Bolden v. City of Topeka
| Decision Date | 25 May 2004 |
| Docket Number | No. CIV.A. 02-2635-KHV.,CIV.A. 02-2635-KHV. |
| Citation | 318 F.Supp.2d 1076 |
| Parties | James L. BOLDEN, Plaintiff, v. The CITY OF TOPEKA, Defendant. |
| Court | U.S. District Court — District of Kansas |
Bret D. Landrith, Topeka, KS, Ira Dennis Hawver, Ozawkie, KS, for Plaintiff.
Sherri L. Price, City of Topeka, Kansas — Legal Department, Topeka, KS, for Defendant.
James L. Bolden brings suit against the City of Topeka, alleging that it violated 42 U.S.C. §§ 1981 and 1983. This matter comes before the Court on Defendant's Motion For Summary Judgment (Doc. # 78) filed February 27, 2004. For reasons stated below, the Court sustains defendant's motion in part.
Plaintiff does not controvert any of defendant's facts. The following facts are therefore undisputed or deemed admitted.1
On July 11, 2001, plaintiff's company, JB Carpet & Upholstery Care, entered into a contract with the City of Topeka (the "City") to provide janitorial services for city offices at 515 S. Kansas Avenue. The contract provided that it would "remain in effect through July 2, 2002 or until canceled by either party with thirty (30) days written notice." On September 5, 2002, the parties entered into an addendum to the contract which extended the agreement through September 30, 2002 and provided that plaintiff's compensation would be adjusted based on the producer price index.
On November 21, 2002, the City notified plaintiff that it would retain his services at 515 S. Kansas Avenue only until December 31, 2002, effectively terminating the contract on that date.
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.
"[W]e must view the record in a light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.
Plaintiff claims that the City violated 42 U.S.C. §§ 1981 and 1983 when it did not renew his janitorial contract. Specifically, plaintiff claims that the City (1) discriminated against him on the basis of race in violation of Section 1981 when it canceled his janitorial contract; and (2) deprived him of his First Amendment right to free speech by retaliating against him, in violation of Section 1983. Pretrial Order (Doc. # 77) filed February 17, 2004 at 13-15. With regard to the latter claim, plaintiff contends that he spoke on a matter of public concern and that the City considered his expression as a factor in deciding to discontinue his janitorial contract. Pretrial Order (Doc. # 77) at 15. The City seeks summary judgment on plaintiff's claims, arguing that (1) Section 1981 provides no remedy against the City; and (2) the City has no custom or policy of depriving contractors of First Amendment rights of free speech by retaliation. Memorandum In Support Of Defendant's Motion For Summary Judgment (Doc. # 79) filed February 27, 2004.
Although plaintiff timely responded to the City's motion for summary judgment, he has not complied with D. Kan. Rule 56.1(b), which requires that (1) a memorandum in opposition contain a concise statement of material facts as to which the nonmovant contends a genuine issue exists, (2) each fact in dispute be numbered by paragraph and refer with particularity to the record, and (3) when the nonmovant relies on facts not in movant's memorandum, each additional fact be listed in a separately numbered paragraph, and supported by record references. Further, plaintiff's response contains scandalous accusations which are irrelevant and not supported by record evidence.2 Under D. Kan. Rule 56.1(d),
[a]ll facts on which a motion or opposition is based shall be presented by affidavit, declaration under penalty of perjury, and/or relevant portions of pleadings, depositions, answers to interrogatories and responses to requests for admissions. Affidavits or declarations shall be made on personal knowledge and by a person competent to testify to the facts stated which shall be admissible in evidence. Where facts referred to in an affidavit or declaration are contained in another document, such as a deposition, interrogatory answer, or admission, a copy of the relevant excerpt from the document shall be attached.
The Court therefore will not consider plaintiff's response or its attachments.
The moving party nonetheless bears the initial burden of demonstrating that no genuine issue of material fact exists and that it is entitled to summary judgment as a matter of law. See Celotex, 477 U.S. 317, 106 S.Ct. 2548. The burden shifts to the nonmoving party only if the summary judgment motion is properly supported. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160-61, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (cited in Reed v. Bennett, 312 F.3d 1190, 1194 (10th Cir.2002)). The Court must "first examin[e] the moving party's submission to determine if it has met its initial burden of demonstrating that no material issues of fact remain for trial and [that] the moving party is entitled to judgment as a matter of law." Reed, 312 F.3d at 1194 (citations omitted).
Plaintiff contends that the City discriminated against him on the basis of race in violation Section 1981 when it canceled his janitorial contract. In pertinent part, Section 1981 provides that "[a]ll persons ... shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens." 42 U.S.C. § 1981(a). The City seeks summary judgment, arguing that Section 1983 provides the exclusive remedy for plaintiff's claims. Memorandum In Support Of Defendant's Motion For Summary Judgment (Doc. # 79) filed February 27, 2004 at 6 (citing Burns v. Bd. of County Comm'rs, 197 F.Supp.2d 1278, 1296 (D.Kan.2002)). The Court agrees.
In Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989), the Supreme Court ruled that "the express `action at law' provided by § 1983 for the `deprivation of any rights, privileges, or immunities secured by the Constitution and laws,' provides the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against a state actor." In the Civil Rights Act of 1991, however, Congress amended Section 1981 by adding subsection (c), which expressly provides that "[t]he rights protected against impairment by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law." 42 U.S.C. § 1981(c). This language, which mirrors language in Section 1983, has led many courts to conclude that since Congress borrowed the language from Section 1983, Congress "presumably intended to borrow also the rules of municipal liability under § 1983," and find that the Civil Rights Act of 1991, 42 U.S.C. § 1981, overruled Jett. Gallardo v. Bd. of County Comm'rs, 857 F.Supp. 783, 787 (D.Kan.1994), abrogated by Burns v. Bd. of Comm'rs of County of Jackson, Kan., 197 F.Supp.2d 1278, 1296 (D.Kan.2002); see also Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1214 (9th Cir.1996) (); Robinson v. Town of Colonie, 878 F.Supp. 387, 405 n. 13 (N.D.N.Y.1995) (); La Compania Ocho, Inc. v. U.S. Forest Serv., 874 F.Supp. 1242, 1250 (D.N.M.1995) (same); Arnett v. Davis County Sch. Dist., No. 92-C-988W, 1993 WL 434053 at *5 n. 8 (D.Utah Apr.5, 1993) (same); Ford v. City of Rockford, No. 88-C20323, 1992 WL 309603 (N.D.Ill. Oct.15, 1992) (same).
Other courts in this district have held that in adding subsection (c), Congress never intended to overrule Jett. Stewart v. Bd. of Comm'rs for...
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