Boudette v. Arizona Public Service Co.

685 F. Supp. 210, 1988 U.S. Dist. LEXIS 4838, 1988 WL 52501
CourtDistrict Court, D. Arizona
DecidedMay 9, 1988
DocketNo. Civ. 87-1854 PCT PGR
StatusPublished
Cited by2 cases

This text of 685 F. Supp. 210 (Boudette v. Arizona Public Service Co.) is published on Counsel Stack Legal Research, covering District Court, D. Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boudette v. Arizona Public Service Co., 685 F. Supp. 210, 1988 U.S. Dist. LEXIS 4838, 1988 WL 52501 (D. Ariz. 1988).

Opinion

MEMORANDUM AND ORDER

ROSENBLATT, District Judge.

1. BACKGROUND INFORMATION

This case is a 42 U.S.C. section 1983 action filed by Timothy Boudette against Arizona Public Service Co. (A.P.S.), in which the plaintiff alleges that on June 18, July 10, August 17 and September 18 or 19, 1984, the defendant “acting under color of law” purposefully disconnected plaintiffs electrical power without affording the plaintiff any administrative or judicial hearing so as to constitute a violation of plaintiffs first, fourth, fifth and ninth amendment rights. The plaintiff claims that this deprivation caused him to suffer monetary damages, psychological stress, public humiliation, and loss of employment, to name just a few. For this reason, plaintiff is requesting both compensatory and punitive damages. This Court has jurisdiction pursuant to 28 U.S.C. section 1343.

2. LEGAL ANALYSIS

A. State Action

Pursuant to Fed.R.Civ.P. 12(b)(6), the defendant, A.P.S., moves to dismiss the plaintiff’s section 1983 claim for failure to state a claim upon which relief can be granted. For purposes of a Rule 12(b)(6) motion, the complaint is construed in the light most favorable to the plaintiff and the allegations are taken as true. Jenkins v. McKeitken, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); Dodd v. Spokane County, 393 F.2d 330, 334 (9th Cir.1968). The Court’s inquiry is directed to whether the allegations of the complaint constitute a claim under section 1983.

To raise a claim under section 1983, a plaintiff must allege facts which show (1) that the defendants acted under color of state law or authority, and (2) that the defendants deprived the plaintiff of a right, privilege or immunity secured by the Constitution and the law of the United States.

Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982). Failure to plead or allege any state action or involvement is, by itself, fatal to a section 1983 claim. Rivera v. Green, 775 F.2d 1381, 1384 (9th Cir.1985).

The ultimate issue in determining whether a person is subject to suit under section 1983 is whether the alleged infringement of federal rights is “fairly attributable to the state.” Rendell-Baker v. Kohn, 102 S.Ct. at 2770. Therefore, the core issue in this case is whether the defendant’s action in disconnecting the plaintiff’s electrical service can fairly be seen as “state action.” Id. A state normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State. Id., 102 S.Ct. at 2771. In other words, the inquiry must be whether there is a sufficiently close nexus between the state and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the state itself. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974).

The Supreme Court in Jackson v. Metropolitan Edison Co. confronted a situation similar to this case. In Jackson, a citizen brought a section 1983 suit against a privately owned and operated utility company, which disconnected her service for delinquency in payments. The company in that case was a Pennsylvania corporation which held a certificate of public convenience issued by the Pennsylvania Public Utility Commission empowering it to deliver electricity. Id. at 846, 95 S.Ct. at 451. In [212]*212addition, the company was subject to extensive regulation by the Commission. Id.

The Jackson Court had to decide whether the service disconnection was “state action.” In concluding that the State of Pennsylvania was not sufficiently connected with the company’s action so as to make the company’s conduct attributable to the state for fourteenth amendment purposes, id. at 358-59, 95 S.Ct. at 457, the Supreme Court examined several factors. First, the Court held that the corporation's monopoly status, which was conferred to it by the state, was not state action. Id. at 351, 95 S.Ct. at 453. Second, the Court rejected the contention that state action was present merely because the corporation provided an essential public service required to be supplied on a reasonably continuous basis. Id. at 352, 95 S.Ct. at 454. Third, the Court rejected the notion that the company’s termination was state action because the state had “specifically authorized and approved” the termination practice. Id. at 354, 95 S.Ct. at 455. Finally, the Court found that no symbiotic relationship existed because the electric company was privately owned, did not lease its facilities from the state, and was not financially integrated with the state. Id. at 358, 95 S.Ct. at 457.

Recently, the Ninth Circuit Court of Appeals addressed a similar issue in Carlin Communications v. Mountain States Telephone and Telegraph Company, 827 F.2d 1291 (9th Cir.1987). In Carlin, a supplier of adult entertainment messages sought to enjoin a regional telephone company from refusing to carry those messages on its 976 network. Id. at 1292-93. The court determined that the initial termination of the supplier’s service was “state action” in light of the Arizona deputy county attorney’s direct involvement. Id. at 1297. The deputy attorney advised Mountain Bell to terminate Carlin’s service and threatened to prosecute Mountain Bell if they did not comply. Id. at 1295. The court distinguished Occhino v. Northwestern Bell Tel. Co., 675 F.2d 220 (9th Cir.), cert. denied, 457 U.S. 1139, 102 S.Ct. 2971, 73 L.Ed.2d 1358 (1982), a case in which the phone company, without particularized state participation, terminated a customer’s service for making abusive phone calls. 827 F.2d at 1295. Thus, the court concluded that by “commending a particular result,” the state had involved itself so as to constitute state action. Id.

Courts have generally employed three tests to determine whether state action exists: (1) whether the state has so involved itself with the regulated entity that it cannot claim the challenged conduct actually occurred as a result of private choice, Jackson, 419 U.S. at 352, 95 S.Ct. at 454; (2) whether the regulated entity is a state actor because it performs a public function, Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946); Jackson, 419 U.S. at 352, 95 S.Ct.

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Bluebook (online)
685 F. Supp. 210, 1988 U.S. Dist. LEXIS 4838, 1988 WL 52501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boudette-v-arizona-public-service-co-azd-1988.