Lamb v. Sallee

Decision Date06 July 1976
Docket NumberCiv. A. No. 75-54.
Citation417 F. Supp. 282
PartiesCarmella LAMB and James Randall Roberts, Plaintiffs, v. Bennie SALLEE and Beulah Sallee, Defendants.
CourtU.S. District Court — Eastern District of Kentucky

Charles J. Brannen, Stephen McMurtry, Covington, Ky., for plaintiffs.

James C. Ware, Ware, Bryson, Nolan, West & Hiltz, Covington, Ky., for defendants.


SILER, District Judge.

This action was brought under 42 U.S.C. §§ 3601 et seq., 42 U.S.C. §§ 1981, 1982, and the Thirteenth Amendment to the United States Constitution. Trial without a jury was held at Covington, Kentucky, on April 26, 1976. The Court, having considered all the evidence presented and the memoranda of the parties, makes the following findings of fact and conclusions of law.


The following facts were found by the Court as facts proven in the trial by a preponderance of the evidence.

1. The plaintiff Carmella Lamb (hereinafter Lamb) is a black citizen of the United States, but appears to be white. The plaintiff James Randall Roberts (hereinafter Roberts) is a white citizen of the United States. They were not married, but lived together.

2. During the dates in question, defendants Bennie and Beulah Sallee were owners of a single-family house known as # 8 Stevies Ridge Road (hereinafter "house") located in Erlanger, in the Eastern District of Kentucky. In addition, they owned two other single-family houses and one duplex housing unit that were kept for rent. They also owned the home in which they lived.

3. At the time of the acts complained of, the house had been placed by the defendants on the open market for rental.

4. On August 14, 1975, the defendant, Beulah Sallee, acting as business agent for herself and her husband, offered to rent the house to the plaintiffs for $200.00 per month with no lease and a $100.00 deposit, occupancy to begin on September 1, 1975.

5. Plaintiffs were willing to rent the house on the terms specified by the defendant.

6. Plaintiffs communicated this willingness to Mrs. Sallee on August 14, 1975, at a time when the property was available for rent and Lamb wrote a check in the amount of $100.00 for the deposit which was tendered to and accepted by Mrs. Sallee.

7. Plaintiffs started moving into the leased premises on Saturday, August 23, 1975, and were assisted in moving by Lamb's mother, sister, and brother, all of whom are black citizens of the United States. Unlike Lamb, they appear to be black.

8. On Sunday, August 24, 1975, defendants, having heard complaints from neighbors of the house that blacks were there assisting in the move and having learned from plaintiff that the people who helped them move were members of Lamb's family, refused to allow them to continue moving in.

9. Defendants' actions constituted a refusal to rent the house to plaintiffs on terms which defendants had previously indicated would be otherwise satisfactory, and were based solely upon the fact that Lamb is a member of the Negro race.

10. Plaintiffs removed their possessions from the above house on Monday, August 25, 1975.

11. Mrs. Sallee gave plaintiffs a check for $115.00, refunding their $100.00 rent deposit and reimbursing them for the $15.00 fee required to initiate water service for the house. The water company also refunded the latter fee to plaintiffs.

12. On Monday, August 25, 1975, Lamb was employed as a bookkeeper at the rate of $25.00 per day. She lost wages in the amount of $12.50 for the half-day required to remove plaintiffs' possessions from the house.

13. Each plaintiff was humiliated and suffered emotional and mental anguish as a result of defendants' actions.

14. Defendants' actions were willful and made in bad faith. They knew or should have known that fair housing is the law of the land.

15. Counsel for plaintiffs spent a total of thirty-three hours and fifty-five minutes working on this case. Included in that time is slightly more than five hours in court, including the pre-trial conference. This time is a reasonable figure. Appointed Public Defenders are compensated in this Court at the rate of $30.00 per hour for in-court time and $20.00 per hour for all other time. Those are reasonable fees and are used to set the attorneys' fees in this case.

16. Plaintiffs are not financially able to assume these attorneys' fees. Lamb was earning $6200.00 per year and Roberts earned less than $400.00 during last year, since he spent most of his time as a student. Neither has assets of any appreciable amount.


1. This Court has jurisdiction under 28 U.S.C. § 1343(4) of this matter based on 42 U.S.C. § 1982 and the Thirteenth Amendment to the United States Constitution.

2. A duplex is not a single-family house within the meaning of 42 U.S.C. § 3603(b)(1).

3. This Court does not have subject matter jurisdiction under 42 U.S.C. § 3612, of plaintiffs' cause of action based on the Fair Housing Act of 1968, 42 U.S.C. §§ 3601 et seq., because defendants are excluded from the coverage of the Act by 42 U.S.C. § 3603(b)(1).

4. Roberts, although a Caucasian citizen of the United States, has a cause of action under 42 U.S.C. § 1982.


Several aspects of this case require further discussion. While this Court's jurisdiction was invoked under 42 U.S.C. § 3612, as to plaintiffs' cause of action under the Fair Housing Act of 1968, 42 U.S.C. § 3601 et seq., the defendants own, in addition to the house in which they live, four other houses which they rent. However, one of these is a duplex. Title 42, U.S.C. Section 3603(b)(1), provides in part:

(b) Nothing in section 3604 of this title (other than subsection (c)) shall apply to —
(1) any single-family house sold or rented by an owner: Provided, That such private individual owner does not own more than three such single-family houses at any one time: . . . (Emphasis supplied.)

The Court has found no authority construing this section and counsel for the respective parties have cited none. However, in the Court's opinion, the language of the Act precludes the possibility that a duplex can be considered a "single-family house" within the meaning of the statute. In addition, the language excepting from the Act owners who do not own more than three "such single-family houses" obviously refers to "sold or rented" houses and not to a private owner's personal residence. Therefore, the defendants own only three single-family rental houses and do not come within the Act. Thus, the court is without subject matter jurisdiction under 42 U.S.C. § 3612.

On the other hand, plaintiffs also alleged a cause of action, inter alia, under 42 U.S.C. § 1982. As to that claim, they have properly invoked the jurisdiction of this Court under 28 U.S.C. § 1343. McLaurin v. Brusturis, 320 F.Supp. 190 (E.D.Wis.1970). For the reasons set out post the Court finds plaintiffs have made out a case under 42 U.S.C. § 1982 and the Thirteenth Amendment. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968); Jones v. Sciacia, 297 F.Supp. 165 (E.D.Mo.1969), aff'd, 422 F.2d 393 (8th Cir. 1970).

The elements of a cause of action under 42 U.S.C. § 1982 were clearly set out in Bush v. Kaim, 297 F.Supp. 151, 162 (N.D. Ohio 1969):

In sustaining his burden for proving that there has been a prohibited discrimination under the Act, the plaintiff must show . . . (1) that the owner . . placed the property on the open market for . . . rental, (2) that the plaintiff was willing to rent . . . the property on the terms specified by the owner, (3) that the plaintiff communicated this willingness to the owner at a time when the property was available for . . . rent, (4) that the owner refused to rent . . . the property to the plaintiff on the terms which the owner indicated would otherwise be satisfactory, and (5) that there is no apparent reason for the refusal of the defendant to rent the property to the plaintiff other than the plaintiff's race.

See also Fred v. Kokinokos, 347 F.Supp. 942 (E.D.N.Y.1972).

The evidence in this case indicates that the house was placed for rental on the open market by the defendant owners. Although the plaintiffs initially contacted Mrs. Sallee in response to a newspaper advertisement relating to another house on the same street, they were told by Mrs. Sallee that the house they inquired about had already been rented and were shown a second house instead. Defendants have not suggested that the house in question was not available for rental by the general public. Lamb testified that when they viewed the house, it was being worked on. The plaintiffs were willing to rent the house on the terms specified by the owner and they made a timely communication of this fact to the owners.

As to the fourth element in Bush, the evidence indicates that defendants did not initially refuse to rent the house to plaintiffs. However, having rented the house to them on terms otherwise satisfactory, they, in effect, revoked or cancelled their agreement while the plaintiffs were still moving in and prior to the date of possession. Violations of 42 U.S.C. § 1982 cannot be made to turn on the legal niceties of landlord-tenant law and it is quite clear that the statute applies to this type of situation. See Hall v. Freitas, 343 F.Supp. 1099 (N.D.Cal.1972).

Finally, there is no apparent reason for defendants' action other than Lamb's race. Defendants did not dispute Lamb's testimony that she explained to Mrs. Sallee that she and Roberts were not married but "were living together." In fact, Mrs. Sallee testified that she and Lamb talked Roberts into agreeing to rent the house. Lamb testified that, when she and Roberts brought a lot of possessions into the house on Sunday, August 24, Mrs. Sallee stated, "I hear you had some colored people helping you to move in." Lamb replied, "Yes, they are my family." Whereupon, Mrs. Sallee said, "Oh, we just can't. You can't move in. They'll burn down all...

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