Opinion
CIVIL ACTION NO. 94-D-1553-N.
January 24, 1995 Filed: October 6, 2005
MEMORANDUM OPINION
This matter is presently before the court on Defendant's Motion to Dismiss the above-styled action for failure to state a claim upon which may be granted, filed January 10, 1995. For reasons stated herein, Defendants' motion is due to be granted.
Jurisdiction Venue
Plaintiff alleges a violation of 42 U.S.C. § 1983. Since the above-styled action "arises under" a statute of the United States, this Court has subject matter jurisdiction over this matter. See 28 U.S.C. § 1331. Personal jurisdiction and venue are not contested.
Factual Background
Plaintiff, Jo Ann Champion ("Champion"), claims that Defendant Central Alabama Electric Cooperative (the "Cooperative") disconnected her electrical services in blatant disregard of her physical well-being. Plaintiff contends that this act was consummated intentionally and maliciously. Champion asserts that everyone employed by the Cooperative knew of her physical infirmities and critical dependence on the services provided by the Cooperative. Specifically, Plaintiff claims that she is a liver transplant recipient and has the following health problems: high blood pressure, diabetes, thyroidal complications and osteoporosis. As a result of taking prescribed medicine, Plaintiff's immunity system allegedly becomes "extremely low."
Champion asserts that in early November, 1994, the Cooperative received a payment in partial satisfaction of Plaintiff's electric bill. Plaintiff asserts that these funds were dispatched by the Camellia Baptist Church in Prattville, Alabama. According to Plaintiff, she received medical treatment for her eyes on November 17, 1994. Plaintiff alleges that various charitable organizations informed the Cooperative that they would assist Plaintiff in paying her electric bill.
Plaintiff does not enumerate the "charitable organizations" which agreed to assist her in satisfying her electric bill.
Plaintiff's bill was one hundred five dollars ($105.00) in arrears.
Champion alleges that the organizations stated that their provisional assistance would be delivered on November 22 or November 23, 1994. However, Plaintiff contends that on November 21, 1994, the Cooperative disconnected her electricity and placed her in imminent peril. Champion claims that the defendants "perpetrated a needless and unjust act." Plaintiff's debt was subsequently satisfied and her electric service restored.
Plaintiff asserts that her electric bill has always been paid and claims that the Cooperative has never suffered a pecuniary loss resulting from Plaintiff's failure to pay her electric bill. Plaintiff claims that Defendants somehow violated her civil rights by disconnecting her services. Although Plaintiff does not articulate the exact provision allegedly violated by the defendants, the court construes Plaintiff's claim as a 42 U.S.C. § 1983 action.
Plaintiff frequently relies on charitable assistance in satisfying her electric bill. See Plaintiff's Affidavit in Support of Motion to Proceed In Forma Pauperis, p. 2.
Discussion
Pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure, a pleading may be dismissed for "failure to state a claim upon which relief may be granted." Fed.R.Civ.P. 12(b) (6). A complaint should not be dismissed for failure to state an actionable claim unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Securities Exchange Commission v. ESM Group, Inc., 835 F.2d 270, 272 (11th Cir. 1988) (quotingConley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Therefore, the court must determine whether Champion may construct a set of facts which would yield favorable results on a 42 U.S.C. § 1983 claim.
Pursuant to 42 U.S.C. § 1983:
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects or causes to be subjected, any citizen of the United States . . . within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . .42 U.S.C. § 1983. It is firmly established that a successful § 1983 claim requires a demonstration that the conduct complained of was committed by one acting under state law. See e.g., Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992) (citingFlagg Brothers, Inc. v. Brooks, 436 U.S. 149, 156-57, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 247 (1978)); Burch v. Apalachee Community Mental Health Service, 840 F.2d 797, 803 (11th Cir. 1988); Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir. 1985); Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321 (11th Cir. 1983).
The United States Supreme Court has held that state regulation of a privately-owned utility company is not sufficient to make the utility a state actor for section 1983 purposes, even though the utility held a monopoly in providing electrical services to the area. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 348-49, 95 S.Ct. 449, 457, 42 L.Ed.2d 477 (1977). Similarly, inKearson v. Southern Telephone and Telegraph Co., 763 F.2d 405 (11th Cir. 1985), the United States Eleventh Circuit Court of Appeals held that a privately-owned telephone company's termination of service to customer for nonpayment of bills did not constitute a state action under 42 U.S.C. § 1983. Kearson, 763 F.2d at 406.
Regarding the action before the court, the Cooperative is owned by the individuals which it serves and not by any municipality or arm of the State of Alabama. Therefore, the court concludes that the Cooperative is not a state actor and is therefore not amenable to suit under 42 U.S.C. § 1983.
See Complaint, p. 4.
The court notes that even had the court applied the tests recognized by the Eleventh Circuit in determining whether state action exists, Plaintiff would be unable to satisfy the requirements of either test. In National Broadcasting Co., Inc. v. Communications Workers of America, AFL-CIO, 860 F.2d 1022 (11th Cir. 1988), the court set forth the following tests to assess whether state action exists: 1) the public function test; 2) the state compulsion test; and 3) the nexus/joint action test.NBC, 860 F.2d at 1026.
The public function test restricts state action to those instances which private actors perform duties traditionally within the exclusive prerogative of the state. NBC, 860 F.2d at 1026. Prior to the Cooperative providing services in the Prattville area, neither the State of Alabama nor an arm thereof provided electrical services for the Prattville region.
Under the state compulsion test, state action is found where the government has coerced or significantly encouraged the alleged constitutional violation. NBC, 860 F.2d at 1026. The court finds that the act of which the Plaintiff complains was not precipitated by any exhortation or exertion by the Cooperative.
The final test set forth by the NBC court applies where the "state has so far insinuated itself into a position of interdependence with the [private party] that it was a joint participant in the enterprise." NBC, 860 F.2d at 1026-27. The court is convinced that the Cooperative and the state are not joint venturers in providing electric services to the Prattville area.
Conclusion
Plaintiff brings this action under 42 U.S.C. § 1983. In order to be actionable under this provision, a plaintiff must demonstrate that the Defendant is a state actor. Here, the court finds that the Cooperative is not a state actor. Therefore, the court concludes that Plaintiff can not maintain a viable § 1983 action regardless of the facts she proves in support of her claim. Accordingly, Defendants' motion is due to be granted.
Plaintiff appears to place extreme emphasis on the malicious intent or destructive purpose of the Cooperative's alleged act. Assuming this is true, Plaintiff is entitled to no relief under 42 U.S.C. § 1983. Without the presence of a state actor, an action under this provision is not cognizable — regardless of the subjective intent of the defendant(s).
A judgment in accordance with this memorandum opinion shall be entered separately.