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, Poete Heere, and Jeff Bohlen UNITED STATES DISTRICT COURT

9 DISTRICT OF ARIZONA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
Defendants La Paz County, La Paz County Department of Community Development, La Paz County Sheriff's Office, Jay Howe, James Martin, Brad Weekly, Jerry Palmer, Penny Dalhberg, Guy Gorman, Dave Boatwright, Joe Deschaine, Curt Bagby, Joe Esqora, Pete Heere, and Jeff Bohlen are hereinafter referred to as "La Paz County Defendants".
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JAMES W. FIELD and SUSAN F. FIELD, husband and wife, Plaintiffs, v. LA PAZ COUNTY, et al., Defendants.

Case No. CV03-2214 PHX-SRB LA PAZ COUNTY DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

La Paz County Defendants1 , through counsel, submit this Reply in Support of their Motion to Dismiss. The Motion must be granted because: (1) there has been no violation of Plaintiffs' Fourteenth Amendment Due Process rights; (2) Plaintiffs have failed to support their Monell claim; (3) there has been no violation of 42 U.S.C. § 1985(3); (4) there has been no violation of 42 U.S.C. § 1986; and (5) Plaintiffs have consented to all remaining arguments raised in Defendants' Motion for Summary Judgment.

Case 2:03-cv-02214-SRB

Document 159

Filed 03/17/2006

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I. Authorities.

This motion is supported by the following Memorandum of Points and

MEMO RANDUM OF POINTS AND AUTHORITIES FACTUAL BACKGROUND Plaintiffs' response repeatedly relies on incorrect legal provisions, misstates the evidence and makes allegations that are not supported by the evidence. The rhetorical questions, conclusory arguments without supporting evidence and baseless innuendo contained in Plaintiffs' response have resulted in Plaintiffs' failure to address most of the legal issues raised in Defendants' Motion for Summary Judgment. For example, throughout Plaintiffs' response, they have repeatedly asserted that their electrical service was terminated without "notice," an alleged violation of their rights. As outlined by Defendants, however, termination of electrical service to Plaintiffs' property "without notice" was authorized pursuant to Title 14, Article 2 - 211(B) of the Administrative Code, based on "an obvious hazard to the safety or health of the consumer or the general population or the utility's personnel or facilities." Further, despite Plaintiffs' allegations to the contrary, Defendants had authority under Sections 201.2 and 201.3 of the Uniform Code for the Abatement of Dangerous Buildings to conduct the inspection of Plaintiffs' property in 2002. Section 202 of the Uniform Code for the Abatement of Dangerous Buildings authorizes the County to issue an abatement order to "repair, rehabilitate, demolish or remove the dangerous condition." Entry to Plaintiffs' property was thereafter made for the purpose of an authorized search and inspection to ensure compliance with La Paz County and state public health, safety and welfare ordinances. Subsequently, and after a thorough

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inspection, it was determined that Plaintiffs' property had significant code violations. As a result, an Abatement Order was issued and the electrical service was ultimately terminated by A.P.S. Plaintiffs have failed to establish a prima facie case for any of their legal claims. Accordingly, Defendants are entitled to judgment as a matter of law and all of Plaintiffs' claims should be dismissed. II. LEGAL ARGUMENT A. No Violation of Defendants' Fourteenth Amendment Due Process Rights.

Plaintiffs assert that Defendants violated their procedural due process rights under the Fourteenth Amendment by terminating the electrical service to their property without notice. Plaintiffs, as outlined have continually relied on the incorrect Administrative Code provisions to support their claims. Because Plaintiffs electrical service was terminated pursuant to the applicable and constitutional law of the State of Arizona, there has been no violation of Plaintiffs' due process rights. First, Plaintiffs rely on Palmer v. Columbia Gas of Ohio, Inc., to support their argument that there has been a violation of due process in this case.2 In Palmer, the Court made a finding that the Due Process Clause applied to the Plaintiff's termination of gas service, because Ohio gas companies fell under state regulatory authority. The case was specifically limited by Ohio law and does not stand for the proposition set forth by the Plaintiffs. Further, neither Fuentes v. Shevin or Goldberg v. Kelly stand for the proposition that Plaintiffs were entitled to "process" before termination of their

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479 F.2d 159 (6th Cir. 1973).

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electrical service, particularly in light of Plaintiffs' failure to comply with the law before termination. First, Fuentes, involved a challenge to the constitutionality of Florida and Pennsylvania prejudgment replevin statutes.3 The Court in Fuentes ultimately held that the Florida and Pennsylvania replevin statutes, insofar as the statutes denied the "possessor" of property a right to be heard before chattels were taken, were unconstitutional. Because Fuentes does not address or even support any of Plaintiffs' claims, the case is clearly distinguishable. In addition, Goldberg, is a case about New York City residents receiving federal aid under the "Aid to Families with Dependent Children" or New York State's "Home Relief" program.4 The Court in Goldberg held that a "pre-determination" hearing must be held if public assistance payments to welfare recipients will be discontinued. Again, this case is factually distinguishable and similarly not dispositive on the issues raised in Defendants' Motion for Summary Judgment. As outlined, Defendants were authorized under Title 14, Article 2-211 (B) of the Arizona Administrative Code to propose that electrical service to Plaintiffs' property be disconnected without notice based on the "obvious hazard to the safety or health of the consumer or the general population or the utility's personnel or facilities." Defendants therefore complied with the authority provided in Title 14 in recommending termination of Plaintiffs' electrical service. In addition, Defendants attempted to work with Plaintiffs to assist them in complying with the law. Despite these efforts, Plaintiffs failed to resolve any of the electrical issues identified and provided to Plaintiffs in November of 2002. Because

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407 U.S. 60 (1972). 397 U.S. 254 (1970).

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Plaintiffs have failed to cure the outstanding violations on the property, electrical service has not yet been restored. The law is clear, no "notice" was required before Plaintiffs' electrical service was terminated due to the health and safety determinations. Put simply, Defendants complied with the law. Accordingly, Plaintiffs have failed to establish a prima facie case for the violation of their procedural due process rights under 42 U.S.C. § 1983 and Defendants are entitled to judgment as a matter of law. B. No Violation of 42 U.S.C. § 1985(3).

Plaintiffs assert that the Defendants conspired to violate their rights under 42 U.S.C. 1985(3) because the termination of the utilities was "unjustified." Plaintiffs specifically assert that because they were not given "notice" regarding the code violations found on the property before electrical service was terminated, the Defendants "conspired" to violate their rights. Plaintiffs have failed to establish a prima facie case of conspiracy under § 1985 and Defendants are therefore entitled to judgment as a matter of law. Plaintiffs rely on several cases to support their conspiracy claim. First, Allegheny Pittsburgh Coal Co. v. Commission of Webster County.5 In Allegheny, he Court determined that assessments on real property by one West Virginia County violated the equal protection clause. Specifically, the Court found that real property was being taxed at 50% of the price paid for the property during a recent sale. Yet, the same property was assessed at approximately 8 to 35 times more than a comparable nearby property that had not been recently sold. This case is clearly factually distinguishable and fails to support Plaintiffs' claims that their rights were violated under 42 U.S.C. § 1985(3).
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488 U.S. 336 (1989).

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In addition, Plaintiffs rely in Sunday Lake Iron Co. v. Township of Wakefield.6 Sunday Lake held that a discrimination claim will not be supported by "mere errors of judgment by officials." Instead, the court stated that the burden of proof will be on the complaining party to show that there was an intentional violation of a "principle" to be uniformly applied. Plaintiffs reliance on this case from 1918 is misplaced, as there is no discussion of the prima facie elements from § 1985. Finally, Plaintiffs relied on Kirtley v. Rainey, to support their conspiracy claims.7 In Kirtley, the Court of Appeals held that a guardian ad litem, after representing a child in state court proceedings. Again § 1985 is not addressed in this State. Thus, Plaintiffs reliance on Kirtley is misplaced. Defendants' Motion for Summary Judgment outlined the factors Plaintiffs must prove in order to establish their 42 U.S.C. § 1985(3) claim. Importantly, Plaintiffs have failed to assert any evidence that there was a "racial or class-based discriminatory motive" to terminate Plaintiffs' electrical service. Simply put, Plaintiffs' electrical service was terminated because Plaintiffs failed to comply with the law. Nothing more, nothing less. In sum, there is simply no evidence that any of the Defendants conspired to violate Plaintiffs' rights under 42 U.S.C. § 1985. Accordingly, Defendants are entitled to Judgment as a matter of law. C. No Violation of 42 U.S.C. § 1986.

Plaintiffs assert that the Defendants violated 42 U.S.C. 1986, without introducing any evidence of such violation. Plaintiffs' Response fails to either legally or factually support their claim of a section 1986 violation. Specifically, Plaintiffs have failed to introduce any evidence that they were discriminated against on the basis of
247 U.S. 350 (1918). 326 F.3d 1088 (9th Cir. 2003).

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their race, a necessary element of proof to recover under section 1986. Further, Defendants did not violate Plaintiffs rights, as the termination of electrical service to Plaintiffs' property was authorized by applicable law. Accordingly, Defendants are entitled to judgment as a matter of law on Plaintiffs' section 1986 claim. D. No Monell Claim.

Plaintiffs assert that Monell liability exists because the "person causing the [constitutional] violation [had] final policymaking authority; a final policymaker [ratified] a subordinate's constitutional violation; or a final policymaker is deliberately indifferent to a subordinate's constitutional violation." 8 As previously articulated, for Monell liability to apply, Plaintiffs must establish that a La Paz County policy or custom served to violate their rights.9 In this case, there is no evidence that any La Paz County policy or custom was used to violate Plaintiffs' alleged rights. Again, Plaintiffs' electrical service was terminated based on their continued failure to comply with the applicable law. Defendants are therefore entitled to judgment as a matter of law because Plaintiffs fail to establish any specific conduct by the Defendants that supports their § 1983 municipal liability claim. E. Plaintiffs Consented to Dismissal of Their Claims.

Arizona District Court, Local Rule 7.2(i), provides that "if the opposing party does not serve and file a required answering memoranda . . . such non-compliance may be deemed a consent to the denial or granting of the motion and the Court may dispose of the motion summarily."
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See page 16 of Plaintiffs' response. Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978)).

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In this case, Plaintiffs' response failed to address several of the claims made in Defendants' Motion for Summary Judgment. Because Plaintiffs failed to respond to Defendants' claims, the Court must assume that: (1) Plaintiffs have failed to state a recoverable punitive damages claim against Defendant La Paz County; (2) Judge Deschaine is entitled to absolute immunity; (3) Plaintiffs' 42 U.S.C. § 1986 claim is barred by the applicable one year statute of limitations; (4) the La Paz County Sheriff's Department and Department of Community Development are non-jural entities incapable of being sued; (5) Plaintiffs failed to state a claim under 42 U.S.C. § 1981, 42 U.S.C. § 1982 and Title 18 U.S.C. § 241 and 242; and (6) Plaintiffs failed to state a claim against Jay Howe, Jerry Palmer and Jim Martin in their First Amended Complaint. Accordingly, this Court should treat Plaintiffs' failure to respond to the aboveidentified claims from Defendants' M otion for Summary Judgment as consent to

17 18 19 20 21 22 23 24 25 26 8 Case 2:03-cv-02214-SRB Document 159 Filed 03/17/2006 Page 8 of 10 motion including its supporting memorandum, and the respond including its supporting memorandum, each shall not exceed seventeen (17) pages, exclusive of attachments and any required statement of facts." granting judgment as a matter of law on the claims. F. Plaintiffs' Response Exceeds the Page Limitations.

Pursuant to Local Rule 7.2(e), "unless otherwise permitted by the Court, a

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Here, Plaintiffs filed a Response to La Paz County's Motion for Summary Judgment and Plaintiffs' Counter Motion for Summary Judgment totaling 19 pages on March 6, 2006. Plaintiffs then filed their Separate Statement of Facts in Support of Denial to La Paz Defendants Qualified Immunity Defense totaling 4 single-spaced pages on March 6, 2006. Although titled a "separate statement of facts," Plaintiffs have failed to include any "facts." Instead, Plaintiffs appear to have submitted a supplemental brief, with case law and other legal analysis, in further response to Defendants' Motion for Summary Judgment. As a result of Plaintiffs' "separate statement of facts," Plaintiffs have used over 24 pages to respond to the arguments raised in Defendants' Motion for Summary Judgment. All of the arguments contained in both Plaintiffs' Response to La Paz County's Motion for Summary Judgment and Plaintiffs' Separate Statement of Facts

17 18 19 20 21 22 23 24 25 (1) there has been no violation of Plaintiffs' Fourteenth Amendment Due Process 26 9 Case 2:03-cv-02214-SRB Document 159 Filed 03/17/2006 Page 9 of 10 reasons. III. CONCLUSION Defendants are entitled to judgment as a matter of law for the following reasons: in Support of Denial to La Paz Defendants Qualified Immunity Defense, should have been addressed in one response totaling no more than 17 pages. Plaintiffs' Response to La Paz County's Motion for Summary Judgment must be stricken for the foregoing

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rights; (2) Plaintiffs have failed to support their Monell claim; (3) there has been no violation of 42 U.S.C. § 1985(3); (4) there has been no violation of 42 U.S.C. § 1986; and (5) Plaintiffs have consented to all remaining arguments raised in Defendants' Motion for Summary Judgment. Accordingly, Defendants respectfully request that their Motion for Summary Judgment be granted and each of Plaintiffs' claims be dismissed. DATED this 17th day of March, 2006. J ONES, S KELTON & H OCHULI, P.L.C. By s/Jennifer L. Holsman John T. Masterson Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for La Paz County Defendants ORIGINAL/ONE COPY of the foregoing e-filed this 17th day of March, 2006. COPY mailed to the same day to: James W. Field PO Box 248 Salome, Az 85348 Plaintiff Pro Se s/Colleen Webb

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Case 2:03-cv-02214-SRB