Morrow v. South

• Decision Date: 18 May 1982
• Docket Number: No. C-3-81-197.,C-3-81-197.
• Citation: 540 F. Supp. 1104
• Parties: James David MORROW, et al., Plaintiffs, v. Mrs. SOUTH, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

540 F. Supp. 1104

James David MORROW, et al., Plaintiffs, v. Mrs. SOUTH, et al., Defendants.

No. C-3-81-197.

United States District Court, S. D. Ohio, W. D.

May 18, 1982.

COPYRIGHT MATERIAL OMITTED

Ashley C. Brown, Dayton, Ohio, for plaintiffs.

Gordon H. Savage, Janet K. Cooper, Dayton, Ohio, for defendant Dayton Power & Light.

James D. Dennis, Asst. City Atty., Dayton, Ohio, for defendant City of Dayton.

Kenneth Pohlman, Asst. County Prosecutor, Dayton, Ohio, for defendant Montgomery County.

Thomas V. Martin, Asst. Atty. Gen., Columbus, Ohio, for State of Ohio.

DECISION AND ENTRY ON PENDING MOTIONS; MOTION TO DISMISS BY DEFENDANT CITY OF DAYTON SUSTAINED IN PART AND OVERRULED IN PART; MOTION TO DISMISS BY DEFENDANT STATE OF OHIO SUSTAINED IN PART AND OVERRULED IN PART; MOTION BY CITY OF DAYTON TO DISMISS AMENDED COMPLAINT OVERRULED; MOTION BY PLAINTIFFS FOR JUDGMENT BY DEFAULT OVERRULED; MOTION BY DEFENDANT CITY OF DAYTON TO STRIKE PLAINTIFFS' MEMORANDUM OVERRULED; MOTIONS BY DEFENDANT CITY OF DAYTON TO STRIKE PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION OVERRULED; MOTION BY PLAINTIFFS TO STRIKE NOTICE OF ADDITIONAL AUTHORITY BY DEFENDANT CITY OF DAYTON OVERRULED; MOTION BY DEFENDANT DP&L AND INDIVIDUAL DEFENDANTS TO STRIKE PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION OVERRULED; MOTION BY DEFENDANT CITY OF DAYTON TO STRIKE PLAINTIFFS' AFFIDAVITS IN SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION OVERRULED; MOTION BY DEFENDANT CITY OF DAYTON TO CORRECT MEMORANDUM IS SUSTAINED; PLAINTIFFS' MOTION TO FILE SECOND AMENDED COMPLAINT SUSTAINED IN PART AND OVERRULED IN PART; CONFERENCE SET

RICE, District Judge.

This case involves alleged violations of the Due Process Clause of the Fourteenth Amendment, occasioned when the Defendant Dayton Power & Light Co. (DP&L) terminated utility service to a home owned by one of the Plaintiffs, James David Morrow. Twelve motions are currently pending before this Court, to wit:

1) The motion by the Defendant City of Dayton to dismiss Plaintiffs' Complaint (Doc. # 4);

2) The motion by Defendant State of Ohio to dismiss Plaintiffs' Complaint (Doc. # 7);

3) A further motion by the City of Dayton to dismiss Plaintiffs' amended complaint (Doc. # 12);

4) Plaintiffs' motion for judgment by default with respect to the State of Ohio (Doc. # 13);

5) The motion by the City of Dayton to strike a memorandum filed by the Plaintiffs (Doc. # 22);

6) Plaintiffs' motion to strike a "Notice of Additional Authority" filed by the City of Dayton (Doc. # 30);

7&8) The motions by the City of Dayton to strike Plaintiffs' motion for a preliminary injunction (Docs. # 29, # 43);

9) The motion by DP&L and the individual defendants to strike Plaintiffs' motion for a preliminary injunction (Doc. # 31);

10) The motion by the City of Dayton to strike Plaintiffs' affidavits in support of their motion for a preliminary injunction (Doc. # 42);

11) The motion by the Defendant City of Dayton to correct its memorandum (Doc. # 20);

12) The motion by Plaintiffs to file a second amended complaint (Doc. # 38).

A presentation of the factual background in this case will precede consideration of the pending motions.

I. FACTUAL BACKGROUND

The Plaintiffs herein, James David Morrow, his son, Darren Morrow, and Terry L. Schuler,¹ filed their original complaint in this Court on March 24, 1981. Said complaint contains a mixture of factual allegations and legal conclusions, and may be summarized as follows. DP&L, Plaintiffs allege, has "maintained a long standing and unconstitutional scheme of arbitrarily disconnecting" the utility services of customers, without a prior notice or hearing. Moreover, the City of Dayton and the State of Ohio "support" and "concur with" these "constitutional violations." Turning toward the facts, the Complaint alleges that on January 22, 1981, DP&L arbitrarily, and without notice or hearing, disconnected the gas and electric service to the residence of James and Darren Morrow. To reconnect service, DP&L allegedly coerced the Plaintiffs into paying a "totally fraudulent and fabricated bill" which was past due. On January 28, 1981, DP&L refused to reconnect service to the residence despite the application therefore, by the Plaintiff Schuler. DP&L, the State of Ohio, and the City of Dayton, were alleged to be engaged in a "scheme and conspiracy" to deprive the Plaintiffs of their "federal rights." The City and State are said to be "substantially involved" in the activities of DP&L, especially since they have "given DP&L a monopoly in the area." Plaintiffs prayed for compensatory and punitive damages, and for other such relief as the Court may deem just. DP&L, the City of Dayton, the State of Ohio, and Mrs. South, Mrs. Jones, Ms. Llewllyn, and Mr. Rodgers (all employees of DP&L) were named as Defendants. The complaint invoked the jurisdiction of this Court pursuant to 28 U.S.C. §§ 1331, 2201, 2202.

The amended complaint, filed on April 13, 1981, added Montgomery County as a Defendant, as well as Paula J. MacIlwaine, E. George Ferguson, and Charles F. Horn, members of the Board of Commissioners of Montgomery County, as Defendants. Said Defendants allegedly had "knowledge" of the acts of other Defendants outlined in the original complaint, were said to have "maintained a policy, custom and scheme" of violating plaintiffs' "constitutional rights," and were alleged to be engaged in a "scheme and conspiracy" designed to deprive Plaintiffs of said rights.

Plaintiff James Morrow is representing himself and, apparently, the other Plaintiffs on a pro se basis in this action.² Mindful that the allegations of a pro se complaint should be examined under a less stringent standard than more formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972) (per curiam), the complaint (as amended) can be construed as follows. Plaintiffs apparently seek to pursue an action directly under the Fourteenth Amendment, see, Jones v. City of Memphis, 586 F.2d 622 (6th Cir. 1978), cert. denied, 440 U.S. 914, 99 S.Ct. 1230, 59 L.Ed.2d 464 (1979), for violations of their rights to Due Process under that Amendment. The various Defendants are alleged to have worked together in a number of ways to deprive Plaintiffs of their rights, notably through a "conspiracy" (a possible reference to 42 U.S.C. § 1985(3)), and by "giving" DP&L a monopoly (a possible reference to the Sherman Antitrust Act, 15 U.S.C. § 2).³ So construing the Plaintiffs' complaint, as amended, this Court now turns toward consideration of the pending motions.

II. PENDING MOTIONS

At the outset, the Court notes that in light of the decision to sustain, at least in part, Plaintiffs' motion to file a second amended complaint (infra), the motions directed against the original and first amended complaints are, in effect, moot. Said motions are, nevertheless, ruled upon by this Court, to aid in determining the viability of the claims for relief set out in the second amended complaint.

1) The motion by the City of Dayton to Dismiss the Complaint is Sustained in Part and Overruled in Part

The City of Dayton, pursuant to Fed.R. Civ.P. 12(b), moves to dismiss the complaint for reasons that this Court lacks subject matter jurisdiction over the action, Rule 12(b)(1), and that the complaint fails to state a claim upon which relief can be granted, Rule 12(b)(6). In any motion to dismiss under Rule 12(b), this Court must accept as true all well-pleaded allegations of fact (though not of law) in the complaint. Amersbach v. City of Cleveland, 598 F.2d 1033, 1034-35 (6th Cir. 1979); Sexton v. Barry, 233 F.2d 220, 223 (6th Cir. 1956). So construing the complaint herein, this Court now considers the grounds advanced in support of the motion to dismiss. At least two of the grounds are not persuasive, but the other grounds are well taken and mandate sustaining the motion in part.

Defendant first argues that this Court lacks subject matter jurisdiction to hear this action, since the amount in controversy does not exceed $10,000, as required by 28 U.S.C. § 1331(a), and since, in any event, the complaint presents "no substantial federal question." Both grounds are incorrect. The parties fail to recognize that § 1331(a) was amended in 1980 so as to eliminate the $10,000 requirement. Pub.L. 96-486, § 2(a), 94 Stat. 2369, codified at 28 U.S.C. § 1331. The amendment was effective beginning on the day of enactment (December 1, 1980), and hence is applicable to the case herein. Secondly, Defendant correctly points out that "insubstantial and frivolous" claims cannot form a basis for federal jurisdiction. See, Amalgamated Transit Union v. Jackson Transit Authority, 650 F.2d 1379, 1381 (6th Cir. 1981); Studen v. Beebe, 588 F.2d 560, 568 (6th Cir. 1978). However, this Court cannot characterize the claims advanced in the complaint as "insubstantial or frivolous" on their face. Deprivations of due process rights premised on an allegedly improper termination of service by a utility have, in prior decisions, been interpreted so as to raise a federal question. See, e.g., Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978); Palmer v. Columbia Gas of Ohio, 479 F.2d 153 (6th Cir. 1973). Since this Court does not lack subject matter jurisdiction, the motion to dismiss cannot be sustained on that basis.

A holding that this Court has subject matter jurisdiction does not mean, of course, that the complaint cannot be dismissed under Rule 12(b)(6), for failure to state a claim upon which relief can be granted. Amalgamated Transit Union, supra, 650 F.2d at 1381; Park Hills Music Club, Inc. v. Board of Education, 512 F.Supp. 1040, 1043-44 n.2 (S.D.Ohio 1981). For the following reasons, Defendants' motion to dismiss, for failure to state a claim upon which relief can be granted, is sustained with respect to claims brought under § 1985(3) or the antitrust laws, but overruled with respect to the claim...