Summary
affirming dismissal of a Section 1985 conspiracy claim under Great American
Summary of this case from Ekaidi v. Bd. of Supervisors of the S. Univ. Sys.Opinion
No. 07-50296 Summary Calendar.
September 4, 2007.
Appeal from the United States District Court for the Western District of Texas No. 6:06-CV-326.
Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.
Darrell Washington appeals the district court's Rule 12(b)(6) dismissal of his claims arising under 28 U.S.C. §§ 1983, 1985(3), and 1981. Washington alleged that his former employer, Atmos Energy Corporation ("Atmos"), and Falls County District Judge Thomas Sehon ("Sehon") conspired to fire him after he was involved in a verbal dispute with Sehon at a local doughnut shop. Sehon's police report led to Washington's arrest for retaliation against a public official and his subsequent termination.
With respect to Washington's § 1983 claim, Atmos, a private company, indisputably was not acting under color of state law. See Morris v. Dillard Dep't Stores, Inc., 277 F.3d 743, 747-50 (5th Cir. 2001). Sehon, even though he is a judge, did not act under color of law when he filed a criminal complaint as a private individual.See Daniel v. Ferguson, 839 F.2d 1124, 1130 (5th Cir. 1988); Delcambre v. Delcambre, 635 F.2d 407, 408 (5th Cir. 1981) (per curiam).
Moreover, Washington's § 1985(3) conspiracy claim fails because he did not plead that racial animus motivated Sehon's actions, see Word of Faith World Outreach Ctr. Church, Inc. v. Sawyer, 90 F.3d 118, 124 (5th Cir. 1996), and, with respect to Atmos, "§ 1985(3) may not be invoked to redress violations of Title VII." Great Am. Fed. Sav. Loan Ass'n v. Novotny, 442 U.S. 366, 378, 99 S.Ct. 2345, 2352 (1979); see also Horaist v. Doctor's Hosp. of Opelousas, 255 F.3d 261, 270-71 (5th Cir. 2001).
Finally, the district court dismissed Washington's § 1981 claim because he did not establish that he was a member of a protected class. A review of Washington's complaint clearly shows that he never identified himself as a member of a racial minority. Nevertheless, Washington argues that this court should liberally construe his complaint because (1) he stated to Sehon that he disapproved of politicians running for office "on the backs of black people"; and (2) he identified white and Hispanic employees receiving more favorable treatment. However, nothing in our case law would permit this court to excuse Washington's failure to allege an essential element of a § 1981 claim. See Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288-89 (5th Cir. 2004) (plaintiff must show that "he or she is a member of a racial minority"). This court will not speculate about Washington's race when he failed to allege this simple fact despite two opportunities to amend his complaint.
AFFIRMED.