Condosta v. Vermont Electric Cooperative, Inc.

• Decision Date: 09 September 1975
• Docket Number: Civ. A. No. 73-206.
• Citation: 400 F. Supp. 358
• Court: U.S. District Court — District of Vermont
• Parties: Guy CONDOSTA v. VERMONT ELECTRIC COOPERATIVE, INC., et al.

400 F. Supp. 358

Guy CONDOSTA v. VERMONT ELECTRIC COOPERATIVE, INC., et al.

Civ. A. No. 73-206.

United States District Court, D. Vermont.

September 9, 1975.

COPYRIGHT MATERIAL OMITTED

Michael H. Lipson, Vermont Legal Aid, Inc., Burlington, Vt., Nancy E. Kaufman, Montpelier, Vt., for plaintiff.

Richard M. Finn, Montpelier, Vt., for all defendants except Vt. Electric Co-op.

Dick, Hackel & Hull, Rutland, Vt., for defendants.

AMENDED MEMORANDUM AND ORDER

HOLDEN, Chief Judge.

This is a civil rights action brought by the plaintiff against the defendants as a result of the termination of the plaintiff's electric service for nonpayment of a disputed bill. The plaintiff seeks declaratory and injunctive relief, as well as money damages, under 42 U. S.C. §§ 1983, 1985(2) and 1986 (1970). Several defendants have moved to dismiss the complaint against them. Vermont Electric Cooperative, Inc., (hereafter VEC) moved for judgment on the pleadings, and the defendant Albert Ravenna has moved for severance of the claim against him. Each motion will be considered separately.

I — Motions to Dismiss

Defendants William A. Gilbert, Daniel B. Ruggles III, the Vermont Public Service Board and Kimberly B. Cheney have each moved to have the complaint against them dismissed.¹ For the reasons which follow, the motions to dismiss are granted to this extent: (1) the complaint against the Vermont Public Service Board (hereafter PSB) as a government agency, (2) the § 1985(2) claim against defendants Gilbert and Ruggles, (3) the § 1983 claim asserted against defendants Gilbert and Ruggles insofar as relief by way of a pecuniary award is sought, and (4) the § 1986 claim against the defendant Cheney. However, the motions to dismiss of the defendants Gilbert and Ruggles are denied in that aspect of the complaint based on § 1983 which seeks declaratory relief against them in their individual and official capacities.

A. Defendant Vermont Public Service Board

The plaintiff alleges that the defendant PSB conspired to violate and violated his due process and equal protection rights as guaranteed by the Fourteenth Amendment by denying the plaintiff a hearing prior to the termination of his electric service. On the strength of this claimed deprivation, the plaintiff seeks declaratory relief and money damages against the PSB under 42 U.S.C. §§ 1983 and 1985(2) (1970).²

Ordinarily the disposition of a federal suit against the PSB would require a determination by this Court of whether or not PSB is, in actuality, an "alter-ego" of the state, with the State being the real party in interest. George R. Whitten, Jr., Inc. v. State University Construction Fund, 493 F.2d 177, 179-180 (1st Cir. 1974). This inquiry would give rise to Eleventh Amendment considerations and questions of sovereign immunity. See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

However, we need not reach these questions here for the reason that the PSB is not a "person" within the meaning of the Civil Rights Statutes. Rosado v. Wyman, 414 F.2d 170, 178 (2d Cir. 1969), rev'd on other grounds, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); Sykes v. California, 497 F.2d 197, 201 (9th Cir. 1974); Surowitz v. New York City Employees' Retirement System, 376 F.Supp. 369, 371 (S.D.N.Y. 1974).³ Since the plaintiff's complaint fails to state a claim upon which relief can be granted against the PSB, its motion to dismiss must be granted.

B. Defendants Gilbert and Ruggles

The plaintiff claims that these defendants, while members of the PSB, engaged in a conspiracy that violated his due process and equal protection rights in denying him a hearing prior to the termination of his electric service. The plaintiff requests declaratory relief and money damages against the defendants in both their official and individual capacities under 42 U.S.C. §§ 1983 and 1985(2) (1970).⁴

A claim for damages asserted against a state officer in his official capacity, is, in effect, an action against the State, which is barred by the Eleventh Amendment. Edelman, supra at 662-663, 94 S.Ct. 1347. A state may waive its sovereign immunity; Vermont has waived state immunity within the limits of the insurance coverage of its employees.⁵ However, this statutory waiver does not extend to suits in federal court. Miller v. Vermont, 201 F.Supp. 930 (D.Vt. 1962); Lewis v. Vermont, 289 F.Supp. 246 (D.Vt.1968). Therefore, the complaint fails to state a cause of action upon which relief in the form of money damages can be granted against defendants Gilbert and Ruggles in their official capacities as commissioners of the PSB.

Actions for declaratory relief against a state officer in his official capacity are not to be construed as suits against the state barred by the Eleventh Amendment. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Williams v. Eaton, 443 F.2d 422, 428 (10th Cir. 1971).⁶ The plaintiff's amended complaint alleges sufficient facts to meet the requisites of a § 1983 action to the extent that the plaintiff seeks declaratory relief against defendants Gilbert and Ruggles in both their official and individual capacities.⁷ Consequently, their motions to dismiss in this respect are denied.

The plaintiff's § 1985(2) complaint is fatally deficient on its face because it fails to allege that the defendants' violation of his constitutional rights was the product of any class-based discrimination. Johnston v. N.B. C., 356 F.Supp. 904, 909 (E.D.N.Y. 1973).⁸

In construing § 1985(3), the Supreme Court held:

The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action. Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971) (footnote omitted).

The same construction must be given the same language in § 1985(2). The § 1985(2) claim against defendants Gilbert and Ruggles is dismissed.

There remains to be considered only the § 1983 complaint for money damages against these two defendants in their individual capacities. The defendants contend that judicial immunity bars the granting of any such relief.

The members of the PSB often perform judicial functions. They are:

Clothed with judicial power to entertain proceedings and determine the facts upon which the existing laws shall operate in a controversy between consumers and the public service corporation . . .. In the exercise of this judicial function the public service board has the authority and the duty to investigate any claimed unlawful act adversely affecting a consumer served by a utility subject to its supervision. North v. City of Burlington Electric Light Department, 125 Vt. 240, 214 A.2d 82 (1965).⁹

Since the plaintiff's claim for money damages is based on the failure of the commissioners to grant him a hearing, he seeks to impose liability on Gilbert and Ruggles for discretionary inaction on their part. It is clear that such discretionary inaction on the part of PSB commissioners is protected under the doctrine of quasi-judicial immunity. McCray v. Maryland, 456 F.2d 1 (4th Cir. 1972); Gilbert v. Godnick, No. 75-55 (D.Vt. May 22, 1975); see also, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) (judicial immunity); Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (legislative immunity).

The answers to interrogatories filed by defendants VEC and its manager, Walter Cook, state that VEC:

Never disconnects a disputed bill until such time as the dispute is resolved . . . . The Public Service Board ordered Vermont Electric Cooperative, Inc., to follow its Tariff and to disconnect the electrical service of the Plaintiff . . . .

The plaintiff contends that this action, if taken by defendants Gilbert and Ruggles, was beyond the scope of their authority and thus cannot be protected by the doctrine of quasi-judicial immunity. However, a distinction must be made under Civil Rights Act cases between actions taken in clear absence of authority as distinguished from those done in excess of jurisdiction.¹⁰ Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351-352, 20 L.Ed. 646 (1871); Bauers v. Heisel, 361 F.2d 581, 590-591 (3rd Cir. 1966), cert. denied, 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed.2d 457 (1967). Since defendants Gilbert and Ruggles have jurisdiction in all matters respecting "The manner of operating and conducting any business subject to supervision under this chapter," 30 V.S.A. § 209(3) (1972), their alleged directive to the utility VEC to terminate the plaintiff's electric service cannot be held to have been taken in clear absence of authority. Bradley, supra. Thus, the defendants Gilbert and Ruggles are protected by quasi-judicial immunity. Accordingly, that aspect of the plaintiff's § 1983 complaint which seeks to recover money damages against them as individuals is dismissed.

C. Defendant Cheney

The plaintiff seeks declaratory relief and money damages against the defendant Cheney, individually and in his capacity as Attorney General for the State of Vermont, under 42 U.S.C. § 1986 (1970).¹¹ The plaintiff's claim is based on the alleged failure of defendant Cheney to investigate the plaintiff's charge that he was being deprived by the PSB and VEC of his constitutional right to a hearing.

In order for an action under § 1986 to lie, the plaintiff must sufficiently establish a violation of § 1985. Turner v. Baxley, 354 F.Supp. 963, 973 (D.Vt.1972); Johnston, supra at 909-910. Section 1986 refers specifically to wrongs "conspired to be done, and mentioned in section 1985." As previously discussed, the plaintiff's § 1985(2) claim is deficient due to the failure to allege the essential element of class-based discrimination; therefore, the § 1986 claim against the defendant Cheney must likewise be dismissed.

II — Motion for Judgment on the Pleadings

The plaintiff's...