Washington v. City of Gulfport, Mississippi

Full title: CARL D. WASHINGTON PLAINTIFF v. CITY OF GULFPORT, MISSISSIPPI DEFENDANT

Court: United States District Court, S.D. Mississippi, Southern Division

Date published: Mar 13, 2009

CAUSE NO. 1:08CV173 LG-RHW (S.D. Miss. Mar. 13, 2009)

Opinion

CAUSE NO. 1:08CV173 LG-RHW.

March 13, 2009

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

LOUIS GUIROLA JR., Magistrate Judge

BEFORE THE COURT is the Motion to Dismiss or for Summary Judgment [18] filed by the City of Gulfport, Mississippi. The Plaintiff did not file a response. After due consideration of the Motion and the relevant law, the Court finds that Washington's claim under 42 U.S.C. § 1981 should be dismissed. Accordingly, the City's Motion to Dismiss will be granted.

DISCUSSION

In a previous Memorandum Opinion and Order entered in this case, the Court construed the allegations of Washington's Complaint liberally to find that Washington invoked 42 U.S.C. § 1981 in regard to his claim that the City discriminated against him on the basis of his race. See Ct. R. 16. The Fifth Circuit permits the prosecution of § 1981 claims that involve alleged discrimination of at-will employees. Hall v. Cont'l Airlines, Inc., 252 Fed. Appx. 650, 653 (5th Cir. Oct. 26, 2007) (citing Byers v. Dallas Morning News, Inc., 209 F.3d 419, 425 (5th Cir. 2000)).

The City now argues that this remaining § 1981 claim should be dismissed as a matter of law pursuant to FED. R. CIV. P. 12(b)(6), because "§ 1981 does not afford a remedy for violation of rights guaranteed thereunder when such claim is pursued against a governmental entity." Ct. R. 18 p. 3-4. The Court agrees with that assessment. In Oden v. Oktibbeha County, Miss, 246 F.3d 458 (5th Cir. 2001), the Fifth Circuit stated that "§ 1981 implicitly created an independent cause of action against private actors because no other statute created such a remedy," but that "Section 1983 remains the only provision to expressly create a remedy against persons acting under color of state law." Id. at 463 (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 732 (1989)). Therefore, the invocation of § 1981 in Plaintiff's Complaint is not sufficient to state a claim against the City of Gulfport.

IT IS THEREFORE ORDERED AND ADJUDGED that the Motion to Dismiss or for Summary Judgment [18] filed by the City of Gulfport, Mississippi is GRANTED. Plaintiff's remaining claim against the City of Gulfport is DISMISSED with prejudice.

SO ORDERED AND ADJUDGED.