Free Motion for Directed Verdict - 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, Penny Dahlberg, Guy Gorman and Dave Boatwright 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, Guy Gorman, Penny Dahlberg and Dave Boatwright ("La Paz County Defendants"), through counsel, move for judgment as a matter of law on all claims brought by Plaintiff James Field because: (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; and (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

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service themselves.1 This Motion is supported by the following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES I. LEGAL ANALYSIS Pursuant to the Court's April 27, 2006 Order, there remains one issue to be determined by the jury related to the La Paz County Defendants: Whether the La Paz County Defendants believed that the conditions on Plaintiff's property posed a health and

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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 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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safety hazard to the public.2 If there were health and safety hazards on the property, Plaintiff was not entitled to due process before La Paz County recommended termination of his electrical service to APS. During this 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 due process; or (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 themselves.3 Accordingly, Defendants are entitled to judgment as a
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matter of law. 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

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).
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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

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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. 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

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8 Id. at 338. 9 943 F.2d 1406, 1412 (5th Cir. 1991). 10

(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

Id. at 1412.

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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

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 fact, this is the only testimony the jury has heard. Plaintiff has failed to elicit, and cannot elicit, any testimony, from a qualified witness, that the conditions on Plaintiff's property were not a health and safety hazard on October 30, 2002. 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,
118 F.3d 1306, 1310 (9th Cir. 1997). Id. at 1311. See also Baker v. Racansky, 887 F.2d 183 (9th Cir. 1989) ("reversing district court's enial of summary judgment where children were taken into protective custody two days after allegations of abuse and an investigation yielded evidence of abuse.")
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he has failed to meet his burden of proof on the due process claim against La Paz County. 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 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. Because the undisputed evidence establishes that La Paz County cannot terminate the electrical service to Plaintiff's property, Defendants cannot be liable for

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violating Plaintiff's rights to due process before "terminating his electrical service." Accordingly, the La Paz County Defendants are entitled to judgment as a matter of law. 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; and (2) Plaintiff has failed to establish that La Paz County had any authority to

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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. DATED this 15th day of June, 2006. 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, Penny Dahlberg, Guy Gorman and Dave Boatwright

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COPY of the foregoing hand-delivered 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/Colleen Webb

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