Free Reply to Response to Motion - District Court of Arizona - Arizona

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John T. Masterson, Bar #007447 Jennifer L. Holsman, Bar #022787 J ONES, S KELTON & H OCHULI, P.L.C. 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Telephone No.: (602) 263-1700 Facsimile No.: (602) 263-1784 E-Mail: [email protected] [email protected] Attorneys for Defendants La Paz County, La Paz County Department of Community Development, La Paz County Sheriff's Office, Jay Howe, James Martin, Brad Weekley, Jerry Palmer, Penny Dalhberg, Guy Gorman, Dave Boatwright, Joe Deschaine, Curt Bagby, Joe Esqorsa, Pete Heere, and Jeff Bohlen UNITED STATES DISTRICT COURT

10 DISTRICT OF ARIZONA 11 12 13 v. 14 LA PAZ COUNTY, et al., 15 16 17 18 19 20 21 22 23 24 25 26 I. Defendants Brad Weekley, Penny Dahlberg, Guy Gorman and Dave Boatwright, through counsel, submit this Reply in Support of their Motion for Leave to File a Supplemental Motion for Summary Judgment. This Motion is Supported by the following Memorandum of Points and Authorities. MEMO RANDUM OF POINTS AND AUTHORITIES INTRODUCTION Defendants submitted their Motion for Leave to File Supplemental Motion for Summary Judgment regarding the sole issue remaining in this case because there are no material issues in dispute related to the obvious health and safety hazards JAMES W. FIELD and SUSAN F. FIELD, husband and wife, Case No. CV03-2214 PHX-SRB

Plaintiffs, LA PAZ CO UNTY DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR LEAVE TO FILE SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT Defendants.

Case 2:03-cv-02214-SRB

Document 195

Filed 05/24/2006

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on Plaintiff's property. Further, the remaining issues are questions of law and should be decided prior to trial. Defendants can establish, prior to trial, that they conducted a search of Plaintiff's property in October of 2002, during which they found over 35 health and safety hazards, which they deemed to be an immediate threat to public safety. As a result of their concerns for the public safety, the Defendants recommended termination of electrical service to Plaintiff's property without notice. In addition, after the termination of electrical service, Defendants provided Plaintiff with post-deprivation process. The case law supports Defendants position that if adequate post-deprivation process was provided to a Plaintiff, there can be no liability under 42 U.S.C. § 1983. Further, La Paz County did not have the authority to terminate Plaintiff's electrical service. Accordingly, Defendants cannot be liable for an alleged violation of rights for alleged damages sustained as a result of an action they were not responsible for taking. The termination of Plaintiff's electrical service without notice was not a due process violation. This claim is supported by both law and fact. Should the Court grant Defendants' Motion for Leave to File Supplemental Motion for Summary Judgment, the law outlined below would be further supported by appropriate affidavits of both APS and La Paz County Defendants. II. LEGAL ARGUMENT A. Plaintiff was Not Entitled to Due Process Because of Health and Safety Hazards on his Property.

Due process generally requires notice and an opportunity to be heard 24 prior to the deprivation of a protected property interest. See, e.g. Cleveland Bd. of Educ. 25 v. Loudermill, 470 U.S. 532, 542 (1985). Due process is a flexible concept and "calls 26 2 Case 2:03-cv-02214-SRB Document 195 Filed 05/24/2006 Page 2 of 6

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for such procedural protections as the particular situation demands." Gilbert v. Homar, 520 U.S. 924, 930 (1997) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). 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." 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.") Generally, no pre-deprivation process is legally due when government officials have reasonable grounds to believe that there is an immediate jeopardy to public safety. See Patel v. Midland Memorial Hospital and Medical Center, 298 F.3d 333 (5th Cir. 2002) (en banc). In Patel, two incidents regarding medical care provided by Dr. Patel caught the attention of the hospital's medical executive committee. 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. Id. at 338. 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 (in Patel's case, his medical privileges). In other words, if there was a danger to

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the safety of the public, termination of a right must be reasonable under the circumstances at that time. Id at 341. 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, 943 F.2d 1406, 1412 (5th Cir. 1991), the Court considered what pre-suspension process was due to an anesthesiologist working at a public hospital. 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." Id. at 1412. Finally, in Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1997), 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. 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. Id. at 1311.

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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 investigation yielded evidence of abuse.") In this case, the evidence will clearly show that there were significant health and safety hazards on Plaintiff's property in November of 2002. In fact, over thirty-five violations of the electrical and other applicable laws were noted in the inspection report prepared in November of 2002. As a result of the dangerous conditions, and because of the significant threat to public safety, Defendants were thus authorized to recommend termination of Plaintiff's electrical service to APS. Further, Defendants provided Plaintiff with post-deprivation process by preparing the Abatement Order Compliance Agreement, which Plaintiff has refused to sign. 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 reside with the public service corporation, APS. Thus, La Paz County did not have authority to terminate electrical service to Plaintiff's property. // //

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III.

CONCLUSION For the reasons outlined above, Defendants respectfully request that

their Motion for Leave to File a Supplemental Motion for Summary Judgment be granted.

DATED this 24th day of May, 2006. J ONES, S KELTON & H OCHULI, P.L.C. By /s/ John T. Masterson John T. Masterson Jennifer L. Holsman 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Weekley, Boatwright, Gorman and Dahlberg

9 10 11 12 13 14 15 16 By: 17 COPY of the foregoing mailed even date to: 18 19 20 21 22 23 24 25 26
1633264_1

Electronically filed and served this 24 th day of May, 2006 to: ALL PARTIES ON ELECTRONIC SERVICE LIST /s/John T. Masterson

Hon. Susan R. Bolton United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 522 401 West Washington, SPC 50 Phoenix, AZ 85003-2156 James W. Field and Susan F. Field Post Office Box 248 Salome, Arizona 85348 Plaintiffs Pro Per

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Case 2:03-cv-02214-SRB