Hines v. d'Artois, Civ. A. No. 19582.

• Decision Date: 03 October 1974
• Docket Number: Civ. A. No. 19582.
• Citation: 383 F. Supp. 184
• Parties: William B. HINES and Marvin Thomas et al., Individually and on behalf of all others similarly situated, v. George D'ARTOIS et al.
• Court: U.S. District Court — Western District of Louisiana

383 F. Supp. 184

William B. HINES and Marvin Thomas et al., Individually and on behalf of all others similarly situated, v. George D'ARTOIS et al.

Civ. A. No. 19582.

United States District Court, W. D. Louisiana, Shreveport Division.

July 1, 1974.

As amended October 3, 1974.

COPYRIGHT MATERIAL OMITTED

Henry C. Walker, IV, Shreveport, La., and George M. Strickler, Jr., New Orleans, La., for plaintiffs.

John Gallagher, Shreveport, La., for all three original defendants.

Roland J. Achee, Shreveport, La., for Fire and Police Civil Service Board.

William J. Guste, Jr., Atty. Gen., and John L. Avant, Special Counsel, Baton Rouge, La. and A. Mills McCawley, Special Counsel, and Peters & Ward, Hugh T. Ward, Shreveport, La., for defendants in intervention.

PUTNAM, District Judge.

RULING ON MOTIONS

The plaintiffs in this suit are thirty-two black police officers who are members of the police force of the City of Shreveport, Louisiana, one black person who was discharged from the force, and one unsuccessful black applicant for employment on the force. They sue individually and on behalf of three classes of persons alleged to be (1) all black applicants for employment on the force who have been rejected; (2) all future black applicants for such employment; and (3) all blacks who have served on the force but have been discharged. It is pointed out in brief that there is no class composed of black officers currently on the force because all such officers are named plaintiffs in the suit.

The defendants named in the original complaint are the Commissioner of Public Safety, George D'Artois, the Chief of Police, T. P. Kelly, both sued in their official and individual capacities, and the City of Shreveport, a municipal corporation and political subdivision of the State, of which the Police Department is a branch. All police officers are employees of the City.

There is now pending before us a motion to join as additional parties defendant five members of the Shreveport Municipal Fire and Police Civil Service Board, viz: David H. Walke, Chairman; Gilbert L. Hetherwick, member, Gen. W. E. Eubank, Jr, member; David H. Huddleston, member; and William K. Matlock, member. The motion alleges that under Article 14, Section 15.1, Subparagraph 7 of the Louisiana Constitution of 1921, Municipal Fire and Police Civil Service Boards are authorized to administer the civil service systems for fire and police departments, including the adoption and implementation of classification plans which designate the lines of promotion and demotion within the departments. The motion states, inter alia, that: "Since the Board is the agency responsible for adoption and administration of the classification plan, it is plainly a proper party to these proceedings." No objection is made to the joinder of these parties, but it is clear from the motion that they are sued only in their official capacities.

Heretofore, Mr. John C. Runyon, State Examiner for Municipal Fire and Police Civil Service Boards, was permitted to intervene as a defendant upon counsel representing to the Court that there was no objection to his intervention, which is clearly in his official capacity as State Examiner, an officer of the State of Louisiana, charged with the duty to "advise the appointing authority, departmental officers and classified employees of the Shreveport Police Department regarding obligations imposed on them by the Civil Service Systems," pursuant to the provisions of the Louisiana Constitution cited above. (See petition of intervention, paragraph I, Defenses, filed by Mr. Runyon.)

The equitable relief prayed for by plaintiffs could, under the allegations of racial discrimination against black officers as applied by the defendants, cause changes in the administration of the system's rules pertaining to seniority and preferences, assuming that there is a factual basis for the complaint. In addition, plaintiffs claim monetary damages. Although we granted Mr. Runyon's motion on February 6, 1974, we re-open it on our own motion at this time and will give it consideration along with all other motions as hereinafter set out.

In addition to the foregoing, we have before us for decision the following motions:

1. A motion to dismiss for lack of jurisdiction filed by the City of Shreveport;

2. Motions by defendants D'Artois and Kelly to dismiss for failure to join an indispensible or necessary party, the Shreveport Fire and Police Civil Service Board;

3. Motions by these same two defendants to dismiss for failure to exhaust administrative remedies available to them under the State Civil Service System;

4. A motion by Shreveport Public Local 646, National Union of Police Officers, AFL-CIO, to intervene.

Jurisdiction is alleged to attach pursuant to 28 U.S.C.A. § 1343(4), and 42 U. S.C.A. §§ 1981 and 1983, and under the Fourteenth Amendment, the actions of defendants being such as to deny blacks the equal protection of the laws.

The complaint by those plaintiffs who are now members of the police force of the City of Shreveport alleges discrimination against them by the defendants in the assignment of patrol areas, promotion and division assignment policies, hiring practices and regulations which, among other things, have resulted in the assignment of blacks to the Patrol Division, with a disproportionate number being assigned to the Detective, Special Investigation, Identification and Traffic Divisions, and none at all to the Personnel, Central Records or Airport Security Divisions of the Police Force. They further allege that as a result of the exclusion of blacks from the force prior to 1954 and up to 1968, promotion based upon seniority is denied to them because of the failure of defendants to correct and erase the effects of such past racial discrimination. They seek injunctive relief and damages in the form of back pay to compensate them for lost wages due to these policies regulating promotions within the system.

One plaintiff, Murton Edwards, alleges that he was accepted and employed on the police force along with several other black officers in 1968, served as a patrolman until 1970 when he was discharged in the month of February, ostensibly for failure to pass the Civil Service Examination given to new members of the department, but that his dismissal was in fact racially motivated. He alleges on information and belief that other black officers employed in 1968 were also dismissed for the same reasons.

Plaintiff Don W. Ellis alleges that he applied for employment in 1970, took and passed the Civil Service Examination, but was denied employment because he had voluntarily gone into bankruptcy some months before making his application. He alleges that denial of employment to him was racially discriminatory, because the refusal to employ persons who have taken bankruptcy effectively eliminates more blacks than whites and because the standard is unrelated to proper objective qualifications for employment as a police officer.

CLASS ACTIONS

While racially discriminatory practices by public officers and individuals are generally regarded as proper subjects for class actions, in this case we find one of the essential requirements of F.R.Civ.P. Rule 23 to be lacking, specifically the members of the class represented are not so numerous as to make it impractical to join them as individuals in one lawsuit. Here, as to all members of the police force currently serving, they are actually named and joined as plaintiffs. The remaining two plaintiffs, Murton and Ellis, obviously do not represent such classes of persons. On the one hand, the officers who were employed in 1968 and subsequently dismissed for racial reasons are, or should be, easily identifiable and joined as plaintiffs, and on the other, blacks denied employment and passing the Civil Service Examination, who have been denied employment because of having invoked the benefit of the bankruptcy laws do not, under the allegations of the petition, number more than one. As to those black citizens who may in the future seek employment, even as to generations yet unborn, ". . . the threshold requirement imposed by Art. III of the Constitution that those who seek to invoke the power of the federal courts must allege an actual case or controversy . . . ." O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), is not met.

Moreover, if plaintiffs are successful in any of their demands, the relief accorded them will necessarily result in correction of the evils by which they are plagued, and inure to the benefit of the entire black community of which they are members. It simply is not necessary that this suit proceed as a class action.

PARTIES, INTERVENORS AND PETITIONERS IN INTERVENTION.

As stated above, our jurisdiction is invoked under 28 U.S.C.A. § 1343(3) and (4), to enforce a cause of action claimed under 42 U.S.C.A. §§ 1981, 1983 and the Fourteenth Amendment. Defendant City of Shreveport is a municipal corporation. The Shreveport Municipal Fire and Police Civil Service Board is created "in the municipal government" by Article 14, § 15.1, paragraph 6, Louisiana Constitution of 1921, which incorporated the provisions of Sections 2471 through 2508 of Title 33 of the Louisiana Revised Statutes of 1950, LSA-R.S. 33:2471 et seq., into the basic law by Constitutional Amendment adopted in 1952. The board acts for and in behalf of the city and has no separate or independent entity as a public corporation other than through the municipality. The individual members of the board are sought to be added as defendants by stipulation.

Defendants, George D'Artois, Commissioner of Public Safety, is a city official, as is the defendant T. P. Kelly, Chief of Police of Shreveport.

Mr. John C. Runyon, State Examiner, is an employee of the State of Louisiana, subject to the Classified Service of the State, appointed by the State Civil Service Commission, which has no further authority or power over him...