Free Reply to Response to Motion - 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. No. CIV03-02214 PHX SRB REPLY IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS/MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS ARIZONA PUBLIC SERVICE COMPANY, DOUG McDONALD, AND DONALD WILSON (Oral Argument Requested) Defendants Arizona Public Service Company, Doug McDonald and Donald Wilson ("APS Defendants") submit the following Reply in Support of their Motion for Judgment on the Pleadings/Motion for Summary Judgment on Plaintiffs' Amended Complaint. Plaintiff James Field1 fails in his response to demonstrate intentional discrimination under 42 U.S.C. §§ 1981, 1982, 1985, and 1986, on the basis of his race or protected class, and these claims must fail as a matter of law.

The APS Defendants, in a separate motion, are also moving to dismiss Plaintiff Susan Field as she has failed to appear, participate, or sign documents throughout this proceeding, including her failure to sign the Response filed by Mr. Field. Mr. Field cannot lawfully represent Mrs. Field in this litigation.

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Case 2:03-cv-02214-SRB

Document 130

Filed 02/21/2006

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Plaintiff also fails to provide any evidence that APS violated Arizona Corporation Commission regulations allowing APS to terminate a customer's electrical service without notice under certain enumerated circumstances. DATED this 21st day of February, 2006. 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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MEMORANDUM OF POINTS AND AUTHORITIES I. Plaintiff's Response Fails to Identify Any Allegation or Evidence of Intentional Discrimination; thus, Plaintiff's Civil Rights Claims Fail As A Matter Of Law. Plaintiff's response wholly fails to identify where in his Amended Complaint he alleges that the APS Defendants intentionally discriminated against him based upon race or his inclusion in a protected class. Plaintiff merely quotes a statement from a copy of an APS customer screen that APS customer service was not to communicate to Plaintiff, if Plaintiff were to call APS, that a La Paz County Deputy would be escorting the APS serviceman to the Plaintiff's property on November 12, 2002, to cut Plaintiff's power. See Response at 5, lines 10-20. Simply, on its face, this document is not evidence of intentional race discrimination. implication of race. The document makes no mention or

Indeed, the document creates no inference that the APS

Defendants intended or plotted to terminate Plaintiff's electrical service because he is Caucasian. Plaintiff does not deny that his race is Caucasian and Plaintiff does not allege, nor does he provide any evidence, that the APS Defendants terminated his electrical service because he is Caucasian. Plaintiff's claims under 42 U.S.C. §§ 1981,
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1982, 1985, and 1986 fail as a matter of law, and Plaintiff's Amended Complaint fails to state a claim; thus, warranting dismissal. Next, Plaintiff attempts to support his claims under §§ 1981, 1982, 1985, and 1986 by alleging that he is a "class of one." Response at 7. Plaintiff is improperly critical of the APS Defendants' citations to decisions from the Ninth Circuit Court of Appeals and he also incorrectly claims that the cases are not on point. See Response at 7. Ninth Circuit precedent is controlling, and every case cited by the APS Defendants is legally right on point and deals with the necessary elements of each claim under §§ 1981, 1982, 1985, and/or 1986. Finally, most of the Ninth Circuit cases cited by the APS Defendants rely on controlling United States Supreme Court precedent within those decisions. Plaintiff's "class of one" argument does not change the elements of §§ 1981 and 1982 which expressly require a showing of discrimination based upon race, which has never been alleged by Plaintiff in this case; thus, he fails to state a claim. With regard to Plaintiff's claims under §§ 1985(3) and 1986, the Ninth Circuit Court of Appeals

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"extend[s] § 1985(3) to protect non-racial groups only if `the courts have designated the class in question a suspect or quasi-suspect classification requiring more exacting scrutiny or . . . Congress has indicated through legislation that the class require[s] special protection.'" Holgate v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005) (quoting Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992)). Plaintiff himself, even arguendo as a "class of one," has not been judicially designated a suspect or quasi-suspect class, and no legislation or federal statute identifies Plaintiff as needing special protection. Indeed, Plaintiff never identifies any "suspect" class to which he belongs and that because of his membership in this unidentified suspect class he has been intentionally discriminated against.

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Plaintiff's response fails to identify any allegations or facts that support a colorable claim of intentional or purposeful discrimination, based upon race or protected class, by the APS Defendants. Accordingly, Plaintiffs' claims under 42 U.S.C. §§ 1981, 1982, 1985, and 1986, fail to state a claim against the APS Defendants as a matter of law, and summary judgment is appropriate on these claims. II. This Court's Prior Order Is Not Dispositive on the Issue of State Action. Plaintiff relies on this Court's prior Order, dated November 23, 2004, denying the APS Defendants' Partial Motion to Dismiss, to support Plaintiff's conclusion that the APS Defendants acted under color of law. This Court's prior Order, however, is not dispositive on proving the issue of state action and merely allowed Plaintiff's claim under § 1983 to survive a motion to dismiss. Dismissal of the APS Defendants' Partial Motion to Dismiss demonstrates that this Court agreed that Plaintiff pled sufficient allegations to show state action on the part of the APS Defendants ­ NOT that Plaintiff had proven that the APS Defendants acted under color of state law. In his response, Plaintiff fails to overcome the presumption that private conduct does not constitute government action. Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999); see also Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982). "[Section] 1983 excludes from its reach `merely private conduct, no matter how discriminatory or wrongful." American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)). The only evidence of a nexus that Plaintiff submits to the court is the letter sent to the APS Defendants from La Paz County on November 7, 2002, asking APS to cooperate with the Notice and Order of Abatement. "[T]he mere fact that the

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government compelled a result does not suggest that the government's action is `fairly attributable' to the private defendant." Sutton, 192 F.3d at 838. "[W]ithout some

other nexus between the private entity and the government, we would expect that the private defendant is not responsible for the government's compulsion," and only the

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government would be held liable for any constitutional violation. Id. After receiving and evaluating the information and evidence of Plaintiff's electrical system, the APS Defendants determined that obvious hazards existed under A.A.C. § R14-2-211(B) and terminated Plaintiff's electrical service without notice. The APS Defendants did not

terminate Plaintiff's electrical service at the sole direction of a government entity under A.A.C. § R14-2-211(C)(1)(f). III. Plaintiff's Response Provides No Evidence That The APS Defendants Violated A.A.C. § R14-2-211(B). Even if this Court determines that the APS Defendants' decision to terminate Plaintiffs' electrical service without notice, pursuant to AAC § R14-2-211(B), had a sufficient nexus to be considered government action, Plaintiff still fails to state a claim for a deprivation of due process under § 1983. As previously stated, Plaintiff has not proffered any evidence to show that the APS Defendants violated A.A.C. § R14-2211(B) or any evidence to dispute that the APS Defendants observed obvious hazards on his property at the time that service was terminated. Plaintiff attempts to provide select photographs of his electrical service taken apparently three years after his service was terminated (and after corrections had been made), but he does not refute the photographs depicting hazards in his electrical service at the time his service was terminated in 2002. Plaintiff only provides his own

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allegations that there were no hazards on his property at the time service was terminated. Plaintiff has never produced an electrician or electrical engineer to dispute the APS Defendants' determination that an obvious hazard did exist. Indeed, Plaintiff wholly fails to acknowledge that the APS Defendants have the authority under § R142-211(B) to terminate his service without notice. Plaintiff has not challenged the constitutionality of this regulation. As additional support that the APS Defendants did not violate A.A.C. § R14-2211(B), the APS Defendants submit copies of Plaintiff's complaints to the Arizona Corporation Commission concerning the termination of his electric service on
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November 12, 2002, the Commission's investigation(s), and the lack of any determination that the APS Defendants violated Arizona Corporation Commission regulations.2 CONCLUSION Plaintiff's own averments, without more, are insufficient to defeat summary judgment. Anderson, 477 U.S. at 256-57. "[S]ummary judgment should be granted where the evidence is such that it would require a directed verdict for the moving party.'" Anderson, 477 U.S. at 251 (quoting Sartor v. Arkansas Gas Corp., 321 U.S. 620, 624 (1944)). Based on the foregoing, Defendants APS, D.L. Wilson, and Doug McDonald respectfully request that this Court grant summary judgment on Plaintiffs' Complaint in its entirety, and dismiss Plaintiffs' claims against the APS Defendants with prejudice. DATED this 21st day of February, 2006. GAONA LAW FIRM

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

A certified copy of the Commission's complaint and investigation file has been requested and as soon as it is made available to the APS Defendants, it shall be filed with this Court. 6 Case 2:03-cv-02214-SRB Document 130 Filed 02/21/2006 Page 6 of 7

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CERTIFICATE OF SERVICE I hereby certify that on February 21, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: John Masterson, Esq. Jennifer Holsman, Esq. JONES SKELTON & HOCHULI, 3200 North Central Avenue, Suite Phoenix, Arizona 85012 I further certify that on February 21, 2006, I mailed a copy of the foregoing document to Plaintiffs pro per: James W. Field and Susan F. Field 66524 Hwy 60 Post Office Box 248 Salome, Arizona 85348 I further certify that on February 22, 2006, the attached document was handdelivered to: The Honorable Susan R. Bolton United States District Court for the District of Arizona Sandra Day O'Connor U.S Courthouse, Suite 522 401 West Washington Street, SPC 50 Phoenix, Arizona 85003-2153

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/s/ Nicole Seder Cantelme

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