Opinion
Case No. 01-2535-JWL
August 28, 2002
MEMORANDUM ORDER
Plaintiff Mason Wilson, proceeding pro se, filed suit against defendant Wesley Medical Center alleging that defendant violated his Fourteenth Amendment due process rights, discriminated against him giving rise to a claim under 42 U.S.C. § 1981, defamed him, and was negligent in treating his brother, Willie Wilson. In a May 10, 2002, Memorandum and Order, the court dismissed plaintiff's Fourteenth Amendment due process claim but gave plaintiff an opportunity to amend his complaint to allege facts sufficient to state a claim under § 1981. Plaintiff has since filed an amended complaint with additional allegations regarding his § 1981 claim.
The matter is currently before the court on defendant's second motion to dismiss for failure to state a claim upon on which relief can be granted and/or request to change the place of trial (Doc. 27). For the reasons set forth below, defendant's motion to dismiss is granted. More specifically, plaintiff's § 1981 claim is dismissed with prejudice, and the court declines to exercise supplemental jurisdiction over plaintiff's remaining state law claims. Accordingly, those claims are dismissed without prejudice.
The court's rulings make defendant's motion to transfer the case to Wichita, Kansas moot.
I. Background
The court set forth the relevant facts in the May 10, 2002, Memorandum and Order, and the court will assume the parties knowledge of the history of the case. Nonetheless, the court will summarize the applicable facts.In November and December of 2000, plaintiff's brother, Willie Wilson, was a patient at Wesley Medical Center. During that time, plaintiff claimed to hold a valid Durable Power of Attorney ("DPOA") for health care decisions. Plaintiff presented the DPOA to defendant and requested that Willie Wilson's life support tubes be disconnected. Defendant questioned the validity of the DPOA and filed an amended petition in Sedgwick County District Court on December 5, 2000, requesting a declaration from the court with regard to the validity of the DPOA. Simultaneously, defendant filed a petition for appointment of guardian ad litem and a motion for a temporary restraining order, seeking to enjoin plaintiff from taking action under the DPOA until its validity could be determined.
A hearing regarding the DPOA issue was held on December 21, 2000. According to the state court order, which was attached as an exhibit to plaintiff's original complaint, plaintiff was present at the hearing. The court found the DPOA was "invalid" and "unenforceable," and it converted a previously issued temporary restraining order into a preliminary injunction and ordered the parties to try to agree on the best course of treatment for Willie Wilson. The court added that if no agreement could be reached between the parties, the court would decide the proper course of treatment. On December 28, 2000, Willie Wilson died at Wesley Medical Center, making the issue moot.
On November 8, 2001, plaintiff filed the instant action against defendant. In his initial complaint he alleged that defendant violated his Fourteenth Amendment due process rights, discriminated against him giving rise to a claim under 42 U.S.C. § 1981, defamed him, and was negligent in treating his brother, Willie Wilson. In the May 10, 2002, Memorandum and Order, the court dismissed plaintiff's Fourteenth Amendment due process claim but permitted him to amend his complaint to cure the factual deficiencies regarding his § 1981 claim. The court took under advisement plaintiff's remaining state law claims until the court could determine whether a federal claim is before the court. In his amended complaint, plaintiff has added additional allegations regarding his § 1981 claim. He now alleges that he is a member of a racial minority, that he was intentionally discriminated against on the basis of race, and that the hospital would not have challenged the validity of the document if it would have been presented by a white person. Defendant's second motion to dismiss for failure to state a claim alleges that despite the new allegations, plaintiff's claim must fail because he has not shown that defendant interfered with a protected activity as defined in § 1981.
II. Rule 12(b)(6) Standards
When, as here, a plaintiff is proceeding pro se, the court construes his or her pleadings liberally and holds the pleadings to a less stringent standard than formal pleadings drafted by lawyers. McBride v. Deer, 240 F.3d 1287, 1290 (10th Cir. 2001); accord Shaffer v. Saffle, 148 F.3d 1180, 1181 (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In other words, "[n]ot every fact must be described in specific detail, . . . and the plaintiff whose factual allegations are close to stating a claim but are missing some important element that may not have occurred to him should be allowed to amend his complaint." Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996) (quoting Hall, 935 F.2d at 1110). The liberal construction of the plaintiff's complaint, however, "does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based," and "conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." Id. (quoting Hall, 935 F.2d at 1110).
The court will dismiss a cause of action for failure to state a claim only when "it appears beyond a doubt that the plaintiff can prove no set of facts in support of his [or her] claims which would entitle him [or her] to relief," Poole v. County of Otero, 271 F.3d 955, 957 (10th Cir. 2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), or when an issue of law is dispositive. Neitzke v. Williams, 490 U.S. 319, 326 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, and all reasonable inferences from those facts are viewed in favor of the plaintiff. Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001). The issue in resolving a motion such as this is "not whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Swierkiewicz v. Sorema N.A., 122 S.Ct. 992, 997 (2002) (quotation omitted).
III. Analysis 42 U.S.C. § 1981
Plaintiff contends that defendant's actions in questioning his DPOA violated 42 U.S.C. § 1981. Section 1981 has been interpreted to prohibit both governmental and private discrimination in contracts. Runyon v. McCrary, 427 U.S. 160 (1976); see also Cook Sobieski, 2 CIVIL RIGHTS ACTIONS, ¶ 5.01(B) (Matthew Bender Co. 2001). To establish a prima facie case of discrimination under § 1981, the plaintiff must show: "(1) that the plaintiff is a member of a protected class; (2) that the defendant had the intent to discriminate on the basis of race; and (3) that the discrimination interfered with a protected activity as defined in § 1981." Hampton v. Dillard Dep't Stores, Inc., 247 F.3d 1091, 1101 (10th Cir. 2001) (citations omitted).
Plaintiff's amended complaint alleges that he is a member of a protected class, that he was intentionally discriminated against on the basis of race, and that the defendant would not have challenged the validity of his DPOA if it would have been presented by a white person. Defendant contends that plaintiff fails to state a claim as a matter of law because the facts do not implicate a protected activity under § 1981.
By its language, § 1981 establishes four protected activities:
As amended by the Civil Rights Act of 1991, the statute reads as follows:
(a) 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, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
(b) For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.42 U.S.C. § 1981(a)-(c).
(1) the "right to make and enforce contracts"; (2) the right "to sue, be parties, and give evidence"; (3) the right to "full and equal benefit of all laws and proceedings for the security of persons and property"; and (4) the right to be subjected "to like punishments, pains, penalties, taxes, licenses and exactions of every kind." 42 U.S.C. § 1981; see also Wesley v. Don Stein Buick, 42 F. Supp.2d 1192, 1200 (D.Kan. 1999) (citing Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1267 (10th Cir. 1989)). Plaintiff alleges that defendant interfered with his right to make and enforce contracts. More specifically, he alleges that defendant prevented him from enforcing his DPOA. Defendant contends that these allegations fail as a matter of law to support a § 1981 claim because a DPOA is not a contract and, even if it is a contract, the facts here do not implicate a protected interest under § 1981 because the Sedgwick County District Court found the DPOA to be "invalid" and "unenforceable."
In support of its position that a DPOA is not a contract, defendant cites to the decisions of several different courts that state as such. The court, however, does not address that issue because even if the right to make and enforce a DPOA could constitute a protected activity under § 1981, plaintiff's claim fails as a matter of law for the reasons explained below.
In support of its argument that plaintiff was not deprived of a protected interest under § 1981 because of the Sedgwick County District Court's findings, defendant cites to the Ninth Circuit's pronouncement in Addisu v. Fred Meyer, Inc., 198 F.3d 1130 (9th Cir. 2000): "Of course, `the loss of an opportunity to enter into a void contract-i.e., a contract that neither party can enforce-is not an injury cognizable under § 1981, for a void contract is a legal nullity.'" Id. at 1137 (emphasis in original) (quoting Fair Employment Council v. BMC Mtkg. Corp., 28 F.3d 1268, 1271 (D.C. Cir. 1994)). In Addisu, the plaintiffs alleged that the defendant refused to sell them Levi's jeans because of their race or color. Id. at 1133-34. The defendant responded that the plaintiffs were not the ultimate consumers purchasing the jeans for their personal use, and that its contract with the manufacturer prohibited sales to re-sellers or dealers. Id. The Ninth Circuit held that because plaintiffs fraudulently misrepresented their status, any contract made by the parties would have been voidable, and "a voidable contract . . . is not cognizable under § 1981." Id. at 1138.
Defendant argues that Addisu is analogous to the situation here. The Sedgwick County District Court previously found plaintiff's DPOA to be "invalid" and "unenforceable," and plaintiff apparently chose not to appeal that decision. Thus, defendant contends that the DPOA is, at best, a void contract that is not cognizable under § 1981. According to defendant, this conclusion is supported by Boatman's First Nat'l. Bank v. McCoy, 861 F. Supp. 846 (W.D.Mo. 1994). In Boatman's, a bank brought an interpleader action in state court to determine ownership of funds in a deceased depositor's account. Id. at 847. The bank had been unable to determine whether a Durable Power of Attorney presented by the defendant, which he claimed entitled him to the funds in the account, was valid. Id. After the case was removed to federal court and the defendant filed a counterclaim alleging that the bank's actions in questioning his Durable Power of Attorney violated 42 U.S.C. § 1981, the plaintiff moved to remand the case to state court. Id. In deciding that remand was proper, the court explained that if resolution of a state law claim negates the need for resolution of any federal claim, the interpleader action does not arise under federal law. Id. at 850. This led the court to conclude "that the real question at issue is the state law claim of whether the Durable Power of Attorney was valid." Id. The court noted that "[i]f that claim is resolved against defendant Willie McCoy, then the need to determine [Mr.] McCoy's § 1981 claim is obviated."
In light of Addisu and Boatman's, the court is persuaded that plaintiff's allegations do not implicate a protected activity under § 1981. Of course, these cases are not Tenth Circuit opinions, and the court's research has not revealed that the Tenth Circuit has spoken on this or any other analogous issue. The court nonetheless believes that the Tenth Circuit would follow the reasoning in both of those cases. Addisu followed the reasoning of the Court of Appeals of the District of Columbia in Fair Employment Council v. BMC Mktg. Corp., 28 F.3d at 1271. In BMC, "testers" carrying fictitious credentials sought to uncover employment discrimination by attempting to obtain referrals from an employment agency. Id. When referrals were provided to white testers but not to black testers, the testers filed suit against the agency alleging a violation of § 1981. Id. Like the defendant in Addisu, BMC moved to dismiss the claim because the testers made material misrepresentations and, therefore, any resulting contract would have been voidable at BMC's option. Id. at 1270-71. The Court of Appeals for the District of Columbia agreed, concluding that no cause of action existed because "the loss of the opportunity to enter into a contract voidable at the other party's will is not cognizable under § 1981." Id. at 1271.
Testers are "parties who lack serious contractual intent." Cook Sobieski, supra, at ¶ 5.03(A).
While Addisu and BMC are not factually analogous to the situation here, the underlying principles nonetheless negate plaintiff's claim. The general principle underlying these two cases is that a § 1981 claim must rest on a valid contract. If the contract is void or voidable at the other party's option, then it cannot form the basis of a cognizable § 1981 claim. This is true despite the fact that the defendant may not have known that the prospective contract was void or voidable at the time the contract negotiations took place. The court also finds no distinction between a situation where the defendant's alleged discrimination prevents the plaintiff from entering into a contract as was the case in Addisu and BMC, and the situation here and in Boatman's where the defendant's alleged discrimination prevents the plaintiff from enforcing a contract, the DPOA.
In sum, the court agrees with defendant's argument that because the Sedgwick County District Court found plaintiff's DPOA to be "invalid" and "unenforceable," it cannot serve as the basis for a § 1981 claim. As the court noted in its previous order, this court is not the venue to challenge the state court judge's findings. Johnson v. Rodrigues, 226 F.3d 1103, 1108 (10th Cir. 2000) (reasoning that federal district courts do not have jurisdiction over challenges to state court decisions, especially cases arising out of judicial proceedings, even if there are allegations that the state court's actions were unconstitutional). The state court judge found the document to be "invalid" and "unenforceable," and plaintiff apparently chose not appeal that decision. Thus, this court must accept that finding as true and, therefore, grant defendant's motion to dismiss plaintiff's § 1981 claim.
B. State Law Claims
Plaintiff's original complaint also contained state law negligence and defamation claims. In the May 10, 2002, Memorandum and Order, the court stated that it would take those claims under advisement until it is determined whether plaintiff has a viable federal claim before the court. Plaintiff, however, did not include those claims in his amended complaint. Defendant argues that plaintiff has therefore abandoned those claims by not including them in his amended complaint. Defendant explains in his response that he did not intend to abandon those claims; instead, he believed that the court was taking those claims under advisement and, consequently, he did not need to restate those claims in his amended complaint. In light of the fact that plaintiff is proceeding pro se and that the court did state that it was taking those claims under advisement until the court could determine whether the plaintiff has a viable federal claim, the court concludes that plaintiff has not abandoned those state law claims.
The court denies defendant's objection to plaintiff's response to defendant's second motion to dismiss (Doc. 42). In short, the court concludes that in light of plaintiff's pro se status his response to defendant's second motion to dismiss should be considered by the court in deciding these issues.
Nonetheless, because the court finds dismissal appropriate with respect to each of plaintiff's claims arising under federal law, the court declines to exercise its discretion to address the merits of plaintiff's remaining state law claims. 28 U.S.C. § 1367(c)(3); Smith v. City of Enid, 149 F.3d 1151, 1156 (10th Cir. 1998) ("When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims."); see also Pride v. Does, 997 F.2d 712, 717 (10th Cir. 1993) (holding that in light of Tenth Circuit's affirmance of district court's dismissal of plaintiffs "jurisdictionally predicate" federal claims under § 1983, dismissal of plaintiff's pendent state law claims appropriate). Accordingly, plaintiff's state law claims are dismissed without prejudice.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant's second motion to dismiss for failure to state a claim upon which relief can be granted and/or request to change the place of trial (Doc. 37) is granted. Plaintiff's complaint is therefore dismissed in its entirety. Plaintiff's federal claim is dismissed with prejudice and plaintiff's state law claims are dismissed without prejudice.
IT IS SO ORDERED