspension of medical privileges was reasonable under the circumstances at the time. Dr. Patel subsequently filed suit alleging, among other things, a violation of his due process rights under 42 U.S.C. § 1983.
4 See, e.g. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). 5 Gilbert v. Homar, 520 U.S. 924, 930 (1997) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). 6

Id. at 930. See also FDIC v. Mallen, 486 U.S. 230, 240 (1988) (when there is an "important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted," there may be justification in delaying "the opportunity to be heard until after the initial deprivation.") 7 298 F.3d 333 (5th Cir. 2002) (en banc). 8 Id. at 338.
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The Court in Patel stated that the key question in due process cases is whether there were "reasonable grounds" at the time of the termination of a specific right (in Patel's case, his medical privileges). Patel held that "[b]ecause, under the particular circumstances of this case, prompt action was necessary to secure patient safety, we conclude that Dr. Patel received all the pre-suspension process he was constitutionally due." Id. Similarly, in Caine v. Hardy, the Court considered what pre-suspension process was due to an anesthesiologist working at a public hospital.9 In Caine, Dr. Caine was suspended after the hospital determined that there were severe medical deficiencies in his performance of duties. Because the hospital believed that Dr. Caine posed a danger to his patients, he was suspended without having a formal hearing. The Court in Caine held that "where the safety of the public is at risk, an adequate post-suspension remedy satisfies the requirements of due process."10 Finally, in Ram v. Rubin, a father brought a claim under 42 U.S.C. § 1983 after his children were removed from his custody without prior notice or a hearing by CPS and a police officer.11 The Court stated that, [N]ormally, notice and a hearing are required before the children can be removed, even temporarily, from the custody of their parents. A state official cannot remove children from their parents unless the official has a reasonable belief that the children are in imminent danger. An indictment or serious allegations of abuse which are investigated and corroborated usually gives rise to a reasonable inference of imminent danger sufficient to justify taking children into temporary custody.12
9 943 F.2d 1406, 1412 (5th Cir. 1991). 10 Id. at 1412. 11 th 12

118 F.3d 1306, 1310 (9 Cir. 1997). Id. at 1311. See also Baker v. Racansky, 887 F.2d 183 (9th Cir. 1989) ("reversing district court's denial of summary judgment where children were taken into protective custody two days after allegations of abuse and an

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During this trial, the jury has heard qualified expert testimony from Guy Gorman (La Paz County Building Inspector), D.L. Wilson (APS Representative) and Doug McDonald (APS Representative) that there were dangerous conditions on Plaintiff's property that posed an immediate threat to the health and safety of the community. In addition, Tammy Doud, William Farr and even the Plaintiff testified that there were conditions on the property that were dangerous. Thus, this is the only testimony the jury has heard. Plaintiff has failed to elicit, and cannot elicit, any testimony, from either a lay or qualified witness, that the conditions on Plaintiff's property were not a health and safety hazard on October 30, 2002. In fact, the Court has already ruled that La Paz County officials could have reasonably believed that the electrical conditions on Plaintiff's property created an imminent or immediate danger.13 In order to prevail on his due process claim, Plaintiff must prove that La Paz County representatives did not find health and safety hazards on his property on October 30, 2002. Here, because Plaintiff has failed to present any evidence that there were not health and safety hazards that posed a threat (immediate or otherwise) to the community, he has failed to meet his burden of proof on the due process claim against the La Paz County Defendants. Accordingly, the La Paz County Defendants are entitled to judgment as a matter of law. B. La Paz County Does Not Have Authority to Terminate Electrical Service. The Arizona Constitution vests power in the Arizona Corporation Commission ("ACC") to regulate public service corporations, like APS. See Ariz. Const. Art. 15, § 3; A.R.S. § 40-202(B) (authorizing the ACC to "[e]stablish reasonable requirements for ... regulating electricity suppliers that are public service corporations.") The ACC also has rules concerning circumstances where public service corporations can
investigation yielded evidence of abuse.") 13 See Court's Order on Defendants' Rule 50 Motion dated August 3, 2006, at page 3.
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terminate electrical power. See Ariz. Admin. Code, Art. 2, R14-2-201, et. seq. As a result of these rules, the power to terminate electrical service resides with the public service corporation, APS. Again, during this trial, the jury has heard testimony from Guy Gorman (La Paz County Building Inspector), Brad Weekley (former Director of the La Paz County Department of Community Development), D.L. Wilson (APS Representative) and Doug McDonald (APS Representative), that La Paz County did not have the authority to terminate electrical service to Plaintiff's property. In fact, each of these witnesses testified that only APS has the authority to terminate service as outlined under the Arizona Administrative Code. In fact, the Court has determined that as a matter of law, APS, Mr. McDonald, and Mr. Wilson acted as a private entity making the decision to turn off power without notice. They were not compelled to do that by anyone from La Paz County. It is undisputed that the decision to turn off power was not made by La Paz County; it was made by the APS employees.14 Because the undisputed evidence establishes that La Paz County cannot terminate the electrical service to Plaintiff's property, Defendants cannot be liable for violating Plaintiff's rights to due process because he has failed to show an affirmative link between the action of the La Paz County Defendants and the cause of Plaintiff's alleged injury. Accordingly, the La Paz County Defendants are entitled to judgment as a matter of law. C. Official Capacity Claim Against Defendants Fail. 1. No Evidence of Official Capacity Liability Under § 1983.

In the Court's April 27, 2006, Order regarding Defendants' Motion for Summary Judgment, the individual claims against Defendants Gorman and Weekley were

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See Trial Transcript, June 15, 2006, p. 32, ll. 19-24; see also Trial Transcript, June 15, 2006, p. 33, ll. 3-6.

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dismissed. Thus, only official capacity claims against Defendants Gorman and Weekley remain. A suit against a municipal officer in his official capacity is the functional equivalent of a direct suit against the municipality. Thus, in all respects, other than name, this official capacity suit should be treated as a suit against an entity.15 To establish official capacity liability under 42 U.S.C. § 1983, Plaintiff must establish that "the entity itself is a `moving force' behind the deprivation of a [civil right]."16 Thus, "in an official capacity suit the entity's `policy or custom' must have played a part in the violation of federal law."17 Here, Plaintiff has failed to establish that "the entity itself [was] a moving force behind the deprivation" of Plaintiff's civil rights. Put simply, Plaintiff has failed to present any evidence that La Paz County was the "moving force" and as a result, Plaintiff has failed to establish a prima facie case against the Defendants. Defendants are therefore entitled to judgment as a matter of law. 2. Defendant Weekley Not Final Policymaker. Plaintiff's claim against Defendant Weekley, the Director of the Development Department during the time in question, appears to be that he ratified the alleged unconstitutional actions by Defendant Gorman. Per the Court's Order,

"[p]resumably, the `actions' to which James refers are those Gorman took in connection

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Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035 n.55 (1978). See, e.g. Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1992) (concluding that "[t]o keep both the City and the officers sued in their official capacities as defendants...would have been redundant and possibly confusing to the jury"). Thus, suits against individual defendants in their official capacities are duplicative and should be dismissed. Accordingly, the § 1983 claims against Defendants Gorman and Weekley should be dismissed. Hafer v. Melo, 52 U.S. 21, 112 S.Ct. 358 (1991). 16 Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105 (1985). 17 Id.
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with inspecting the Property, discovering the violations, then requesting the termination of electrical power to the property."18 While a single constitutional violation is generally insufficient to qualify as a "policy or custom," "a municipality can be liable for an isolated constitutional violation when the person causing the violation `has final policymaking authority.'"19 "A municipality also can be liable for an isolated constitutional violation if the final policymaker `ratified' a subordinate's actions."20 Knowledge alone, however, is

insufficient; instead "a plaintiff must prove that the policymaker approved of the subordinate's act. For example it is well-settled that a policymaker's mere refusal to overrule a subordinate's completed act does not constitute approval."21 "A plaintiff

cannot prove the existence of a municipal policy or custom based solely on the occurrence of a single incident or unconstitutional action by a non-policymaking employee."22 During this trial, Plaintiff failed to present any evidence that Defendant Weekley had any "final policymaking authority" while he was the Director of Community Development for La Paz County. Even assuming that Defendant Weekley did have this type of authority, Plaintiff presented no evidence that Defendant Weekley knew about the termination of the electrical service to Plaintiff's property before the termination occurred, or that Defendant Weekley approved the termination. Accordingly, Plaintiff has failed to establish, an "official capacity" claim against Defendants Gorman or Weekley.

Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (plurality)) (other citation omitted). 20 Christie, 176 F.3d at 1239 (citing Garrison v. Burke, 165 F.3d 565, 572 n.6 (7th Cir. 1999) (holding that the municipality was not liable under § 1983 because it had no knowledge of the alleged constitutional violations); see also Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992) (finding no ratification because there was no "evidence that the City Manager made a deliberate choice to endorse the Fire Chief's decision and the basis for it"). 21 Christies, 176 F.3d at 1239 (citing Weisbuch v. County of Los Angeles, 119 F.3d 778, 781 (9th Cir. 1997); Gillette, 979 F.2d at 1348. 22 Davis v. City of Ellensburg, 869 F.2d 1230, 1233(9th Cir. 1989).
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18 See page 15 of the Court's Order. 19

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III.

CONCLUSION The La Paz County Defendants are entitled to judgment as a matter of law

because: (1) Plaintiff has not presented any evidence that the electrical conditions on his property did not present a health and safety hazard that posed an immediate threat to the public; (2) Plaintiff has failed to establish that La Paz County had any authority to terminate the electrical service to his property, that they "ordered" Defendant Arizona Public Service ("APS") to terminate the electrical service, or that they terminated the electrical service themselves; and (3) Plaintiff has failed to establish an official capacity claim against either Defendant Weekley or Gorman. DATED this 24th day of January, 2007. JONES, SKELTON & HOCHULI, P.L.C.

BY s/Jennifer L. Holsman John T. Masterson Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Brad Weekley and Guy Gorman COPYth the foregoing hand-delivered of this 25 day of January, 2007, to: James. W. Field Plaintiff Pro Per

s/Jennifer L. Holsman ____________

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