Harper v. City of Birmingham, Civ. A. No. 84V-1678-S.

CourtUnited States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
Citation661 F. Supp. 672
Docket NumberCiv. A. No. 84V-1678-S.
PartiesThomas D. HARPER, Etc., Plaintiff, v. CITY OF BIRMINGHAM, Etc.; et al, Defendants.
Decision Date29 July 1986

661 F. Supp. 672

Thomas D. HARPER, Etc., Plaintiff,
CITY OF BIRMINGHAM, Etc.; et al, Defendants.

Civ. A. No. 84V-1678-S.

United States District Court, N.D. Alabama, S.D.

July 29, 1986.

Roy M. West, Birmingham, Ala., for plaintiff.

Samuel Fisher, Asst. City Atty., Birmingham, Ala., for City of Birmingham.

Frank W. Donaldson, U.S. Atty., Caryl P. Privett, Asst. U.S. Atty., Birmingham, Ala., for U.S.


VARNER, District Judge.

This cause is now before the Court on various motions filed herein by the respective parties. Due to this Court's Opinion, infra, that Defendants' motions for summary judgment are due to be granted, all

661 F. Supp. 673
other pending motions, except for Plaintiff's motion filed herein March 27, 1986, for leave to amend complaint, are due to be denied as moot. For good cause shown, Plaintiff's motion filed herein March 27, 1986, is due to be granted

This Court has jurisdiction over this cause as to Defendant City of Birmingham pursuant to 28 U.S.C. §§ 1331 and 1343. As will be discussed infra, this Court is of the opinion that it has no jurisdiction pursuant to said statutes over Defendant United States. Alternatively, this Court is of the further opinion that, even if jurisdiction is had over Defendant United States, said Defendant is, nevertheless, entitled to a summary judgment as a matter of law.


On June 27, 1984, Plaintiff filed his pro se complaint in this cause in the United States District Court for the Northern District of Alabama. Plaintiff sought relief under 42 U.S.C. §§ 1983, 1985 and 1988 for alleged violations of the Fifth and Fourteenth Amendments in relation to a conveyance of property by the Defendant City of Birmingham to the Defendant United States for the ostensible purpose of providing the location for a new federal courthouse in Birmingham, Alabama. Shortly following the filing of said complaint, Plaintiff filed a pro se motion to have the case "specifically assigned to a judge for some federal district outside the Northern District of Alabama", citing the fact that each of the Judges of that district would have new chambers and courtrooms in the proposed new federal courthouse. On August 14, 1984, Chief Judge Pointer of the Northern District of Alabama granted said motion and, pursuant to 28 U.S.C. § 292(b) and an Order promulgated thereunder dated October 1, 1983, by the Chief Judge of the Eleventh Circuit Court of Appeals, assigned this case to this Court.

In the proceedings before this Court, both Defendants filed motions to dismiss based upon Rule 12(b)(6), Federal Rules of Civil Procedure, to which Plaintiff responded in opposition. On September 26, 1984, this Court heard oral argument on said motions to dismiss, although Plaintiff elected not to participate therein. On October 19, 1984, this Court entered a written Opinion and Order granting said motions to dismiss on grounds that (1) the Plaintiff lacked standing to bring this suit as a taxpayer; (2) the Plaintiff had conceded his § 1985 claim; and (3) Plaintiff's characterization of the property in question as a "public alley", said characterization being found in Plaintiff's response to Defendants' motions to dismiss, rendered CODE OF ALABAMA 1975, § 35-4-4101, inapplicable on its face and thereby undermined Plaintiff's ability to state a claim for relief against the Defendants under § 1983. Following this Court's denial of Plaintiff's motion for new trial or for amendment of judgment, Plaintiff retained counsel and filed a timely notice of appeal.

On appeal, Plaintiff raised three issues: (1) the redesignation of this case from the Northern District of Alabama to the Middle District of Alabama, a district in which the case could not have been brought originally, divested this Court of jurisdiction over the case and rendered this Court's decision "void"; (2) this Court erred in finding that Plaintiff had no standing to bring this suit; and (3) this Court erred in dismissing Plaintiff's claims following an improper factual finding that the conveyed property was a "public alley" and, therefore, not subject to the said Alabama statute. In its response to these issues, the Appellate Court held, in part, that this Court "improperly looked beyond the allegations of the complaint in determining that Code section 35-4-10 sic did not apply in this case and erred in using that finding as a basis for a Rule 12(b)(6) dismissal."2 Therefore, the Appellate

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Court concluded that "it cannot be said that, under the allegations of the complaint, Harper could prove no set of facts entitling him to relief." Accordingly, the case was reversed and remanded to this Court for further proceedings


Pursuant to his amended complaint, Plaintiff, as a "taxpayer, resident and elector" of the City of Birmingham, Alabama, seeks relief under 42 U.S.C. §§ 1983, 1985(3), 1986 and 1988 and also asserts a pendent State law claim against Defendant City of Birmingham for wasting public funds and giving away public property. These various causes of action relate to and concern a conveyance of certain real property by the Defendant City to the Defendant United States. Plaintiff alleges that, at the time of said conveyance, January 11, 1984, the subject property constituted a public park, playground or other public recreational facility owned by Defendant City of Birmingham. As such, Plaintiff contends that the conveyance and/or alienation of such was subject to a majority approval of the qualified electors via a public referendum election. See, CODE OF ALABAMA 1975, § 35-4-410. Plaintiff further alleges that, since (1) the conveyance of said property was perfected without said referendum election, (2) the conveyance was for a grossly inadequate consideration when compared with other properties in the area and (3) such actions constituted action under color of State law, then Plaintiff was deprived of due process of law as guaranteed by the Fifth and Fourteenth Amendments and the right to vote as guaranteed by the laws of the State of Alabama. Plaintiff also alleges that the actions of the Defendants were the result of a conspiracy between the Defendants and/or their agents or representatives to deprive Plaintiff and other qualified electors the right to vote on the conveyance of said property.


Pursuant to said motion, Defendant United States contends that it is entitled to a judgment as a matter of law based upon (1) sovereign immunity; (2) because the United States is not a "person" within the meaning of 42 U.S.C. §§ 1983, 1985(3) and 1986, this Court has no jurisdiction over said Defendant pursuant to 28 U.S.C. § 1343; and (3) this Court has no jurisdiction over said Defendant pursuant to 28 U.S.C. § 1331. This Court agrees.

It is indeed well-established law that the United States, as sovereign, is immune from suit unless the immunity is expressly waived. See, United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); Sellers v. United States, 569 F.Supp. 1149 (N.D.Ga.1983). None of the civil rights statutes upon which the action in this case is predicated against the Federal Government, expressly or inferentially, authorize suit against the United States. See, Broome v. Simon, 255 F.Supp. 434 (W.D. La.1966).

Further, it is the general rule that the United States is not a "person" within

661 F. Supp. 675
the meaning of 42 U.S.C. §§ 1983, 19854 or 1986. See, Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Rodriquez v. Ritchey, 556 F.2d 1185 (5th Cir.), cert.den. 434 U.S. 1047, 98 S.Ct. 894, 54 L.Ed.2d 799 (1977); Hewitt v. City of Jacksonville, 188 F.2d 423 (5th Cir.), cert.den. 342 U.S. 835, 72 S.Ct. 58, 96 L.Ed. 631 (1951); Powell v. Kopman, 511 F.Supp. 700 (S.D.N.Y.1981); Clark v. United States, 481 F.Supp. 1086 (S.D.N.Y.1979); Seibert v. Baptist, 594 F.2d 423 (5th Cir.1979); Mack v. Alexander, 575 F.2d 488 (5th Cir.1978); Brome v. Simon, supra. The reasoning behind...

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1 cases
  • Harper v. City of Birmingham
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 15, 1987
    ...64 822 F.2d 64 **Harper v. City of Birmingham 86-7804 United States Court of Appeals, Eleventh Circuit. 6/15/87 N.D.Ala., 661 F.Supp. 672 ** Local Rule: 25 case. ...

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