Free Trial Brief - District Court of Arizona - Arizona

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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 and SUSAN F. FIELD, husband and wife, Plaintiffs, vs. LA PAZ COUNTY, et al., Defendants. Defendants Arizona Public Service Company, Doug McDonald and Donald Wilson ("APS Defendants"), respectfully submit this trial brief regarding only certain potential legal issues. The APS Defendants will not repeat all the statements, No. CIV03-02214 PHX SRB TRIAL BRIEF OF ARIZONA PUBLIC SERVICE, DOUG MCDONALD, AND DONALD WILSON

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contentions, arguments, etc., already submitted by them within all of the recent pretrial filings. The APS Defendants merely refer the Court to the APS Defendant's pretrial filings (joint and separate) and incorporate these documents herein by this reference. /// /// ///

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Case 2:03-cv-02214-SRB

Document 191

Filed 05/23/2006

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A.

Assuming that Plaintiff Proves State Action on the Part of the APS Defendants, the "Immediacy Requirement" identified in Patel v. Midland Memorial Hospital & Medical Center1 Does Not Apply to the APS Defendants. "The Due Process Clause does not create substantive rights in property; the

property rights are defined by reference to state law." Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). In this Court's Order, dated April 27, 2006, the Court recognized that "because of [the Arizona Corporation Commission] rules concerning the termination of electrical service, the Court concludes that James has a property interest in the continuation of his electrical service." Order at p. 20, lines 3-4. Thus, this Court recognizes that the State has created a property interest in the continuation of electrical service. Logically, it follows that where the State creates the right, it can also define and impose conditions upon this right. For example, the United States Supreme Court has recognized that "the customer's right to continued service is conditioned upon payment of the charges properly due." Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11 (1978). 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). The regulation does not impose upon the electrical utility the additional requirement of "immediacy" or require that the obvious hazards constitute an "emergency." Essentially, with regard to this particular regulation, the customer's right to continued

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GAONA LAW FIRM

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298 F.3d 333 (5th Cir. 2002) (en banc). 2

Case 2:03-cv-02214-SRB

Document 191

Filed 05/23/2006

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service is conditioned upon his electrical facilities remaining free from obvious hazards. Although federal law still determines what process is due, if any, in a situation where obvious hazards exist, the terms or requirements of the substantive state law are not affected or changed by any federal procedural due process that is determined to be due. Therefore, the additional "immediacy requirement" identified in the Patel line of cases, but not identified or required by the applicable regulation, would not apply to APS in this case. B. If Plaintiff Can Prove State Action, then APS Cannot Be Held Vicariously Liable Under 42 U.S.C. § 1983. Plaintiff's Amended Complaint does not allege any independent action taken by APS, the corporation, or that APS has, itself, violated 42 U.S.C. § 1983. Plaintiff's claim against APS then must be based upon a theory of vicarious liability for any actions of its employees ­ in this case, APS employees Doug McDonald and Donald Wilson. In the event that Plaintiff proves that the act of an APS employee shutting off his power is State action for purposes of § 1983, then APS is entitled to assert that it, like a municipal entity or local government, cannot be held liable for the actions of its employees under Monell v. New York City Dep't of Social Svcs., 436 U.S. 658, 694-95 (1978) (holding that respondeat superior or vicarious liability will not attach under § 1983). Plaintiff never asserts that APS, itself, caused any § 1983 violation, and there is no APS "policy" at issue in this matter with regard to termination of the Plaintiff's electrical service. The APS employees were acting pursuant to substantive Arizona

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GAONA LAW FIRM

3 Case 2:03-cv-02214-SRB Document 191 Filed 05/23/2006 Page 3 of 5

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law when the APS employees made the decision to terminate Plaintiff's electrical service. See Ariz. Admin. Code § R14-2-211(B). Again, this defense specific to defendant APS, the corporation, is only implicated where Plaintiff is able to prove State action on the part of APS employees Doug McDonald and Donald Wilson, and will only be raised under these circumstances. DATED this 23rd day of May, 2006. GAONA LAW FIRM

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GAONA LAW FIRM

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

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3101 North Central Avenue ­ Suite 720 Phoenix, Arizona 85012

CERTIFICATE OF SERVICE I hereby certify that on May 23, 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. [email protected] and Jennifer Holsman, Esq. [email protected] Attorneys for La Paz County Defendants I further certify that on May 23, 2006, I mailed a copy of the foregoing document to Plaintiffs pro per: James W. Field Post Office Box 248 Salome, Arizona 85348

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GAONA LAW FIRM

/s/ Nicole Seder Cantelme

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