Gourdine v. Ellis

• Citation: 435 F. Supp. 882
• Decision Date: 18 August 1977
• Docket Number: Civ. A. No. 75-1188.
• Parties: Eva C. GOURDINE et al., Plaintiffs, v. R. Archie ELLIS et al., Defendants.
• Court: U.S. District Court — District of South Carolina

435 F. Supp. 882

Eva C. GOURDINE et al., Plaintiffs, v. R. Archie ELLIS et al., Defendants.

Civ. A. No. 75-1188.

United States District Court, D. South Carolina, Columbia Division.

August 18, 1977.

John Roy Harper, II, Columbia, S. C., for Annette R. Marbury, Mary C. Talley, Ronald Ritter, Alfrieda Alsbrooks, Joann B. Way, Barbara Lumpkin and Sara Deas.

Arthur C. McFarland, Charleston, S. C., Jack Greenberg, Michael Baller, Barry Goldstein, New York City, for remaining plaintiffs.

Daniel R. McLeod, Atty. Gen., Columbia, S. C., George Beighley, Staff Atty., Julian H. Gignilliat, Columbia, S. C., of counsel, R. Archie Ellis, State Commissioner, South Carolina Department of Social Services; the South Carolina State Board of Social Services; Mrs. T. K. McDonald, Chairman, Dr. Sam H. Smith, Dr. Agnes H. Wilson, Mrs. Lacy Thrower, Rush L. Bradshaw, Fred Scott and John C. Williams individually and in their official capacities as members of the South Carolina State Board of Social Services; the Richland County, South Carolina Board of Social Services; Collie L. Moore, Chairman, Mrs. Catherine W. Norris, Reverend W. H. Neal, Dr. James J. Pike and Robert E. Alexander, individually and in their official capacities as members of the Richland County South Carolina Board of Social Services; Benjamin M. Blocker, successor to Patricia J. Bouton, Director of Richland County, South Carolina, Department of Social Services;^* James B. Edwards, as Governor and Chairman, and Tom Mangum, Rembert C. Dennis, Grady Patterson and Earl Morris individually and in their official capacities; Jack S. Mullins, individually and as Director of the South Carolina State Personnel Division; Fred B. Haskell, individually and as Director; Daisy Johnson; J. E. Bird, J. K. Morris, A. D. Edwards, Zach Weston, T. E. McCutcheon, J. T. Hungate, G. H. Fischer and W. H. Wesson individually and in their official capacities as members of the South Carolina Merit System Council, for defendants.

C. Tolbert Goolsby, Jr., Deputy Atty. Gen., Stephen T. Savitz, Asst. Atty. Gen., Richard D. Bybee, Staff Atty., Columbia, S. C., for The S. C. State Budget & Control Board, its Chairman; James B. Edwards and Tom Mangum, Rembert C. Dennis, Grady Patterson and Earl Morris, indiv. and in official capacities THE S. C. STATE PERSONNEL DIVISION, Jack S. Mullins indiv. and as Director of the S. C. State Personnel Div.; Fred B. Haskell indiv. and as Director of the Single Cooperative Interagency Merit System Council; Daisy Johnson, J. E. Bird, J. K. Morris, A. D. Edwards, Zach Weston, T. E. McCutchen, J. T. Hungate, G. H. Fischer and W. H. Wesson, indiv. and in their official capacities as members of S. C. Merit System Council.

ORDER ON DEFENDANTS' MOTION TO DISMISS

HEMPHILL, District Judge.

This is a civil rights action alleging violations by defendants of 42 U.S.C. §§ 1981 and 1983. This court, by order of April 26, 1977, denied plaintiffs' motion to amend Complaint to include alleged violations under Title VII of the Civil Rights Act for a lack of subject matter jurisdiction. At that time, the court allowed an amendment to add certain additional parties as defendants without prejudice to those parties' rights to make appropriate motions to dismiss. The case is now before the court upon motions¹ of the South Carolina State Budget and Control Board, James B. Edwards as Governor and Chairman and Tom Mangum, Rembert C. Dennis, Grady Patterson, and Earle Morris, individually and in their official capacities as members of the Budget and Control Board; the South Carolina State Personnel Division; Jack S. Mullins, individually and as Director of the South Carolina State Personnel Division; Fred B. Haskell, individually and as Director of the South Carolina Single Cooperative Interagency Merit System Council; and Daisy Johnson, J. E. Bird, J. K. Morris, A. D. Edwards, Zach Weston, T. E. McCutchen, J. T. Hungate, G. H. Fischer and W. H. Wesson, individually and in their official capacities as members of the South Carolina Merit System Council, to dismiss them as to §§ 1981 and 1983 claims in the Complaint on various grounds.

Defendants have also moved to strike the allegations contained in paragraphs 9, 10 and 11 of plaintiffs' amended Complaint which alleged that the State Budget and Control Board, the South Carolina State Personnel Division, and the Merit System Council are agencies of the State of South Carolina within the meaning of 42 U.S.C. § 2000e(a)², pursuant to Rule 12(f)³ of the Federal Rules of Civil Procedure claiming such allegations are immaterial. This court's order of April 26, 1977 denied plaintiffs' motion to amend their Complaint to add allegations under Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e(a) defines the term "person" as it pertains to that Act. Therefore, any such allegations regarding Title VII are now immaterial to this Act as the proposed amendment has been denied and they should be properly stricken. Accordingly, the allegations contained in paragraphs 9, 10 and 11 referring to 42 U.S.C. § 2000e(a) are stricken.

The South Carolina State Budget and Control Board, the South Carolina State Personnel Division, the South Carolina Single Cooperative Interagency Merit System, and the South Carolina Merit System Council should be dismissed from this case in that they are not "persons" which can be charged with liability under the Civil Rights Act. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Arunga v. Weldon, 469 F.2d 675 (9th Cir. 1972); Percy v. Brennan, 384 F.Supp. 800 (S.D.N.Y.1974). The Complaint against these agencies is herewith dismissed.

The South Carolina State Budget and Control Board, the South Carolina State Personnel Division, the South Carolina Single Cooperative Interagency Merit System, and the South Carolina Merit System Council and all of the individual defendants in their official capacities move to dismiss this case on the grounds that each defendant, while acting in their official capacities, are in the position of an alter ego of the State of South Carolina. For this reason, it is their position that the Eleventh Amendment bars any suit for recovery of monetary relief against them. The text of the Eleventh Amendment appears clear:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, if commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

Although this Amendment has been interpreted to allow suits in federal courts against states seeking only prospective equitable relief, Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Supreme Court has consistently held that a state is immune from actions for money damages absent an enabling statute, which is not present here. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). This ruling also applies to state agencies and officials while operating in their official capacities. As the Court said in Edelman:

It is also well established that even though a State is not named a party to the action, the suit may nonetheless be barred by the Eleventh Amendment. In Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945), the Court said:

`When the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.' Id., at 464, 65 S.Ct. at 350, 89 L.Ed. 389.

Thus the rule has evolved that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment. 415 U.S. 663, 94 S.Ct. 1355-1356, 39 L.Ed.2d 672 (citations omitted.)

The plaintiffs cite the recent Supreme Court case of Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), with the proposition that the prohibitions found in the Eleventh Amendment are generally inapplicable to suits brought under the Civil Rights Act. In Fitzpatrick, a state challenged the validity, under the Eleventh Amendment, of those 1972 amendments to the Civil Rights Act of 1964, which specifically authorize private suits against the state for back pay by state employees for violations of Title VII of that Act. The state there argued that such actions for back pay were actions for monetary relief brought against the state in federal court and were therefore directly within the prohibition of the Eleventh Amendment. The court found that the Eleventh Amendment did not bar suits against states which were properly provided for under the Fourteenth Amendment because the Fourteenth Amendment is specifically directed at the conduct of individual states, stating:

We think that the Eleventh Amendment and the principle of states' sovereignty which it embodies, . . . are necessarily limited by the enforcement provisions of Section 5 of the Fourteenth Amendment. In that section, Congress is expressly granted authority to enforce `by appropriate legislation' the substantive provisions of the Fourteenth Amendment, which themselves embodied significant limitations on state authority. When Congress acts pursuant to Section 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional amendment whose other sections by their own terms

...