Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Pro se Plaintiffs James W. Field ("James") and Susan F. Field ("Susan") are suing 17 18 19 20 21 22 23 24 25 26 27 28 The Amended Complaint names eighteen Defendants, who can be divided into two groups, each of which is represented by its own counsel: the "La Paz Defendants" and the "APS Defendants." The La Paz Defendants are: La Paz County (which is located in Arizona), Jay Howe, Brad Weekly, Penny Dahlberg, Guy Gorman, Dave Boatwright, Curt Bagby, Joe Esqorza, Jeff Bohlen, the La Paz County Department of Community Development ("Development Department"), James Martin, Jerry Palmer, Joe Deschaine, Pete Heere, and the La Paz County Sheriff's Office ("Sheriff's Office"). The APS Defendants are: the Arizona Public Service Company ("APS"), Doug McDonald, and Donald Wilson. All of the human Defendants with the exception of Jay Howe are sued in their individual and official capacities; Howe is sued only in his official capacity. All of the non-human Defendants, with the exception of the Sheriff's Office, are sued only in their official capacities. Plaintiffs have sued the Sheriff's Office in its individual as well as official capacities. The claims against the Sheriff's Office in its individual capacity are dismissed as the Sheriff's Office does not have an individual capacity.
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1

NOT FOR PUBLICATION

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. ) ) )

No. CV-03-2214-PHX-SRB ORDER

Defendants1 for their respective roles in shutting off the electrical power on a piece of

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property owned by Plaintiffs, allegedly in violation of the United States Constitution and various federal laws. The following motions are at issue in this Order: a Motion for Summary Disposition as to Susan by the APS Defendants (and joined by the La Paz Defendants) (Doc. 134); a Motion to Vacate Jury Trial and Other Deadlines filed by the La Paz Defendants (Doc. 161); a Motion for Summary Judgment filed by the La Paz Defendants (Doc. 121); a Cross-Motion for Summary Judgment filed by Plaintiffs (Doc. 142); a Motion to Strike that Cross-Motion filed by the La Paz Defendants (Doc. 157); a Motion to Strike "Plaintiffs' Separate Statement of Facts in Support of Denial to La Paz Defendants' Qualified Immunity Defense" filed by the La Paz Defendants (Doc. 155); a "Motion Requesting the Court's Permission to Exceed Page Limitation" filed by James (Doc. 162); a "Motion to Strike and Replace Affidavits Submitted" filed by James (Doc. 147); a Motion for Judgment on the Pleadings and Motion for Summary Judgment filed by the APS Defendants (Doc. 123); a document entitled "Plaintiffs' Affidavit and Notice to the Court that some affidavits are currently unavailable and need for additional time pursuant to Rule 56(f)," which is, in substance, a motion for an extension of time (Doc. 153); and James's "Motion Requesting the Court's Permission to Exceed Page Limitation and Response to La Paz County's Motion to Strike Plaintiffs' Separate Statement of Facts in Support of Denial to La Paz Defendants' Qualified Immunity Defense" (Doc. 165). I. BACKGROUND Plaintiffs own an R.V. Park, the Desert Oasis Bargain Center and R.V. Park (the "Property"), in La Paz County, Arizona.2 This case arises out of the termination of electrical service at the Property on November 12, 2002. On October 28, 2002, La Paz County Justice of the Peace Joe Deschaine, a Defendant in this action, signed a search warrant permitting an inspection of the Property to determine

Apparently, Plaintiffs live there as well. (See James's Cross-Mot. for Summ. J. ("Cross-MSJ")/Resp. to La Paz Defs.' Mot. for Summ. J. ("La Paz MSJ") at 5.) As this document is verified, statements by James implying that he lives on the Property can be treated as evidence for summary judgment purposes. -2Document 167 Filed 04/27/2006 Page 2 of 34

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its compliance with La Paz County and State of Arizona public health, safety and welfare ordinances. (La Paz MSJ, Ex. 1.) The evidentiary basis for the search warrant was an affidavit submitted by Curt Bagby, a Detective with the Sheriff's Office and a Defendant in this action. (La Paz MSJ, Ex. 1.) The warrant states that its statutory basis is Arizona Revised Statutes (A.R.S.) § 13-3912(5), which provides that a search warrant may issue "[w]hen the property is to be searched and inspected by an appropriate official in the interest of public, safety or welfare as part of an inspection program authorized by law." (La Paz MSJ, Ex. 1.) Bagby, along with other La Paz Defendants, executed the warrant on October 30, 2002, and "extensive violations" were discovered, causing the Development Department to issue to Plaintiffs a Notice and Order for Abatement (the "Abatement Order") dated November 5, 2002 and signed by Brad Weekly, the Director of the Development Department, and Guy Gorman, one of the Development Department's Building Inspectors, both of whom are Defendants. (La Paz MSJ, Ex. 2, 3.) The Abatement Order was not delivered to Plaintiffs until November 12, 2002. According to the Abatement Order, the "conditions . . . are hazardous to the life safety of the residents living on the site[,] [and] . . . immediate action must be taken to prevent any injury to residents or visitors." (La Paz MSJ, Ex. 3) (emphasis added). The Abatement Order instructed Plaintiffs to "cease and desist from doing any further business on this parcel. No further rentals shall be permitted and no business transactions are to be conducted until all corrections are completed. . . . Property owners are instructed to remedy any and all safety issues and to correct all deficiencies addressed in this document. Land use shall not be re-established until all these problems have been addressed and corrected." (La Paz MSJ, Ex. 3.) The Abatement Order informs Plaintiffs that, "Due to the nature and scope of the electrical problems, the County is forced to take action by instructing the local utility company, Arizona Public Service to cut power to the site. This is done in the interest of public safety." (La Paz MSJ, Ex. 3.) Attached to the Abatement Order is a list of the thirtyfive violations discovered on the Property, including fourteen violations of the National -3Document 167 Filed 04/27/2006 Page 3 of 34

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Electric Code (which La Paz County has adopted), eight violations of the Uniform Code for the Abatement of Dangerous Buildings, seven violations of the Uniform Plumbing Code, and six violations of various sanitation codes.3 (La Paz MSJ, Ex. 1.) It is not known how many residents, if any, were living on the Property before the Abatement Order, or how many of those residents, if any, left the Property following the Abatement Order. On November 7, 2002, Gorman wrote to Defendant Doug McDonald, APS's Chief Engineer for the area encompassing the Property, requesting the termination of electrical power at the Property. (APS Defs.' Mot. for Summ. J. ("APS MSJ"), Ex. B.) The letter requested that the power be cut at the same time Plaintiffs were to be presented with the Abatement Order, which was on November 12, 2002 at 11:00 a.m. Apparently, none of the La Paz Defendants made any contact with any of the APS Defendants between the inspection and November 7, 2002, apart from a phone call from Gorman to McDonald on November 6 discussing the violations found on the Property. APS complied with Gorman's request and terminated electrical power on November 12, 2002. APS suggests in its briefs that it independently verified the conclusions reached by some of the La Paz Defendants as to the violations at the Property. In support of this suggestion, they submit a document sent by Wilson, APS's manager of the La Paz District, to Plaintiffs in February 2003 stating, "Upon receipt of the Abatement order from La Paz County, Doug [McDonald] and I reviewed the situation and agreed that certain conditions did constitute an 'obvious hazard' and warranted disconnection without notice." (Am.

Some of those violations include: illegal wiring methods, improper installation of electrical devices, performance of electrical work by a non-licensed electrician, failure to have electrical work inspected by La Paz County inspectors, absence of a grounding conductor, absence of bonding, disabled overcurrent protection, exposed electrical conductors, improper electrical conduits, live electrical wires with no covering, deteriorated electrical system, no covering on multiple electrical devices, sewer lines that are broken, exposed and above ground, improperly repaired water lines, excessive number of motor homes, and human excrement on the ground. -4Document 167 Filed 04/27/2006 Page 4 of 34

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Compl., Ex. S.) It is unclear what "reviewed the situation" means, and Plaintiffs contend that no one from APS re-inspected the Property for violations. There is also no evidence in the record that any of the Defendants informed Plaintiffs that the power on the Property was to be terminated. In other words, those who executed the search warrant discovered allegedly serious and immediate safety risks on October 30, 2002 but did not inform Plaintiffs of those risks until November 12, 2002. The first contact that any of the Defendants appear to have had with Plaintiffs following the termination of electrical service was on November 19, 2005. (Am. Compl., Ex. F.) The next day, a member of the Development Department, apparently Gorman, sent James a letter doubling as an agreement, which states, in relevant part, After our telephone conversation of 11/19/2002, La Paz County has determined that the time to create an agreement to correct all of the problems listed in the Abatement Order dated November 5, 2002 will require additional time. Since you have complied and made corrections on some of the abatement order items, we have determined that we can restore electrical power to you on a temporary basis to facilitate our completing the agreement between La Paz County and yourself to bring you [sic] property into compliance with La Paz County codes and regulations. La Paz County has determined it is in our best interest to restore electrical power to you on a temporary basis to prevent any further hardship on you and your family. Therefore, La Paz County will agree to restore power to your property on an interim basis . . . . This power restoration agreement is effective for 30 days from the date of this document. If you refuse to sign the Abatement Order Compliance Agreement, power shall remain off. If you miss any deadlines or fail to abide by the stipulations of this agreement, power shall be shut off. -5Document 167 Filed 04/27/2006 Page 5 of 34

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I hereby agree to these conditions for the restoration of power to [the Property]. I understand and will comply with the stipulations of this power restoration agreement. (Am. Compl., Ex. F.) Inexplicably, Plaintiffs refused to sign this temporary agreement and power was not restored, even temporarily, to the Property. It is undisputed that the power has not been restored since it was shut off on November 12, 2002. An Abatement Order Compliance Agreement (the "Agreement") was presented to Plaintiffs on November 26, 2002. (La Paz MSJ, Ex. 5.) Under the terms of the Agreement, the Property would receive a temporary restoration of its power provided that Plaintiffs remedied each of the violations based on a timetable appended to the agreement. (La Paz MSJ, Ex. 5.) The Agreement also includes a list of the violations and the action required to remedy each of those violations. (La Paz MSJ, Ex. 5.) Apparently, Plaintiffs refused to sign the Agreement. (La Paz MSJ, Ex. 5,6.) According to Defendants, Plaintiffs have refused to remedy the violations. The most recent inspection of the Property occurred on January 13, 2005, and many violations had not been corrected. (La Paz MSJ, Ex. 6.) An Inspection Report drafted by Gorman following the inspection states that if Plaintiffs wish, the Development Department will generate another agreement setting forth a timetable for remedying the repairs and providing the Property with interim power. (La Paz MSJ, Ex. 6.) To date, Plaintiffs do not appear to have expressed interest in such an agreement, though one was drafted on June 1, 2005 and mailed to Plaintiffs shortly thereafter, but remains unsigned. (La Paz MSJ, Ex. 7, 8.) Plaintiffs filed their Complaint on November 12, 2003 and amended it on March 15, 2004. The Amended Complaint, which is twenty-nine pages exclusive of attachments, states in its introductory paragraph that it contains six causes of action, though only three are discussed in the body of the document: 42 U.S.C. § 1983 (for the violation of Plaintiffs' procedural due process rights under the Fourteenth Amendment's Due Process Clause); 42 U.S.C. § 1985(3) (for the alleged conspiracy to interfere with Plaintiffs' civil rights); and 42 -6Document 167 Filed 04/27/2006 Page 6 of 34

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U.S.C. § 1986 (for the alleged failure to prevent the wrongs about which Defendants' allegedly conspired). In James's cross-motion for summary judgment, he argues that he is entitled to summary judgment on two additional causes of action that he listed on the Amended Complaint's introduction: 42 U.S.C. § 1981 (equal rights under the law); and 42 U.S.C. § 1982 (property rights of citizens). The sixth cause of action alluded to in the Amended Complaint's introductory paragraph allegedly arises under two sections of the United States Criminal Code: 18 U.S.C. § 241 (conspiracy against rights); and 18 U.S.C. § 242 (deprivation of rights under color of law). The Amended Complaint seeks a total of $60 million in compensatory and punitive damages, as well as fees and costs. Plaintiffs also ask for a permanent injunction and an order that electrical service at the Property be reinstated. II. LEGAL STANDARDS AND ANALYSIS A. Motion for Summary Disposition as to Plaintiff Susan F. Field4

A person representing himself cannot represent anyone but himself. See Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997) (quotation omitted); Hunt Inv. Co. v. Eliot, 742 P.2d 858, 864 (Ariz. App. 1987) (holding that a husband "cannot represent his wife in court") (citation omitted). Here, James appears to be attempting to represent his wife Susan. Since July 2005, all of Plaintiffs' briefs (including the responses to the pending motions for summary judgment as well as the cross-motion for summary judgment) have been signed only by James and contain only James's name on the first page, but it appears that James's intention in those briefs is to speak for both he and his wife. The practical effect of her failure to sign these briefs is that she has not responded to the two pending motions for summary judgment. The Court will interpret her failure to personally respond to those motions as her consent to them. (See Court's Order dated January 9, 2006 advising Plaintiffs that, in light of Local Rule of Civil Procedure 7.2(i), a failure to respond to a motion can be

4

This motion was filed by the APS Defendants and joined by the La Paz Defendants. -7Document 167 Filed 04/27/2006 Page 7 of 34

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deemed a consent to its granting). The Court grants summary judgment to Defendants on all claims against them filed by Susan. B. James's Motion to Strike and Replace Affidavits Submitted

James seeks permission to replace affidavits included with various documents filed with the Court with other, identically-worded affidavits that state that they are based not on "best of knowledge," like the originals, but on "personal knowledge." Defendants do not oppose the motion, and it is granted. C. Motions for Summary Judgment and Related Motions 1. Standards

The standard for summary judgment is set forth in Rule 56(c) of the Federal Rules of Civil Procedure. Under this rule, summary judgment is properly granted when: (1) no genuine issues of material fact remain; and (2) after viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987). In considering a motion for summary judgment, the court must regard as true the nonmoving party's evidence, if it is supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. However, the non-moving party may not merely rest on its pleadings; it must produce some significant probative evidence tending to contradict the moving party's allegations, thereby creating a material question of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986) (holding that the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289 (1968). When a case involves a pro se litigant, the claims and motions filed by the pro se

litigant must be liberally construed. See United States v. Seesing, 234 F.3d 456, 462 (9th Cir. 2000); Frost v. Symington, 197 F.3d 348, 352 (9th Cir. 1999). However, pro se litigants are still bound by the rules of procedure. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). To defeat summary judgment, a pro se plaintiff cannot rely only on his allegations
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but must support his complaint by presenting significant and probative evidence. Franklin v. Murphy, 745 F.2d 1221, 1235 (9th Cir. 1984).
2. La Paz Defendants' Motion for Summary Judgment and James's Cross-Motion for Summary Judgment The La Paz Defendants move for summary judgment as to all counts in the Amended Complaint. James cross-moves for summary judgment with respect to all of his claims against the La Paz Defendants. It is not easy to discern what the various counts in the Amended Complaint actually are. As mentioned above, the Amended Complaint's introductory paragraph lists six counts, but the body of the Amended Complaint discusses only three of them. James's cross-motion for summary judgment argues that he is entitled to summary judgment with respect to five counts. The sixth count, which is discussed in neither the Amended Complaint nor James's cross-motion is for two violations of criminal laws. The La Paz Defendants are entitled to summary judgment on the sixth count, as James, a private citizen, cannot prosecute a criminal action, nor can he seek an order that the United States Attorney prosecute a criminal action. So the question is whether James's 42 U.S.C. § 1981 and 42 U.S.C. § 1982 claims are part of the Amended Complaint in light of James's failure to make any meaningful discussion of them in the Amended Complaint. The Court agrees with the La Paz Defendants that those claims are not part of the Amended Complaint. Federal Rule of Civil Procedure 8(a) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." The Amended Complaint provides no statement, short or plain, as to why James is entitled to recover under 42 U.S.C. § 1981 or § 1982. As such, the Complaint contains only three causes of action: 42 U.S.C. § 1983, 42 U.S.C. § 1985(3), and 42 U.S.C. § 1986.5

The Court notes that even if it had considered the omitted claims to be part of the Amended Complaint, they would not have survived summary judgment, as they were clearly -9Document 167 Filed 04/27/2006 Page 9 of 34

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a.

Judge Joseph Deschaine

As mentioned above, Judge Deschaine is the Justice of the Peace in La Paz County, Arizona who authorized the search warrant of the Property. The sole allegations in the Amended Complaint against Judge Deschaine concern his signing of the "blanket search warrant." (Am. Compl. at 18, 24, 27.) "Judges are absolutely immune from civil liability for damages for their judicial acts." Mullis v. U.S. Bankr. Court for Dist. of Nev., 828 F.2d 1385, 1388 (9th Cir. 1987) (citing Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1872); Pierson v. Ray, 386 U.S. 547 (1967)). "A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the clear absence of all jurisdiction." Stump v. Sparkman, 435 U.S. 349, 35657 (1978) (citation omitted). Here, James appears to argue that Judge Deschaine acted maliciously, but that argument cannot pierce the veil of absolute immunity. James does not appear to argue that Judge Deschaine acted beyond the scope of his authority, but even if James did so argue, that argument would fail, as Judge Deschaine did not exceed his authority. He was asked to sign a search warrant based on a sworn affidavit, and he did. The fact that, according to James, the warrant was vague or overbroad is irrelevant for this analysis, and even if it was relevant, the warrant was not vague or overbroad, as the property to be searched is perfectly apparent

meritless. To succeed in a § 1981 or § 1982 action, a plaintiff must be able to show racial discrimination. West Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1527 (9th Cir. 1990) (citations omitted) (discussing § 1982 claims); Evans v. McKay, 869 F.2d 1341, 1344 (9th Cir. 1989) (discussing § 1981 claims); Glover v. Tower, 700 F.2d 556, 558 (9th Cir. 1983) (discussing both). Here, the record is devoid of any evidence of racial discrimination. - 10 Document 167 Filed 04/27/2006 Page 10 of 34

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from the search warrant.6 Judge Deschaine is entitled to summary judgment as to all claims against him, and James's cross-motion is denied with respect to Judge Deschaine. b. Jaye Howe, Jerry Palmer, and Jim Martin

These three Defendants argue that because the Amended Complaint contains no allegations specific to them, they must be dismissed from the Amended Complaint. The Court agrees. With the exception of the portion of the Amended Complaint that lists the parties, the names of these Defendants are nowhere else in the Complaint, nor is it possible to infer what their roles in the alleged violations actually were. All claims against Jaye Howe, Jerry Palmer, and Jim Martin are dismissed. Also, in James's responsive memorandum to the motion for summary judgment on this issue, he fails to address this argument, a failure which can be, and is, deemed consent to summary judgment on this issue. See L.R. Civ. P. 7.2(i). Accordingly, to the extent that there were any claims against these three Defendants, there are no longer. Also, the Court denies James's cross-motion with respect to these Defendants. c. 42 U.S.C. § 1985(3)

42 U.S.C. § 1985(3) provides, If two or more persons in any State . . . conspire or go . . . on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; . . . in any case of

James makes much of the fact that Judge Deschaine signed a "blanket warrant." But that is not the case. The warrant allowed for the search of the entire Property to inspect and evaluate the various health and safety violations discussed in Detective Bagby's affidavit. The warrant and accompanying affidavit contained the requisite level of specificity. - 11 Document 167 Filed 04/27/2006 Page 11 of 34

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conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators. The La Paz Defendants argue that James's § 1985(3) claim must be dismissed because there is no evidence of racial or class-based discrimination. See Bretz v. Kelman, 773 F.2d 1026, 1027-28 (9th Cir. 1985) (interpreting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971) to mean that, under, § 1985(3), "an intent to deprive the victim of equal protection or equal privileges and immunities must be limited to cases alleging some racial or class-based invidious discrimination. Otherwise, . . . § 1985(3) would become a generalized federal tort law to be invoked for any private tortious conspiracy."); Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1980) (dismissing § 1985(3) complaint for failure to state a claim where there was no allegation of "racially or class-based, individiously discriminatory animus behind the actions which [the plaintiff] alleges took place"). See, e.g., Stonecipher v. Bray, 653 F.2d 398, 401 (9th Cir. 1981). The Court agrees. James has presented no evidence, nor has he even alleged, any racial or class-based discrimination.7 To the extent that James argues that the alleged discrimination was motivated out of an animosity for his indigence, that argument is rejected, as indigents are not a protected class within the meaning of § 1985(3). See United Bhd. of Carpenters & Joiners of Am. v. Scott, 463 U.S. 825, 839 (1983); Glover, 700 F.2d at 558.
7

James appears to rely primarily on a letter Gorman wrote to APS on November 12, 2005 requesting the termination of the Property's electrical power in which Gorman states, "Due to the nature of the people involved and the dangerous nature of the electrical system on site, we feel it is best to cut power to the parcel." (James's Statement of Facts in Supp. of Cross-MSJ/ Resp. to La Paz MSJ, Ex. 85.) But that statement, without more, does not create a material issue of fact as to whether Defendants discriminated against James. - 12 Document 167 Filed 04/27/2006 Page 12 of 34

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James also appears to argue that he is a "class of one," and that courts permit § 1985(3) actions "brought by a 'class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). That may be true, but James has offered no evidence or argument as to the basis upon which he was discriminated, nor, even assuming that such a basis could be inferred (which it cannot), has he offered evidence as to how other, similarly-situated people have been treated differently. The Paz Defendants are entitled to summary judgment on James's § 1985(3) claim, and James's cross-motion on this issue is denied. d. 42 U.S.C. § 1986

42 U.S.C. § 1986 states, Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, . . . for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action; But no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued. A necessary predicate to all § 1986 claims is a valid § 1985 claim. McCalden v. Cal. Library Ass'n, 955 F.2d 1214, 1223 (9th Cir. 1990), cert. denied, 504 U.S. 957 (1992); Farley v. Henderson, 883 F.2d 709, 711 n.3 (9th Cir. 1989) (citation omitted). Because the Court has dismissed James's § 1985 claim, his § 1986 claim against the La Paz Defendants is summarily dismissed, and James's cross-motion on this point is denied. - 13 Document 167 Filed 04/27/2006 Page 13 of 34

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e.

42 U.S.C. § 1983

The final cause of action leveled against the remaining La Paz Defendants is under § 1983. Those Defendants make several arguments as to why they cannot be held liable under that statute. The Court will address each of those arguments in turn. 1. Liability under Monell

The La Paz Defendants contend that they are exempt from liability under the Supreme Court case of Monell v. New York City Department of Social Services, 436 U.S. 658 (1978) and its progeny, which hold that a municipality can, in certain circumstances, be a "person" within the meaning of § 1983. At the outset, the Court notes that only three of the La Paz Defendants are municipalities or municipal agencies: La Paz County, the Sheriff's Office, and the Development Department.8 To the extent that the La Paz Defendants argue that Monell has any relevance to the remaining individual Defendants, that argument is rejected. It is well-settled that "[a] local government unit may not be held liable for the acts of its employees under a respondeat superior theory." Ayala v. KC Envtl. Health, 2006 WL 845754, at *20 (E.D. Cal. Mar. 30, 2006) (citing Monell, 436 U.S. at 691). Rather, "a

municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue." City of Canton v. Harris, 489 U.S. 378, 385 (1989); Gilette v. Delmore, 979 F.2d 1342, 1346 (9th Cir.1992), cert. denied, 510 U.S. 932 (1993). A municipality may "cause" a constitutional violation by implementing a "policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy." Monell, 436 U.S. at 694. See City of Canton, 489 U.S. at 385. For James to establish municipal liability, he must show: (1) he was deprived of a constitutional right; (2) the municipal entities had a "policy"; (3) "the policy amounted to deliberate indifference to [his] constitutional right"; and (4) "the policy was the 'moving force For purposes of this Order, the Court will assume, without deciding, that the Sheriff's Office and the Development Department are municipal entities within the meaning of Monell. - 14 Document 167 Filed 04/27/2006 Page 14 of 34
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behind the constitutional violation.'" Mabe v. San Bernadino County, Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1110-11 (9th Cir. 2001) (citing and quoting Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996)). While a single constitutional violation is generally insufficient to qualify as a "policy or custom," "a municipality can be liable for an isolated constitutional violation when the person causing the violation has 'final policymaking authority.'" Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (plurality)) (other citation omitted). "A municipality also can be liable for an isolated constitutional violation if the final policymaker 'ratified' a subordinate's actions." Christie, 176 F.3d at 1239 (citing Praprotnik, 485 U.S. at 127). As such, "ratification requires, among other things, knowledge of the alleged constitutional violation." Christie, 176 F.3d at 1239 (citing Garrison v. Burke, 165 F.3d 565, 572 n.6 (7th Cir. 1999) (holding that the municipality was not liable under § 1983 because it had no knowledge of the alleged constitutional violations)); Gillette, 979 F.2d at 1348 (refusing to find ratification, because "[t]here is no evidence that the City manager made a deliberate choice to endorse the Fire Chief's decision and the basis for it"). But knowledge alone is insufficient; instead, "a plaintiff must prove that the policymaker approved of the subordinate's act. For example, it is well-settled that a policymaker's mere refusal to overrule a subordinate's completed act does not constitute approval." Christies, 176 F.3d at 1239 (citing Weisbuch v. County of Los Angeles, 119 F.3d 778, 781 (9th Cir. 1997); Gillette, 979 F.2d at 1348). James's theory of liability appears to be that Weekly, the Director of the Development Department, had "final policymaking authority," and he "ratified" the unconstitutional behavior of Gorman, a Zoning Inspector who works for the Development Department, by "let[ting] Gorman's actions continue despite pleas from Plaintiffs." (James's Cross-MSJ/ Resp. to La Paz MSJ at 16.) Presumably, the "actions" to which James refers are those Gorman took in connection with inspecting the Property, discovering the violations, then requesting the termination of electrical power on the Property.

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First, even assuming that James's theory is correct, which it is not, it makes no mention of either La Paz County or the Sheriff's Office. Nor does it even appear possible, based on the allegations in the Amended Complaint and the evidence before the Court, that either La Paz County or the Sheriff's Office could have ratified whatever constitutional violations are alleged to have occurred. As such, those entities cannot be held liable under § 1983. With regard to Weekly, James's theory of liability is deficient in two ways. First, James has presented no evidence that Weekly has "final policymaking authority." Even assuming that Weekly did have such authority, there is no evidence to support the claim that Weekly ratified Gorman's actions, because there is no evidence that Weekly knew about the termination of the electrical power before the termination occurred, much less that Weekly approved the termination. To the extent that the Development Department is a municipal entity, it cannot be held liable under § 1983 given the absence of evidence of a policy or custom that operated to violate James's constitutional rights. James's cross-motion for summary judgment is denied on this issue, and the La Paz Defendants' motion for summary judgment is granted on this issue. 2. Non-Jural Entities

The Development Department and the Sheriff's Office argue that they are "non-jural entities incapable of being sued." (La Paz MSJ, at 14.) In light of the dismissal of these parties, the Court need not rule on this argument. 3. 42 U.S.C. § 1983 states, Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any right, privileges, or immunities secured by the Constitution and laws, § 1983

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shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. Here, the basis of James's § 1983 claim is that Defendants violated his right to due process under the Fourteenth Amendment by searching the Property without proper notice and by shutting off its power without proper notice. The Due Process Clause of the Fourteenth Amendment outlaws deprivations by state governments of "life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. Courts perform a two-step analysis to determine whether a procedural due process violation has occurred. First, they look to "whether a liberty or property interest exists entitling an individual to due process protections." Hewitt v. Grabicki, 794 F.2d 1373, 1380 (9th Cir. 1986) (citing Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972)). "Second, if a constitutionally protected interest is established, a balancing test is to be employed to determine what process is due." Hewitt, 794 F.2d at 1380 (citing Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976)). The first violation James alleges is the search, without notice, of the Property on October 30, 2002.9 James argues that the failure of the La Paz Defendants to provide advance notice violates their obligation under what James refers to as the "La Paz County Land Use Regulations, section I-4," which provide, according to James: The Director, or a designee, members of the Planning Commission, Board of Adjustment, and Board of Supervisors and other enforcement officers may, in the discharge of their duties, and for good cause or probable cause, enter any premise, building or structure at any reasonable hour to inspect the same in connection with any application made or permit issued under these Regulations, or for any investigation or inspection as to whether or not any portion of such It is important to note that at no point has James challenged the conduct of any of the Defendants following the termination of electrical power to the Property on November 12, 2002. - 17 Document 167 Filed 04/27/2006 Page 17 of 34

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premises, building or structure is being used in violation of these Regulations. Written notice served on the owner or occupant of any premises sought to be inspected at least twenty-four (24) hours before such inspection takes place, shall be given in all cases in which permission to inspect has been refused. (Am. Compl., Ex. Q) (emphasis added). Even assuming the authenticity of the document that James cites and attaches, his argument overlooks the fact that the administrative search warrant was not issued "under these Regulations" for violations "of these Regulations." The statutory authority for the administrative search warrant, which appears on the warrant itself, was A.R.S. § 133912(A)(5), part of the Arizona Criminal Code, for violations of, among things, state regulations. A.R.S. § 13-3912(A)(5) provides that a search warrant may be issued, "when the property to be searched and inspected by an appropriate official in the interest of the public health, safety or welfare as part of an inspection program authorized by law." The same statute permits search warrants to be issued for reasons such as "[w]hen the property to be seized was stolen or embezzled," and "[w]hen the property or things to be seized were used as a means of committing a public offense." A.R.S. § 13-3912(A)(1) & (2). Clearly, no notice is required before the execution of warrants issued pursuant to those statutory provisions. All that is required is that the warrant's execution comport with Fourth Amendment requirements. Here, the evidence is undisputed that they did comport with the Fourth Amendment, and James does not argue otherwise. According to Tammy Doud, James's personal assistant, the officers arrived at 2:30 p.m. on October 30, 2002 and served her with the warrant before searching the Property. Because the officers who executed the warrant were not required to provide James with notice in advance of the search, James cannot rest his § 1983 claim on the failure to provide notice. As a result, all of James's § 1983 claims against employees of the Sheriff's Office are summarily dismissed. Their alleged role in depriving James of his constitutional rights was confined to the allegedly illegal search of the Property, not the termination of the Property's - 18 Document 167 Filed 04/27/2006 Page 18 of 34

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electricity. The Defendants who are dismissed are: Bagby, Esqorza, Heere, and Bohlen. Stated another way, the only remaining La Paz Defendants are the employees of the Development Department: Weekly, Dahlberg, Gorman, and Boatwright. The Court will refer to these four as the "remaining La Paz Defendants." The Court turns next to the termination of electrical power without notice. The parties do not cite a single case, and the Court is unaware of one, where a court has considered the constitutionality under the due process clause of the termination of electrical service without notice due to the discovery of electrical problems that pose an allegedly immediate and obvious danger to the inhabitants of the property. But first things first. James must demonstrate that he has a property interest in the continued receipt of electrical power from his utility company. As a general matter, residents usually have a property interest in uninterrupted electrical service. See Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 13-15 (1978); Heuser v. Johnson, 189 F. Supp. 2d 1250, 1267 (D.N.M. 2001) (citing Memphis Light, 436 U.S. at 13-15)). See, e.g., Frates v. City of Great Falls, 568 F. Supp. 1330 (D.C. Mont. 1983) (relying on Memphis Light to conclude that municipality must provide notice and opportunity for hearing before termination of water and sewage). "Where a state or local law restricts the ability of a municipal utility provider to terminate service, customers of the provider have a protected property interest in the continuation of service." Heuser, 189 F. Supp. 2d at 1267 (citing Memphis Light, 436 U.S. at 11-12) ("State law does not permit a public utility to terminate service 'at will.'"). Here, there can be little question that James has a property interest in the continuation of 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, in turn, has promulgated rules concerning the circumstances in which public service corporations can terminate electrical power. Ariz. Admin. Code, Art. 2, R14-2-201, et seq. The rules list circumstances in which it is impermissible for those corporations to - 19 Document 167 Filed 04/27/2006 Page 19 of 34

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terminate a customer's service; circumstances in which those corporations may terminate service with notice; and circumstances in which service can be terminated without notice.10 Because of these rules concerning the termination of electrical service, the Court concludes that James has a property interest in the continuation of his electrical service.11 See Heuser, 189 F. Supp. 2d at 1268 (finding property interest where utility company has set forth "specific circumstances under which electricity service could be terminated," creating a system where service could only be terminated "for cause"); Frates, 568 F. Supp. at 1337 (a "specification of reasons, for which services may be terminated, amounts, in essence, to a recognition that termination may be for cause only, and clearly refutes the conclusions that the utility or governing body has a right to terminate services at will"). See, e.g., Keniston v. Roberts, 717 F.2d 1295, 1299 (9th Cir. 1983). The next question is whether James received the process to which he was legally due. "What procedures are constitutionally required if the state seeks to deprive the defendant of a protected interest is determined by federal law." Voigt v. Savell, 70 F.3d 1552, 1563 (9th Cir. 1995) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985) (once it is determined that the Due Process Clause applies because state law creates a property right, the remaining question regarding what process is due is not to be found in the state statute)). See Vitek v. Jones, 445 U.S. 480, 491 (1980) ("minimum [procedural] requirements [are] a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action").

One of those circumstances, which was the basis of the termination of James's electricity, was "[t]he existence of an obvious hazard to the safety or health of the consumer or the general population or the utility's personnel or facilities." One argument that the La Paz Defendants do not make is that they cannot be liable for terminating James's electricity because they did not have the authority to terminate it, an authority which appears to lie exclusively with public service corporations. However, as the La Paz Defendants did not make this argument, the Court will not make it for them and makes no judgment as to its validity. - 20 Document 167 Filed 04/27/2006 Page 20 of 34
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The remaining La Paz Defendants misunderstand this prong of the analysis, as they seem to argue that because ACC rules allow termination without notice in some circumstances, then they could not have violated James's due process rights. But the existence of a statutory procedure is not dispositive on the issue of whether James's due process rights were violated. See Voigt, 70 F.3d at 1563 (citing Cleveland Bd. of Educ., 470 U.S. at 541).12 In fact, if Defendants' argument held true, the due process clause would be virtually meaningless, as it would be satisfied every time an official followed state law, regardless of whether that law afforded any process before the deprivation of a property or liberty interest. In general, due process requires notice and an opportunity to be heard prior to the deprivation of a protected property interest. See, e.g., Cleveland Bd. of Educ., 470 U.S. at 542. But it is "well-established that 'due process,' unlike some legal rules, is not a technical conception unrelated to time, place and circumstances." Gilbert v. Homar, 520 U.S. 924, 930 (1997) (quoting Cafeteria & Rest. Workers v. McElroy, 367 U.S. 886, 895 (1961)). Rather, "due process is flexible and calls for such procedural protections as the particular situation demands." Gilbert, 520 U.S. at 930 (quoting Morrissey v. Brewer, 408 U.S.471, 481 (1972)). In some circumstances, "where a State must act quickly, or where it would be impractical to provide predeprivation process, postdeprivation process satisfies the requirements of the due process clause." Gilbert, 520 U.S. at 930 (collecting cases). See also FDIC v. Mallen, 486 U.S. 230, 240 (1988) (noting that where there is an "important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted," the state may be justified in delaying "the opportunity to be heard until after the initial deprivation").

For example, assume there was a state law permitting the state to seize and immediately sell a house without any process upon discovery of any electrical code violation, however slight. Obviously, the enactment of such a statute would not eliminate a citizen's right to protest that those procedures violated their due process rights. - 21 Document 167 Filed 04/27/2006 Page 21 of 34

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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, 33940 (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 also Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1997) (holding that parent could be summarily deprived of care and custody of his children without any process where children were in "imminent danger"); Caine v. Hardy, 943 F.2d 1406, 1412 (5th Cir. 1991) (en banc) (holding that anesthesiologist's due process rights were not violated when he was suspended without a hearing in light of the imminent safety risk he presented to the public). The court in Patel noted that the evidence need not conclusively establish that the doctor was actually dangerous, only that the hospital had reasonable grounds for believing that he was dangerous. Patel, 298 F.3d at 341. In other words, the analysis contained both a subjective and objective prong: whoever made the decision to suspend the doctor had to subjectively believe that the doctor posed a danger, and that belief had to be reasonable. In Memphis Light, the Supreme Court addressed a § 1983 action brought by two homeowners against a municipal utility company for termination of electrical service without due process of law. Id. at 1558. The homeowners lived in a former duplex that had been consolidated before they took up residence. Id. at 1558. However, the utility company had failed to consolidate the two meters that served the duplex, and the homeowners began to receive two monthly bills, each of which contained a service fee, and one of which did not contain the correct name of the homeowners. Id. Despite the homeowners diligently paying the bill that was addressed to them, and despite making good faith efforts to determine why their address was receiving two bills, their utility service was terminated five times for nonpayment, apparently without any notice or opportunity for hearing, though they did receive a "final notice" stating "that payment was overdue and that service would be discontinued if payment was not made by a certain date." Id.

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The Supreme Court ruled that this notification procedure ran afoul of due process because the "final notice" letter "was not reasonably calculated to inform them of the availability of an opportunity to present their objections to their bills." Id. at 1563 (citing and quoting Mullane v. Cent. Hanover Trust Co., 339 U.S. 306, 314 (1950)) (internal quotation marks omitted). The Court also concluded that the homeowners were wrongfully deprived of "an opportunity for the presentation to a designated employee of a customer's complaint that he is being overcharged or charged for services not rendered." Id. at 1564. The question is whether the facts of this case fall more in line with those in Gilbert and Patel than in Memphis Light. If no reasonable jury could conclude that the

circumstances confronting the officials who inspected the Property constituted an immediate risk to public safety, it follows that this case would be controlled by Memphis Light, in which electricity was terminated for a non-emergency without notice or hearing. Of course, if Memphis Light applies, then the remaining La Paz Defendants lose, because it is undisupted that they provided no notice or hearing before the termination. If, on the other hand, it can be said as a matter of law that there were immediate safety risks that justified the termination of power without notice, then these Defendants are entitled to summary judgment. The Court concludes that the evidence falls somewhere in between: there are material facts in dispute as to whether the Property contained electrical code violations that presented an immediate threat to public safety. The Court notes what it perceives to be a distinction between an "immediate" risk to safety and an "obvious" risk to safety. The principal argument of these Defendants has been that they were simply following the ACC rule that permits the termination of electricity without notice in the event of an "obvious hazard to the safety . . . of the consumer." Implicitly, they argue that an "obvious hazard" is tantamount to a hazard that necessitates rapid response. But that is not so.

Here, the remaining La Paz Defendants have not argued that the conditions constituted a safety emergency. In spite of their failure to argue in their briefs that the conditions constituted an emergency, there is evidence that the remaining La Paz Defendants believed - 23 Document 167 Filed 04/27/2006 Page 23 of 34

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as much. According to the Abatement Order, the "conditions . . . are hazardous to the life safety of the residents living on the site[,] [and] . . . immediate action must be taken to prevent any injury to residents or visitors." (La Paz MSJ, Ex. 3) (emphasis added). But the opinion expressed in the Abatement Order is contradicted by the actions of these Defendants: the inspection of the Property occurred on October 30, 2002; following the inspection, these Defendants did nothing for one week - they did not inform James of the violations nor did they request that APS shut off the power; on November 7, 2002, Defendants requested that APS shut off the power on November 12, 2002, but still did not inform James of any of the supposedly immediate safety issues. Ironically, once the electricity was terminated on November 12, 2002, James was able to repair enough of the problems in one week or less, such that on November 20, 2002, Defendants offered to restore the power immediately provided that James sign an agreement promising to make the additional repairs. James, for some unknown reason, did not sign the agreement, but that is beside the point. From this evidence, reasonable people could disagree as to whether these La Paz Defendants actually believed that the conditions on the Property posed an immediate threat to the public. As such, neither side is entitled to summary judgment on this issue. 4. Qualified Immunity

The remaining La Paz Defendants argue that they are entitled to qualified immunity. First, it is important to remember that James has sued the La Paz Defendants in both their individual and official capacities, and qualified immunity is only available as to claims against governmental officials in their individual capacities. Hallstrom v. City of Garden City, 991 F.2d 1473, 1482 (9th Cir. 1993) (noting that "[a] municipality (and its employees sued in their official capacities) may not assert a qualified immunity defense to liability under Section 1983") (citing Owen v. City of Independence, 445 U.S. 622, 638 (1980)) (other citation omitted). So to the extent that the La Paz Defendants seek summary judgment as to claims against them in their official capacities, that motion is denied.

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The Court now turns to the claims against the La Paz Defendants in their individual capacities. Qualified immunity is a defense to claims against governmental officials "arising out of the performance of their duties. Its purpose is to permit such officials conscientiously to undertake their responsibilities without fear that they will be held liable in damages for actions that appear reasonable at the time, but are later held to violate statutory or constitutional duties." Krause v. Pierce County, 793 F.2d 1105, 1108 (9th Cir. 1986), cert. denied, 480 U.S. 932 (1987); Ayala, 2006 WL 845754, at *20. Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). Whether a defendant is entitled to qualified immunity is "a pure question of law." Elder v. Holloway, 510 U.S. 510, 514 (1994); Romero v. Kitsap County, 931 F.2d 624, 62728; Ayala, 2006 WL 845754, at *20. There is a two-part test for determining whether a government official is entitled to qualified immunity. First, the court looks to "whether the facts alleged show that the officer's conduct violated a constitutional right." Martinez v. Stanford, 323 F.3d 1178, 1183 (9th Cir. 2003) (citing and quoting Saucier v. Katz, 533 U.S. 194, 201-02 (2001) (internal quotation marks omitted)). If there has been a constitutional violation, the next step of the inquiry examines whether "the constitutional right in question was 'clearly established' such that 'it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.'" Martinez, 323 F.3d at 1183 (citing and quoting Saucier, 533 U.S. at 201-02) (citing Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1050 (9th Cir. 2002)). "The 'contours' of the allegedly violated right 'must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. . . . [I]n the light of preexisting law the unlawfulness must be apparent." Ayala, 2006 WL 845754, at *20 (quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987)). See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (qualified immunity turns on the "objective reasonableness of an official's conduct"). The remaining La Paz Defendants argue that not only was there no constitutional violation (an argument about which the Court has concluded that issues of fact remain), but - 25 Document 167 Filed 04/27/2006 Page 25 of 34

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they followed the ACC regulation that permits the termination of electrical service without notice upon discovery of "an obvious danger to the safety or health of the consumer or the general population." But whether or not Defendants' behavior comported with statutory requirements is irrelevant to this analysis; the operative question is whether their behavior accorded with clearly established constitutional rights. Assuming the remaining Defendants did violate one of James's constitutional rights, the next question is whether that right is "clearly established." It is not. While there are facts in dispute as to whether the remaining Defendants believed that the conditions on the Property posed a safety emergency, there can no dispute that they believed that the dangers on the Property were obvious.13 There is not, so far as the Court is aware, any caselaw as to the process that is due to a person before his electrical power can be shut off because of the existence of obvious safety dangers. While the Court can opine as to what it believes to be the requisite amount of process, the absence of any caselaw whatsoever, much less binding caselaw, deals a fatal blow to any suggestion that James's rights were clearly established. The remaining La Paz Defendants are entitled to summary judgment on the claims against them in their individual capacities. 5. Punitive Damages

James has demanded punitive damages. The only remaining claims against individual La Paz Defendants are against four employees of the Development Department in their official capacities. A damage award against them would operate as an award against the municipal entity by which they are employed, and as such, punitive damages are precluded.

James argues that there were no obvious dangers on the Property, but he has submitted no evidence in support of it. All of the documents that he believes to be evidence are either irrelevant or inadmissible. For example, photographs of the Property without any explanation, or statements by James himself (who, as far is the Court aware, has no training or experience that bears on whether the dangers on the Property are "obvious") are not admissible. Documents showing that, for example, the septic system was repaired in 1988, shed no light on the conditions of the Property on October 30, 2002. - 26 Document 167 Filed 04/27/2006 Page 26 of 34

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See City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981). James's punitive damage claim is summarily dismissed. 3. La Paz Defendants' Motion to Strike James's Cross-Motion for Summary Judgment The La Paz Defendants argue that James's Cross-Motion for Summary Judgment, which doubles as a response to the La Paz Defendants' motion, should be stricken because it was filed after the dispositive motions deadline.14 The La Paz Defendants are correct that James's motion violates the Court's Scheduling Order. The motion also violates Local Rule of Civil Procedure 7.2(c), which requires that all responsive memoranda be filed within ten days of service of the underlying motion, and Local Rule of Civil Procedure 7.2(e), which provides that motions (and responsive memoranda) cannot exceed seventeen pages, exclusive of attachments. James filed his twenty-page motion two months after the La Paz Defendants filed their motion for summary judgment. The Court would certainly be within its power to strike James's motion, especially because the Court warned James on January 9, 2006 that failure to respond in a timely manner could be construed as consent to the granting of the motion. Nevertheless, the Court declines to do so. However, James should not construe the Court's tolerance of his errors as a harbinger of future tolerance, but rather as a final warning to comply with all federal and local rules of civil procedure. 4. La Paz Defendants' Motion to Strike James's "Separate Statement of Facts in Support of Denial to La Paz Defendants' Qualified Immunity Defense" James has filed a document entitled "Separate Statement of Facts in Support of Denial to La Paz Defendants' Qualified Immunity Defense," which, in substance, is not a statement of facts, but a supplemental brief. Defendants' motion to strike that supplemental brief is

Pursuant to the Court's Scheduling Order (Doc. 109), all dispositive motions should have been filed by December 30, 2005. James's Cross-Motion for Summary Judgment was filed on February 28, 2006. - 27 Document 167 Filed 04/27/2006 Page 27 of 34

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granted, though the Court notes that it has reluctantly considered the arguments therein, and they do not affect any of the Court's conclusions. 5. James's "Motion Requesting the Court's Permission to Exceed Page Limitation" James seeks retroactive permission to file a cross-motion for summary judgment in excess of the allowable page limit. That motion is denied, as James's motion could have easily been condensed into the allowable number of pages, and ignorance of the easilyavailable rules is not an excuse for repeatedly violating them. Also, in spite of the excess of pages, the Court has considered all James's arguments and they do not disturb the Court's conclusions. 6. APS Defendants' Motion for Judgment on the Pleadings/ Motion for Summary Judgment The Court's conclusion above that the Amended Complaint does not contain causes of action under § 1981 or § 1982 applies with equal force to the APS Defendants. As such, the only claims against the APS Defendants are under § 1983, § 1985(3), and § 1986. The Court will address each in turn. a. § 1983

The APS Defendants argue that they cannot be held liable under § 1983 because APS and its employees are private entities and were not acting under color of law.15 "In cases under § 1983, 'under color of law' has consistently been treated as the same thing as the 'state action' required under the Fourteenth Amendment." Lugar v. Edmonson Oil Co., 457 U.S. 922, 928 (1982) (quoting United States v. Price, 383 U.S. 787, 794 n.7 (1966)). Thus, "[Section] 1983 excludes from its reach 'merely private conduct, no matter how discriminatory or wrongful." Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)). On November 17, 2004, Judge Carroll, who formerly presided over this case, denied a motion to dismiss by the APS Defendants on the issue of state action. (Doc. 59.) James seems to insinuate that the Court is somehow bound by that ruling, but that is not so. - 28 Document 167 Filed 04/27/2006 Page 28 of 34
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