Zuyus v. Hilton Riverside

• Decision Date: 20 June 2006
• Docket Number: Civil Action No. 05-0032.
• Citation: 439 F.Supp.2d 631
• Parties: Kathy ZUYUS v. HILTON RIVERSIDE, et al.
• Court: U.S. District Court — Eastern District of Louisiana

439 F.Supp.2d 631

Kathy ZUYUS v. HILTON RIVERSIDE, et al.

Civil Action No. 05-0032.

United States District Court, E.D. Louisiana.

June 20, 2006.

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Dominic Nicholas Varrecchio, Attorney At Law, New Orleans, LA, for Kathy and Peter Zuyus.

Joseph Maselli, Jr., George Cameron Drennan, Godfrey Bruce Parkerson, Plauche, Maselli, Landry & Parkerson, LLP, New Orleans, LA, for Hilton Riverside LLC, Hilton Hotel Corporation, International Rivercenter LLC and Fred Sawyers.

ORDER AND REASONS

VANCE, District Judge.

Defendants Hilton Riverside, LLC, International Rivercenter, LLC, Hilton Hotels Corporation and Mr. Fred Sawyers move the Court to dismiss some of the claims of plaintiff Kathy Zuyus for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6). For the following reasons, the Court GRANTS defendants' motion in part and DENIES it in part.

I. BACKGROUND

Plaintiff alleges the following facts. On January 7, 2004, Peter Zuyus, an elderly white man, went to the Hilton New Orleans Riverside to patronize the coffee shop in the hotel lobby. (R. Doc. 30 at 5). In the lobby, defendant Lucian Fortune, who identified himself as a security guard for the hotel, approached Zuyus. (Id.). Fortune accused Zuyus of shoplifting and demanded to see the contents of Zuyus' shopping bag. (Id. at 5-6). Zuyus refused to cooperate with the inspection and prepared to leave the building. (Id. at 6). On his way out, Zuyus complained to a hotel doorman about the exchange, and the doorman suggested that Zuyus speak to defendant Fred Sawyers, the general manager of the property. (Id.). Zuyus met with Sawyers in his office on the second floor of the hotel. (Id.). Sawyers allegedly apologized and agreed to speak with the hotel's security personnel. (Id.).

After meeting with Sawyers, Zuyus left the hotel. (Id.). As he walked down the sidewalk on Poydras Street, he was allegedly assaulted by Fortune and two other hotel security guards, defendants Kevin Lewis and Gary Meyers. (Id.). The security guards allegedly "attacked, hit, punched, and handcuffed" Mr. Zuyus. (Id. at 6-7). During the attack, the security guards allegedly used racial epithets and "racial obscenities." (Id. at 7). The security guards allegedly dragged Zuyus to a hotel security office where they searched his shopping bag and found that it contained only the sports section of an old newspaper. (Id.). The security guards detained Zuyus until a New Orleans Police Department officer arrived. (Id.). The officer asked to see Zuyus' identification, asked' him whether he had ever been arrested, and then instructed the security guards to release him. (Id.). Zuyus then spoke by telephone with Sawyers, who told him to leave the grounds of the hotel immediately and never return to the hotel's coffee shop. (Id. at 7-8). Zuyus left the hotel and went home. (Id. at 8).

Peter Zuyus filed suit against defendants Hilton Riverside, LLC, International Rivercenter, LLC, Hilton Hotels Corporation, Fred Sawyers, Lucien Fortune, Kevin Lewis, and Gary Meyers under 42 U.S.C. §§ 1981, 1982, 1983, and 1985. Zuyus, along with his wife, also alleged several state law tort claims. Kathy Zuyus also made a claim for loss of consortium. After filing this suit, Peter Zuyus died. Kathy Zuyus has since substituted herself as plaintiff.

Defendants have moved to dismiss all of plaintiff's civil rights claims under Title 42, as well as Kathy Zuyus' loss of consortium claim.

II. LEGAL STANDARD

A. Motion to Dismiss Under 12(b)(6)

In a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court must accept all well-pleaded facts as true and view the facts in the light most favorable to the plaintiff. See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.1996); American Waste & Pollution Control Co. v. Browning-Ferris, Inc., 949 F.2d 1384, 1386 (5th Cir.1991). The Court must resolve doubts as to the sufficiency of the claim in plaintiffs favor. Vulcan Materials Company v. City of Tehuacana, 238 F.3d 382, 387 (5th Cir.2001). Dismissal is warranted if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. Id.; Piotrowski v. City of Houston, 51 F.3d 512, 514 (5th Cir.1995) (quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir.1994)).

III. ANALYSIS

A. Claims Under 42 U.S.C. 1981

Plaintiff asserts a claim under 42 U.S.C. §. 1981. Section 1981 provides as follows:

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 ... .

42 U.S.C. § 1981(a). Section 1981 generally forbids racial discrimination in the making and enforcement of private contracts, regardless of the race of aggrieved party. Bobo v. ITT, Continental Baking Co., 662 F.2d 340, 342 (5th Cir.1981). To establish a prima facie case under section 1981, a plaintiff must show that the alleged "discrimination concerned one or more of the activities enumerated in the statute." Bellows v. Amoco Oil Co., 118 F.3d 268, 274 (5th Cir.1997). "Section 1981 does not provide a general cause of action for race discrimination . . . [;][r]ather it prohibits intentional race discrimination with respect to certain enumerated activities." Arguello v. Conoco, Inc., 330 F.3d 355, 358 (5th Cir.2003) (emphasis added). Allegations of " the mere possibility that a retail merchant would interfere with a customer's right to contract in the future' is insufficient to support recovery under § 1981." Id. (quoting Morris v. Dillard Dep't Stores, Inc., 277 F.3d 743, 752 (5th Cir. 2001)). A customer must make a tangible attempt to contract and that attempt must be thwarted by the defendant in order to allege a claim under section 1981. See id. In Morris, it was not sufficient that the plaintiff had been banned from returning to the defendant's premises; in order to sustain her claim, the Fifth Circuit required that she make an attempt to contract with the store during the course of the ban. Id. at 753.

Although Zuyus asserts that defendants interfered with his ability to make and enforce contracts, this allegation is unsupported by the facts he alleges. After his alleged altercation with the defendants, Zuyus left the Hilton and did not return. Zuyus asks that the Court find that he was "constructively thwarted" from returning. Fifth Circuit law is clear on this point—the attempt to contract must be "tangible," not speculative. Zuyus fails to allege a tangible attempt to contract that could have been thwarted by the defendants. Because the facts as stated by the plaintiff fail to support a claim of discrimination involving one of the activities enumerated in 42 U.S.C. § 1981, the Court dismisses plaintiff's claims under section 1981 against all defendants.

B. Claims Under 42 U.S.C. § 1982

Section 1982 provides that "[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." 42 U.S.C. § 1982. The statute protects individuals, including caucasians, from animus based on the individual's status as a member of a group considered to be racially distinct at the time the statute was adopted. Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617, 107 S.Ct. 2019, 95 L.Ed.2d 594 (1987); see also St. Francis Coll. v. Al-Khazraji, 481 U.S. 604, 609-13, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987). In order to bring an action under section 1982, a plaintiff "must allege with specificity facts sufficient to show or raise a plausible inference of (1) the defendant's racial animus; (2) intentional discrimination; and (3) that the defendant deprived plaintiff of his rights because of race." Brown v. Philip Morris, Inc., 250 F.3d 789, 797 (3d Cir.2001); Ennis v. Edwards, 2003 WL 1560113 at *5 (E.D.La.2003). A narrow construction of the language of section 1982 is impermissible, as it would be "inconsistent with the broad and sweeping nature of the protection meant to be afforded by § 1 of the Civil Rights Act of 1866, 14 Stat. 27, from which § 1982 was derived." Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969).

Zuyus alleges that he was detained on suspicion of shoplifting and that his bag was ultimately searched because of his race. He alleges that after he was initially detained but before his bag was searched, defendants beat him while using racial slurs. He asserts that this amounts to a racially motivated invasion of his personal property. Store detectives are prohibited by section 1982 from stopping and questioning store customers solely because of their race. Evans v. Tubbe, 657 F.2d 661, 663 n. 2 (5th Cir.1981) ("[P]ursuant to § 1982, . . . a department store detective may not stop and question black customers but not white customers.") (citing Battle v. Dayton-Hudson Corp., 399 F.Supp. 900, 905 (D.Minn.1975)). The hotel security guards here allegedly stopped Zuyus, accused him of shoplifting and searched his property. The statements they allegedly made while assaulting Zuyus raise a plausible inference that their actions were motivated by racial animus and intentionally discriminatory. Zuyus has thus alleged sufficient facts to support a recognized claim under section 1982 and dismissal is not warranted.

C. Claim under 42 U.S.C. § 1983

Plaintiff also asserts a claim under 42 U.S.C. § 1983. Section 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the...