Free Motion for Reconsideration - 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' WEEKLEY AND GORMAN'S MOTION FOR RECONSIDERATION AND RULE 50(b) RENEWED MOTION FOR JUDGMENT AS A MATTER OF Defendants. LAW CV 03-2214-PHX SRB

Defendants Weekley and Gorman respectfully request the Court reconsider its ruling on their Motion for Judgment as a Matter of Law for two reasons. First, the Court erred in finding that there was a factual issue to be determined by the jury regarding the hazardous conditions on Plaintiff's property on October 30, 2002. Second, the Court must find that Plaintiff failed to establish a due process violation by Defendants Weekley and Gorman. Specifically, Plaintiff failed to establish during the trial: (1) that Defendants Weekley or Gorman had the authority to terminate electrical service to his property; (2) that Defendants Weekley or Gorman ordered or compelled Arizona Public Service ("APS") to terminate his electrical service; or (3) that
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Defendants Weekley or Gorman terminated the electrical service themselves.

Thus,

Plaintiff failed to establish an affirmative or causal link between the alleged constitutional deprivation (i.e. loss of electrical service) and specific action taken by Defendants Weekley or Gorman. Defendants also renew their Rule 50 Motion for Judgment as a Matter of Law and the arguments made during trial and their Motion for Summary Judgment as previously briefed, argued and renewed during trial. This Motion is supported by the following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES I. LEGAL ARGUMENT A. The Court Has Ruled that La Paz County Officials Could Have Reasonably Believed the Conditions on Plaintiff's Property Created an Imminent Danger. In the Court's August 3, 2006 Order, the Court stated that "the analysis for whether government officials have reasonable grounds for believing there was immediate or imminent danger has both a subjective and objective prong. The decision maker must both subjectively believe that there is imminent danger and that belief must be reasonable. The evidence at trial was that La Paz County officials could have reasonably believed that the electrical conditions on the property created an imminent danger. Whether they subjectively believed this is a question for the fact finder and not a question to be decided as a matter of law.

As outlined in Defendants' Motion for Judgment as a Matter of Law, due process generally requires notice and an opportunity to be heard prior to the deprivation of

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a protected property interest.1 Due process is a flexible concept and "calls for such procedural protections as the particular situation demands."2 As noted in Gilbert, "where a State must act quickly, or where it would be impractical to provide pre-deprivation process, post-deprivation process satisfies the requirements of the due process clause."3 Generally, no pre-deprivation process is legally due when government officials have reasonable grounds to believe that public safety is in jeopardy.4 The Court in Patel stated that the key question in due process cases is whether there were

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1 See, e.g. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). 2 Gilbert v. Homar, 520 U.S. 924, 930 (1997) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). 3

"reasonable grounds" at the time of the termination of a specific right. Thus, the evidence does not need to conclusively establish that the condition was actually dangerous (the electrical conditions on Plaintiff's property), only that there were reasonable grounds for believing that they were dangerous.5 Pursuant to Patel, after a finding of reasonableness, no further inquiry is necessary. In this case, the Court has already ruled that the "La Paz County officials could have reasonably believed that the electrical conditions on the property created an imminent danger."6 Thus, the standard in Patel is satisfied and the inquiry ends there. Even if Mr. Gorman's subjective belief were relevant, however, the uncontroverted testimony before the jury is that Mr. Gorman believed the conditions on Plaintiff's

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.") 4 See Patel v. Midland Memorial Hospital and Medical Center, 298 F.3d 333 (5th Cir. 2002) (en banc). 5 Id. at 341. 6 See Court Order dated August 3, 2006.
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property were imminently dangerous at the time of the October 30, 2002 inspection. Any actions or inactions by Mr. Gorman subsequent to October 30, 2002, do not change his beliefs (which the Court has already ruled to be reasonable) or the nature of the dangerous conditions found on Plaintiff's property. This evidence is not disputed by any authoritative or admissible testimony.7 In order to prevail on his due process claim, Plaintiff had to prove that Defendants Weekley and Gorman could not have reasonably believed that the electrical

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"As a general rule, when government officials have reasonable grounds to believe that the public safety is in immediate jeopardy, no predeprivation process is legally due. For example, in Patel v. Midland Memorial Hospital and Medical Center, 298 F.3d 333, 339-40 (5th Cir. 2002) (en banc), the Fifth Circuit held that due process did not require any prior notice or hearing before a hospital fired a surgeon whose methods "posed a danger to public safety." See Court Order dated April 27, 2006. 8 See Court Order dated August 3, 2006.
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conditions on his property created an imminent danger. Plaintiff failed to prove this critical element. In fact, the Court, as stated above, has specifically ruled that "La Paz County representatives could have reasonably believed that the electrical conditions on Plaintiff's property created an imminent danger."8 Thus, Plaintiff failed to meet his

burden of proof on his due process claim against Defendants Weekley and Gorman. Accordingly, Defendants are entitled to judgment as a matter of law. B. No Affirmative Link Between Deprivation of Constitutional Rights and Conduct by Defendants. 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

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requirements for ... regulating electricity suppliers that are public service corporations."). The ACC also has rules concerning circumstances where public service corporations can 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 solely with the public service corporation, APS. Because only APS could legally terminate Plaintiff's electrical service, Plaintiff was unable to establish an "affirmative link" between the Defendants' conduct

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9 See Final Jury Instructions filed on June 22, 2006, docket number 230. 10 th

and the actual deprivation of Plaintiff's constitution rights. Plaintiff's burden of proof regarding this issue was explained as follows: "To impose liability for a violation of Plaintiff's rights, Plaintiff must prove an affirmative link between the conduct of the Defendants and the harm alleged. Thus, the Plaintiff must establish that the conduct of Defendants Weekley and Gorman caused the Plaintiff's injuries."9 The Ninth Circuit has held that "[a] person 'subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made."10 Thus, in order for a plaintiff to state a claim for relief under section 1983, there must be a "link" between each named Defendant that would demonstrate a violation of plaintiff's federal rights. Importantly, there can be no liability under section 1983 unless there is

Johnson v. Duffy, 588 F.2d 740, 743 (9 Cir. 1978).

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some affirmative link or causal connection between a defendant's actions and the claimed deprivation.11 As outlined in Johnson, the "causal chain" for purposes of section 1983 liability, can occur through a defendant "setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury."12 However, in McCLeaf v. State, the Arizona Court of Appeals, explained that: When a responsible actor assumes control of a situation from another (as in Siggers v. Barlow, 906 F.2d 241 (6th Cir. 1990) (involving successive doctors caring for a patient and agreement that the second would take over)), or an ultimately authoritative decision-maker intervenes in a situation involving potential risk (e.g. Peterson v. Marton, 138 Minn. 195, 164 N.W. 813 (1917) (in which a parent allowed her child to keep explosive devices which negligent property owner defendants had left lying around); see also Pittsburg Reduction Co. v. Horton, 87 Ark. 576, 113 S.W. 647 (1908)), or such an ultimately authoritative decision-maker ratifies another, (Connecticut Jr. Republic v. Doherty, 20 Mass.App.Ct. 107, 478 N.E.2d 735 (1985) (testator executes a will negligently drafted by lawyer)), the rule is that the negligence of the initial actor will not be found to be a proximate cause of harms that befall after the authoritative and effectual decision as to the same matter has been made by another person empowered to make it.13 (emphasis added) In this case, similar to McCleaf, Plaintiff was unable to establish the requisite affirmative link or causal chain between Defendant Weekley and Gorman's actions and the claimed constitutional deprivation. As outlined, Plaintiff failed to present
See generally Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson, 588 F.2d at 743. 12 Id. at 743-44. 13 The Defendants acknowledge that this Court of Appeals case is not binding on the Court, however, the legal analysis is illustrative.
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any evidence that the Defendants affirmatively caused his alleged constitutional deprivation. This is true because the Defendants have no authority whatsoever to

affirmatively terminate Plaintiff's electrical service. Instead, any alleged deprivation of the constitutional right to electrical service would have been made by APS based on their "independent" evaluation and decision. Plaintiff did not, and cannot, establish the causal link required to prevail on his section 1983 due process claim. During the trial, the jury heard testimony from Guy Gorman (La Paz County

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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.14 This evidence was uncontested by the Plaintiff, APS and the La Paz County Defendants. During the trial there was no controverting testimony on what entity had authority to, and ultimately did, terminate Plaintiff's electrical service. The Court agreed: Unfortunately, Mr. Field, I disagree. I believe that the evidence in this case shows, without dispute, that APS, Mr. McDonald, and Mr. Wilson acted as private ­ as a private entity in making the decision to turn off power without notice. They were not compelled to do that by La Paz County. La Paz County, admittedly, asked them to do it; told them they thought that's what should be done; told them they believed that there were obvious, immediate dangers to the safety and health of individuals. But the testimony from Mr. Wilson and
See transcript of oral argument on Defendants' Rule 50 motions, dated June 15, 2006, attached hereto as Exhibit 1.

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Mr. McDonald is undisputed that the decision to turn off the power was not made by La Paz County; it was made by the APS employees. There is no state action. Whether it should or shouldn't be done is not what I'm deciding.15 It's whether or not it's state action. It is not state action. The evidence does not even support any strong inference that they were compelled to do this by La Paz County. The Court subsequently granted the Motion for Judgment as a Matter of Law filed by APS, dismissing them from the suit. This express finding by the Court confirms Defendants' argument that there was no affirmative link between the deprivation of Plaintiff's electrical service (i.e. constitutional right) and the conduct of Defendants Weekley or Gorman. As outlined, neither Defendants Weekley nor Gorman terminated Plaintiff's electrical service. Neither Defendant had the authority to terminate Plaintiff's electrical service (per the undisputed testimony by the APS and La Paz County Defendants). Thus, there can be no finding that Defendants Weekley or Gorman deprived Plaintiff of his constitutional rights to due process when they did not (and could not) order or compel Plaintiff's electrical service to be terminated. Accordingly, Defendants cannot be liable for violating Plaintiff's rights to due process before "terminating his electrical service" and are entitled to judgment as a matter of law. II. CONCLUSION Defendants Weekley and Gorman are entitled to judgment as a matter of law because: (1) the Court determined that the La Paz County officials could have reasonably believed the electrical conditions on the property created an imminent danger, satisfying the standard in Patel; and (2) Plaintiff failed to establish that they had any authority to terminate the electrical service to his property, that they ordered or compelled APS to terminate the electrical service, or that they terminated the electrical service themselves.

See Exhibit 1, pages 32-33.

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DATED this 17th day of August, 2006. JONES, SKELTON & HOCHULI, P.L.C.

BY s/Jennifer Holsman John T. Masterson Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Brad Weekley and Guy Gorman

COPY of the foregoing mailed (return receipt requested) this even date to: James. W. Field PO Box 248 Salome, Arizona 85348 Plaintiff Pro Per David F. Gaona, Esq. Nicole Cantelme, Esq. Gaona Law Firm 3101 North Central Avenue Suite 720 Phoenix, AZ 85012 Attorney for Co-Defendants s/ Jennifer Holsman

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