Keniston v. Roberts

• Decision Date: 05 October 1983
• Docket Number: No. 82-5931,82-5931
• Citation: 717 F.2d 1295
• Parties: Donald W. KENISTON, Plaintiff-Appellant, v. Richard L. ROBERTS, Bendt A. Pedersen, Vince Hecox, the County of San Bernardino, and Southern California Edison Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1295

717 F.2d 1295

Donald W. KENISTON, Plaintiff-Appellant, v. Richard L. ROBERTS, Bendt A. Pedersen, Vince Hecox, the County of San Bernardino, and Southern California Edison Company, Defendants-Appellees.

No. 82-5931.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 7, 1983.

Decided Oct. 5, 1983.

Edison P. McDaniel, San Bernardino, Cal., for plaintiff-appellant.

Joseph Arias, MacLachlan, Burford & Arias, San Bernardino, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before FERGUSON and BOOCHEVER, Circuit Judges, and COYLE, ^* District Judge.

FERGUSON, Circuit Judge:

Keniston filed claims under 42 U.S.C. Secs. 1983 and 1985 alleging that Southern California Edison Company ("Edison"), under the auspices of the County of San Bernardino ("County"), had removed an electrical fuse and meter from and cut off electrical power to his residence without notice. The defendants moved to dismiss under Fed.R.Civ.P. 12(b)(1) and (6) for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. The district court found that the complaint was "insufficient to provide [federal] jurisdiction," and dismissed the action without leave to amend the complaint.

On appeal Keniston contends that, even if his original complaint failed to state a claim for relief, it did contain sufficient allegations to invoke federal jurisdiction. He argues further that because he could, by amendment, have stated a claim sufficient to withstand a 12(b)(6) motion to dismiss, it was an abuse of discretion for the court to refuse him permission to amend the complaint. We agree.

FACTS:

Keniston's complaint alleged the following: In December 1981, while he was temporarily away from home, Edison disconnected utility hook-ups, including heat and electricity, from his residence. Edison took the action at the direction of various officials of the County, specifically a director of the County Department of Environmental Health Services and a supervisor and an inspector of the Housing and Property Improvement Section of that department. These officials purported to act pursuant to Sec. 1672 of the Mobilehome Parks Act of Cal. Admn. Code tit. 25, R. (1979),, which authorizes the department to order a utility company "supplying gas to a mobilehome park to disconnect any gas piping or equipment found to be defective and in such condition as to endanger life or property." Keniston's residence is not a mobilehome park, nor is it located within one. However, he alleges that it is a "custom or usage" of Edison, the County officials, and the County itself to use this statute as an excuse to disconnect utilities from residences which are not subject to the Mobilehome Parks Act. Here he alleges that these actions violated his rights under the fourteenth amendment, discriminating against him by denying him both "due process and the equal protection of the law." He seeks compensation for $3,000 in property damage, which includes the loss of food stored in a freezer, the death of pet fish, and damage to various appliances. The complaint also seeks additional amounts for the denial of his federal rights.

Defendants moved to dismiss the complaint on two grounds: lack of subject matter jurisdiction and failure to state a claim. The district court, ruling only on the first ground, dismissed with prejudice.

DISCUSSION:

I. Federal Jurisdiction.

42 U.S.C. Sec. 1983 provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person 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 in an action at law, suit in equity, or other proper proceeding for redress.

Its jurisdictional counterpart is similar:

(a) The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

....

(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.

28 U.S.C. Sec. 1343.

Because of the similarity, the issue of whether a complaint states a claim upon which relief can be granted under section 1983 and the issue whether the court has jurisdiction under section 1343 are somewhat difficult to separate. The distinction, however, was clarified in Jackson Transit Authority v. Local Division 1285, 457 U.S. 15, 102 S.Ct. 2202, 72 L.Ed.2d 639 (1982). In that case the Court held that a union had not stated a claim for federal relief but that, "strictly speaking, the District Court had jurisdiction under 28 U.S.C. Sec. 1331 to hear the union's suit." 457 U.S. at 21 n. 6, 102 S.Ct. at 2206 n. 6. Although a brief concurrence merges the questions of adequate federal claim and federal jurisdiction, 457 U.S. at 29-30, 102 S.Ct. at 2210-2211 (Powell, J., concurring), the majority opinion clearly separates these issues. In order to invoke federal jurisdiction "for the purposes of determining whether [the plaintiff] stated a cause of action on which relief could be granted," id. at 21 n. 6, 102 S.Ct. at 2206 n. 6, the complaint must fulfill only two criteria: (1) it must "claim a right to recover under the Constitution and laws of the United States," and (2) the claim must not be "wholly insubstantial and frivolous." (Id., quoting Bell v. Hood, 327 U.S. 678, 681, 682-83, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946)).

This circuit applied the distinction set forth in Jackson to an action under section 1983 in Miofsky v. Superior Court, 703 F.2d 332, 335 n. 4 (9th Cir.1983):

We do not decide at this stage of the litigation whether Miofsky's complaint states a cause of action upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). In deciding that the district court has subject matter jurisdiction, we determine only that Miofsky's complaint states a colorable claim for relief under Sec. 1983 that is not "wholly insubstantial and frivolous."

(Citation omitted). ¹

Thus the first question to be addressed is whether Keniston's complaint "states a colorable claim for relief under Sec. 1983 that is not 'wholly insubstantial and frivolous.' " We conclude that it does. Keniston has specifically alleged that the defendants acted under color of state law, and that the actions deprived him of rights secured by the fourteenth amendment. Claims of deprivation of property without due process and denial of equal protection are raised by the complaint. We turn first to the due process claim.

The destruction of Keniston's stored food, fish and appliances--clearly alleged in the original complaint--amounts to a deprivation of property. In Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), prison officials had lost in their mail-sorting processes a package of hobby materials ordered by Parratt. The Supreme Court stated that "[u]nquestionably, respondent's claim satisfies three prerequisites of a valid due process claim: the petitioners acted under color of state law; the hobby kit falls within the definition of property; and the alleged loss, even though negligently caused, amounted to a deprivation." 451 U.S. at 536-37, 101 S.Ct. at 1913 (footnote omitted). If a lost kit amounts to a deprivation of property, destroyed food, pets, and appliances also qualify.

In addition, the California Public Utilities Code grants users of public utilities certain notice and hearing rights with respect to terminations for nonpayment.

Sec. 779. Termination of residential service for non-payment of delinquent accounts; notice; time; complaint or investigation of dispute; amortization of delinquency:

a. No electrical, gas, heat, or water corporation may terminate its service to a residential dwelling on account of non-payment of a delinquent account unless the corporation first gives notice of such delinquency and impending termination, at least 7 calendar days prior to the proposed termination by first class mail addressed to the customer to whom the service is billed.

b. No such corporation shall effect termination of service to a residential dwelling for non-payment during the pendency of an investigation by the corporation of a customer dispute or complaint.

Sec. 780. Termination of services on weekends, legal holidays, or time when business office not open:

No electrical, gas, heat, or water corporation shall, by reason of delinquency in payment for any electric, gas, heat, or water services, cause cessation of any such services on any Saturday, Sunday, legal holiday, or at any time during which the business affairs of the corporation are not open to the public.

Cal.Pub.Util.Code Secs. 779, 780. In the absence of any countervailing provisions, these provisions might suffice to provide a state-created property interest in continued electrical power under the due process analysis mandated by Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), and Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S.Ct. 2701, 2708-09, 33 L.Ed.2d 548 (1972). ² We do not decide at this stage of the litigation whether the provisions do in fact create such a property interest. We determine only that possibility of such a property interest states a colorable claim for relief under section 1983 that is not "wholly insubstantial and frivolous." Keniston did not cite the California Utility Code provisions in his original complaint. He did, however, allege that the termination was not in accordance with law. It is not necessary that a complaint drawn under ...