Judge Donald L. Graham Overules the First Amendment

U.S. 11th Circuit Court of Appeals

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 99-13527

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D. C. Docket No. 98-00178-CV-ORL-22B

DAVID W. BUTTS,

Plaintiff-Appellant,

versus

COUNTY OF VOLUSIA,

Defendant-Appellee.

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Appeal from the United States District Court

for the Middle District of Florida

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(August 14, 2000)

Before BLACK, CARNES and KRAVITCH, Circuit Judges.

BLACK, Circuit Judge:

This case requires us to decide whether 42 U.S.C. § 1981 provides a cause of action against state actors. We conclude it does not and affirm the order of the district court.

I. BACKGROUND

Appellant David W. Butts initially sued Appellee County of Volusia in a one-count complaint alleging racial discrimination in employment in violation of 42 U.S.C. § 1981. Appellant later filed a separate lawsuit based on Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act of 1992 (FCRA), but the district court dismissed that suit because it contained the same factual allegations as the § 1981 suit. Appellant then sought to amend his § 1981 suit to add the Title VII and FCRA claims. The district court denied the motion because Appellant filed it after the scheduling deadline.

Appellee moved for summary judgment based on the argument that § 1981 does not provide a cause of action against state actors. The district court agreed, following Jett v. Dallas Independent School District, 491 U.S. 701, 109 S. Ct. 2702 (1989), which held a plaintiff must use the remedial provisions of § 1983 to enforce against state actors the rights created by § 1981. The court also adopted the analysis of other district courts in this Circuit and rejected Appellant's argument that the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, overruled the Supreme Court's interpretation of § 1981 in Jett. This appeal followed.

II. DISCUSSION

We review de novo the district court's entry of summary judgment. See AT&T Wireless PCS, Inc. v. City of Atlanta, 210 F.3d 1322, 1324 (11th Cir. 2000). Appellant contends the district court improperly granted Appellee's motion for summary judgment on Appellant's 42 U.S.C. § 1981 claim.1 Appellant argues the Civil Rights Act of 1991 amended § 1981 to create a cause of action against state actors and that such a cause of action may rely on a respondeat superior theory of liability otherwise prohibited by § 1983 as interpreted in Jett and Monell v. Department of Social Services of New York, 436 U.S. 694, 98 S. Ct. 2018 (1978). We conclude the amendments did not change § 1981 and § 1983 contains the sole cause of action against state actors for violations of § 1981.2

Prior to the Civil Rights Act of 1991, § 1981 stated:

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.

In Jett, the Supreme Court examined the interplay between the pre-amendment § 1981 and § 1983. Justice O'Connor, writing for a plurality, articulated two guiding principles. First, § 1983 constitutes the exclusive remedy against state actors for violations of the rights contained in § 1981. See Jett, 491 U.S. at 731-32, 109 S. Ct. at 2721. Second, a plaintiff who sues a municipality under § 1983 for a violation of the rights contained in § 1981 may not rely upon the doctrine of respondeat superior. See id. at 731-36, 109 S. Ct. at 2721-23.

The plurality considered the relationship between the Civil Rights Act of 1866 and the Civil Rights Act of 1871 (the precursors to § 1981 and § 1983) and concluded the 1866 Act did not contain a remedial provision to create a federal civil cause of action. Rather, the plurality determined Congress enacted the 1871 Act to create a civil remedy for the enforcement of the 1866 Act against state actors. Justice O'Connor explained

That we have read § 1 of the 1866 Act to reach private action and have implied a damages remedy to effectuate the declaration of rights contained in that provision does not authorize us to do so in the context of the "state action" portion of § 1981, where Congress has established its own remedial scheme. In the context of the application of § 1981 and § 1982 to private actors, we "had little choice but to hold that aggrieved individuals could enforce this prohibition, for there existed no other remedy to address such violations of the statute." That is manifestly not the case here, and whatever the limits of the judicial power to imply or create remedies, it has long been the law that such power should not be exercised in the face of an express decision by Congress concerning the scope of remedies available under a particular statute.

Id. at 731-32, 109 S. Ct. at 2721 (citations omitted).

The plurality observed that while Congress had not explained the relationship between § 1981 and § 1983, "there is very strong evidence that the 42d Congress which enacted the precurser of § 1983 thought that it was enacting the first, and at that time the only, federal damages remedy for the violation of federal constitutional and statutory rights by state governmental actors." Id. at 734, 109 S. Ct. at 2722.

Jett therefore determined § 1981 did not contain a cause of action against state actors. If Jett remains good law, the district court correctly granted summary judgment. Appellant contends, however, the Civil Rights Act of 1991 legislatively overruled the interpretation of § 1981 contained in Jett. Although many district courts in this Circuit, including the district court in this case, have rejected Appellant's claim, we have not yet had the occasion to decide this issue.3

The Civil Rights Act of 1991 amended § 1981 by designating the existing text, quoted above, as § 1981(a) and adding two new subsections. Those new subsections provide:

(b) "Make and enforce contracts" defined

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.

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(b), (c).

Appellant argues subsection (c) demonstrates Congress' intent to provide a cause of action against state actors. Appellant relies almost exclusively on the Ninth Circuit's opinion in Federation of African American Contractors v. Oakland, 96 F.3d 1204 (9th Cir. 1996). In Federation, the Ninth Circuit held that although § 1981(c) did not provide an explicit cause of action against state actors, it contained an implicit remedy. See Federation, 96 F.3d at 1210-14.

We disagree with Federation4 and concur with the decision of the other Court of Appeals to address this issue. See Dennis v. County of Fa irfax, 55 F.3d 151, 156 n.1 (4th Cir. 1995) (concluding the Civil Rights Act of 1991 did not affect Jett). As we noted above, in Jett, the Supreme Court refused to find in § 1981 an implied cause of action against state actors because Congress had clearly established § 1983 as the remedial scheme against state actors. Nothing in the 1991 amendment to § 1981 evinces Congress' desire to alter the Supreme Court's conclusion in Jett. The express language of subsection (c) states that § 1981 protects against racial discrimination by private and state actors. Put another way, § 1981(c) makes clear that the section creates a right that private or state actors may violate but does not itself create a remedy for that violation.

The sparse legislative history of the Civil Rights Act of 1991 does not reveal a contrary intent. The Ninth Circuit recognized in Federation that the legislative history "does not explicitly announce an intent to create (or deny) a private right of action against a state actor." Federation, 96 F.3d at 1212. Instead, the Federation court and others have noted Congress added subsection (c) to codify the Supreme Court's decision in Runyon v. McCrary, 427 U.S. 160, 96 S. Ct. 2586 (1976), which established that § 1981 protects against private discrimination as well as discrimination by state actors. See id. at 1212; Anderson v. Conboy, 156 F.3d 167, 179 (2d Cir. 1998); see also H.R. Rep. No. 102-40(I), at 92 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 630; H.R. Rep. No. 102-40(II), at 37 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 731. Congress provided no indication that it contemplated creating a cause of action against state actors outside of § 1983, nor did it even mention the Supreme Court's opinion in Jett.

Accordingly, we conclude Jett still governs this case. The Supreme Court held the judicial power to imply a remedy "should not be exercised in the face of an express decision by Congress concerning the scope of remedies available under a particular statute." Jett, 491 U.S. at 732, 109 S. Ct. at 2721. Congress made that express decision in § 1983; nothing in the text or history of the Civil Rights Act of 1991 alters that decision. The district court therefore correctly concluded Appellant could not proceed with his cause of action based solely on § 1981.

III. CONCLUSION

The district court correctly granted Appellee's motion for summary judgment. In addition, the district court did not abuse its discretion in denying Appellant's motion to amend his complaint.

AFFIRMED.

FOOTNOTES

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[1]

Appellant could have sued under § 1983 for the alleged violation of § 1981, but he chose not to do so. Accordingly, this appeal requires us to decide whether § 1981 contains a cause of action against state actors.

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[2]

Appellant also argues the district court abused its discretion in denying Appellant's motion to amend the complaint. We review this denial for an abuse of discretion. See Sosa v. Airprint Sys., 133 F.3d 1417, 1418 (11th Cir. 1998). Appellant concedes he failed to comply with the district court's scheduling order, see Fed. R. Civ. P. 16, and cannot demonstrate good cause to excuse that failure. Appellant's strategic decision to file a separate lawsuit before attempting to amend caused much of the delay. Accordingly, the district court did not abuse its discretion. See Sosa, 133 F.3d at 1418-19.

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[3]

Appellee incorrectly claims this Court has previously addressed this question. In Johnson v. Fort Lauderdale, 148 F.3d 1228, 1229 n.2 (11th Cir. 1998), we noted the district court had dismissed a § 1981 claim because § 1983 provided the exclusive remedy. We did not reach that issue, however; the opinion only addressed the relationship between § 1983 and Title VII. This Court decided the other two cases relied upon by Appellee based on the law prior to the Civil Rights Act of 1991. See Pearson v. Macon-Bibb County Hosp. Auth., 952 F.2d 1274 (11th Cir. 1992); Busby v. Orlando, 931 F.2d 764 (11th Cir. 1991).

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[4]

We note, however, the Federation court would also affirm the district court in this case. Federation concluded that while § 1981 contains a cause of action against state actors, the limitations on respondeat superior liability from Monell apply to § 1981 just as they apply to § 1983. See Federation, 96 F.3d at 1214-15. We agree such a limitation would exist if § 1981 contained a cause of action. Because Appellant did not plead a "custom or practice" as required by Monell, the district court properly granted summary judgment even if Appellant could sue under § 1981.

BANNED OUT OF COUFT DIRECT GOVERNMENT COMMUNICATIONS

During the week of February 5, 2001, Plaintiff knowingly violated this Court’s Orders of June 19, 200 and July 25, 2000. Plaintiff appeared at the office of Fred Carino, Human Resource Director of Highlands County and a supervisory employee of a named defendant in this action, and demanded to view his personnel file. This request was made directly to Mr. Carino’s office and not through Defendant Highlands County ’s counsel.

(D.E. 511, ¶6, PG.3)

On February 13, 2001, Plaintiff appeared at Fred Carino’s office and demanded to view attorney billing records from Defendant Highlands County ’s counsel relevant to its defense of his litigation.

D.E. 511, ¶7, PG.3)

On February 14, 2001, Plaintiff returned to Fred Carino’s office and demanded to view attorney billing records from Defendant Highlands County ’s counsel relevant to its defense of his litigation. This request was made directly to Mr. Canno’s office and not through Defendant Highlands County ’s counsel.

D.E. 511, ¶8, PG.4)

After reviewing the, records, Mr. Mason penned a note to Mr. Carino stating that he wanted unredacted portions of billing records and if he did not get them he will file a lawsuit by February 16, 2001

D.E. 511, ¶9, PG.4)

Mr. Mason returned to Mr. Carino’s office a second time on February 14, 2001 and knowingly violated this Court’s Orders of June 19, 200 and July 25, 2000. He demanded to view Defendant Highlands County ’s Insurance Document of Coverage, a document that had previously been produced to him. This request was made directly to Mr. Carino’s office and not through Defendant Highlands County ’s counsel. Notwithstanding, the document was produced to him.

D.E. 511, ¶10, PG.4)

During this visit, Plaintiff became loud, aggressive, disruptive, and questioned the need for Mr. Carino’s presence during his review of the document.

D.E. 511, ¶11, PG.4)

Plaintiffs conduct in violation of this Court’s Orders of June 19, 2000 and July 25, 2000 require a dismissal with prejudice of all of plaintiff’s claims in the above-referenced matter.

D.E. 511, ¶15, PG.5)

Since April 3, 2001 - subsequent to the Court’s March 27th Order - Plaintiff has repeatedly personally contacted supervisory employees and/or the individual Defendants about matters related to this case. Specifically, Plaintiff sent e-mail communications directly to supervisory employees of the Defendants, which discussed the “no trespass warnings” that were issued against Plaintiff, Plaintiffs tortious interference claim, as well as Allen, Norton & Blue’s “track record” of litigating appeals (including Eleventh Circuit appeals). (Exhibit 1).

(D.E. 646, ¶10, PG.3)

Clearly, Plaintiffs “no trespass” and tortious interference claims were an integral part of Plaintiffs present litigation, and involve the same set of facts that Plaintiff continues to rely on in pursuing his present claims. Indeed, Plaintiff’s Fourth Amended Complaint alleged several causes of action based on the issuance of the “no trespass” warnings against Plaintiff. Although Plaintiff’s “no trespass” claims were ultimately dismissed by the Court (D.E.’s #435; 466), Plaintiff has recently indicated his intent to appeal the Court’s dismissal of all claims in his Fourth Amended Complaint. (Exhibit 2). Consequently, the issuance of the “no trespass” warnings against Plaintiff are still part of this present litigation.

(D.E. 646, ¶11, PG.4)

In addition, Plaintiff’s communications regarding Defendants’ counsel’s Eleventh Circuit “track record” clearly have no relevance to his state court claim(s), and pertain only to his federal litigation.

(D.E. 646, ¶12, PG.4)

All of Plaintiff’s claims arise from the same set of facts and are all related, and he should simply not be allowed to continuously disregard Orders of this Court and blatantly challenge the Court’s authority.

(D.E. 646, ¶13, PG.4)

Plaintiff has demonstrated a blatant disregard and disdain for this Court’s authority, as evidenced by Plaintiff’s statement that “ANYBODY, who supports your position. . . is a racist and is part of the problem. I fear no man!!! This includes white men wearing robes” and “I aint afraid of a white men wearing robes of any color.” (Exhibit 1, e-mails dated 4/03/01 at 10:57 a.m. and 4/06/01 at 8:33 a.m. respectively)

(D.E. 646, ¶14, PG.4)

FUTILE ATTEMPTS AT APPELLATE REVIEW

1. The following orders, [D.C. Case No. 99-14027-CV- Graham, ( Doc. 201), ( Doc. 246)] rendered by a Magistrate, are not valid and are violative of the First Amendment, Tenth Amendment, 28 U.S.C. § 636 (b)(1)(A), and fails to meet the legal requirements for a preliminary injunction :

“Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.” (DE #201). This order is dated

“Plaintiff shall correspond only with Defendants' counsel including any requests for public records.” (DE #246). “Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.” (DE #246). This order is dated July 25, 2000.

The Eleventh Circuit, US Court of Appeal has had a multiplicity of opportunities to review these orders, but has declined to do so. These orders were reviewable under collateral order doctrine and could have been appealed prior to entry of final judgment because these orders resolved issues independent and easily separable from other claims in the prior pending lawsuit. Ortho Pharmaceutical Corp. v. Sona Distributors, 847 F.2d 1512, 1515 (11^th Cir. 1988). Following is a list[1] of opportunities The Eleventh Circuit has to review these orders:

a. Case No. 01-13664. The Eleventh Circuit rendered a prolix 14 page opinion on October 16, 2002 that does not discuss the validity of these orders. It is quite remarkable in that The Eleventh Circuit is single-mindedly focused on alleged out of court communications with his government by Mason as alleged violations of the orders above while steadfastly refusing to review the validity of these orders. . “On appeal, Mason argues that the magistrate's discovery orders enjoined him without legal authority and violated his First Amendment and Florida state-law rights to petition Florida government officials and to request public records.” See Pg. 10. Even though The Eleventh Circuit admitted the orders in question were being tested for validity on appeal, The Eleventh Circuit refused to review these orders for validity.

b. Case No. 01-15754. Among other things, The Eleventh Circuit again refuses to address this issue. In fact, the entirety of the opinion is: “The "petition for writ of mandamus and petition for writ of prohibition" is DENIED.”

c. Case No. 02-13418. This lawsuit was filed against Judge Graham and his Magistrate, Judge Frank Lynch, Jr., for issuing these orders. In an opinion rendered on Dec. 6, 2002, The Eleventh Circuit again declined to discuss the validity of these orders while asserting in a mere conclusory fashion that the Judges have absolute immunity. In reading the opinion, one can not determine what the judges are immune from.

d. Case No. 01-13664. Mason filed a Appellant’s Renewed Motion For Summary Reversal on or about September 25, 2002. Yet again The Eleventh Circuit refuses to discuss the validity of these orders.

e. Case No. 01-11305. On April 26, 2001, The Eleventh Circuit yet again refused to review the validity of theses orders. “With regard to his requests for relief from the order granting the defendants’ motions for preliminary injunction, which the court construed as preliminary discovery motion, Mason has alternative remedy. He may either comply with the district’s courts discovery order and challenge it on appeal from the final judgment, or refuse to comply with the order and challenge its validity if cited for contempt”. See Mandamus Petition. Was Mason supposed to wait until the end of trial to get his First Amendment rights back? The Eleventh Circuit has answered this question with a resounding no. “[I]t is well established that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” KH Outdoor, LLC v. Trussville, 458 F.3d 1261, 1271-1272 (11th. Cir. 2006); Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir. 1983). The Eleventh Circuit declined to review these orders via interlocutory appeal because they were characterized as “discovery orders” by the district court”. However, it is well established that an appellate court is not bound by a district court’s characterization of its own orders with respect to appellate jurisdiction. United States v. Hylton, 710 F.2d 1106 (5th Cir. 1983); United States v. Jorn, 400 U.S. 470 (1971).

[1] This list is not collectively exhaustive.

JUDGE DONALD L. GRAHAM AND THE ELEVENTH CIRCUIT, USCA OVERULE THE FIRST AMENDMENT]

Judge Graham: "I can take away your right to petition the government!"