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COX v. CITY OF DALLAS

United States District Court, N.D. Texas, Dallas Division
Sep 21, 2004
Civil Action No. 3:98-CV-1763-BH (N.D. Tex. Sep. 21, 2004)

Opinion

Civil Action No. 3:98-CV-1763-BH.

September 21, 2004


FINDINGS OF FACT AND CONCLUSIONS OF LAW


Plaintiffs sued the City of Dallas ("City"), alleging violations of 42 U.S.C. § 1983 and 42 U.S.C. § 1981. On March 1-3, 2004, the Court conducted a bench trial of this case. After consideration of the testimony and evidence presented during the trial, the parties' pre-trial and post-trial proposed findings of fact and conclusions of law, the post-trial briefing, the arguments of counsel, and the relevant authorities, the Court finds and concludes as set forth below.

I. BACKGROUND

On February 5, 1998, Plaintiffs filed civil action number 3:98-CV-0291 against the City and others, alleging illegal dumping and race discrimination. On July 28, 1998, Plaintiffs filed a second suit, civil action number 3:98-CV-1763, against the City and others for alleged illegal dumping and race discrimination. The district court entered an order consolidating the two cases under 3:98-CV-0291 on August 17, 1998. On December 17, 1998, the district court bifurcated the claims in the consolidated cases. The district court's order specified that civil action 3:98-CV-0291 would be a class action suit for injunctive relief brought under 42 U.S.C. § 6901 for illegal dumping and would be tried first. The order further specified that after resolution of the illegal dumping claims, Plaintiffs' claims of race discrimination would be tried in civil action 3:98-CV-1763, which was not a class action suit. After a bench trial in 3:98-CV-0291, the district court entered a final judgment granting Plaintiffs' request for injunctive relief on August 27, 1999. On September 7, 1999, civil action 3:98-CV-0291 was closed, and civil action 3:98-CV-1763 was reopened. Civil action 3:98-CV-1763 was transferred to this Court on March 11, 2003, for the conduct of all further proceedings in Plaintiffs' suit against the City for race discrimination.

In Plaintiffs' Revised Fourth Amended Complaint, filed October 2, 2003, Plaintiffs alleged violations of the Fourteenth Amendment to the U.S. Constitution, 42 U.S.C. § 1981, 42 U.S.C. § 1983, the Fair Housing Act, 42 U.S.C. § 3601 et seq., and 24 C.F.R. § 100.70(b), (d)(4). In particular, Plaintiffs asserted that the City failed to stop the illegal dumping at the Deepwood site with the intent to discriminate against Plaintiffs because of their race. (Compl. at 13.) On February 24, 2004, this Court awarded summary judgment to the City on Plaintiffs' claims brought under the Fair Housing Act, 42 U.S.C. § 3604(a) and (b), and 42 U.S.C. § 1983 for violations of 24 C.F.R. § 100.70(b), (d)(4). A bench trial on Plaintiffs' remaining claims of violations of 42 U.S.C. § 1981 and 42 U.S.C. § 1983 was held on March 1-3, 2004.

II. FINDINGS OF FACT

At the close of trial, the Court took under advisement the admissibility of certain evidence submitted by the parties, and requested post-trial briefing on the issues of the applicability of the law of the case doctrine to this case and the admissibility of certain other evidence. Because the Court does not rely on any of the contested evidence in reaching its decision, the issue of its admissibility is not reached.

1. Plaintiffs are African-American homeowners living in a residential neighborhood adjacent to a landfill located at 523 Deepwood Street, Dallas, Texas ("Deepwood site"). (Am. JPO at 4.)

2. The City is a municipal government organized and operating under the laws of the state of Texas. (Am. JPO at 4.)

3. The Deepwood neighborhood was annexed by the City on August 6, 1956, and was zoned R-7.5 (Residential). (Am. JPO at 8.)

4. On March 20, 1963, the City granted permission to locate an office building at the Deepwood site for a nonconforming sand and gravel mining operation. (Am. JPO at 8.)

5. A certificate of occupancy was issued on August 16, 1963, for a gravel pit at the Deepwood site on the basis that the use was nonconforming. (Am. JPO at 8.)

6. At that time, the ethnic background of the residents of the Deepwood neighborhood was predominately white, non-Hispanic. (Am. JPO at 8.)

7. A portion of the Deepwood site was zoned Industrial-2, and Specific Use Permit ("SUP") 182 was issued for a mining operation adjacent to the residential neighborhood, on March 30, 1965. (Am. JPO at 5, 8.) To date, SUP 182 has not been revoked. (Am. JPO at 7.)

8. Between the 1970 and 1980 U.S. Census, the ethnic background of the residents of the Deepwood neighborhood changed from predominately white, non-Hispanic to predominately African-American. (Am. JPO at 8.)

9. Plaintiffs purchased homes in the Deepwood neighborhood between 1970 and 1978. (Am. JPO at 8.)

10. As early as 1976, there was open dumping of solid waste at the Deepwood site. See Cox v. City of Dallas, 256 F.3d 281, 285 (5th Cir. 2001). At that time, officials from the City and the state visited the site and called for continuing surveillance. Id.

11. From 1982 through 1992, the Deepwood site was owned by Terry Van Sickle, owner of V.V. Construction Co. (Am. JPO at 5-6.)

12. On March 16, 1982, V.V. Construction Co. submitted a permit application for removal of sand and gravel from the Deepwood site. (Am. JPO at 5.) The application stated that the old pits were to be filled with solid waste, meaning "all putrescible and non putrescible discarded materials or unwanted rock, dirt, metal, sand gravel wood etc." (Am. JPO at 5.)

13. On April 6, 1982, V.V. Construction Co. was issued a certificate of occupancy for mining sand and gravel at the Deepwood site based on the March 16, 1982 application. (Am. JPO at 5.)

14. In a letter dated April 16, 1982, the City granted Van Sickle permission to fill the mined area at the Deepwood site. (Am. JPO at 5.)

15. On November 22, 1982, one of the plaintiffs in this action filed a complaint with the City, alleging massive illegal dumping at the Deepwood site. (P.'s Exh. 46.)

16. The City's response to the complaint indicates that a citation to municipal court had been issued to the owner of the property on November 11, 1982, for conducting a sanitary landfill operation in R-7.5 zoning. (P.'s Exh. 47.) Weekly reinspections revealed no additional illegal dumping as of December 9, 1982. (P.'s Exh. 47.)

17. In the first four months of 1983, residents of the Deepwood neighborhood appeared five times at City Council meetings to express concern about the Deepwood site. (P.'s Exh. 48-52.)

18. In response to residents' concerns raised at City Council meetings about truck traffic, noise, air pollution, and illegal dumping, the Assistant City Manager issued a memorandum to the Mayor and City Council dated February 4, 1983. (D.'s Exh. 92.) The memorandum indicated that the owner of the Deepwood site was fined for operating a sanitary landfill on the site, and that illegal dumping at the site had ceased. Id. The author stated his belief that once truck traffic to the site was diverted away from residential streets, most of the citizens' concerns would be resolved. Id.

19. At the instruction of the City Council, tests were conducted at the Deepwood site on February 22, 1983, to determine the quality of the fill materials. (D.'s Exh. 111.) The study found that the site was "being filled with soil and rock with approximately 20 percent other materials such as brush, trees, and demolition rubble being allowed." Id. The soil was not found to be contaminated. Id.

20. A May 18, 1983 memorandum from a City employee to a City Councilperson reported that no contaminants were found in the soil or water table at the Deepwood site and that continued monitoring of the site was to take place every four to six months for five years. (D.'s Exh. 51.)

21. On April 27, 1983, the City Council passed a resolution requesting that the Board of Adjustment initiate a public hearing to consider terminating the nonconforming use of the Deepwood site. The resolution referenced the operation of a "stone, sand, or gravel mining use" on the property but did not mention the fact that the site had been used as an illegal dump. (P.'s Exh. 97.)

22. Notice of the hearing was issued by the Board of Adjustment and the hearing was held on July 26, 1983. (P.'s Exh. 99, 101.)

23. The morning of the hearing, the members of the Board of Adjustment inspected the Deepwood site. (P.'s Exh. 103 at 8.)

24. The Board of Adjustment believed the basis for considering terminating the nonconforming use at the Deepwood site was the noise, dust, and traffic associated with the mining operation. (P.'s Exh. 103 at 1.) Two letters from residents in favor of terminating the nonconforming use at the site were sent to the Board of Adjustment. (P.'s Exh. 100.) At the hearing, Mr. Van Sickle testified that he had removed a considerable amount of debris from the site, and that he planned to mine gravel for two more years and fill the hole for another three years. (P.'s Exh. 103 at 5.) Two other individuals testified in favor of continuing the nonconforming use. (P.'s Exh. 101.) At the conclusion of the hearing, the Board of Adjustment voted to take no action terminating the nonconforming use and to call another hearing in nine months. (P.'s Exh. 101.)

25. The issue of terminating the nonconforming use at the Deepwood site was never again considered by the Board of Adjustment.

26. The City Council did not request further action by the Board of Adjustment on the issue of the nonconforming use at the Deepwood site.

27. In a letter dated October 16, 1985, the Texas Department of Health complained to the City about solid waste permits being issued by the Dallas Urban Housing Authority in violation of the Texas Solid Waste Disposal Act. (P.'s Exh. 126.) The letter noted that if permits were issued for materials excluded by the Act, the City was responsible for ensuring that no prohibited materials were deposited. Id.

28. A November 7, 1985 memorandum to the Mayor and City Council stated that the issuance of citations for illegal dumping in the area surrounding the Deepwood site had proven only a partial deterrent to the problem of illegal dumping. (P.'s Exh. 127.) The memorandum noted that control of illegal dumping at the Deepwood site had been "loose." A coordinated effort by the Street and Sanitation Service Department, the State Health Department, the Department of Housing and Neighborhood Services, and the Public Works Department was begun to clean up the illegal dumps. Id.

29. From 1985 through 1993, the City invested minimal effort into deterring illegal dumping. Of the three citations issued by the City for illegal dumping in 1985, one was for dumping at the Deepwood site. (P.'s Exh. 128.) Two citations for illegal dumping were issued in 1986, both for dumping at the Deepwood site. Id. Five citations for illegal dumping were issued in 1987, three of which were for dumping at the Deepwood site. Id. Two citations were issued in 1988, neither of which was for illegal dumping at the Deepwood site. Id. No citations were issued in 1989 or 1990. Id. Two citations for illegal dumping were issued in 1991, neither for Deepwood. Id. No citations for illegal dumping were issued in 1992, and only one citation was issued in 1993. Id.

30. Illegal dumping continued at the Deepwood site, and in 1987, the City sued Van Sickle, VV Construction Co., and Samson Horrice for operating an illegal solid waste facility or municipal solid waste site. (Am. JPO at 5.)

31. In 1988, the Deepwood site caught fire and burned for over seven months. Cox v. City of Dallas, 1999 WL 33756552, *4 (N.D. Tex. 1999).

32. On December 29, 1989, the City obtained a judgment against Van Sickle and Horrice for operating an illegal municipal solid waste disposal site. (Am. JPO at 6.) The judgment ordered cessation of disposal of municipal solid waste at the Deepwood site and submission and implementation of a plan to close the site. Id.

33. Resident complaints about illegal dumping at the Deepwood site were received in 1990, 1991, 1993, and 1994, by the agency charged with code enforcement. (P.'s Exh. 54, 55, 56, 57.)

34. On November 21, 1991, the City moved for contempt against Van Sickle and Horrice for failure to comply with the terms of the judgment. (P.'s Exh. 136.)

35. No hearing was held on the contempt charges and no further action was taken to enforce the judgment. (P.'s Exh. 136, 138.)

36. On October 7, 1991, the lienholder on Van Sickle's note on the Deepwood site, First State Bank, was told by the Department of Housing and Neighborhood Services that the Deepwood site had been inspected and was in compliance with City code. (P.'s Exh. 130.)

37. In a letter to the Texas Department of Health concerning cleanup of the Deepwood site, dated December 18, 1991, the City stated that prior to any sand and gravel mining taking place at the site, the City would require its cleanup and submission of a plan addressing environmental concerns and hazards. (P.'s Exh. 111, 131.)

38. First State Bank acquired the Deepwood site in 1992, when Van Sickle defaulted on the loan. (Am. JPO at 6.)

39. First State Bank sold the Deepwood site to Herman Nethery in 1994. (Am. JPO at 6.)

40. On August 1, 1994, Nethery submitted a construction permit application to the City on behalf of Herman Nethery Recycling. (Am. JPO at 6.) The proposed project was described as "fill mine property." Id.

41. Nethery was advised that the application needed an accompanying affidavit stating that the proposed use had been in continuous operation since the original certificate of occupancy was issued. (Am. JPO at 6.) On August 2, 1994, Nether submitted an affidavit to the City which stated that "VV Construction Company is in fact in business and continuing business on said property since 1982 to present time." (Am. JPO at 6.)

42. On August 2, 1994, the City issued a permit to Nethery for mining at the Deepwood site. (Am. JPO at 6.) The accompanying contractor's authorization notes that inspection of the property was required prior to issuing the certificate of occupancy. (P.'s Exh. 88.)

43. At the beginning of fiscal year 1994-1995, the City created an Illegal Dumping Team, which consisted of six code enforcement inspectors whose mandate was to stop and prevent illegal dumping. (Def.'s Exh. 117, 118.)

44. From August 22, 1994 through 1997, city inspectors issued numerous citations for illegal dumping at the Deepwood site. (Am. JPO at 7; Def.'s Exh. 81, 82.)

45. Despite the reports and citations for illegal dumping, the City issued a certificate of occupancy to Nethery for the Deepwood cite on December 5, 1994, without first conducting the requisite inspection. (Am. JPO at 7.)

46. During the time Nethery owned the Deepwood site, it was operated by Herman Lee Gibbons. (P.'s Exh. 194 at 298.)

47. On December 13, 1994, a city employee authorized Gibbons to "dump rock, gravel, sand, clean dirt free of vegetation and concrete, generated from demolition efforts associated with the Urban Rehabilitation Standards Board Demolition Program" at the Deepwood site. (Def.'s Exh. 100.)

48. The operators of the Deepwood site produced copies of City-issued documents to prove to their customers that the site was a legal landfill. (P.'s Exh. 194 at 299.)

49. Gibbons, through his company Fruit of the Spirit Services, was a subcontractor on certain City demolition contracts for demolition and/or hauling of debris. (Tr. Vol. II at 71-72; P.'s Exh. 196; P.'s Exh. 197 at 432-33; P.'s Exh. 218 at 507-08.)

50. Fruit of the Spirit Services trucks dumped debris at the Deepwood site. (P.'s Exh. 118 at 23; P.'s Exh. 367 at 517; P.'s Exh. 378 at 21854.)

51. Other subcontractors on City demolition projects also disposed of debris at the Deepwood site. (P.'s Exh. 105 at 98-99, 102-103; P.'s Exh. 194 at 298; P.'s Exh. 196 at 426-26; P.'s Exh. 197 at 432, 434.)

52. Even though he had knowledge that some City contractors were engaged in illegal dumping, the City employee who supervised City demolition contracts for the Department of Public Works and Transportation, Kenn Hornbeck, did not seek to terminate those demolition contracts because he had been provided with no proof that material from City demolition sites was being dumped illegally. (Tr. Vol. II at 52-57, 70.)

53. Attempts by the Department of Public Works and Transportation to monitor whether City demolition debris was disposed of in legal landfills were limited to checking any receipts submitted for landfill disposal to see if they were from a legal landfill prior to reimbursement. (Tr. Vol. II at 55-59, 88-90, 101.)

54. Although Hornbeck knew Gibbons was operating an illegal dump at the Deepwood site, Hornbeck continued to forward contracts with Fruit of the Spirit Services as a subcontractor to the City Council for approval without informing them of Gibbons' connection with the dump. (Tr. Vol. II at 75-76.)

55. On April 28, 1995, the City sued Nethery for operating an illegal solid waste facility. (Am. JPO at 9.)

56. In spite of a 1995 temporary injunction ordering Nethery to cease all operations at the Deepwood site, illegal dumping continued through November 1996. (P.'s Exh. 80.)

57. Nethery was twice held in contempt of court. As a consequence, he spent 49 days in jail and was ordered to pay $2,500 in fines. (Am. JPO at 9.)

58. In an attempt to eliminate the continued illegal dumping at the Deepwood site, Environmental and Health Services code inspectors, Dallas police officers, and Department of Public Safety officers arrested 29 people and issued 152 code violation citations on June 22, 1995. (P.'s Exh. 392.) The assistance of law enforcement officers was requested because the operators of the facility were armed. Id.

59. The Deepwood site again caught fire and burned from February 1997 through April 1997. (P.'s Exh. 37.)

60. The City Council received a briefing on the Deepwood site on April 16, 1997. (P.'s Exh. 38.) At the briefing, councilwoman Charlotte Mayes stated that:

. . . it was pure neglect to allow something of that magnitude to occur from 1982 to present. This — this — this is kind of, to me, unheard of that we would have a situation that serious that we would choose to somewhat look the other way. . . . This — this type of situation in my opinion, should have never escalated to the point to where it is today. And had it been in another area of the city, it would not have occurred. And all I'm saying is this, we need to deal with this. We need to deal with it expeditiously.

(P.'s Exh. 38 at 12-13.) Councilman Don Hicks stated:

You're not going to be able to get intelligent people or unintelligent people to understand that the City didn't have the principle responsibility to stop this thing from going on. I would like to the FBI investigation (sic) to see if anybody in staff's got some money for this. Is — it's just too open. . . . 560 complaints, 95 within the last year and a half, and nobody can stop it . . .

(P.'s Exh. 38 at 19-20.) Councilman Larry Duncan added:

We need to make sure that it gets cleaned up for all the reasons you enumerated, and if we can use federal money and state money to do that, so much the better, but we still, however it happens, need to make that commitment and make that happen regardless of what it takes because we're left with the problem. . . . And the point is, how did it go on this long? How many others are there out there?

(P's Exh. 38 at 22.)

61. In a judgment entered on November 14, 1997, Nethery was permanently enjoined from operating a municipal solid waste facility at the Deepwood site. (Am. JPO at 9.)

62. Mr. Nethery and Mr. Gibbons were both charged with organized criminal activity in connection with their operation of the Deepwood site. (Am. JPO at 9.) Both men were found guilty and sentenced to prison. Id. Mr. Nethery's conviction was reversed on appeal. Id.

63. Prior to the initiation of Civil Action No. 3:98-CV-0291-H, the City made no efforts to remove the solid waste at the Deepwood site.

II. CONCLUSIONS OF LAW

A. 42 U.S.C. § 1983: Equal Protection

Plaintiffs sue under 42 U.S.C. § 1983 for intentional discrimination on the basis of race. To establish a claim of intentional discrimination under § 1983, a plaintiff must first prove a prima facie case of discrimination. Wallace v. Texas Tech University, 80 F.3d 1042, 1047 (5th Cir. 1996). A plaintiff must show that an official action constitutes a violation of the Equal Protection Clause by providing proof of racially discriminatory intent or purpose. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265 (1977). To prevail, Plaintiffs must show that the City's failure to stop the illegal dumping at the Deepwood site was the result of an official action, that the City intended to discriminate against Plaintiffs on the basis of race, and that the action violated the Equal Protection Clause.

1. Official action

In suing a municipality, a plaintiff must first prove there was an official action by showing "three elements: a policymaker; an official policy; and a violation of constitutional rights whose `moving force' is the policy or custom." Piotrowski v. Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell v. Dept. of Social Serv.'s, 436 U.S. 658, 694 (1978)). "Actual or constructive knowledge of a custom must be attributable to the governing body of the municipality or to an official to whom that body has delegated policy-making authority." Id. at 579. Municipal liability cannot be predicated on a theory of respondeat superior. Rivera v. Houston Ind. School Dist., 349 F.3d 244, 247 (5th Cir. 2003). Rather, the unconstitutional conduct must be "directly attributable to the municipality through some sort of official action or imprimatur." Piotrowski, 237 F.3d at 578. A given policy is attributable to the municipality when the policy was made by an official to whom the governing body has given policymaking authority. Bennett v. City of Slidell, 728 F.2d 762, 769 (5th Cir. 1984).

a. Policymakers

Plaintiffs assert that the City Council, the Board of Adjustment, the City Manager, and the City Attorney are policymakers for the City whose actions violated Plaintiffs' constitutional rights. (Compl. at 14-15.)

A policy maker "must have final policymaking authority." Rivera, 349 F.3d at 247. "When an official has final authority in a matter involving the selection of goals or of the means of achieving goals, his choices represent governmental policy." Victoria W. v. Larpenter, 205 F. Supp. 2d 580, 589 (E.D. La. 2002) (citing Burge v. Parish of St. Tammany, 187 F.3d 452, 468 (5th Cir. 1999)). However, "policymaking authority is more than discretion." Bennett, 728 F.2d at 769. A policymaker takes the place of the governing body in a designated area of city administration; he decides the goals for a particular city function, devises the means of achieving those goals, and is not supervised in the area of his responsibility except as to the totality of his performance. Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984). Policymaking authority is delegated either by formal action of the governing body or by conduct or practice which acknowledges the official in a policymaking role. Bennett, 728 F.2d at 769. Whether or not an official has final policymaking authority is a question of state law. Id. Both parties agree that the City Council is a policymaker for the City.

The Board of Adjustment is authorized by state law. TEX. LOC. GOV'T CODE § 211.008 authorizes a municipality's governing body to create a board of adjustment, which may then "make special exceptions to the terms of the zoning ordinance that are consistent with the general purpose and intent of the ordinance and in accordance with any applicable rules contained in the ordinance." The powers and duties of the Board of Adjustment are set forth in Dallas City Code Chapter 51A-3.102. (D.'s Exh. 39.) Included in its powers is the authority to decide special exceptions, to grant variances, and to discontinue, enlarge, or change a nonconforming use. Id. Decisions of the Board of Adjustment are final unless appealed to the district court, but are not appealable to the City Council. Id. Although the Board of Adjustment does not have the power to enact zoning ordinances, it does have final authority to establish that part of municipal zoning policy concerning the grant or denial of variances or special exceptions. Because the Board of Adjustment has final authority concerning the enforcement of zoning decisions, its decisions constitute municipal policy and make it a policymaker for the City for purposes of § 1983. See e.g. Schiazza v. Zoning Hrg. Bd. of Fairview Township, 168 F. Supp. 2d 361, 373 (M.D. Pa. 2001) (holding that a zoning board which had final authority to grant or deny variances and special exceptions was a policymaker); Loreto Dev. Co., Inc. v. Village of Chardon, 1998 WL 320981, *2-3 (6th Cir. June 4, 1998) (finding a zoning board to be a policymaker when it had discretion to deny or grant zoning permits and issue variances); Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 638 (11th Cir. 1991) (holding that a mayor was not a final policymaker with respect to zoning decisions where the city charter provided that the city counsel could override the mayor's veto of zoning ordinances).

The City Manager is appointed by the City Council to be the chief administrative and executive officer of the city. (D.'s Exh. 31 at 27.) Appointment of a city manager is authorized by TEX. LOC. GOV'T CODE § 25.029. That statute sets forth the powers and duties of a city manager, which include administering the municipal business and any additional powers and duties delegated by the governing body by ordinance. TEX. LOC. GOV'T CODE § 25.029(a), (b). The City Manager has the responsibility to see that all laws and ordinances are enforced and to "recommend to the council for adoption such measures as he may deem necessary or expedient." (D.'s Exh. 31 at 28.) Neither state law nor city ordinance grants final policymaking authority to the City Manager concerning matters of zoning enforcement. Therefore, the City Manager is not a policymaker for the City for purposes of this lawsuit.

The appointment of a city attorney is authorized by TEX. LOC. GOV'T CODE § 24.051, which permits the governing authority to define the duties of the position. Pursuant to the City charter, the City Attorney is the director of the legal department. (D.'s Exh. 31, p. 29.) His duties include "upon his own initiative or upon the direction of the city council" to appear in any and all litigation affecting the City and "to institute such legal proceedings as may be necessary or desirable on behalf of the city." (D.'s Exh. 31, p. 29-31.) While it is clear that the City Attorney has some discretion concerning the institution of legal proceedings on behalf of the City, neither state law nor city ordinance grants him final authority to set policy with regard to zoning enforcement. In fact, the institution of certain legal proceedings may be directed by the City Council. Therefore, the City Attorney is not a policymaker for purposes of § 1983.

For purposes of this lawsuit, the City Council and the Board of Adjustment are policymakers whose actions may subject the City to liability for constitutional violations.

b. Official policy

Plaintiffs assert that the City "implemented a policy that allowed dumping of demolition debris, including wood, shingles, and other biodegradable material at illegal landfills" which were disproportionately located in minority areas. (Compl. at 15-16.) Plaintiffs also assert that the City "failed to use the zoning and land use powers to protect African-American single-family and other residential neighborhoods." (Compl. at 18.)

A city may be liable under § 1983 if the execution of one of its customs or policies deprives a plaintiff of his constitutional rights. Monell, 436 U.S. at 691. However, liability does not attach merely because a city employed a tortfeasor. Id. at 694; Campbell v. City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995). Municipal liability under § 1983 "is limited to action for which the municipality is actually responsible . . . that is, acts which the municipality has officially sanctioned or ordered." Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80 (1986). A city's policy or custom must be "the moving force of the constitutional violation." Palmer v. City of San Antonio, 810 F.2d 514, 516 (5th Cir. 1987) (quoting Monell, 436 U.S. at 694). A single incident, unaccompanied by supporting history, is not a sufficient basis for inferring a custom or policy unless the actors involved were given official policy-making authority. Worsham v. City of Pasadena, 881 F.2d 1336, 1339-40 (5th Cir. 1989) (citations omitted); see also Palmer, 810 F.2d at 516. The alleged custom or policy must be adopted by the municipality's governing body before a municipality may be held liable. See Bennett, 728 F.2d at 767.

An official policy is: (1) a policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the governing body or by an official who has policymaking authority; or (2) a persistent, widespread practice of officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents the municipality's policy. Cozzo v. Tangipahoa Parish Council, 279 F.3d 273, 289 (5th Cir. 2002) (citing Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992)). Plaintiffs do not claim that the alleged discriminatory policies were officially adopted and promulgated by the City Council. Rather, they allege that there existed a persistent, widespread practice of city employees and officials which was so common and well settled that it fairly represented the City's policy.

"[A]n act performed pursuant to a `custom' that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law." Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 379, 404 (1997). "If actions of city employees are to be used to prove a custom for which the municipality is to be held liable, those actions must have occurred for so long or so frequently that the course of conduct warrants the attribution to the governing body of knowledge that the objectionable conduct is the expected, accepted practice of city employees." Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984). The governing body must have either actual or constructive knowledge of the alleged policy. Id. The governing body may be said to have constructive knowledge of a practice if "it would have known of the violations if it had properly exercised its responsibilities, as for example, where the violations were so persistent and widespread that they were the subject of prolonged public discussion or of a high degree of publicity." Bennett, 728 F.2d at 768. When the governing body has "knowledge of a pattern of constitutionally offensive acts by their subordinates but fail[s] to take remedial steps, the municipality may be held liable for a subsequent violation if the inaction amounts to deliberate indifference or to tacit authorization of the offensive acts." Turpin v. Mailet, 619 F.2d 196, 201 (2nd Cir. 1980).

(1) Dumping of City demolition debris

Plaintiffs first allege a persistent, widespread practice by City officials or employees attributable to a policymaker to permit dumping of City demolition debris at illegal landfills disproportionately located in minority areas. (Compl. at 15-16.) City contractors dumped debris at the Deepwood site. (Findings of Fact ¶¶ 49, 50, 51.) The Department of Public Works and Transportation employee who supervised City demolition contracts turned a blind eye to illegal dumping by City contractors absent proof that it was City debris which was being illegally dumped. (Finding of Fact ¶ 52.) However, virtually no effort was made to determine whether City demolition debris was disposed of in legal landfills, even when it was known that Gibbons, a subcontractor on City demolition projects, was operating the Deepwood site as an illegal dump. (Findings of Fact ¶¶ 53, 54.)

The evidence supports the inference that City demolition debris was dumped at the Deepwood site. It is also clear that employees at the Department of Public Works and Transportation could have, through the exercise of proper diligence, known about and stopped the dumping of City demolition debris. However, the practice of failing to properly supervise the disposal of City demolition debris which then made its way into the Deepwood site does not rise to the level of an official policy which may be attributed to a City policymaker. Statements made by City Council members after the site caught fire in 1997 belie any prior knowledge of illegal dumping of City demolition debris at Deepwood. As previously determined, the City Council and the Board of Adjustment were policymakers for the City. There is no evidence that either policymaker had actual or constructive knowledge of this practice at the time it occurred. There is no evidence that the policymakers were informed that contractors or subcontractors were disposing of City demolition debris at the Deepwood site. (Findings of Fact ¶ 54.) Nor is there any evidence showing that the fact that City demolition debris was being illegally dumped was the subject of prolonged public discussion or of a high degree of publicity such that the policymakers may be said to have had constructive knowledge of it. Plaintiffs have not established by a preponderance of the evidence that there existed a persistent, widespread practice of City officials or employees attributable to a policymaker to permit dumping of City demolition debris at illegal landfills in minority areas.

(2) Failure to terminate illegal dumping

Plaintiffs also allege a persistent, widespread practice by City officials or employees attributable to a policymaker of failing to use the zoning and land use powers to protect African-American neighborhoods. (Compl. at 18.) In 1982, the City issued a certificate of occupancy for sand and gravel mining at the Deepwood site based upon an application which clearly expressed the owner's intent to use the site as a landfill. (Findings of Fact ¶ 12, 13.) In 1983, in the face of repeated complaints by residents to the City Council and evidence that citations for illegal dumping were issued to the owner of the Deepwood site, the City Council ordered tests for contaminants on the site and requested that the Board of Adjustment consider terminating the nonconforming use. (Findings of Fact ¶¶ 17, 18, 19, 21.) The Board of Adjustment was not informed that the Deepwood site was being used as an illegal dump and decided to take no action to terminate the nonconforming use. (Findings of Fact ¶ 24.) The Board of Adjustment failed to call another hearing on the matter as planned, and despite continued reports of illegal dumping at the Deepwood site, the City Council did not request that the board take up the issue again. (Findings of Fact ¶ 25, 26.)

From 1985 through 1993, City code inspectors issued few citations for illegal dumping, and those that were issued for dumping at the Deepwood site failed to remedy the problem. (Findings of Fact ¶ 28, 29.) In 1987, the City sued the owner and operator of the Deepwood site and, in 1989, obtained a judgment requiring the cessation of illegal dumping and cleanup of the site, but that judgment was never enforced. (Findings of Fact ¶ 30, 32, 35.) In spite of the judgment requiring cleanup of the Deepwood site and recent citations for illegal dumping, a permit for mining and a certificate of occupancy were again issued to the site's owner in 1994, without any inspection of the property having been conducted. (Findings of Fact ¶ 37, 42, 43, 44, 45.)

In 1994, the City created the Illegal Dumping Team, consisting of six code enforcement inspectors to stop and prevent illegal dumping. (Findings of Fact ¶ 43.) City inspectors issued numerous citations for illegal dumping at the Deepwood site. (Findings of Fact ¶ 44.) In 1995, the City sued the owner of the Deepwood site for operating an illegal solid waste facility and a temporary injunction was granted ordering the owner to cease all operations at the site. (Findings of Fact ¶ 55, 56.) In spite of the temporary injunction and the subsequent contempt proceedings against the site's owner, illegal dumping at the Deepwood site continued. (Findings of Fact ¶ 56, 57.) In 1995, a raid on the Deepwood site netted 29 arrests and 152 citations. (Findings of Fact ¶ 58.) In 1997, the owner of the Deepwood site was permanently enjoined from operating the facility. (Findings of Fact ¶ 61.)

The evidence clearly shows that the City Council was informed of the existence of an illegal dump site at Deepwood as early as 1982. However, Plaintiffs have not shown by a preponderance of the evidence that the City Council failed to use the City's zoning and land use powers to protect the surrounding neighborhood. Citations were issued and testing at the site was conducted for contaminants. The City Council referred the matter of the continuing nonconforming use to the Board of Adjustment. While the issuance of citations for illegal dumping throughout the city was virtually nonexistent during the period of 1985 through 1993, during this same period the City sued the operator of the Deepwood site, obtained a judgment ordering cleanup of the site, and sought (but failed to follow through with) contempt sanctions for failure to comply with the judgment. Subsequently, hundreds of citations were issued and another lawsuit was filed and a judgment obtained. That the City's efforts to stop the illegal dumping at Deepwood were inconsistent, inadequate, and largely ineffective for years is obvious. Also obvious is the failure of individual City departments and employees to communicate with each other, to conduct rudimentary investigations prior to issuing permits, and to diligently enforce a judgment once obtained. Furthermore, if the City had discontinued the nonconforming use or refused to issue the certificates of occupancy, the owners of the Deepwood site would have been robbed of the appearance of legitimacy. Had the City enforced the 1989 judgment, the facility may not have continued to operate into 1997. However, Plaintiffs have not shown by a preponderance of the evidence that these failures were the result of a widespread practice attributable to the City Council or to the Board of Adjustment of not using the City's zoning and land use powers to protect African-American neighborhoods.

Because Plaintiffs have failed to prove by a preponderance of the evidence that there existed an official policy attributable to a policy which permitted dumping of City demolition debris at or caused the continued existence of the Deepwood site, they have not established the official action element of their § 1983 claim.

2. Discriminatory Intent

Even if the Court had found that an official action of the City resulted in the creation and continued existence of the Deepwood site, Plaintiffs' claim under § 1983 would still fail. In showing that an official action constitutes a violation of the Equal Protection Clause, Plaintiffs must also provide proof of racially discriminatory intent or purpose. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265 (1977). To determine intent, courts consider both circumstantial and direct evidence of intent. Id.

The Arlington Heights factors address a "decision" by the municipality. As noted in Section I above, Plaintiffs' claim that the discriminatory "decision" was in fact an omission, i.e., the failure to stop illegal dumping at the Deepwood site.

Where a facially neutral state law has been shown to produce disproportionate effects along racial lines, courts consider the factors set out in Arlington Heights. Hunter v. Underwood, 471 U.S. 222, 228 (1985). The factors to be considered include: (1) whether the official action "bears more heavily on one race than another;" (2) the historical background of the decision; (3) the sequence of events leading up the challenged decision; (4) departures from the normal procedural sequence; and (5) the legislative or administrative history. Arlington Heights, 429 U.S. at 265-68. However, "[a]n action does not violate the equal protection clause simply because the decisionmaker knows that it will have a disparate impact on racial or ethnic groups." United States v. LULAC, 793 F.2d 636, 646 (5th Cir. 1986). Disproportionate impact of state action on different racial ethnic groups does not of itself violate the Constitution. Id. A violation of the Fourteenth Amendment occurs "only if a state decisionmaker selects or continues in a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group." Id. "[F]oreseeability of discriminatory impact, without more, does not constitute the forbidden discriminatory purpose." Price v. Austin Indep. School Dist., 945 F.2d 1307, 1319 (5th Cir. 1991). Rather, the decisionmaker must have selected the particular course of action at least in part because of its adverse effects upon the racial or ethnic group. Id.

a. Discriminatory effect

The first Arlington Heights factor addresses the discriminatory effect of the official action. Plaintiffs have shown that their neighborhood is predominately inhabited by African-Americans and that the neighborhood has been the site of an illegal dump site since 1982. (Findings of Fact ¶¶ 8, 15.) Clearly, the failure to stop the illegal dumping at the Deepwood site had a disproportionate impact on African-Americans.

b. Historical background

The next Arlington Heights factor is the historical background of the City's action. Previous courts have found that the City of Dallas historically participated in deliberate racial segregation and failed to expend the resources necessary to remedy the results of that discrimination. See Williams v. City of Dallas, 734 F. Supp. 1317, 1406-07) (N.D. Tex. 1990); Walker v. U.S. Dep't of Housing and Urban Dev., 734 F. Supp. 1289, 1303 (N.D. Tex. 1989); Miller v. City of Dallas, 2002 WL 230834, *4 (N.D. Tex. Feb. 14, 2002). Prior discrimination is relevant to the issue of intent. Rogers v. Lodge, 458 U.S. 613, 625 (1982) (holding that "[e]vidence of historical discrimination is relevant to drawing an inference of purposeful discrimination"). Prior findings of discrimination by the City do not, however, end the inquiry. Price, 945 F.2d at 1316 (5th Cir. 1991). In this case, the Deepwood neighborhood was predominately white at the time the City authorized a sand and gravel mining operation, and at the time open dumping was first observed at the Deepwood site. (Findings of Fact ¶¶ 4, 5, 6, 8, 10.) Thus, while the City's past history of discrimination weighs in favor of a finding of discriminatory intent, the historical background of the Deepwood site does not.

c. Sequence of events

The third Arlington Heights factor is the specific sequence of events leading up to the challenged action. The original certificate of occupancy for a nonconforming sand and gravel mining operation at the Deepwood site was issued when the residents of the neighborhood were predominately white. (Findings of Fact ¶ 4, 5, 6, 8.) After the racial makeup of the neighborhood changed from predominately white to predominately African-American, a new application for certificate of occupancy was submitted to the City which clearly stated that the owner of the Deepwood site intended to use the site for solid waste, and a certificate of occupancy was issued on the basis of that application. (Findings of Fact ¶¶ 8, 12, 13.)

In response to Plaintiffs' numerous complaints to the City regarding the illegal dumping, citations were issued and the City ordered tests of the site for contaminants. (Findings of Fact ¶¶ 15, 16, 17, 18, 19, 20.) The City Council requested that the Board of Adjustment consider terminating the nonconforming use of the Deepwood site, but did not inform the board of the citations for illegal dumping at the site. (Findings of Fact ¶ 21.) The Board of Adjustment determined not to terminate the nonconforming use at the site at that time and did not reconsider the issue at any time thereafter. (Findings of Fact ¶¶ 24, 25, 26.) City inspectors sporadically issued citations to for illegal dumping at Deepwood, but the dumping continued. (Findings of Fact ¶¶ 28, 29.) The City finally sued the owner of the Deepwood site but failed to enforce its judgment against him, which required closure of the site. (Findings of Fact ¶¶ 30, 32, 34, 35.)

Notwithstanding that the site had not been cleaned as required by the prior judgment and that further citations for illegal dumping had been issued, the City granted a new certificate of occupancy to the new owner of the Deepwood site without first inspecting the premises. (Findings of Fact ¶¶ 36, 42, 43, 44.) From 1994 through 1997, numerous citations for illegal dumping at the Deepwood site were issued and a temporary injunction was entered ordering the cessation of all operations at the site, but the dumping continued. (Findings of Fact ¶ 44, 56, 57.) The illegal dumping finally ceased after a permanent injunction prohibiting the operation of a municipal solid waste facility at the Deepwood site was entered and the owner and operator of the site were charged with organized criminal activity. (Findings of Fact ¶¶ 61, 62.) While this evidence supports the conclusion that the City's efforts to stop the illegal dumping at the Deepwood site were ineffective, if not negligent at times, the evidence also shows that the City did not wholly abdicate its responsibility to the residents of the Deepwood neighborhood and ignore the fact that illegal dumping was taking place.

d. Normal procedural sequence

Very little evidence of the normal procedural sequence, the fourth Arlington Heights factor, was presented to the Court at trial. Plaintiffs presented no evidence regarding the normal procedure used by the City in processing an application for certificate of occupancy. No evidence was presented to show that employees of the department charged with such duty were aware of which materials were proper fill materials for a sand and gravel mining operation, and that they routinely denied applications which specified that improper fill materials will be used. It is unclear from the evidence of record whether, when processing an application for certificate of occupancy, city inspectors were routinely asked if the entity seeking a permit had received prior citations or if the site in question had prior problems.

No evidence was adduced showing the normal procedure used when the Board of Adjustment was asked to consider terminating a nonconforming use. It is not evident from the record that the Board was usually provided with information regarding repeated citizen complaints about illegal activities at a location prior to a hearing. There was no evidence presented showing that the Board normally did have subsequent hearings after it has deferred a decision. Nor was there evidence that the City Council normally requested further consideration by the Board if the Board failed to make a determination.

The Court received no evidence showing that after the City obtained a judgment, it usually followed through with contempt proceedings and enforcement of that judgment if the party sued refused to comply with the terms of the judgment.

There was evidence showing that the normal procedure for determining whether a contractor was dumping City demolition debris in a legal landfill was to check that any landfill disposal receipts submitted were from a legal location. (Findings of Fact ¶ 53.) No other verification procedures were in place and no evidence was submitted indicating that the City varied from that procedure in this case.

Absent any evidence that the City's procedures or normal practices differed in any way from the practices which allowed dumping at the Deepwood site to continue, the Court cannot conclude that this factor weighs in favor of finding intentional discrimination. The City's inability to coordinate the actions of its departments and to ensure that they are provided with the essential information necessary to ensure that actions were taken in the best interests of the City and its citizens is bewildering. The failures which resulted in the continued existence of the Deepwood site are numerous and nothing short of negligence. However, Plaintiffs have not adduced any evidence that the normal procedural sequence differed from that which allowed the Deepwood site to exist.

e. Legislative or administrative history

The last Arlington Heights factor addresses the legislative or administrative history surrounding the challenged action. "Statements made by members of the decisionmaking governmental bodies are most pertinent to this factor." Jim Sowell Construction Co., Inc. v. City of Coppell, 61 F. Supp.2d 542, 550 (N.D. Tex. 1999). Statements by City Council members indicating outrage at the existence and duration of the illegal dumping at the Deepwood site were introduced at trial. (Findings of Fact ¶ 60.) Councilwoman Mayes stated, "This — this type of situation . . . should never escalated to the point to where it is today. And had it been in another area of the city, it would not have occurred." Id. Councilman Hicks stated, "I would like to the FBI investigation (sic) to see if anybody in staff's got some money for this. Is — it's just too open. . . . 560 complaints, 95 with the last year and a half, and nobody can stop it." Id. Councilman Duncan added "And the point is, how did it go on this long? How many others are there out there?" Id.

These statements clearly express outrage by City Council members at the existence and the duration of the Deepwood site. Although the statement by Councilwoman Mayes indicates her belief that such a situation would not have occurred in another part of the city, neither her statement, nor those of the other City Council members imply that the City Council intentionally turned a blind eye to the dumping due to the ethnic background of the neighborhood's residents. Rather the statements show that the City Council was unaware of the continuing problem prior to the 1997 fire. The evidence presented at trial pertaining to the legislative or administrative history pertaining to the Deepwood site does not indicate an intent to discriminate against Plaintiffs by City policymakers.

After considering the evidence relevant to the Arlington Heights factors, the Court determines that Plaintiffs have failed to prove by a preponderance of the evidence that the City intended to discriminate against them on the basis of race. Accordingly, the Court concludes that Plaintiffs are not entitled to recover for their claim brought under 42 U.S.C. § 1983 for violation of the 14th Amendment. B. 42 U.S.C. § 1981

Plaintiffs also seek relief under 42 U.S.C. § 1981. To establish a right to relief under § 1981, Plaintiffs must show: (1) that they belong to a racial minority; (2) that the City intended to discriminate against them on the basis of race; and (3) that the discrimination concerned one or more of the activities enumerated in the statute. Arguello v. Conoco, Inc., 330 F.3d 355, 358 (5th Cir. 2003). As noted above, the evidence presented at trial clearly supports an inference of gross negligence by the City exemplified by lackadaisical code enforcement, absence of communication between City departments, and virtually no follow-through by either the Board of Adjustment or the City Attorney's office, among other things. However, Plaintiffs failed to establish by a preponderance of the evidence that the City's actions were more than negligence and were the result of an intent to discriminate against them on the basis of race, rather than gross negligence. Accordingly, Plaintiffs are not entitled to relief for their claims under § 1981.

IV. CONCLUSION

For the reasons stated above, the Court finds for the City on Plaintiff's claims for violation of 42 U.S.C. § 1981 and for violation of the 14th Amendment brought under 42 U.S.C. § 1983.

SO ORDERED.


Summaries of

COX v. CITY OF DALLAS

United States District Court, N.D. Texas, Dallas Division
Sep 21, 2004
Civil Action No. 3:98-CV-1763-BH (N.D. Tex. Sep. 21, 2004)
Case details for

COX v. CITY OF DALLAS

Case Details

Full title:HAROLD COX, et al., Plaintiffs, v. THE CITY OF DALLAS, et al., Defendants

Court:United States District Court, N.D. Texas, Dallas Division

Date published: Sep 21, 2004

Citations

Civil Action No. 3:98-CV-1763-BH (N.D. Tex. Sep. 21, 2004)