Green v. Ten Eyck, s. 77-1476 and 77-1477

• Decision Date: 27 April 1978
• Docket Number: Nos. 77-1476 and 77-1477,s. 77-1476 and 77-1477
• Citation: 572 F.2d 1233
• Parties: Gloria GREEN, Joe Green and Catherine Nance, Appellants, v. William C. TEN EYCK, Individually and as Building Commissioner, City of Greendale, and James H. Foley, Jr., Individually and as Mayor of the City of Greendale, and City of Greendale, Missouri, Appellees. Gloria GREEN, Joe Green and Catherine Nance, Appellees, v. William C. TEN EYCK, Individually and as Building Commissioner, City of Greendale, Missouri, James H. Foley, Jr., Individually and as Mayor of City of Greendale, Missouri, and City of Greendale, Missouri, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1233

572 F.2d 1233

Gloria GREEN, Joe Green and Catherine Nance, Appellants, v. William C. TEN EYCK, Individually and as Building

Commissioner, City of Greendale, and James H. Foley, Jr.,

Individually and as Mayor of the City of Greendale, and City

of Greendale, Missouri, Appellees.

Gloria GREEN, Joe Green and Catherine Nance, Appellees, v. William C. TEN EYCK, Individually and as Building

Commissioner, City of Greendale, Missouri, James H. Foley,

Jr., Individually and as Mayor of City of Greendale,

Missouri, and City of Greendale, Missouri, Appellants.

Nos. 77-1476 and 77-1477.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 18, 1977.

Decided March 7, 1978.

Rehearing and Rehearing En Banc Denied April 27, 1978.

Francis H. Kennedy, Jr. (argued), Chopin & Kennedy, St. Louis, Mo., on brief, for appellant Green.

Roy W. Bergmann, St. Louis, Mo. and Fred Boeckmann, Clayton, Mo., argued and on brief, for appellees.

Before GIBSON, Chief Judge, HEANEY, Circuit Judge, and HUNTER, District Judge. ^*

HEANEY, Circuit Judge.

These consolidated appeals arise out of an action filed by Gloria N. Green, Joe Green and Catherine Nance against the City of Greendale, Missouri, its building commissioner, William C. Ten Eyck, and its mayor, James H. Foley, Jr. The plaintiffs alleged that they were denied an occupancy permit on the basis of their race in violation of their right to equal treatment with respect to housing guaranteed by the Constitutions of the United States and the State of Missouri, Title VIII (Fair Housing) of the Civil Rights Act of 1968, ¹ 42 U.S.C. § 3601 et seq., and the Civil Rights Acts of 1866, 1870 and 1871, 42 U.S.C. §§ 1981, 1982 and 1983. ² The plaintiffs appeal from the trial court's dismissal of their action for failure to comply with the appropriate statutes of limitations. They also request an award of attorney's fees on appeal. The defendants appeal from the trial court's denial of their motion for attorney's fees as the prevailing party. We affirm in part and reverse in part.

Greendale is a municipal corporation located in St. Louis County, Missouri. About ten percent of Greendale's population of 972 is black. Before any individual can occupy a dwelling unit in Greendale, he is required by Ordinance No. 182 to obtain an occupancy permit from the building commissioner. Violations of the ordinance are punishable by a fine of up to $300 each day the violation continues after notice of the violation has been given.

The Greens entered into a contract to purchase a home in Greendale. On May 7, 1976, Gloria Green submitted an application for a residential occupancy permit in compliance with Ordinance No. 182. The application was filed on behalf of seven Greens (husband, wife and five children) and two Nances (the mother and brother of Gloria Green). The Greens and the Nances are black. On May 9, 1976, the application was rejected by the building commissioner, William C. Ten Eyck. On the same day, the mayor of Greendale, James H. Foley, Jr., advised the Greens' real estate agent of the decision of the building commissioner and of the Greens' right to appeal his decision to the Board of Adjustment of Greendale under Ordinance No. 205. Ordinance No. 205 provides for the establishment of a five-member Board of Adjustment; all of the members are appointed by the mayor. Appeals of any decision of the building commissioner may be taken to the Board of Adjustment if they are filed within thirty days of the challenged decision and upon payment of a $35.00 fee. The Board is to fix a reasonable time for hearing the appeal and to give at least fifteen days public notice as well as notice to the parties.

The Greens made no attempt to appeal the building commissioner's decision to the Board of Adjustment. Instead on May 14, 1976, five days after the permit was denied, Gloria Green filed a housing discrimination complaint with the Department of Housing and Urban Development (HUD). In a letter dated October 28, 1976, HUD informed the Greens that they were terminating their efforts at informal resolution of the complaint and that the Greens could bring suit under § 810 of the federal Fair Housing Act, 42 U.S.C. § 3610, if they did so within thirty days. Gloria Green received the notice on either October 31 or November 1, 1976. This action was filed on November 30, 1976. The plaintiffs alleged that stricter standards were applied to their application for an occupancy permit than to applications by white persons.

The trial court dismissed the plaintiffs' action but denied the defendants' motion for attorney's fees as the prevailing party. It dismissed the claim against Greendale under § 1983 since it is clear that a municipality is not a "person" subject to suit within the meaning of § 1983. ³ 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); Owen v. City of Independence, Missouri, 560 F.2d 925 (8th Cir. 1977), petition for cert. filed, 46 U.S.L.W. 3438 (U.S. December 27, 1977) (No. 77-914). It dismissed the claim under the federal Fair Housing Act, 42 U.S.C. § 3610, as untimely because it was not filed within thirty days of the filing of the complaint with HUD. It also dismissed the remaining claims under §§ 1981, 1982 and 1983 as untimely for failure to comply with Mo.Ann.Stat. § 213.127, the 180-day Missouri statute of limitations for claims of housing discrimination.

I. Claims Under 42 U.S.C. §§ 1981 and 1982.

Since neither § 1981 nor § 1982 contains a specified period of limitation, it is well-settled that the federal courts are to apply the most appropriate one provided by state law. Johnson v. Railway Express Agency,421 U.S. 454, 462, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); Chambers v. Omaha Public School Dist., 536 F.2d 222, 225 (8th Cir. 1976). This presents little difficulty when there is a state statute of limitations which is directly analogous to the federal claim in question. Clark v. Mann, 562 F.2d 1104, 1111 (8th Cir. 1977); Chambers v. Omaha Public School Dist.,supra at 228.

Relying upon this Court's decision in Warren v. Norman Realty Co.,513 F.2d 730 (8th Cir.), cert. denied, 423 U.S. 855, 96 S.Ct. 105, 46 L.Ed.2d 81 (1975), the trial court held that the most analogous state statute of limitations was the 180-day limitation period contained in the Missouri Discriminatory Housing Practices law. Mo.Ann.Stat. § 213.127. ⁴ In Norman Realty, we applied the 180-day limitation period contained in the Nebraska housing discrimination law to an action brought under 42 U.S.C. §§ 1981 and 1982 in which the plaintiffs alleged they had been racially discriminated against in the leasing of a home. We noted that the Nebraska housing discrimination law proscribed the precise conduct involved in the federal civil rights action. We agree with the trial court that Norman Realty is controlling here and that the 180-day limitation period contained in Mo.Ann.Stat. § 213.127 should apply to the claims under §§ 1981 and 1982.

Both the Missouri and the Nebraska housing discrimination laws are similar and were patterned after the federal Fair Housing Act. We recognize that the Nebraska housing discrimination law has been deemed to be substantially equivalent to the federal Fair Housing Act, while the Missouri Discriminatory Practices law has not. 24 C.F.R. § 115.12. However, this does not necessarily mean that the Missouri law does not contain the most appropriate statute of limitations for federal claims relating to housing discrimination. It only means that the Missouri law is not viewed to be sufficiently adequate to require that HUD complaints be first referred to the Missouri state housing agency.

The question of the applicability of the Missouri Discriminatory Housing Practices law to municipal corporations has not yet been considered by Missouri courts. The plaintiffs contend that the Missouri Discriminatory Housing Practices law "probably does not include a municipal corporation under its provisions of coverage." We cannot agree. While the definition of "person" in Mo.Ann.Stat. § 213.100(5) does not specifically include municipal corporations, it is almost identical to, and was patterned after, the definition of "person" in the federal Fair Housing Act, 42 U.S.C. § 3602(d). This Court has held that a municipality can be sued under the federal Fair Housing Act. United States v. City of Black Jack, Missouri, 508 F.2d 1179, 1183-1184 (8th Cir. 1974), cert. denied, 422 U.S. 1042, 95 S.Ct. 2656, 45 L.Ed.2d 694 (1975). See also Mayers v. Ridley, 151 U.S.App.D.C. 45, 50, 465 F.2d 630, 635 (1972) (en banc). We note, moreover, that Mo.Ann.Stat. § 1.020 provides that in construing Missouri statutes, the word "person" includes "bodies politic" unless "otherwise specifically provided or unless plainly repugnant to the intent of the legislature." Since the Missouri Discriminatory Housing Practices law does not specifically exclude application to municipalities and since its application to municipalities would not be "plainly repugnant" to legislative intent, we find that the law does apply to municipalities. It is, thus, clear that the plaintiffs' complaint states a cause of action under the Missouri Discriminatory Housing Practices law and had the plaintiffs brought an action in state court raising claims similar to those raised here under §§ 1981 and 1982, then the 180-day limitation of Mo.Ann.Stat. § 213.127 would have applied. Accordingly, the trial court did not err in dismissing the claims under §§ 1981 and 1982 for failure to comply with the 180-day limitation period.

II. Claim Under 42 U.S.C. § 1983.

The trial court also held that the 180-day limitation period of the Missouri Discriminatory Housing Practices law, Mo.Ann.Stat. § 213.127, was the most analogous state statute of limitations for the plaintiffs' claim against the individual defendants under § 1983. We cannot agree since an action under ...