Minority Police Officers Ass'n v. SOUTH BEND, IND.

• Decision Date: 31 January 1983
• Docket Number: No. S 81-402.,S 81-402.
• Citation: 555 F. Supp. 921
• Parties: MINORITY POLICE OFFICERS ASSOCIATION OF SOUTH BEND, on behalf of its members and all others similarly situated, James Earl Clark, Jr., individually and on behalf of all others similarly situated, John Floyd, individually and on behalf of all others similarly situated, Frank Murphy, individually and on behalf of all others similarly situated, John Williams, individually and on behalf of all others similarly situated, Shirley Woods, individually and on behalf of all others similarly situated, Lynn Coleman, individually and on behalf of all others similarly situated, Armando Garcia, individually and on behalf of all others similarly situated, Norval Williams, individually and on behalf of all others similarly situated, Hiram Bonds, individually and on behalf of all others similarly situated, Austin Davis, individually and on behalf of all others similarly situated, Curtis Walton, individually and on behalf of all others similarly situated, Plaintiffs, v. CITY OF SOUTH BEND, INDIANA, a municipal corporation, Roger O. Parent, individually and as the Mayor, City of South Bend, Indiana, Board of Public Safety, South Bend, Indiana, and its Members, Charles W. Roemer, individually and as the President of the Board of Public Safety, City of South Bend, Indiana, Elmer Carr, individually and as a member of the Board of Public Safety, City of South Bend, Indiana, Stanley Przybylski, individually and as a member of the Board of Public Safety, City of South Bend, Indiana, and, Dan D. Thompson, individually and as Chief of Police, City of South Bend, Indiana Police Department, Defendants.
• Court: U.S. District Court — Northern District of Indiana

555 F. Supp. 921

MINORITY POLICE OFFICERS ASSOCIATION OF SOUTH BEND, on behalf of its members and all others similarly situated, James Earl Clark, Jr., individually and on behalf of all others similarly situated, John Floyd, individually and on behalf of all others similarly situated, Frank Murphy, individually and on behalf of all others similarly situated, John Williams, individually and on behalf of all others similarly situated, Shirley Woods, individually and on behalf of all others similarly situated, Lynn Coleman, individually and on behalf of all others similarly situated, Armando Garcia, individually and on behalf of all others similarly situated, Norval Williams, individually and on behalf of all others similarly situated, Hiram Bonds, individually and on behalf of all others similarly situated, Austin Davis, individually and on behalf of all others similarly situated, Curtis Walton, individually and on behalf of all others similarly situated, Plaintiffs, v. CITY OF SOUTH BEND, INDIANA, a municipal corporation, Roger O. Parent, individually and as the Mayor, City of South Bend, Indiana, Board of Public Safety, South Bend, Indiana, and its Members, Charles W. Roemer, individually and as the President of the Board of Public Safety, City of South Bend, Indiana, Elmer Carr, individually and as a member of the Board of Public Safety, City of South Bend, Indiana, Stanley Przybylski, individually and as a member of the Board of Public Safety, City of South Bend, Indiana, and, Dan D. Thompson, individually and as Chief of Police, City of South Bend, Indiana Police Department, Defendants.

No. S 81-402.

United States District Court, N.D. Indiana, South Bend Division.

January 31, 1983.

COPYRIGHT MATERIAL OMITTED

Charles F. Crutchfield, South Bend, Ind., for plaintiffs.

Richard L. Hill, City Atty., Robert C. Rosenfeld, South Bend, Ind., for defendants.

MEMORANDUM AND ORDER

SHARP, Chief Judge.

Plaintiffs filed this action seeking relief for alleged discriminatory practices and policies by defendants in hiring, promotion, placement, recruitment and other conditions of employment at the South Bend Police Department pursuant to 42 U.S.C. §§ 1981 and 1983. Plaintiffs allege violations of the Ninth and Fourteenth Amendment to the Constitution of the United States and seek to maintain this case as a class action. Both parties have filed motions for summary judgment, fully briefed the issues and oral argument was heard on September 30, 1982.

I.

Plaintiffs seek to maintain this case as a class action under Rule 23 of the Federal Rules of Civil Procedure and requested the Court to certify a class of all Black and Spanish Americans who are presently employed, have been employed, sought employment or may seek employment with the South Bend Police Department. The Supreme Court of the United States has stated that "suits alleging racial or ethnic discrimination are often by their very nature class suits, involving classwide wrongs". East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 405, 97 S.Ct. 1891, 1897, 52 L.Ed.2d 453 (1977). The Rodriguez Court noted also, however, that careful attention to the requirements of Federal Rule of Civil Procedure 23 remained indispensable. Id. Therefore, in order for the case presently before the Court to proceed as a class action, each of the requirements of Rule 23 must be met. See, Patterson v. General Motors Corporation, 631 F.2d 476, 480 (7th Cir.1980).

Rule 23 of the Federal Rules of Civil Procedure clearly outline the prerequisites to a class action:

(a) Prerequisites to a class action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims and defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

The plaintiffs, as the party seeking certification in this case, have the burden of establishing their rights to proceed as a class action. See, Cook County College Teachers Union, Local 1600, AFT v. Byrd, 456 F.2d 882, 885 (7th Cir.1972), cert. den., 409 U.S. 848, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972). Specific facts must be alleged sufficient to meet the requirements of the rule as mere repetition of the rule or loosely defined classwide allegations are insufficient. See, e.g., Patterson v. General Motors Corporation, supra; Hauck v. Xerox Corp., 78 F.R.D. 375, 377 (E.D.Pa.1978); Pittman v. Anaconda Wire and Cable Co., 408 F.Supp. 286, 295 (E.D.N.C.1976). As the following discussion will show, plaintiffs' action does not meet the requirements of Rule 23(a).

The first requirement of Rule 23(a) is that the class the plaintiffs purport to represent is so numerous that joinder of all members would be impracticable. Fed.R. Civ.Proc. 23(a)(1). In plaintiffs' amended complaint, they merely recite the rule as to numerosity without giving any facts to support the allegation. The record indicates that there are 20 Black police officers and one Spanish surnamed American employed by the South Bend Police Department. In answer to Interrogatory number 1 of the interrogatories propounded by defendants to plaintiff, Minority Police Officers Association of South Bend (Association), the Association stated that there are 22 members in the Association. The record further indicates that there are approximately four past minority police officers that could be included in the class as urged by the plaintiff. Thus, the number of past and present minority police officers at the South Bend Police Department could not be more than 26 total and that number is clearly insufficient to fulfill the numerosity requirement.

In addition to past and present minority police officers, plaintiffs seek to include in the class all future minority police officers and all minority persons who have sought or will seek employment with the South Bend Police Department. All of the named plaintiffs are presently employed by the South Bend Police Department. None of them have sought employment and been denied employment on the basis of their race. With regard to all future members and future applicants for positions with the South Bend Police Department, their only claim would be for a threatened violation of a constitutional right. This Court has no jurisdiction over a claim of a threatened violation of a constitutional right because it fails to satisfy the "case or controversy" requirement of Article III of the Constitution of the United States. O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Doe v. Koger, 480 F.Supp. 225 (N.D.Ind.1979). Thus, as the claims of the future members and future applicants of the South Bend Police Department cannot be litigated in this case and the number of past and present minority members of the South Bend Police Department is insufficient to fulfill the numerosity requirement of Rule 23, plaintiffs' request for an order certifying a class must be denied.

Plaintiffs have also failed to adequately demonstrate that there are questions of law or fact common to the class. The focus of plaintiffs' amended complaint and discovery filed with this Court concern questions of promotion and practices as they have affected the named plaintiffs in this case. No hiring or recruitment claim has been raised personally by any of the named plaintiffs or by the Minority Police Officers Association as that claim affects none of its members. Further, any issue which could be raised regarding discrimination in promotion as to a named plaintiff or current member of the Association would not be typical of or common to previous applicants. Nor have any specific factual allegations been made or evidence adduced with regard either to discrimination in hiring or promotion against any specific previous minority police officer. The Supreme Court has held that "a class representative must be part of the class and `possess the same interest and suffer the same injury' as the class members," East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 1896, 52 L.Ed.2d 453 (1977), quoting Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 2929, 41 L.Ed.2d 706 (1974). Thus, since the named plaintiffs in this case do not possess the same interests or suffer the same injury as past members or future applicants with the South Bend Police Department, cf. General Telephone Co. of Southwest v. Falcon, ___ U.S. ___, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982), the plaintiffs have failed to satisfy the commonality requirement of Rule 23(a)(2) of the Federal Rules of Civil Procedure and a class cannot be certified.

Finally, the plaintiffs have failed to show that they will fairly and adequately protect the interests of the class. First, they failed to move for class certification promptly, if at all. A careful review of the record reveals no motion for class certification has ever been filed with this Court. Even assuming that this Court has an obligation on its own motion to determine whether an action shall proceed as a class action, the named plaintiffs' failure to protect the interests of class members by moving for certification bears strongly on the adequacy of the representation that those class members might expect to receive. See, East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 405, 97 S.Ct. 1891, 1897, 52 L.Ed.2d 453 (1977). Further, the allegations in the complaint as well as the major thrust of discovery focused on the issues of promotions in the South Bend Police Department, and not on hiring and recruitment claims. Thus, the record indicates that plaintiffs would not fairly and adequately protect the interests of the proposed class as required...