Smith v. Woodhollow Apartments
| Decision Date | 31 March 1978 |
| Docket Number | No. CIV-77-0501-D.,CIV-77-0501-D. |
| Citation | 463 F. Supp. 16 |
| Parties | Tommy SMITH and Shirley Ann Smith, Plaintiffs, v. WOODHOLLOW APARTMENTS, Defendant. |
| Court | U.S. District Court — Western District of Oklahoma |
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Michael T. Braswell, Oklahoma City, Okl., for plaintiffs.
Henry F. Featherly, Barry D. Mock, Oklahoma City, Okl., for defendant.
This is a civil rights action in which Plaintiffs seek damages and declaratory and injunctive relief for the alleged refusal of Defendant's agent to rent them an apartment because of discrimination based on race and sex. In their Complaint, Plaintiffs assert that the Court has jurisdiction of this action pursuant to the Thirteenth Amendment; 42 U.S.C. §§ 1981, 1982 and 1988; §§ 804, 810 and 812 of the Fair Housing Act of 1968, 42 U.S.C. §§ 3604, 3610 and 3612; Subchapter II of the Labor Management Relations Act of 1947, 29 U.S.C. § 151 et seq.; and the Equal Credit Opportunity Act Amendments of 1976, 15 U.S.C. § 1691 et seq. Defendant has filed herein a Motion to Dismiss this action and a Brief in support thereof. Plaintiffs have filed a Brief in opposition thereto.
In support of its Motion, Defendant contends that the Court should: (1) dismiss the portion of this action based on violations of the Fair Housing Act on the ground that this action was commenced more than one hundred eighty days after the alleged discriminatory act and is therefore barred by the period of limitations contained in 42 U.S.C. § 3612(a); and (2) dismiss the portion of this action based on 42 U.S.C. §§ 1981, 1982 and 1988 for lack of jurisdiction as allegations of deprivation of rights in violation of the Fair Housing Act preclude assertions of rights secured by §§ 1981, 1982 and 1988; that said sections do not provide an independent jurisdictional ground for a claim alleging private racial discrimination in housing practices; that said sections do not provide a jurisdictional ground for a claim alleging discrimination based on sex; that §§ 1981 and 1982 apply only to discrimination pursuant to state or community authority; that §§ 1981 and 1982 are declaratory only and set forth no standards, remedy or enforcement provisions; and that the one hundred eighty day limitation period of 42 U.S.C. § 3612(a) expresses the intent of Congress in housing discrimination actions as §§ 1981, 1982 and 1988 provide no limitation period.
In their response Brief, Plaintiffs contend that under the Fair Housing Act, an aggrieved person may seek redress in the courts under 42 U.S.C. § 3610 or 3612 in the alternative; that allegations of jurisdiction under § 1981 are to be construed as asserting jurisdiction under 28 U.S.C. § 1343; that discrimination in the rental of housing may be considered under § 1981; that compensatory and punitive damages and attorneys fees may be awarded under §§ 1981 and 1982; and that an action brought under § 1981 is governed by "the most analogous state statute of limitations" which is 25 Okl.Stat.1971 § 1501 et seq. in this case and provides a two hundred seventy day period after the alleged discriminatory act for court action to be initiated.
The Fair Housing Act was designed to provide fair housing throughout the nation and is a valid exercise of congressional power under the Thirteenth Amendment to eliminate the badges and incidents of slavery. Williams v. Matthews Co., 499 F.2d 819 (Eighth Cir. 1974), cert. denied, 419 U.S. 1021, 1027, 95 S.Ct. 495, 507, 42 L.Ed.2d 294, 302 (1974); United States v. Hunter, 459 F.2d 205 (Fourth Cir. 1972), cert. denied, 409 U.S. 934, 93 S.Ct. 235, 34 L.Ed.2d 189 (1972). In Howard v. W. P. Bill Atkinson Enterprises, 412 F.Supp. 610 (W.D.Okl.1975), this Court determined that the Fair Housing Act provides two avenues through which persons aggrieved by alleged violations of the Act may seek redress in federal court and stated:
412 F.Supp. at 611.
The limitations period of § 3612 is not tolled while the aggrieved party pursues his administrative remedies under § 3610. Jefferson v. Mentzell, 409 F.Supp. 1 (N.D.Tex. 1976).
In the instant case, the discriminatory act complained of allegedly occurred on August 20, 1976, but Plaintiffs did not file this action until May 31, 1977, two hundred eighty-four days later. Thus, it is clear that Plaintiffs are out of time under § 3612 and are foreclosed from asserting a claim thereunder. Jefferson v. Mentzell, supra; see Howard v. W. P. Bill Atkinson Enterprises, supra. However, the question remains as to whether Plaintiffs are out of time under § 3610.
The pertinent provisions of § 3610 read as follows:
The administrative complaint procedure set out above has been held to be a jurisdictional prerequisite to the maintenance of a civil action brought under § 3610. Fair Housing Council of Bergen County, Inc. v. Eastern Bergen County Multiple Listing Service, Inc., 422 F.Supp. 1071 (D.N.J.1976); see Wheatley Heights Neighborhood Coalition v. Jenna Resales Co., 429 F.Supp. 486 (E.D. N.Y.1977); Johnson v. Decker, 333 F.Supp. 88 (N.D.Cal.1971). In this regard, several courts have held that in order for an action to be maintainable in district court under § 3610, the plaintiff must have (1) filed a complaint with the Secretary charging a violation of the Fair Housing Act within one hundred eighty days after the discriminatory act allegedly occurred and (2) brought the civil action under consideration within the thirty day period commencing on the thirty-first day after the complaint was filed with the Secretary regardless of whether the action was filed within thirty days after the plaintiff received notice that HUD had terminated its efforts to resolve the dispute. See Tatum v. Myrick, 425 F.Supp. 809 (M.D.Fla.1977); Sumlin v. Brown, 420 F.Supp. 78 (N.D.Fla.1976); Brown v. Blake & Bane, Inc., 402 F.Supp. 621 (E.D.Va.1975); Young v. AAA Realty Company of Greensboro, Inc., 350 F.Supp. 1382 (M.D.N.C.1972). However, other courts have held that the thirty day period in which a plaintiff may file suit under § 3610 begins to run only when the plaintiff receives notice that HUD has failed to obtain voluntary compliance. See Logan v. Richard E. Carmack & Associates, 368 F.Supp. 121 (E.D.Tenn.1973); Brown v. Ballas, 331 F.Supp. 1033 (N.D.Tex.1971).
Except for Paragraph IV of Plaintiffs' Complaint wherein Plaintiffs allege that they filed a complaint with the Secretary "within the statutory period," there is nothing in the record presently before the Court in this case to indicate whether Plaintiffs filed their complaint with the Secretary within one hundred eighty days as required by § 3610(b). Furthermore, although Plaintiffs have attached to their Complaint herein a copy of the "right to sue" letter dated April 29, 1977, and issued to them by HUD, the Court is also unable to presently determine whether Plaintiffs brought the instant action within thirty days after they received said letter as there is nothing in the record to indicate when Plaintiffs actually received this letter. Therefore, regardless of which interpretation of the limitations provisions of § 3610 is followed, it is impossible to conclude that Plaintiffs' action was not timely filed due to the present state of the record.
In view of the foregoing, the Court finds and concludes that Defendant's Motion should be sustained and Plaintiffs' action dismissed insofar as 42 U.S.C. § 3612 is involved. However, as to 42 U.S.C. § 3610, Defendant's Motion should be overruled subject to reconsideration if it is later established that Plaintiffs' action was not timely filed under said section.
Even if Plaintiffs' action was not timely filed under the Fair Housing Act, Plaintiffs may seek relief under 42 U.S.C. §§ 1981 and 1982 and invoke the Court's jurisdiction pursuant to 28 U.S.C. § 1343.1Tatum v. Myrick, supra; Sumlin v. Brown, supra; Jefferson v. Mentzell, supra; see Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968); Warren v. Norman Realty Co., 513 F.2d 730 (Eighth Cir. 1975), cert. denied, 423 U.S. 855, 96 S.Ct. 105, 46 L.Ed.2d 81 (1975); Hickman v. Fincher, 483 F.2d 855 (Fourth Cir. 1973); McLaurin v. Brusturis, 320 F.Supp. 190 (E.D.Wis.1970). Both § 1981 and § 1982 apply to private racial discrimination...
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...(same two-year statute of limitations governs claims for intentional infliction of emotional distress), and Smith v. Woodhollow Apartments, 463 F.Supp. 16, 21 (W.D.Okla.1978) (same two-year statute of limitations governs claims for racial discrimination in housing).We recognize that some ot......
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