Johnson v. City of Fort Lauderdale, Fla.

• Citation: 903 F. Supp. 1520
• Decision Date: 20 September 1995
• Docket Number: No. 94-7240-CIV-GONZALEZ.,94-7240-CIV-GONZALEZ.
• Parties: Herbert JOHNSON, Plaintiff, v. CITY OF FORT LAUDERDALE, FLORIDA, a Florida municipal corporation, James Sparr, Rick Earle, Dennis Sheehan, Keith Allen and Ron Pritchard, in their individual capacities, Defendants.
• Court: U.S. District Court — Southern District of Florida

903 F. Supp. 1520

Herbert JOHNSON, Plaintiff, v. CITY OF FORT LAUDERDALE, FLORIDA, a Florida municipal corporation, James Sparr, Rick Earle, Dennis Sheehan, Keith Allen and Ron Pritchard, in their individual capacities, Defendants.

No. 94-7240-CIV-GONZALEZ.

United States District Court, S.D. Florida.

September 20, 1995.

Scott Walter Rothstein, Michael A. Pancier, Kusnick & Rothstein, P.A., Fort Lauderdale, FL, for plaintiff.

Gordon Dean Rogers and Frank Howard Henry, Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick, Miami, FL, for defendants.

ORDER

GONZALEZ, District Judge.

THIS CAUSE has come before the Court upon Plaintiff's Motion to Alter or Amend This Court's Order, Dated April 12, 1995, Dismissing Counts I, II and III of Plaintiff's Complaint as to Defendant, City of Fort Lauderdale, Florida, filed on April 25, 1995. The motion has been fully briefed and is ripe for disposition. Plaintiff has also requested oral argument on this motion. Finally, still pending is Defendant Ron Pritchard's Motion to Dismiss, filed on April 5, 1995. This motion, which is identical to the motion to dismiss previously filed by the other defendants, is also ripe for disposition.

Plaintiff in this case, a former Fort Lauderdale Fire Department lieutenant, asserts several claims for racial discrimination under various provisions of Title 42 of the United States Code. In their motions to dismiss, Defendants sought, and Pritchard still seeks, dismissal of Plaintiff's claims under 42 U.S.C. §§ 1981, 1983 and 1985. On April 12, 1995, this Court entered an Order granting in part Defendants' motion. Shortly thereafter, Plaintiff filed his motion to alter or amend. Having carefully reconsidered the law surrounding Defendants' motions and the arguments of counsel, this Court agrees with Plaintiff that a portion of its April 12, 1995 Order should be amended.

Therefore, having considered Plaintiff's motion and the record, and being otherwise duly advised, it is hereby ORDERED and ADJUDGED that Plaintiff's Motion to Alter or Amend is GRANTED. Accordingly, this Court's Order of April 12, 1995, granting in part Defendants' Motion to Dismiss is VACATED and the following Order is entered in its stead.

Count I

Count I of Plaintiff's Complaint asserts a cause of action under 42 U.S.C. § 1981 against the City of Fort Lauderdale and Defendants Sparr, Earle, Sheehan, Allen and Pritchard in their individual capacities. According to Defendants, Jett v. Dallas Independent School District requires dismissal of Plaintiff's § 1981 claim in its entirety. 491 U.S. 701, 733, 109 S.Ct. 2702, 2722, 105 L.Ed.2d 598 (1989). In Jett, the Supreme Court concluded that:

Congress intended that the explicit remedial provisions of § 1983 be controlling in the context of damages actions brought against state actors alleging violation of the rights declared in § 1981.

Id, at 731-32, 109 S.Ct. at 2720-21 (citation omitted) (emphasis added in Jett).

Notwithstanding this language, Plaintiff argues that the 1991 amendments to the Civil Rights Act, specifically the amendments to 42 U.S.C. § 1981, overruled Jett and created an express cause of action for violations of § 1981 by municipalities. Several cases support Plaintiff's contention. See Ford v. City of Rockford, 1992 WL 309603 (N.D.Ill.1992); Morris v. State of Kan. Dept. of Revenue, 849 F.Supp. 1421 (D.Kan.1994); La Compania Ocho, Inc. v. United States Forest Service, 874 F.Supp. 1242 (D.N.M.1995); Robinson, et al. v. Town of Colonie, et al., 878 F.Supp. 387 (N.D.N.Y.1995); Arnett v. Davis County School Dist., 1993 WL 434053 (D.Utah 1993); Gallardo v. Board of County Comm., 857 F.Supp. 783 (D.Kan.1994). As the Court in Philippeaux v. North Central Bronx Hosp. pointed out, however, none of these cases contains a detailed or well reasoned inquiry into whether the amendments to § 1981 overruled Jett. 871 F.Supp. 640 (S.D.N.Y.1994). Instead, those courts merely assumed that the addition of subsection (c) to § 1981 altered the prior state of the law.

Careful analysis demonstrates, however, that those courts were incorrect, as the amendments to § 1981 are consistent with the Supreme Court's opinion in Jett. Moreover, there is virtually no indication in the legislative history of the 1991 amendments to § 1981 that Congress intended to overrule Jett.¹ This Court declines to find such an intention without clear statutory language to that effect.

Before the 1991 amendments to the Civil Rights Act were passed, 42 U.S.C. § 1981 read:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

In 1991, the following subsections were added:

(b) "Make and enforce contracts" defined For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

(c) Protection against impairment

The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State Law.

Pub.L. 102-166, Title I, § 101 (1991), 105 Stat. 1071, as amended, 42 U.S.C. § 1981(b)-(c).

It is clear that subsection (b) was added to § 1981 to overrule Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), in which the Supreme Court held that discrimination during the course of performance of an employment contract did not violate § 1981. Moreover, subsection (c) was intended to codify the Court's holding in Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), that § 1981 prohibits discrimination by private as well as public actors. It was not intended to create a cause of action that did not previously exist.

Most courts that have found Jett to be overruled by subsection (c) based their holdings on an erroneous interpretation of Jett. The Court in Jett did not, as several cases suggest, hold that § 1981 provided no protection for actions taken under color of state law. On the contrary, until the Supreme Court's ruling in Runyon there was some doubt as to whether § 1981 protected against anything else. After an exhaustive review of the legislative history of § 1981 and its precursors, the Court in Jett concluded that § 1981 prohibits discrimination by individuals acting under color of state law, but does not create a civil cause of action against them. Instead, § 1983 provides the means through which a party aggrieved under § 1981 must seek relief. Moreover, the Court addressed the apparent inconsistency of its ruling with its earlier holding that § 1981 created a cause of action for individuals discriminated against by private parties. According to the Court:

That we have read § 1 of the 1866 Act to reach private action and have implied a damages remedy to effectuate the declaration of rights contained in that provision does not authorize us to do so in the context of the "state action" portion of § 1981, where Congress has established its own remedial scheme. In the context of the application of § 1981 and § 1982 to private actors, we "had little choice but to hold that aggrieved individuals could enforce this prohibition, for there existed no other remedy to address such violations of the statute."

Jett, at 731-32, 109 S.Ct. at 2720-21 (citation omitted) (emphasis added in Jett). Thus, the Court was merely applying a well established theory of statutory interpretation — where the law creates a right for the special benefit of a particular class of persons, an implied right to obtain judicial relief is also created. See Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39-40, 36 S.Ct. 482, 484-85, 60 L.Ed. 874 (1916).

After reviewing the amendments to § 1981 and the legislative history, the Court can find no indication that subsection (c) creates a new civil cause of action. Thus, as held in Jett, the only means for Plaintiff to seek redress from the City of Fort Lauderdale for its violation of his § 1981 rights is to maintain an action under 42 U.S.C. § 1983. Accord Garrett v. Clarke Cty. Board of Educ., 857 F.Supp. 949 (S.D.Ala.1994); McFarland v. Folsom, 854 F.Supp. 862 (M.D.Ala.1994). Plaintiff's § 1981 claim against Defendant, City of Fort Lauderdale, shall therefore be dismissed with leave to amend. Plaintiff's § 1981 claims against the other defendants, however, shall not be dismissed as the reasoning in Jett is inapplicable to actions by private parties. Jett, at 731, 109 S.Ct. at 2720.

Count II Through V

Counts II through V of the Complaint allege violations of 42 U.S.C. § 1983 against Defendants in their various capacities. Defendants argue that all claims under § 1983 should be dismissed "because such constitutional claims are subsumed in their entirety and therefore barred by the comprehensive enforcement scheme provided by Title VII of the Civil Rights Act of 1964, as amended (including the Civil Rights Act of 1991)."² In support of their motion, Defendants cite Middlesex County Sewerage Authority v. Nat'l Sea Clammers Ass'n., 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981), Marrero-Rivera v. Department of Justice of Com. of Puerto Rico, 800 F.Supp. 1024 (D.P.R.1992), aff'd, 36 F.3d 1089 (1st Cir.1994), and similar cases.

Despite Defendants' arguments, these cases could not possibly apply to Counts IV and V of the Complaint; Plaintiff could not assert his individual capacity claims under Title VII. See Busby v. City of Orlando, 931 F.2d 764 (11th Cir.1991). Clearly, then, Title VII cannot provide Plaintiff's exclusive remedy against the individual defendant...