Free Motion for Summary Judgment - 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 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 ("APS"), Doug McDonald and Donald Wilson respectfully move for judgment on the pleadings or in the alternative for summary judgment on Plaintiffs' Amended Complaint in its entirety. Plaintiffs' claims under 42 U.S.C. §§ 1981, 1982, 1985, and 1986 fail as a matter of law because Plaintiffs have provided no evidence that the APS defendants have ever intentionally discriminated against Plaintiffs on the basis of their race, caucasian. Plaintiffs only other claim against the APS defendants under 42 U.S.C. § 1983 also fails as a matter of law, because none of the APS defendants acted under color of state law (a necessary element of proof). Defendant APS is not a public entity and Defendants McDonald and Wilson are not public employees. In addition, Plaintiffs' 42 U.S.C. §

Case 2:03-cv-02214-SRB

Document 123

Filed 12/30/2005

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1983 claim also fails as a matter of law because APS's conduct as a public service corporation is extensively regulated by the Arizona Corporation Commission, and Plaintiffs have failed to allege or demonstrate that APS has violated any governing regulation and deprived Plaintiffs of any constitutional right. This Motion is more fully supported by the attached Memorandum of Points and Authorities and the Court's record. DATED this 30th day of December, 2005. 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. Factual and Procedural Background The Plaintiffs' Complaint against a myriad of Defendants, including APS, Doug McDonald and Donald Wilson (employees of APS) was originally filed on November 12, 2003. See APS Defendants Separate Statement of Facts at ¶ 1. On March 5, 2004, Plaintiffs filed an Amended Complaint and this Court granted Plaintiffs' Motion to Amend on March 15, 2004. Id. at ¶¶ 2, 3. Paragraph one of Plaintiffs' Amended Complaint asserts that Plaintiffs are bringing claims against the Defendants, including APS, Doug McDonald, and Donald Wilson pursuant to 42 U.S.C. §§ 1981, 1982, 1983, 1985(3) and 1986. Id. at ¶ 4. The Amended Complaint, however, only alleges three counts against the APS defendants: (1) for violations of procedural due process under § 1983, (2) for conspiracy under § 1985, and (3) for failure to prevent conspiracy under § 1986. Id. at ¶ 5. Plaintiffs failed to further plead any basis for their alleged claims under 42 U.S.C. §§ 1981 and 1982. Id. at ¶ 6.
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Plaintiffs' allegations stem from the termination of their electrical service to their property in Salome, Arizona, on November 12, 2002. Id. at ¶ 7. Essentially, Plaintiffs allege that their procedural due process rights were violated when their electrical service was terminated without notice. Id. at ¶ 8. Due to the existence of obvious safety hazards on Plaintiffs' property, APS terminated Plaintiffs' electrical service on November 12, 2002. Id. at ¶ 9. APS had also received information from La Paz County alerting APS to the safety hazards on Plaintiffs' property and a request from La Paz County that APS cooperate with a notice and order of abatement seeking to terminate Plaintiffs' electrical service. Id. at ¶ 10. APS employees Doug McDonald and Donald Wilson evaluated the Plaintiffs' electrical facilities, determined the presence of obvious safety hazards on Plaintiffs' property, and terminated Plaintiffs' electrical service. Id. at ¶ 11. It is undisputed by Plaintiffs that Defendant APS is not a government entity. APS is a privately owned entity that is extensively regulated by the State. Therefore, it follows that Defendants Doug McDonald and Donald Wilson, who are APS employees, are not public employees. II. Plaintiffs' Civil Rights Claims Fail As A Matter Of Law Because They Cannot Show Intentional Discrimination. The Ninth Circuit Court of Appeals has repeatedly held that to succeed on a claim for violation of civil rights under either 42 U.S.C. §§ 1981, 1982, 1985, or 1986, each statute requires a showing of purposeful or intentional discrimination, which Plaintiffs fail to allege anywhere in their Amended Complaint. See West Coast Theatre Corp. v. City of Portland, 897 F.2d 1519, 1527 (9th Cir. 1990) (finding that to state a colorable claim under § 1982, "[r]acial discrimination must be shown"); Evans v. McKay, 869 F.2d 1341, 1344 (9th Cir. 1989) (stating that in a § 1981 action, "plaintiffs must show intentional discrimination on account of race"); King v. State of California, 784 F.2d 910, 916 (9th Cir. 1986) (relief denied for failure to state allegations of racial

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discrimination under §§ 1981, 1982, 1985); Glover v. Tower, 700 F.2d 556, 558 (9th Cir. 1983) (affirming district court's determination that allegation of intentional racial discrimination necessary for § 1981 and § 1982 claims, and race or class-based intentional discrimination necessary for § 1985(3) claims); Stonecipher v. Bay, 653 F.2d 398, 401 (9th Cir. 1981) (affirming district court's dismissal of claims under § 1981, § 1985, and § 1986 where no allegation of racial or class-based intentional discrimination); Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1980) (outlining requirements of a § 1985 action, which includes an allegation of discrimination based on race or protected class); see also Farley v. Henderson, 883 F.2d 709, 711 n.3 (9th Cir. 1989) ("section 1986 claim is dependent upon predicated section 1985 claim"). During the process of discovery in this case, Plaintiffs have not identified any facts that support a colorable claim of intentional or purposeful discrimination by the APS Defendants. Plaintiffs only allegation is that their electrical service was

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terminated without prior notice, and Plaintiffs allege that they were owed and deprived of this notice. But at no time have Plaintiffs alleged that the reason why their electrical service was terminated without notice was the result of intentional or purposeful discrimination by the APS Defendants. Plaintiffs have not identified any facts to support that the APS Defendants purposefully discriminated against Plaintiffs because of their race (caucasian/white), and Plaintiffs have never alleged that they are members of a protected class. Accordingly, Plaintiffs' claims under 42 U.S.C. §§ 1981, 1982, 1985(3), and 1986, fail to state a claim against the APS Defendants as a matter of law, and summary judgment is appropriate on these claims. III. Plaintiffs' Alleged Violations Of 42 U.S.C. § 1983, As Against The APS Defendants, Fails To Establish That Action Was Taken Under Color Of State Law. "A § 1983 plaintiff must demonstrate a deprivation of a right secured by the Constitution or laws of the United States, and that the defendant acted under color of state law." Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (citing West v.
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Atkins, 487 U.S. 42, 48 (1988)). "[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). Without such limitations on actions under 42 U.S.C. § 1983, "private parties could face . . . litigation whenever they seek to rely on some . . . rule governing their interactions with the community surrounding them." Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999) (quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982). Assuming arguendo that Plaintiffs can demonstrate a deprivation of a Constitutional right under § 1983, Plaintiffs cannot demonstrate that APS or its employees acted under color of state law. Plaintiffs must overcome the presumption that private conduct does not constitute government action. Sutton, 192 F.3d at 835; see also Lugar, 457 U.S. at 937. As expressed by the U.S. Supreme Court and quoted by the Ninth Circuit in Sutton: In the typical case raising a state-action issue, a private party has taken the decisive step that caused the harm to the plaintiff, and the question is whether the State was sufficiently involved to treat that decisive conduct as state action. National Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 192 (1988); see also Sutton, 192 F.3d at 838. "[T]he mere fact that the 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 government would be held liable for any constitutional violation. Id. The Arizona Corporation Commission has the sole power to regulate public service corporations in Arizona, such as Defendant APS. Ariz. Const. Art. 15, § 3; A.R.S. § 40-201, et seq. Defendant APS is mandated by statute to comply with the

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Corporation Commission's rules and regulations.

See A.R.S. § 40-202(B).

The

Corporation Commission's regulations for electrical utilities provides for termination of a customer's electrical services ­ without notice ­ in specific and limited circumstances. Under Arizona Administrative Code § R14-2-211(B), an electrical utility can terminate a customer's electrical service without notice when the electrical utility determines the existence of "an obvious hazard to the safety or health of the consumer or the general population or the utility's personnel or facilities." (As a courtesy to the Court, a copy of A.A.C. § R14-2-211 is attached hereto.) This is the regulation that APS followed in this case, and it neither creates nor implies any government action. As demonstrated by Defendant D.L. Wilson's letter to Plaintiffs, APS determined that the required conditions under the regulation existed and, thus, APS terminated Plaintiffs' electrical service without notice. See Amended Complaint at Exhibit S. Plaintiffs have provided no evidence to dispute APS's

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determination that an obvious hazard existed on their property, or any evidence that APS violated A.A.C. § R14-2-211(B). Even if the letter written by La Paz County to APS, along with the Notice and Order of Abatement issued by La Paz County (Amended Complaint at Exhibit G and R) could be construed as a mandate compelling APS to terminate Plaintiffs' electrical service, APS would still have had to exercise its own discretion and independent judgment to terminate Plaintiffs service without notice. The regulation allowing APS to blindly comply with a governmental mandate (without exercising any independent judgment) still requires prior notice to the customer. See A.A.C. § R14-2-211(C)(1)(f). Mandate or no mandate, APS was still obligated to comply with A.A.C. § R14-2211(B) to terminate Plaintiffs' electrical service without first giving notice. Moreover, Plaintiffs have not challenged the constitutionality of this regulation, which allows termination of a customer's electrical service without notice.

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Plaintiffs have failed to show any set of facts that create a nexus between APS and La Paz County in the decision to terminate Plaintiffs' electrical service, thus, making APS's decision "under color of state law".1 Purely private conduct, such as the conduct by APS and its employees D.L. Wilson and Doug McDonald, is not actionable under section 1983. See Ouzts v. Maryland Nat'l Ins. Co., 505 F.2d 547, 559 (9th Cir. 1974); see also United States v. Morrison, 529 U.S. 598, 621 (2000). Accordingly,

because APS is undisputedly a private corporation, and its action in terminating Plaintiffs' electrical service was not government action, Plaintiffs' claim under § 1983 fails as a matter of law. CONCLUSION 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 Defendants with prejudice. DATED this 30th day of December, 2005. 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

Even if this Court determines that APS's decision to terminate Plaintiffs' electrical service without notice, pursuant to AAC § R14-2-211(B), had a sufficient nexus to be considered government action, Plaintiffs still fail to state a claim under § 1983. As previously stated, Plaintiffs have not proffered any evidence to show that APS violated A.A.C. § R14-2-211 or any evidence to dispute that obvious safety hazards existed on their property at the time that service was terminated. Plaintiffs have never produced an electrician or electrical engineer to dispute APS's determination that an obvious hazard did exist. 7 Case 2:03-cv-02214-SRB Document 123 Filed 12/30/2005 Page 7 of 8

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CERTIFICATE OF SERVICE I hereby certify that on December 30, 2005, 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 December 30, 2005, 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 December 30, 2005, 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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