Washington v. City of Gulfport, Mississippi, No. 1:2008cv00173 - Document 20 (S.D. Miss. 2009)
Court Description: MEMORANDUM OPINION AND ORDER granting 18 defendant City of Gulfport's Motion to Dismiss or for Motion for Summary Judgment ; plaintiff's remaining claim against the City of Gulfport is dismissed with prejudice. Signed by District Judge Louis Guirola, Jr on 3/13/2009. (avm)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION CARL D. WASHINGTON v. CITY OF GULFPORT, MISSISSIPPI § § § § § PLAINTIFF CAUSE NO. 1:08CV173 LG-RHW DEFENDANT MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS 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 this the 13th day of March, 2009. s/ Louis Guirola, Jr. LOUIS GUIROLA, JR. UNITED STATES DISTRICT JUDGE -2-
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