Scott v. Clark, 77-445C(3).

• Decision Date: 07 June 1977
• Docket Number: No. 77-445C(3).,77-445C(3).
• Citation: 436 F. Supp. 569
• Court: U.S. District Court — Eastern District of Missouri
• Parties: Walter F. SCOTT, dba R N & S Refuse Removal Enterprises, Plaintiff, v. Paul CLARK, Richard Ellsworth, Lore Crowe, Richard Zeilmann, Paul Kenner, Individually and collectively as Board of Alderman of City of Winchester, Joyce Richstatter, and Aug. W. Elbring, dba Elbring Company, Defendants.

436 F. Supp. 569

Walter F. SCOTT, dba R N & S Refuse Removal Enterprises, Plaintiff, v. Paul CLARK, Richard Ellsworth, Lore Crowe, Richard Zeilmann, Paul Kenner, Individually and collectively as Board of Alderman of City of Winchester, Joyce Richstatter, and Aug. W. Elbring, dba Elbring Company, Defendants.

No. 77-445C(3).

United States District Court, E. D. Missouri, E. D.

June 7, 1977.

Walter F. Scott, pro se.

Millsap, Weil, Eyerman & Schenberg, Clayton, Mo., for Clark, Ellsworth, Crowe, Zeilmann, Kenner & Richstatter.

Ziercher, Hocker, Tzinberg, Human & Michenfelder, Clayton, Mo., for Elbring Surveying Co.

MEMORANDUM

NANGLE, District Judge.

This matter is before the Court upon the motion of defendants Clark, Ellsworth, Crowe, Zeilmann, Kenner and Richstatter for summary judgment. Defendant Elbring has filed a motion to dismiss for failure to state a claim. Plaintiff filed this suit pro se pursuant to 28 U.S.C. § 1343, alleging violations of 42 U.S.C. §§ 1981 and 1983, and violations of the Fourteenth Amendment. Plaintiff alleges that defendants Clark, Ellsworth, Crowe and Zeilmann are members of the Board of Aldermen of the City of Winchester, that defendant Kenner is the Mayor of the City of Winchester and presiding member of the Board of Aldermen, that defendant Richstatter is the City Clerk of the City of Winchester, and that defendant Elbring is the City Engineer of the City of Winchester. Plaintiff further alleges that he is a refuse collector within the City of Winchester and that on January 16, 1977, he submitted a bid or contract agreement to collect refuse for the entire city. Plaintiff alleges that on March 2, 1977, defendant Clark, acting in the absence of defendant Kenner, opposed the contract and has not submitted the same to the residents of the City of Winchester for approval. Plaintiff further alleges that on March 4, 1977, he submitted a bid to collect refuse for the spring and fall clean-up and that although he was the lowest bidder, his bid was not selected. Plaintiff further alleges that on April 6, 1977, defendant Clark threatened plaintiff and ordered him to remove a rock from the corner of plaintiff's driveway. On April 7, 1977, upon seeing that the rock remained, defendant Clark allegedly told plaintiff that he would no longer be permitted to haul refuse in the City of Winchester. Plaintiff alleges that these actions were taken because of his race and that the actions taken have denied him equal protection and due process of law. In Count II of the complaint, plaintiff alleges that defendants violated 42 U.S.C. § 1981 by refusing to consider or accept plaintiff's bid, apparently referring to the bid for the spring and fall clean-up.

In support of the motion for summary judgment, defendants have submitted numerous affidavits which state the following: the Board of Aldermen did not request bids for city-wide trash hauling from any trash hauler. Defendant Clark mentioned plaintiff's interest in a city-wide contract at a meeting of the Board. The consensus, however, was that the Board preferred to retain independent trash haulers, rather than select an exclusive city-wide hauler. This is the position that the Board has consistently taken.

At the February, 1977 meeting of the Board of Aldermen, the City Clerk was told to write to the area trash haulers, asking them to bid for the spring and fall clean-up. These requests for bids were mistakenly made by telephone, and no specifications were given. The bids for the clean-up were opened at a March, 1977 meeting of the Board. A company named Environmental had bid $2,800.00 for four pick-ups, two in the spring and two in the fall, with each pick-up to cover the entire City. Plaintiff's bid was for $2,400.00 for four pick-ups, two in the spring and two in the fall, but each pick-up was to be for only one-half of the City. The Board selected Environmental since its bid was in fact the lowest in that it provided for four city-wide pick-ups. Defendants Zeilmann and Clark suggested that plaintiff be allowed to re-bid because of the confusion on the specifications. Defendant Clark took the specifications to plaintiff on March 13, 1977. A local newspaper, however, printed an article concerning the March, 1977 meeting and stated that Environmental's bid was for $2,800.00. Plaintiff did re-bid, according to the Environmental specifications, at a price of $2,400.00. The Board, however, accepted Environmental's bid because it believed it to be unfair to accept plaintiff's re-bid after Environmental's bid had been made public.

In March, 1977 the City reviewed its streets with the City Engineer. Ron Halbach inspected the streets with defendant Clark accompanying. The engineer pointed out a rock located on the front lawn of 42 Roland and indicated that it should be moved back from the road as it was a hazard and was situated in the City's right of way. At the time, Mr. Halbach had no idea who lived at that address. Defendant Clark stated that he would talk to the resident. On April 6, 1977, defendant Clark told plaintiff about the rock. On April 7, 1977, defendant Clark's trash had not been collected, and others, whose trash was normally collected by plaintiff also, reported that their trash had not been collected. Between April 8 and April 17, 1977, defendant Clark received complaints about trash, and was informed that plaintiff had told these people that defendant Clark had run plaintiff's business out of town. On April 13, 1977, defendant Clark issued a statement which...