Opinion
CV-01-755-ST.
December 21, 2001
FINDINGS AND RECOMMENDATIONS
INTRODUCTION
Plaintiff, Ermias "Sam" Gebray ("Gebray"), originally filed race discrimination claims under 42 U.S.C. § 1981 and 1983 and a state common law claim of malicious prosecution against defendants Pauline Nelson and the Portland International Airport of the Port of Portland ("the Port"), on April 27, 2001, in Multnomah County Circuit Court for the State of Oregon, Gebray v. Pauline Nelson Portland Int'l Airport, the Port of Portland, Civil Case No. 0104-04409. On May 23, 2001, defendants filed a Notice of Removal to this court, alleging federal question jurisdiction. On September 7, 2001, this court entered a Stipulated Order allowing Gebray to file an Amended Complaint dismissing Pauline Nelson and making his First and Second Claims for Relief more definite and certain. (docket #12). Accordingly, Gebray filed an Amended Complaint against only the Port on September 21, 2001 (docket #13), alleging claims of race discrimination under 42 U.S.C. § 1981, 1983, and 2000d, and a state common law claim of malicious prosecution, and seeking declaratory and injunctive relief, compensatory damages, andattorney fees and costs.
This court has federal question jurisdiction under 28 U.S.C. § 1331. The Port has filed Motions to Dismiss or Strike (docket #16). Specifically, the Port seeks to dismiss Gebray's First, Second, and Third Claims for Relief for failure to state claims, to strike the requests for declaratory and injunctive relief, and in the alternative, to strike immaterial and impertinent factual allegations. For the reasons set forth below, the Port's motions should be granted in part and denied in part.
ANALYSIS
I. Failure to State a Claim (Motions 1, 2, and 3) A. Legal Standard
A motion to dismiss under FRCP 12(b)(6) will be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1527 (9th Cir 1995). "The issue is not whether [the] plaintiff will ultimately prevail but whether the [plaintiff] is entitled to offer evidence to support the claims." Davis v. Monroe County Bd. of Edu., 526 U.S. 629, 654 (1999), quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Thus, the review is limited to the Amended Complaint, and all allegations of material fact are taken as true and viewed in the light most favorable to Gebray. Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir), cert denied, 506 U.S. 999 (1992). "Civil rights complaints are to be liberally construed." Id.
B. Motion 1
Motion 1 seeks to dismiss for failure to state a claim the First Claim for Relief which alleges racial discrimination under 42 U.S.C. § 1983. Section 1983 provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected, any . . . person . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
The Amended Complaint alleges that Gebray was born in Tigre, Africa, and is black. Amended Complaint, ¶ 3. He owned and operated a business under the name of "Red Sea Shuttle" which in 1998 and the first part of 1999 operated up to four vans and was authorized to take passengers to and from the Portland International Airport. Id. ¶ 5. From May 1999 through January 2000, the Port refused to allow Gebray to operate substitute vans when his permitted vans were out of service, suspended his permits for 90 days without any sufficient cause, and refused to issue a new permit for a replacement van after all of his vans had been repossessed because of the Port's prior actions. Id. ¶ 6.
Gebray alleges that the Port violated § 1983 "as evidenced by the following facts:"
(a)Statements by Pauline Nelson, as agent of defendant acting within the area of her authority, to the effect that she favored certain transportation companies which in general were owned or operated predominately by white persons and that she disfavored and would seek to do away with services of certain transportation companies which were primarily owned or operated by black persons. In fact, defendant has been found to have discriminated on the basis of race against two black individuals in the provision of transportation services in a state court proceeding now on appeal.
(b) Defendant's agents favored white owned transportation companies in assigning customers and positions in line at the airport and allowing white owned company vehicles longer waiting times — in excess of that allowed black owned companies.
(c)Defendant answered calls for law enforcement help from a white driver but refused to respond to calls for help from plaintiff under similar circumstances.Id. ¶ 9.
Gebray also alleges that the Port commenced criminal proceedings against him for harassment without probable cause because he protested the failure of the Port to allow him a permit for even one van in January 2000. Id. ¶ 10. The Port then refused to issue him any permit or allow him any access to the airport during the pendency of the criminal proceedings. Id. Gebray was acquitted of the criminal charges in July 2000. Id. ¶ 11. This alleged unlawful discrimination by the Port deprived Gebray of his right to operate a business in a non-discriminatory environment. Id. ¶ 12.
Gebray is not subject to a heightened pleading standard for a § 1983 claim against a governmental entity, but need only plead "a short and plain statement of the claim showing that the pleader is entitled to relief." FRCP 8(a)(2); Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 168 (1993). However, the Port contends that Gebray fails to meet even this minimum standard.
A governmental entity cannot be held vicariously liable for the unconstitutional acts of its employees based upon a respondeat superior theory. Monell v. Department of Soc. Serv. of the City of New York, 436 U.S. 658, 691 (1978). Instead, to impose § 1983 liability against a governmental entity, a plaintiff must rely on one of three theories:
First, the plaintiff may prove that a city employee committed the alleged constitutional violation pursuant to a formal governmental policy or a longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity. Second, the plaintiff may establish that the individual who committed the constitutional tort was an official with final policy-making authority and that the challenged action itself thus constituted an act of official governmental policy. . . . Third, the plaintiff may prove that an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it.Trevino v. Gates, 99 F.3d 911, 918 (9th Cir 1996), citing Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir 1992).
If relying on the first theory, a plaintiff must identify a governmental policy or custom that actually caused the injury to plaintiff. Monell, 436 U.S. at 694. "At the very least there must be an affirmative link between the policy and the particular constitutional violation alleged." City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985). In the Ninth Circuit, "a claim of [governmental] liability under section 1983 is sufficient to withstand a motion to dismiss 'even if the claim is based on nothing more than a bare allegation that the individual officers' conduct conformed to official policy, custom, or practice.'" Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 624 (9th Cir 1988), citing Shah v. County of Los Angeles, 797 F.2d 743, 747 (9th Cir 1986). Despite this liberal standard for pleading governmental liability under § 1983, the Amended Complaint fails to allege any policy or custom of the Port that violated Gebray's constitutional rights.
Nor does the Amended Complaint reveal any basis for imposing liability on the Port under either of the other two available theories. The Amended Complaint simply alleges various discriminatory acts by agents of the Port, including Pauline Nelson, but fails to allege that an official with final policy-making authority was involved or that an official with final policy-making authority ratified a subordinate's actions. Accordingly, Gebray has failed to state a cognizable § 1983 claim against the Port and Motion 1 should be granted with leave for Gebray to replead.
C. Motion 2
Motion 2 seeks to dismiss the Second Claim for Relief which alleges racial discrimination in violation of 42 U.S.C. § 2000d ("Title VI"). Title VI provides that "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."
The Port argues that the Second Claim for Relief:(1) was added without leave of the court; (2) pleads only conclusory allegations; and (3) fails to allege discrimination in a federally funded program or activity. For the reasons that follow, Motion 2 should be denied.
1. Added Claim
The Second Claim for Relief is a new claim that was not alleged in the original Complaint. The Port argues that it was added without leave of court and exceeds the scope of the Stipulated Order to replead the pre-existing claims. However, the Stipulated Order does not specifically preclude Gebray from adding a claim. Since the Second Claim for Relief arises out of the same set of facts, it should not be dismissed for that reason.
2. Conclusory Allegations
The Port argues that the allegations in the Second Claim for Relief are purely conclusory. However, given the liberal pleading standard under FRCP 8(a)(2), this court disagrees.
The Second Claim for Relief incorporates the prior allegations and further alleges that the Port violated Title VI because it received federal funds, "engaged in racially discriminatory practices when it singled out plaintiff based upon his race and made it difficult or impossible [for him] to operate [his] business," and was "intentionally discriminatory based upon [his] race, color and/or national origin." Amended Complaint, ¶¶ 21-23. By incorporating the prior allegations, the Second Claim for Relief sufficiently pleads unlawful conduct that allegedly violates Title VI.
This court notes that according to a recent Supreme Court decision, 42 U.S.C. § 2000d "prohibits only intentional discrimination" and no private right of action exists to enforce disparate-impact regulations promulgated under Title VI. Alexander v. Sandoval, 532 U.S. 275, ___, 121 SCt 1511, 1519, 1522 (April 4, 2001). Moreover, private damages actions in Title VI claims are available only where recipients of federal funding had adequate notice that they could be liable for the conduct at issue. Guardians Ass'n. v. Civil Serv. Comm'n of New York City, 463 U.S. 582, 598-599 (1983). In the absence of proof of discriminatory animus, compensatory relief should not be awarded to private Title VI plaintiffs and if discriminatory intent is shown, declaratory and limited injunctive relief should be the only available private remedies. Id. at 584. However, Gebray alleges the Port intentionally discriminated against him and does not seek to recover damages from the Port for violating Title VI, but only seeks equitable relief and attorney fees. Thus, the Second Claim for Relief sufficiently states a claim.
3. Federally Funded Program
The Port also contends that the Second Claim for Relief fails to allege discrimination by a specific "program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. Although Gebray alleges that the Port receives federal funds, the Port asserts that in order to state a claim under Title VI, Gebray must allege that the Port's roadway transportation services program receives federal funds.
The Port has not provided any information concerning its various programs or activities, but merely argues that it has a separate transportation services program.
Title VI does not subject a state or local government to sweeping liability for discrimination claims in programs or activities that receive no federal funding merely because some other aspect of the state or local government may receive federal funding. Instead Title VI specifically applies only to a "program or activity "defined as" all of the operations of — (1)(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government. . . ." 42 U.S.C. § 2000d-7.
Because of its broad statutory mandate, the Port characterizes itself as equivalent to a local government similar to the Metropolitan Service District ("Metro"), ORS Chapter 268, and not subject to liability under Title VI unless its roadway transportation services program receives federal funding. Gebray counters that the Port is better characterized as a "department, agency, special purpose district, or other instrumentality" of the State of Oregon, similar to the Mass. Transit District ("Tri-Met"), ORS Chapter 267.
The Ninth Circuit has declined to issue an advisory opinion to address the narrow question of whether Title VI applies to a state's local program or activity not in receipt of federal funds. However, under a Title VII analysis, the Ninth Circuit looks to the state's "involvement" and "degree of control" over the local program. Association of Mexican-American Educators v. State of Cal., 231 F.3d 572, 581 (9th Cir 2000).
To support their argument, both parties rely on Association of Mexican-American Educators v. State of Cal, 183 F.3d 1055 (9th Cir 1999), amended and superseded by, 195 F.3d 465 (9th Cir 1999), reh'g granted en banc, 208 F.3d 786 (9th Cir 2000), rev'd in part on reh'g, 231 F.3d 572 (9th Cir 2000). Ultimately, the Ninth Circuit "concluded that [since] Title VII applies . . . [it] need not consider whether Title VI also applies . . . [because] Plaintiff's disparate impact theory . . . [under] Title VII . . . would resolve Plaintiff's claims on the merits under Title VI as well." Id. 231 F.3d at 590.
Both parties agree that for purposes of Title VI, the Port is a unique entity. "Port Authority functions are not readily classified as typically state or unquestionably local." Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 45, 47 (1994) (holding that the "State's purse is the most salient factor in Eleventh Amendment determinations"). It is constituted as a separate geographic district covering a metropolitan area. ORS 778.010. Its purposes and mandates are broad, including to "promote the maritime, shipping, aviation, commercial and industrial interests of the port as by law specifically authorized" and to do whatever is "requisite, necessary or convenient" to accomplish its purposes or carry out its powers. ORS 778.008(4), 778.015. In many ways, it resembles an independent corporate entity in that its governing board may issue ordinances (ORS 778.085(3), .255 .260(1)), tax real and personal property situated within its boundary (ORS 778.065), issue general obligations and revenue bonds (ORS 778.030 .145), acquire property by eminent domain (ORS 778.095); and it has a police force (ORS 778.260(2)). Its governing board may also exercise initiative and referendum rights with respect to Port ordinances. ORS 778.270. On the other hand, the Port is not created by a charter or constitution, but is a creature of statute and its governing body is not elected, but is appointed by the Governor and confirmed by the Senate. ORS 778.210 .215.
However, pursuant to 778. 260(3):"This section does not limit the authority of a state, county or municipal peace officer to enforce state laws and city and county ordinances at airports owned, operated, maintained, or controlled by the port."
The Port, Metro, and Tri-Met all "constitute a municipal corporation of [Oregon] and a public body, corporate and politic, exercising public power[,] . . . hav[ing] perpetual succession, can sue and be sued in its own name, and enter into contracts." ORS 267.200; 268.300; 777.005(5) .050; 778.008 .010. However, their similarities diverge from there. To demonstrate a similarity to Metro, the Port points to its broad scope of authority, including its eminent domain powers. However, Metro is distinguishable from the Port because it not only has statutory powers, but also may "[e]xercise jurisdiction over other matters of a metropolitan concern as authorized by a district charter"ORS 267.310(6). Also, unlike the Port and Tri-Met, where its members are appointed by the Governor and confirmed by the Senate, Metro's governing body is elected. ORS 267. 090 268. 060.
Although it is difficult to determine on which side of the Title VI fence the Port falls, this court is persuaded by the express language of Title VI. As noted above, it applies to "a department, agency, special purpose district, or other instrumentality of a State or of a local government. . . ." 42 U.S.C. § 2000d-7. Throughout the ORS chapters, a salient feature is that the Port is classified as a "separate district" (ORS 778.010) or a "special district" (ORS 197.015(19) Title 19 "Special Districts Generally"). All such districts are instrumentalities of the State of Oregon. The Port may have a large geographical scope and range of infrastructure operations, purposes, attributes, and powers that meet or exceeds those conferred on other special purpose districts, but the fact remains that it is to a degree controlled by the State of Oregon and is a district providing a special service to which Title VI specifically applies.
Pursuant to ORS 197.015(19):"Special district" means any unit of local government, other than a city, county, metropolitan service district formed under ORS chapter 268 or an association of local governments performing land use planning functions under ORS 195.025 authorized and regulated by statute and includes but is not limited to: Water control districts, domestic water associations and water cooperatives, irrigation districts, port districts, regional air quality control authorities, fire districts, school districts, hospital districts, mass transit districts and sanitary districts. "Rather than being in the same category as city or county like Metro is, the Port is specifically designated as a "special district."
Since the Port receives federal monies as a "special purpose district," Gebray need not allege that the Port's roadway transportation program receives federal assistance. Accordingly, Motion 2 should be denied.
D. Motion 3
Next, the Port moves to dismiss for failure to state a claim on the Third Claim for Relief, which alleges racial discrimination under 42 U.S.C. § 1981. Section 1981 provides that "All persons . . . shall have the same right . . . to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings . . . as is enjoyed by white citizens. . . ."
The Third Claim for Relief incorporates allegations in the First and Second Claims for Relief and adds that the Port "denied plaintiff his right to make and enforce contracts, to sue, be a party, give evidence, and to the full and equal benefit of all laws and proceedings for the security of his person and property, as is enjoyed by white citizens." Amended Complaint ¶ 28.
As with a § 1983 claim, a plaintiff need not satisfy a heightened pleading standard. See Karim-Panahi, 839 F.2d at 625, citing Jones v. Bechtel, 788 F.2d 571, 574 (9th Cir 1986). Here Gebray alleges in the preceding paragraphs how the Port discriminated against him due to his race. That is sufficient to pass muster under FRCP 8(a)(2).
However, as Gebray concedes, his § 1981 allegation is broader than his actual claim. He does not claim that the Port denied him the right to give evidence. Instead, he complains that the Port suspended his permit and also refused to issue him a new permit due to his race, which interfered with his right to make a contract. To more precisely define the parameters of the Third Claim for Relief, Motion 3 should be granted with leave to replead.
III. Declaratory and Injunctive Relief (Motions 4 and 5)
Next, the Port moves to dismiss or, alternatively, strike the portions of the First, Second, and Third Claims for Relief that seek declaratory or injunctive relief. For the reasons that follow, Motions 4 and 5 should be denied.
The Amended Complaint alleges that an "actual controversy" still exists because from May 1999 through January 2000, Gebray was denied a permit to operate substitute vans when his permitted vans were out of service, that the Port also suspended his permits for 90 days, and the Port refused to issue a new permit for a replacement van after his vans were repossessed. Amended Complaint ¶¶ 6, 30. Additionally, Gebray alleges that he continues to be harmed because his financial difficulties continue, he has not had employment since January 2000, and he has been unable to secure with the Portland International Airport a shuttle permit necessary for his passenger transportation business.
In "determining whether a request for declaratory relief ha[s] become moot, . . . basically, 'the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.'" Kasza v. Browner, 133 F.3d 1159, 1172 (9th Cir 1998), quoting Public Utilities Comm'n of State of Cal. v. Federal Energy Regulatory Comm'n, 100 F.3d 1451, 1458 (9th Cir 1996). Moreover, injunctive relief is appropriate when a plaintiff alleges "a continuing violation or the imminence of a future violation, [and that] the injunctive relief requested would remedy that alleged harm." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 108-09 (1998).
While the Port argues declaratory relief is inappropriate because Gebray does not have an active controversy, paragraph 30 of the Amended Complaint alleges that there is an "actual controversy. "Under FRCP 8(a), the details of the actual controversy are not required to be plead. Moreover, Gebray alleges that the Port's discriminatory practices continue to substantially harm him because he still has not been reissued a permit, is faced with financial difficulties, and has not had employment since the alleged discriminatory acts took place, making injunctive relief an appropriate remedy. Accordingly, Motions 4 and 5 should be denied.
IV. Immaterial and Impertinent Factual Allegations (Motion 6)
Lastly, in the alternative to its first five motions, the Port moves to strike certain immaterial and impertinent portions of the Amended Complaint. In particular, the Port moves to strike: (1) paragraph 9(a), which refers to a state court trial that is now on appeal; (2) paragraph 9(c), which alleges that the Port answered calls for law enforcement help from a Caucasian driver but not from Gebray under similar circumstances; and (3) paragraph 28, which alleges that the Port "denied plaintiff his right to make and enforce contracts, to sue, be a party, give evidence, and to the full and equal benefit of all laws and proceedings for the security of his person and property, as is enjoyed by white citizens." Because this court recommends that the First and Third Claims for Relief should be replead, this motion should be denied as moot.
RECOMMENDATIONS
For the reasons stated above, the Port's Motions to Dismiss or Strike (docket #16) should be granted in part and denied in part as follows:
Motion 1: Granted with leave to replead;
Motion 2: Denied;
Motion 3: Granted with leave to replead;
Motion 4: Denied
Motion 5: Denied; and
Motion 6: Denied as moot.
SCHEDULING ORDER
Objections to the Findings and Recommendation, if any, are due January 15, 2002. If no objections are filed, then the Findings and Recommendation will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than February 1, 2002. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will be referred to a district court judge and go under advisement.