Opinion
CIVIL ACTION NO: 01-1276 SECTION: "D"(2)
October 3, 2001
Before the court are the following motions:
(1) "Motion to Dismiss for Failure to State a Claim upon which Relief Can Be Granted" filed by defendant, New Orleans Private Patrol Service, Inc. (NOPP);
(2) Joinder of Defendant, Harry's Hardware, Inc. d/b/a Harry's Ace Hardware (Harry's) in NOPP's Motion to Dismiss, which Joinder the court treats as Harry's Motion to Dismiss; and
(3) "Motion to Dismiss for Failure to State a Claim Upon Which Can Be Grant." filed by Defendant, Bernard Vernon.
Plaintiff, Carolyn Evans filed a memoranda in opposition. The otions, set for hearing on Wednesday, September 5, 2001 and October 3, 2001, are before the court on briefs, without oral argument. Now, having reviewed the memoranda of counsel and the applicable law, the court finds that the facts as alleged by Plaintiff are not sufficient to support plaintiff's federal claims.
In this civil rights lawsuit, Plaintiff Carolyn Evans, who is white, alleges that on December 2, 2000,
[she] went to Harry's Ace to purchase some items. While standing in line, she was accosted by another customer, who was black and whose identity is unknown at this time. The argument began when he tried to cut in front of the line ahead of Ms. Evans. When she refused to let him cut in, he threatened her on the basis of race, stating, "You just better shut up bitch because you know what happens to white people when you mess with us black folks.
Immediately thereafter, and while the customer was still threatening her, Ms. Evans asked for the manager, who later identified himself as Bernard Vernon. Ms. Evans repeated the threats that were made to her by the customer to Rawlins and Vernon. Both refused to assist her in any way. Specifically, the security guard refused to call the police or take any other measure to protect Ms. Evans. A third customer, who is also an attorney, overheard these conversations and interceded on Ms. Evans behalf. Only when this third customer threatened legal action, did Rawlins or Vernon agree to contact the police.
Subsequently, and while waiting for the police, Rawlins and Vernon were amicable and helpful to the customer who had threatened Ms. Evans, were hostile towards Ms. Evans, pressured Ms. Evans to drop the matter, refused to offer her additional assistance, and did not follow normal procedures. Finally, Rawlins and Vernon allowed the customer to leave without first advising Ms. Evans and before the police arrived.
Complaint, ¶¶ 15-17.
Plaintiff asserts claims against Defendants under 42 U.S.C. § 1981, 1982, 1988, and 42 U.S.C. § 2000a, complaining that "[t]he acts of defendants Vernon and Rawlins infringed upon [her] rights to purchase property and contract for goods in the same manner as any other citizen" and "[s]he was deterred from purchasing items and was constructively refused service at Harry's Ace because of her race." (Complaint, ¶ 21, emphasis added). Plaintiff also asserts state law claims under the court's supplemental jurisdiction, and seeks injunctive relief.
Plaintiff's § 1981 Claim
Since § 1981 was amended by Title I of the Civil Rights Act of 1991, contract rights protected by § 1981 encompass "the making, performance, modification, termination of contracts, and enjoyment of all benefits, privileges, terms and conditions of the contractual relationship." 42 U.S.C. § 1981(b).
In order to state a cognizable claim under 42 U.S.C. § 1981, a Plaintiff is required to allege: (1) that she is a member of a racial minority; (2) that Defendants intentionally discriminated against her on the basis of her race; and (3) that the discrimination was directed toward one or more of the activities protected by the statute. Bellows v. Amoco Oil Co., 118 F.3d 268, 274 (5th Cir. 1997), citing Green v. State Ear of Texas, 27 F.3d 1083, 1086 (5th Cir. 1994)
Plaintiff is white, which arguably is not a minority race. However, in McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976), the Court found that "§ 1981 is applicable to racial discrimination in private employment against white persons." 427 U.S. at 286-87.
Here, assuming that Plaintiff (who is white) is a member of a racial minority for purposes of 51981 (first element), the court finds that Plaintiff has insufficiently alleged facts to support the second and third elements of a § 1981 claim. Plaintiff fails to allege specific allegations that Defendants intentionally discriminated against her on the basis of her race (second element); any statement regarding racial bias were made by the "unknown black male". Plaintiff also fails to allege specific acts showing that Defendants deprived her of any of the enumerated rights in § 1981(b) (third element); Plaintiff does not allege that she was denied admittance or service, that she was not allowed to make a purchase, or that she was asked to leave the store.
See footnote 1 supra.
Plaintiff only alleges that "Is]he was deterred from purchasing items and was constructively refused service at Harry's Ace because of her race." (Complaint, ¶ 21, emphasis added). However, bare allegations of a "deterrence" from purchasing goods, "constructive refusal" of service, or interference with a prospective contractual relation (without the allegation of an actual loss of a contractual interest) are speculative and insufficient to state a claim under § 1981.
Plaintiff's 11982 Claim
Section 1982 deals with discrimination in property transactions. It states:
All 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. Section 1982 was enacted to enable Congress to enforce the Thirteenth Amendment and, particularly, to prohibit all racial discrimination, private and public, in the sale and rental of property. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437, 88 S.Ct. 2186, 2202, 20 L.Ed.2d 1189 (1968).
Here, Plaintiff's § 1982 claim falls for the same reasons that her § 1981 claims fall. Again, the only racial statement was made by the unknown black male, who was allegedly a patron in Defendant's store. Further, the conduct Plaintiff complains of does not constitute impairment of her ability to exercise property rights — even assuming that an implicit retail contract is a property right. While Section 1982 protects the ability of citizens to "purchase . . . personal property," Plaintiff has not alleged conduct by Defendants in violation of her right to purchase personal property from the Defendant hardware store, for the same reasons that she has not alleged conduct by Defendants in violation of § 1981.
Because of their common origin and purpose, § 1981 and § 1982 claims are generally construed in tandem. Tiliman v. Wheaton-Haven Recreation Ass'n, Inc., 410 U.S. 431, 440, 93 S.Ct. 1090, 1095, 35 L.Ed.2d 403 (1973).
Plaintiff's § 2000a Claim
Finally, Plaintiff's claim under 42 U.S.C. § 2000a also falls. Section 2000a provides:
All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.42 U.S.C. § 2000a(a)
The definition of "place of public accommodation" includes inns, hotels, motels, motion picture houses, theaters, concert halls, sports arenas, stadiums, gasoline stations, restaurants, cafeterias, lunchrooms, lunch counters, soda fountains (or any other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment). 42 U.S.C. § 2000a(b) (emphasis added).
Here, the court construes the allegations of the Complaint in the light most favorable to Plaintiff, but finds that they do not permit a reasonable inference that the subject hardware store is a "place of public accommodation" within the meaning of 42 U.S.C. § 2000a. More specifically, while Plaintiff alleges that Defendant Harry's serves food, Plaintiff does not allege that the hardware store is a restaurant, cafeteria, lunchroom, lunch counter, soda fountain or is otherwise "principally engaged in selling food for consumption on the premises". § 2000a(b). Further, the conduct Plaintiff complains of does not constitute denial of full and equal enjoyment of the subject hardware store's goods and services, for the same reasons that the conduct she complains of does not constitute violations of § 1981 and § 1982.
The court also notes that before filing suit under 42 U.S.C. § 2000a, plaintiffs are required to give written notice of the alleged act of discrimination to the appropriate state or local agency when state law prohibits discriminatory practices in places of public accommodation. 42 U.S.C. § 2000a-3(c). Here, neither Plaintiff nor Defendants have addressed the issue of whether or not Plaintiff is required to exhausted administrative remedies before filing her § 2000a claim.
In conclusion, while the alleged incident Plaintiff experienced, if true, was unfortunate and disconcerting, it does not give rise to a violation of the federal civil rights statutes Plaintiff sues upon. The court also finds that Plaintiff is not entitled to the injunctive relief she seeks, and the court declines to exercise supplemental jurisdiction over her state law claims.
Accordingly;
IT IS ORDERED that all three of Defendants' Motions to Dismiss be and are hereby GRANTED, dismissing Plaintiff's federal claims with prejudice, and dismissing Plaintiff's state law claims without prejudice.
Plaintiff has not properly placed a Motion to Amend before this court. However, to the extent that she has incorporated such a motion in her opposition memoranda, the court denies Plaintiff's request to amend because, despite ample opportunity to do so, she has failed to show how an amended Complaint will cure the insufficiencies of her original Complaint.
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