Dupree v. City of Chattanooga, Tennessee, Civ. A. No. 6657.

• Decision Date: 13 July 1973
• Docket Number: Civ. A. No. 6657.
• Citation: 362 F. Supp. 1136
• Parties: Izola DUPREE et al. v. CITY OF CHATTANOOGA, TENNESSEE and its Commissioners, et al.
• Court: U.S. District Court — Eastern District of Tennessee

362 F. Supp. 1136

Izola DUPREE et al. v. CITY OF CHATTANOOGA, TENNESSEE and its Commissioners, et al.

Civ. A. No. 6657.

United States District Court, E. D. Tennessee, S. D.

July 13, 1973.

COPYRIGHT MATERIAL OMITTED

Julian W. Blackshear, Jr., Avon N. Williams, Jr., Russell C. B. Ennix, Nashville, Tenn., Jack Greenberg, James M. Nabrit, III, Michael Davidson, New York City, for plaintiffs.

Eugene N. Collins, City Atty., Gary D. Lander, Randall L. Nelson, Chattanooga, Tenn., for City of Chattanooga and Commissioners.

W. A. Wilkerson, Chattanooga, Tenn., for Chattanooga Housing Authority & Billy Cooper.

MEMORANDUM ON MOTIONS TO DISMISS

FRANK W. WILSON, Chief Judge.

This is an action for declaratory and injunctive relief. The case is presently before the Court upon motions of each of the various parties defendant to dismiss and/or to strike certain portions of the complaint. The complaint may be summarized as follows. The plaintiffs are black persons who are residents of Chattanooga, Tennessee, and who reside within a Model Neighborhood Area (MNA), an area duly designated for federally funded urban improvements under the Demonstration Cities and Metropolitan Development Act of 1966 (42 U.S.C. § 3301 et seq.), legislation administered by the United States Department of Housing and Urban Development (HUD). The plaintiffs contend that black residential areas within the City of Chattanooga, Tennessee are discriminated against in the provision of all types of municipal services. They contend that an example of such discrimination is a recent municipal ordinance which modifies the federally financed Model Cities Program (MCP) within the City in a manner adverse to the interests of the residents of the MNA and contrary to federal statutory, as well as constitutional, requirements. After averring historical and continuing discrimination in the providing of municipal services to black neighborhoods, the plaintiffs aver that a Model Cities Program was established in 1969 within a predominantly black area of the City for the purpose of improving the area and remedying the disparity of municipal services to that area. The plaintiffs contend, however, that upon November 21, 1972, the City of Chattanooga enacted an ordinance that effected a consolidation of the MCP with two other federally funded urban programs. The plaintiffs contend that this ordinance, by combining the MCP with other city-wide programs, dilutes the MCP and reduces its effectiveness in meeting the municipal services disparity in the Model Cities Area, thereby perpetuating this disparity. Named as parties defendant in the case are the City of Chattanooga, various municipal officials and administrators of the City, as well as various officials of the United States Department of Housing and Urban Development. Also named a defendant is the Chattanooga Housing Authority.

An extensive hearing was held with regard to plaintiffs' motion for a preliminary injunction restraining the implementation of the aforesaid municipal ordinance and mandating that the MCP be returned to its status prior to the passage of the ordinance. This preliminary injunction was denied. See Memorandum and Order dated February 1, 1973 (Court File Nos. 14 and 15).

The City of Chattanooga has moved to "dismiss any and all portions of the complaint against the City based upon 42 U.S.C. § 1983 because a municipality is not a `person' within the terms of said statute." This motion is in accord with the controlling case law and will be sustained. See City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Deane Hill Country Club, Inc. v. City of Knoxville, 379 F.2d 321 (6th Cir. 1967) cert. denied 389 U.S. 975, 88 S.Ct. 476, 19 L.Ed.2d 467.

It should be noted, however, that jurisdiction is also asserted over the City by virtue of 28 U.S.C. § 1331, which provides:

"The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States."

The plaintiffs have alleged that they have been denied equal protection of the laws by virtue of a disparity in municipal services provided by the City of Chattanooga to the white and black residents of the City, contending that the City has provided better streets, street lights, surface water drainage sewers, water mains and fire hydrants and other municipal facilities to the white citizens than to the black citizens. The plaintiffs have alleged the requisite jurisdictional amount in controversy and accordingly contend that this Court would have jurisdiction under 28 U.S.C. § 1331. It does appear that while jurisdiction would not lie as to the City under the Federal Civil Rights Statute, federal question jurisdiction is properly averred. See City of Kenosha, Wisconsin v. Bruno, supra; cf. Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L. Ed.2d 596 (1973); Hawkins v. Town of Shaw, Mississippi, 437 F.2d 1286 (5th Cir. 1971) affirmed en banc 461 F.2d 1171. The City will accordingly remain a party defendant in the lawsuit under the allegations of federal question jurisdiction.

The City of Chattanooga seeks to strike and/or dismiss so much of the allegations in the complaint as aver matters that occurred more than one year prior to the filing of the lawsuit. In support of this motion the City contends that such claims are barred by the applicable statute of limitations. Upon the same ground the City further seeks to dismiss all counts alleging deprivation of rights under the Fifth and Fourteenth Amendments, contending there are no factual allegations in the complaint which assert any discrimination by reason of race that may have occurred within a one year period immediately preceding the filing of the lawsuit. Without passing upon the applicability of the limitation statute relied upon by the City, it is apparent that an allegation of present discrimination by virtue of race is made.

Accordingly, to the extent that the City seeks to rely upon the statute of limitations as a basis for dismissing the complaint, the motion to dismiss will be denied.

The defendants, the Mayor and City Commissioners, have moved to dismiss the action against them in their official capacities because there are no allegations of bad faith or intentional or purposeful discrimination made against them, and they are therefore immune. The members of a governing body of a city and other public officers, however, are "not clothed with complete immunity but enjoy instead a qualified privilege." Nelson v. Knox, 256 F.2d 312, 315 (6th Cir. 1958); Peek v. Mitchell, 419 F.2d 575 (6th Cir. 1970); Cobb v. City of Malden, 202 F.2d 701 (1st Cir. 1953).

As stated by then Circuit Judge Potter Stewart in writing the opinion for the Court in Nelson v. Knox, supra:

"It is our opinion that the defendants in this case were not clothed with complete immunity but enjoyed instead a qualified privilege. As to the nature and extent of the privilege, we are content to accept the well considered views of Chief Judge Magruder . . . as expressed in Cobb v. City of Malden, supra.

"Drawing upon general principles of common law, Judge Magruder wrote:

"`Hence I take it as a roughly accurate generalization that members of a city council, and other public officers not in the exceptional category of officers having complete immunity, would have a qualified privilege, giving them a defense against civil liability, for harms caused by acts done by them in good faith in performance of their official duty as they understood it. citing cases But on ordinary principles of the law of torts, I think that members of a city council would be liable in damages for pecuniary harm to a plaintiff intentionally inflicted by action, under color of official authority, which the defendants subjectively realized would result in depriving the plaintiff of a right or privilege secured by the Constitution of the United States. . . .'"

Where racial motivation is found to exist, the defenses of good faith action and qualified immunity are not available. Curry v. Gillette, 461 F.2d 1003 (6th Cir. 1972), cert. denied 409 U.S. 1042, 93 S.Ct. 529, 34 L.Ed.2d 492.

In considering a motion to dismiss, the Court must read the allegations with liberality and indulgence to the pleader. The complaint alleges that plaintiffs have been discriminated against because of their race by virtue of a disparity in municipal services. Accordingly, upon this record the Court cannot say...