Free Motion for Directed Verdict - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

GAONA LAW FIRM
A PROFESSIONAL CORPORATION

3101 NORTH CENTRAL AVE, SUITE 720 PHOENIX, ARIZONA 85012 _____________

(602) 230-2636 Fax (602) 230-1377

David F. Gaona, State Bar No. 007391 Nicole Seder Cantelme, State Bar No. 021320 Attorneys for Defendants APS, Doug McDonald and Donald Wilson IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA JAMES W. FIELD, Plaintiff, vs. BRAD WEEKLEY, et al., Defendants. MOTION FOR DIRECTED VERDICT BY DEFENDANTS ARIZONA PUBLIC SERVICE COMPANY, DOUG McDONALD, AND DONALD WILSON No. CIV03-02214 PHX SRB

Defendants Arizona Public Service Company ("APS"), Doug McDonald and Donald Wilson, pursuant to Rule 50(a), Federal Rules of Civil Procedure, respectfully move this Court for directed verdict on Plaintiff's claims against them.

20 21 22 23 24 25 26

I.

Plaintiff Has Failed to Establish State Action. Because the elements establishing liability under 42 U.S.C. § 1983 require "state

action" or that action be taken under the "color of law," to hold the APS Defendants liable for violating Plaintiff's constitutional rights, Plaintiff must prove that the APS Defendants' actions constituted "state action." It is undisputed that APS is a private corporation, not a governmental entity, and its employees, such as Donald Wilson and

27

Case 2:03-cv-02214-SRB

Document 218

Filed 06/14/2006

Page 1 of 10

1 2 3 4 5 6 7 8 9 10
3101 North Central Avenue ­ Suite 720 Phoenix, Arizona 85012

Doug McDonald, are not State employees. In an attempt to show that APS and its employees engaged in State action, Plaintiff has alleged that APS was compelled by La Paz County to terminate Plaintiff's electrical service, and that APS terminated his electric service solely based on that compulsion or order. Indeed, in the Pretrial Order, Plaintiff identifies the issue as follows: (1) The APS Defendants acted under color of law due to being ordered by the La Paz County Defendants to terminate power without notice. Pretrial Order, p. 12, lines 21-22. Plaintiff in his case in chief has failed to adduce any evidence to support his claim, and, thus, failed to carry his burden, that APS was compelled by La Paz County to terminate Plaintiff's electrical service. Single Moms, Inc. v. Montana Power Co., 331 F.3d 743, 747 (9th cir. 2003) (citing Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). First, the evidence has been uncontroverted that La Paz County officials do not have the authority to order APS to terminate a customer's service, and this is undisputed by the testimony of Mr. Gorman and Mr. Weekly from La Paz County, and APS employees, Supervisor D.L. Wilson and Sr. Project Leader, Doug McDonald. There is no State statute granting any governmental entity this authority, and state and local governments/officials have only those powers that are expressly or impliedly granted to them by statute. Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991). APS is extensively regulated by the Arizona Corporation Commission, and

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

GAONA LAW FIRM

those regulations do not confer any authority upon State or local governments (such as counties, cities, or towns) to terminate residential or commercial electrical service. Simply, a State or local official (other than through a court order) cannot compel or order APS to terminate electrical service.
2 Case 2:03-cv-02214-SRB Document 218 Filed 06/14/2006 Page 2 of 10

1 2 3 4 5 6 7 8 9 10
3101 North Central Avenue ­ Suite 720 Phoenix, Arizona 85012

Defendant Guy Gorman, the building inspector for La Paz County, testified that he knew La Paz County did not have the authority to terminate Plaintiff's electrical service, nor did he or La Paz County have the ability to order APS to terminate Plaintiff's electrical service. Mr. Gorman explained that he knew he could only request that APS terminate service, which he did. Mr. Gorman testified that he made a phone call to Doug McDonald of APS to apprise APS of the County's inspection of Plaintiff's property and followed up in a letter to Mr. McDonald on November 7, 2002. The letter included photographs of Plaintiff's electrical facilities taken during Mr. Gorman's (and other La Paz County officials) inspection on October 30, 2002. Mr. Gorman confirmed that the photographs that he provided to APS were photographs depicting the then-condition of Plaintiff's electrical facilities and that the photographs were taken during the inspection of Plaintiff's property on October 30, 2002. Finally, Mr. Gorman testified that he understood that APS could deny his recommendation to terminate Plaintiff's electrical service. Plaintiff did not provide any evidence or legal authority to dispute Mr. Gorman's testimony. APS Defendant Doug McDonald testified that APS cannot be ordered to terminate a customer's electrical service by the State or any local government. Mr. McDonald, a 30-plus year employee of APS, explained his understanding, an understanding he practices, that the relationship between APS and its customers is governed by rules and regulations, and no State or local government has the authority to interfere in this contractual relationship and order termination of service. Mr. McDonald explained that APS does terminate a customer's electrical service, without notice, if APS is aware of

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

GAONA LAW FIRM

3 Case 2:03-cv-02214-SRB Document 218 Filed 06/14/2006 Page 3 of 10

1 2 3 4 5 6 7 8 9 10
3101 North Central Avenue ­ Suite 720 Phoenix, Arizona 85012

obvious safety and health hazards on a customer's property, irrespective if the unsafe condition is on the "customer's side" or not. See A.A.C. § R14-2-211. Mr. McDonald testified that he spoke with Mr. Gorman regarding the search of Plaintiff's property and that Mr. Gorman had concerns regarding the condition of Plaintiff's electrical facilities. Mr. McDonald confirmed that on November 7, 2002, he received a letter from Mr. Gorman and several photographs depicting the current condition of Plaintiff's electrical facilities on Plaintiff's property. Mr. McDonald testified that he had no reason to question the credibility of the photographs because they were from a reliable source, La Paz County, an entity entrusted with the authority to conduct inspections of electrical facilities on the customer's side of the meter. Mr. McDonald testified that based upon his experience and training as a 30-year employee of APS, and after reviewing the photographs provided by Mr. Gorman, he determined that the photographs depicted obvious hazardous electrical conditions. Because he believed the photographs were reliable, he could not ignore the obvious hazardous conditions presented in the photographs, and action had to be taken. Mr. McDonald testified that the termination of Plaintiff's electrical service, without notice, was proper due to the obvious electrical hazards. Plaintiff did not provide any evidence or legal authority to dispute the testimony of Doug McDonald. APS Supervisor, Donald Wilson, testified that he has never "blindly" followed a request by a local government to terminate a customer's electrical service, and Commission regulations and APS's Terms and Conditions of Service do not allow him to do so. Mr. Wilson reviewed the letter from Mr. Gorman to Doug McDonald and the

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

GAONA LAW FIRM

4 Case 2:03-cv-02214-SRB Document 218 Filed 06/14/2006 Page 4 of 10

1 2 3 4 5 6 7 8 9 10
3101 North Central Avenue ­ Suite 720 Phoenix, Arizona 85012

photographs provided depicting the then-condition of Plaintiff's electrical facilities. Based upon Mr. Wilson's experience and training as a 30-year employee of APS, he believed, like Doug McDonald, that the photographs depicted obvious electrical hazards on Mr. Field's property, that the photographs could not be ignored, and that action needed to be taken. Mr. Wilson confirmed that pursuant to Commission regulations and the Terms and Conditions of Service, APS was not required by law to provide Plaintiff with any prior notice before terminating his electrical service, due to the obvious hazards. Mr. Wilson testified that due to the presence of obvious electrical hazards, instruction was given to the local area serviceman, Victor Schreiner, to terminate Plaintiffs' electrical service. Both Mr. McDonald and Mr. Wilson testified that due to problems with gaining access to Plaintiff's property in the past, and the hostile confrontations that had ensued, both were concerned about the safety of APS employees, and instructed Mr. Schreiner to have a La Paz County Sheriff's Deputy accompany him when terminating Plaintiff's power. Plaintiff did not provide any evidence or legal authority to dispute Mr. Wilson's testimony. It is undisputed that APS was not compelled or ordered by La Paz County to terminate Plaintiff's electrical service without notice. Other than Plaintiff's own

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

GAONA LAW FIRM

unsupported allegations, he has failed to provide any evidence ­ either through documents or testimony ­ to dispute Guy Gorman's, Brad Weekley's, Doug McDonald's, and Donald Wilson's testimony that only APS employees Doug McDonald and Donald Wilson made the decision to terminate Plaintiff's electrical

5 Case 2:03-cv-02214-SRB Document 218 Filed 06/14/2006 Page 5 of 10

1 2 3 4 5 6 7 8 9 10
3101 North Central Avenue ­ Suite 720 Phoenix, Arizona 85012

service. The record could not be more clear. The Plaintiff has not met his burden of proof to establish State action on the part of APS, acting through its private employees. Without State action, a prerequisite to § 1983 liability, no cause of action can or should survive, and APS, Doug McDonald and D.L. Wilson must be dismissed. II. Liability Under 42 U.S.C. § 1983 Assuming, arguendo, that there is enough evidence to send the issue of State action to the jury to decide, Plaintiff has also failed to meet his burden of proof with respect to establishing liability pursuant to 42 U.S.C. § 1983. Substantive Arizona law provides that an electrical utility can terminate a customer's electrical service without prior notice when the electrical utility determines the existence of "an obvious hazard to the safety or health of the consumer or the general population or the utility's personnel or facilities." A.A.C. § R14-2-211(B). There is no law ­ state or federal ­ to support that a customer is entitled to any pretermination notice in a case where a utility terminates a customer's electrical service due to the existence of obvious hazards to safety or health. Therefore, unless Plaintiff can show that it was not reasonable for APS's employees to determine that obvious safety or health hazards existed on Plaintiff's property, Plaintiff is not entitled to any pre-termination notice and Plaintiff has not been deprived of any constitutional rights. Both Doug McDonald and D.L. Wilson testified concerning specific obvious hazards they observed in the photographs of Plaintiff's property provided to APS by Guy Gorman of La Paz County. One of the most obvious hazards readily identified by both Mr. McDonald and Mr. Wilson were the exposed wires in Plaintiff's main electrical subpanel, which provided electricity to the property. As both APS

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

GAONA LAW FIRM

6 Case 2:03-cv-02214-SRB Document 218 Filed 06/14/2006 Page 6 of 10

1 2 3 4 5 6 7 8 9 10
3101 North Central Avenue ­ Suite 720 Phoenix, Arizona 85012

employees testified, any human contact with one of those exposed wires would undoubtedly cause electrical injury, and could even cause death. Plaintiff provided no evidence to dispute the existence of this obvious hazard, no evidence to dispute that this was the condition of his subpanel on October 30, 2002, when the photograph was taken (indeed, Plaintiff's witness Tammy Doud verified that this photograph accurately reflected the condition of the subpanel), and no evidence to dispute that Mr. McDonald's and Mr. Wilson's determination of this obvious hazard was unreasonable. According to both Mr. McDonald and Mr. Wilson, this condition alone justified termination of Plaintiff's electrical service without notice. Plaintiff has wholly failed to dispute that this electric subpanel, alone, posed an immediate threat to himself or other persons on his property. Due to observed obvious hazards on Plaintiff's property that could not be ignored, APS terminated Plaintiff's electrical service without notice. Plaintiff has failed to dispute that obvious hazards existed on his property at the time his electrical service was terminated, and Plaintiff has failed to dispute the reasonableness of Mr. McDonald's and Mr. Wilson's determination that obvious electrical hazards existed on his property; therefore, none of the APS Defendants can be held liable under § 1983. III. Liability Under Monell In the event that this Court does not grant a directed verdict on the issue of State action, and Arizona Public Service Company, therefore, is treated as a "government" entity, APS cannot be held liable under 42 U.S.C. § 1983 pursuant to a theory of respondeat superior. Monell v. New York City Dep't of Social Services, 436 U.S. 658 (1978). Plaintiff does not allege any direct liability on the part of APS in his

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

GAONA LAW FIRM

7 Case 2:03-cv-02214-SRB Document 218 Filed 06/14/2006 Page 7 of 10

1 2 3 4 5 6 7 8 9 10
3101 North Central Avenue ­ Suite 720 Phoenix, Arizona 85012

Amended Complaint. Plaintiff's only theory of liability against APS is based upon respondeat superior ­ i.e., APS is liable for the alleged actions of APS employees Doug McDonald and D.L. Wilson. The actions of the APS employees were not based upon APS "policy," but were based upon Commission regulations and the Terms and Conditions of Service. It is undisputed that APS is regulated by the Arizona

Corporation Commission and that the termination of Plaintiff's electrical service was done pursuant to the requirements of A.A.C. § R14-2-211 and the Terms and Conditions of Service. These are not APS "policies," and neither Doug McDonald nor D.L. Wilson has policy making authority with regard to regulated requirements for terminating a customer's electrical service. Indeed, APS and its employees are obligated to abide by both Commission regulations and the Terms and Conditions of Service. Because Plaintiff's only theory of liability against APS is solely based upon respondeat superior, and if APS is treated as a "government entity," APS cannot be held liable under 42 U.S.C. § 1983 under Monell and its progeny. IV. Qualified Immunity In the event that this Court does not grant a directed verdict on the issue of State action, and APS employees Doug McDonald and D.L. Wilson are, therefore, treated as government officials, they are entitled to qualified immunity in this case. This is consistent with the prior rulings of this Court with regard to other individual government defendants. See Order dated April 27, 2006, at 24-26 Assuming that Plaintiff has even been deprived of a constitutional right in this case, it is undisputed that there is no law establishing that Plaintiff was entitled to any notice prior to

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

GAONA LAW FIRM

8 Case 2:03-cv-02214-SRB Document 218 Filed 06/14/2006 Page 8 of 10

1 2 3 4 5 6 7 8 9 10
3101 North Central Avenue ­ Suite 720 Phoenix, Arizona 85012

termination of his electrical service, when both Mr. McDonald and Mr. Wilson identified obvious electrical hazards on his property. Because there is no clearly established law on this issue, Mr. McDonald and Mr. Wilson are entitled to qualified immunity in this case. See Martinez v. Sanford, 323 F.3d 1178, 1183 (9th Cir. 2003); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). DATED this 14th day of June, 2006. GAONA LAW FIRM

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

GAONA LAW FIRM

/s/ David F. Gaona David F. Gaona Nicole Seder Cantelme Attorneys for APS, Doug McDonald and Donald Wilson

9 Case 2:03-cv-02214-SRB Document 218 Filed 06/14/2006 Page 9 of 10

1 2 3 4 5 6 7 8 9 10
3101 North Central Avenue ­ Suite 720 Phoenix, Arizona 85012

CERTIFICATE OF SERVICE I hereby certify that on June 14, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: John Masterson, Esq. Jennifer Holsman, Esq. [email protected] [email protected] Attorneys for La Paz County Defendants I further certify that on June 14, 2006, I hand-delivered a copy of the foregoing document to: James W. Field Plaintiff pro per The Honorable Susan R. Bolton United States District Court for the District of Arizona Sandra Day O'Connor U.S Courthouse, Suite 522 401 West Washington Street, SPC 50 Phoenix, Arizona 85003-2153

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

GAONA LAW FIRM

/s/ Nicole Seder Cantelme

Case 2:03-cv-02214-SRB

Document 218

10 Filed 06/14/2006

Page 10 of 10