Petition for Writ of Certiorari — Sardonell v. Noriega

_ Supreme Court

011712 may 202009

No. QFFIOE OF THE CLaRK

In The

Supreme Court of the United States

S

EVA CHARLENE SARDONELL and

DOUGLAS SARDONELL,

Petitioners,

GARY NORIEGA, individually, and as a Council

Member, City of Powder Springs; WAYNE WRIGHT,

individually, and as City Manager, City of

Powder Springs; RICHARD SAILORS, individually,

and as mayor, City of Powder Springs;

VINCE BLACKMON, individually, and as Code

Compliance Officer, City of Powder Springs;

and the CITY OF POWDER SPRINGS,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeais

For The Eleventh Circuit

*

PETITION FOR A WRIT OF CERTIORARI

°

JACQUELINE K. TAyYLor, Eso. ANTHONY J. Viatas, Esa.

J. Tavtor & Associates, LLC Counsel of Record

400 Corp. Spectrum Bldg. P.O. Box 192

1950 Spectrum Circle 102 Ridge Road

Atlanta, GA 30067 Mt. Holly Springs, PA 17065

(770) 857-4383 (717) 486-7702

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

FY we

QUESTION PRESENTED

Whether white citizens who are discriminated

against by governmental officials for renting property to

black citizens, therefore have a cause of action under 42

U.S.C. § 1982?

li

TABLE OF CONTENTS

Page

QUESTION PRESENTED. 0.5 <siscsscccctecesacesss i

TABLE OF CONTENTS............. pesebaeenvhenses ii

TABLE OF AUTISCRRRGMe 66 iiss diccccsvesesvascens iv

PETITION FOR A WRIT OF CERTIORARI ......... 1

COPENMING TEGAIG 56 ck scsnn kaa ene ee eeehbansens 1

JURISDICTION... 22.05 PECL E Oe ee Tey TT OTT Tee 1

STATUTORY PROVISIONS INVOLVED............. 1

SLATEMENT OF TERE COMBE. ci sie cacncssesceansscs 2

tre... «5 <ssi2as55nnkdee eee ee eaees 2

Legal Standard Governing Review of the Record... 3

The Facts Giving Rise to This Case.............. 4

The District Court’s Summary Judgment Order... 16

The Eleventh Circuit Proceedings ................ 18

REASONS FOR GRANTING THE WRIT ........... 19

The Eleventh Circuit’s Decision Conflicts with Sul-

livan v. Little Hunting Park, 396 U.S. 229 (1969), and

Should Be Summarily Reversed.................. 19

CUONCLAZGIAN «. «ian xcuncanencaeee cee eeeenea as 27

APPENDIX

Opinion of United States Court of Appeals for

the Bievenith Camco iiss cncns ckccsaneceasane App. 1

nD as AA onal ete

ill

TABLE OF CONTENTS - Continued

Page

Order of United States District Court for the

Northern District of Georgia

Order on Petition for Rehearing and Rehearing

En Banc of the United States Court of Appeals

for the Eleventh Circuit

iv

TABLE OF AUTHORITIES

FEDERAL CASES

Arkansas v. Sullivan, 532 U.S. 769 (2001) (per cur-

Ss Kids have ccrersaebans ence charers alae annens

Barrows v. Jackson, 346 U.S. 249 (1953)............

Celotex Corp. v. Catrett, 477 U.S. 317 (1986).......

Clark County School Dist. v. Breeden, 532 U.S. 268

(2001) (per curiam), rev’g, 2000 WL 991821 (9th

Cir. Jul. 19, 2000) (per curiam) (unpublished),

judgt. order reported at 232 F.3d 893.......... :

Cutting v. Muzzey, 724 F.2d 259 (1st Cir. 1984)....

Dale v. City of Chicago Heights, 672 F. Supp. 330

ee Ws SED hae vd nudsan dkaeeubucaurnuceegnes

Des Vergnes v. Seekonk Water Dist., 601 F.2d 9 (1st

ee ME 8 6k n es nauns rads dessees ededsesenebansa

Graham v. Connor, 490 U.S. 386 (1989)...........

Harlow v. Fitzgerald, 457 U.S. 800 (1982).........

Liljeberg v. Health Services Acquisition Corp., 486

eee Se, SEE s Wk A aM oaAWS AM aD SRK ED keeetpedens

Major League Baseball Players Ass'n v. Garvey, 532

U.S. 504 (2001) (per curiam), rev’g, 2000 WL

1801383 (9th Cir. Dec. 7, 2000) (per curiam)

(unpublished), judgt. order reported at 243 F.3d

PE TT ree TT ELECT POT TET PTET ee Pere

i I RP ey Err WE aay ap yey

Ohio v. Reiner, 532 U.S. 17 (2001) (per curiam) ....

Pembaur v. Cincinnati, 475 U.S. 469 (1986) .......

Vv

TABLE OF AUTHORITIES - Continued

Page

Pisello v. Town of Brookhaven, 933 F. Supp. 202

REN: BOD soos onaeecsscddasdvclne 20, 24 n.4

Sao Paulo State of Federative Republic of Brazil v.

American Tobacco Co., Inc., 122 S. Ct. 1290 (2002)

OT CONGIN so oo cc dndcchnkstnben eee 26

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229

EPONEe + seeaekaaeseeeenmaweeecus Teer errs _..3, passim

FEDERAL CONSTITUTIONAL PROVISION

U.S. Const. amend. XIV § 1..................... 17 n.3

FEDERAL STATUTES

oP VG & Bi enccciskiase ames 1

Gt aes BD CUES 6 bck ode bakedkaee 16, 17, 19, 20

CS WBA. D Fees ais ckccesccdenaiec eee i, passim

GS Siak... 5 TOs sit sickseessaee 1, passim

SS WA. O Och acct sveisnue eee 16, 17

Fair Housing Act, 42 U.S.C. § 3604.............. 16-17

Federal Rule of Civil Procedure 30(b)(6).............. 9

Federal Rule of Civil Procedure 56................... 3

United States Housing Act of 1937, 42 U.S.C.

PMNs nknde acess xanaedueecuaneneie 5 & nl

vi

TABLE OF AUTHORITIES - Continued

Page

Crry ORDINANCES

City of Powder Springs, Zoning District Regula-

ML 2 OS err eee 10

City of Powder Springs, Zoning District Regula-

om © TET BREESE oc cccccccccessocsesbavszeeccess 10

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1-4)

is unreported. The opinion of the district court (App.

5-38) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

December 18, 2001. A timely petition for rehearing and

suggestion for rehearing en banc was denied on February

19, 2002. This Court’s jurisdiction rests on 29 U.S.C.

§ 1254(1) (1999).

STATUTORY PROVISIONS INVOLVED

42 U.S.C. § 1982 provides in full:

All citizens of the United States shall have

the same right, in every State and Territory, as is

enjoyed by white citizens thereof to inherit, pur-

chase, lease, sell, hold, and convey real and

personal property.

42 U.S.C. § 1983 provides in pertinent part:

Every person who, under color of any stat-

ute, ordinance, regulation, custom, or usage, of

any State . . . subjects, or causes to be subjected,

any citizen of the United States or other person

within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable

to the party injured in an action at law, suit

in equity, or other proper proceeding for

redress... .

¢

STATEMENT OF THE CASE

Introduction

Petitioners are Douglas and Eva Charlene Sardonell

(“Douglas” and “Charlene,” collectively “the Sardon-

ells”), who are husband and wife. The Sardonells are

white citizens of a small town outside of Atlanta called

the City of Powder Springs, Georgia (also the “City” or

“Powder Springs”).

Douglas and Charlene each owns a home in Powder

Springs. In Douglas’ home, the Sardonells live and during

part of the time relevant to this case did work for Doug-

las’ small business, A Cool Flame Heating and Air Condi-

tioning (“A Cool Flame”). The house owned by Charlene,

throughout the time relevant to this case, she has rented

out to others.

In 1998, Charlene rented her house to black citizens,

who thereby became the only African Americans residing

on the street. As described within, this led respondent

Powder Springs City Councilman Gary Noriega, who

lives and whose wife’s parents live on this same street, to

request an official investigation of the Sardonells and of

A Cool Flame. City Councilman Noriega then continued

to foment the investigation and, ultimately, the

respondent City of Powder Springs issued a citation to

Charlene alleging a city ordinance violation. Charlene

requested a jury trial, and the matter was bound over to

a

the State Court of Cobb County, Georgia. With the cita-

tion still unresolved, yet new criminal charges were

issued, this time alleging that Charlene had parked busi-

ness vehicles at Douglas’ home in violation of two other

ordinances. Ultimately, the independent Cobb County

solicitor’s office dropped the charges. The Sardonells

brought this federal civil rights action to redress respon-

dents’ retaliatory actions against them for Charlene’s

renting her house to African Americans.

The district court held that the Sardonells, because

they are white citizens, have no standing to assert that

their civil rights under 42 U.S.C. § 1982 have been vio-

lated. The Eleventh Circuit Court of Appeals affirmed.

This Court squarely held in Sullivan v. Little Hunting Park,

396 U.S. 229 (1969), that a white person who has been

discriminated against because he has rented property to a

black person has standing to maintain an action under 42

U.S.C. § 1982. Petitioners ask this Court to grant the

petition and summarily reverse the Eleventh Circuit’s

judgment, remanding petitioners’ § 1982 claim, and so

much of their claim under 42 U.S.C. § 1983 as is based on

their § 1982 claim, for further proceedings.

Legal Standard Governing

Review of the Record

The decision below of the court of appeals affirmed a

grant of summary judgment against petitioners. There-

fore, the record, including “the pleadings, depositions,

answers to interrogatories, and admissions on file,

together with the affidavits,” Fed. R. Civ. Pro.

(“F.R.Civ.P.”) 56(c), must be viewed in the light most

favorable to petitioners and all reasonable inferences

must be drawn in their favor. E.g., Celotex Corp. v. Catrett,

477 U.S. 317 (1986).

The Facts Giving Rise to This Case

Douglas and Charlene each owns a house in the City

of Powder Springs, Georgia, as described in the Introduc-

tion above.

The house two doors to one side of Charlene’s house

is owned by Betty Jo Murphy. (Charlene’s Deposition

(“Depo.”), at 43). When Murphy moved into the neigh-

borhood over 28 years ago (Murphy Depo. at 8), none of

the houses in the neighborhood was owned by a black

person. (Jd. at 15). Murphy explains, “they’ve only

bought into the neighborhood in the past three or four

years” (Id.).

Aghast over a plan of Charlene to rent her house two

doors from Murphy’s to an African American, Murphy

remonstrated against this to Charlene on two different

occasions during 1998. (Charlene’s Depo. at 47-51). On

the first occasion, in April 1998 in the nursing home

where Murphy’s parents were patients and where Char-

lene worked as a nurse: “Mrs. Murphy asked me if I was

going to rent to blacks. She said, you’re not going to rent

to blacks, are you? I said, I’m going to rent to someone

you know, and I told her who I was going to rent the

house to,” an African-American nurse at the nursing

home. (Id. at 47). On the second occasion, in August 1998,

as Charlene recounts: “she asked me again about renting

to blacks and I told her I was going to rent out through

the Section 8 program.|[1] She told me there was ways to

avoid renting to blacks and she used another [black]

gentleman’s home [on the next street over] as an example

for why I should not rent to blacks.” (Id. at 48-49). Char-

lene would not hear of it: “I walked away. .. . I don’t care

to carry on conversations of that nature with people. .. . I

do not want to be a party to that kind of mentality.” (Id. at

49).

Murphy was undaunted. As Gordon Powell, who

lives in the house next to Charlene’s, avers in his affi-

davit, Murphy asked him if he knew about Charlene’s

intentions with regard to renting her house. (Affidavit of

Gordon Powell (“G. Powell Aff.”) at J 9 (sworn to Dec.

26, 2000)). Murphy told Powell: She “would just have to

see what ‘Gary’ can do about this.” (Id. at { 10 (emphasis

added)).

“Gary” is a reference to respondent Gary Noriega

(“Noriega”), Murphy’s son-in-law, who is married to

Murphy’s daughter. (Noriega Depo. at 22, 24; Murphy

Depo. at 13). As mentioned above, Noriega’s house is on

the same street as the Sardonells’ houses and Murphy’s

house. (Id. at 7).

Gary Noriega is, as mentioned above, a Powder

Springs City Councilman. (Noriega Depo. at 8).

As she had planned, Charlene rented her house to

the African-American nurse mentioned above, from June

until August 1998 (Charlene’s Depo. at 36, 47); and again,

1 “The Section 8 program” refers to the federal subsidized

housing program under § 8 of the United States Housing Act of

1937, 42 U.S.C. § 1437f.

in September 1998, Charlene rented out her house to

another person who is African American. (Id. at 30-31).

One of the Sardonells’ neighbors described the neighbor-

hood’s demographics at this time: “In 1998, the only

African American family on [the street where the two

Sardonell houses and Noriega’s and Murphy’s houses are

located] lived in the house owned by Charlene.” (Affi-

davit of John Long (“Long Aff.”) J 7 (sworn to Jan. 5,

2001)).

When Charlene rented her house to these black citi-

zens — as averred by three neighbors of the Sardonells

and by Douglas as well - the City of Powder Springs

instituted an investigation of Charlene and Douglas and

Douglas’ home-based business, A Cool Flame, for the

purported reason of determining if A Cool Flame was

operating within the limits of its home-based business

license issued by the City of Powder Springs. See, e.g.,

Douglas’ Affidavit at {J 6-7 (“Prior to my wife renting

her home. . . to an African American family, I enjoyed an

uneventful existence as a resident and business owner in

my neighborhood... . Following my wife’s rental of her

home to an African American family . . . I began to be

subjected to investigations by City of Powder Springs

officials who alleged that the business activities at my

home were in violation of the City’s Home Occupation

License ordinances.”); Long Aff. {{ 2, 10, 12 (“I live

. next door to the home owned by Douglas Sardonell

. . . I observed that shortly after Charlene Sardonell

rented her home to an African American family, cars

marked with the City of Powder Springs emblem began

surveilling [Douglas’ house].”) (sworn to Jan. 5, 2001);

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G. Powell Aff. {J 2, 11-14 (same) (sworn to Dec. 26, 2000);

Affidavit of Sheila Powell {4 7-9 (same) (sworn to Dec.

18, 2000).

It is undisputed that this investigation was initiated

upon the lone complaint of - yes, City Councilman Gary

Noriega. (See Deposition of respondent City Manager

Wayne Wright individually (“Wright indiv. Depo.”), at 18

(“Q. From whom did you receive the complaints [against

the Sardonells and A Cool Flame that caused you to open

the investigation]? A. I believe Councilman Noriega

called me. Q. Other than Councilman Noriega, who else

did you receive complaints from? A. I don’t recall any

others.”)); id. at 20-21 (“Q. Did you receive any other

complaints regarding the Sardonells or any of their busi-

ness activities, other than Mr. Noriega’s complaint? A.

Mr. Noriega contacted me several times about the situa-

tion. Are you talking about from other individuals? Q.

Yes. A. No, not that I recall.”); Deposition of Lieutenant

James E. Freeland at 62-63 (“Q. Do you know of any

complaints that have come to the police department

[about the Sardonells]? A. Not that I’m aware of.”)).

Specifically, it is undisputed that City Councilman

Noriega telephoned respondent City Manager Wayne

Wright, who reports to the City Council (Wright indiv.

Depo. at 16), and Noriega told Wright that “he [Noriega]

had been getting complaints from neighbors” about busi-

ness activities at Douglas’ house. (Wright indiv. Depo. at

20; see Noriega Depo. at 38 (“I called Mr. Wright, our City

manager. I said, ‘Wayne, I have received a complaint.’ ”).

When Noriega was asked at his deposition to identify

who complained to him against A Cool Flame and the

Sardonells, he could cite only the following:

!

[M]y wife told me that her mother [Ms. Murphy

above] had told her that Mary Sitherwood [a

neighbor of Ms. Murphy] had told her that she

was tired of the vans being up in the Sardonells’

yards and whatever. . . . Ms. Sitherwood had

told Ms. Murphy - because they’re big buddies

- had told Ms. Murphy would she let Gary

know that there’s a lot of activity going on up at

the Sardonells because I can’t see their house

from where I live. I can’t see it front or back. So

I don’t know what's going on up there.

Noriega Depo. 37-38; id. at 51-52 (“Q. .. . Other than the

initial complaint that you received by way of your wife,

were there any other complaints that you received about

activities at the Sardonells’ home? A. The Sardonells?

No.”); id. at 61).

Noriega’s allegation that he requested Wright to

investigate based on this purported “complaint” lacks

any credibility - or certainly a reasonable factfinder could

so conclude. First, according to Noriega’s own testimony,

Mary Sitherwood herself admitted in the “complaint”: “I

can’t see [the Sardonells’] house from where I live. I can’t

see it front or back. So I don’t know what’s going on up

there.” (Id.) Moreover, as alleged by Noriega, the “com-

plaint” is third-hand - via his wife, via her mother. (Jd.)

Noriega concedes he never spoke personally with Ms.

Sitherwood about the purported “complaint.” (Id. at 47).

And most importantly, in their own depositions,

Mary Sitherwood and Murphy — both — deny that the alleged

“complaint” ever was made. (Deposition of Murphy at 41

(“Q. You’ve heard of no complaints by neighbors regard-

ing activities at the Sardonells’ home, correct? A. Cor-

rect.”); Deposition of Mary Sitherwood at 25 (“Did you

-_

=

ever tell Mrs. Murphy that you needed to have anything

done about anything going on at Douglas Sardonells’

| home regarding activities? A. No.”; “Q. Did you ever

| imply to Mrs. Murphy that you needed or wanted to have

anything done about activities going on at Douglas Sar-

donell’s home? A. No.”)).

As unfounded as was Noriega’s complaint to Wright,

so did Noriega foment the investigation with even

greater zeal. It is undisputed that after Charlene rented

her house to African Americans, Noriega “several times”

raised the subject of alleged business activities at the

Sardonells’ home with City Manager Wright and “at dif-

ferent work sessions of the city council.” (Wright indiv.

Depo. at 21 (“Mr. Noriega contacted me several times

about the situation.”); Deposition of Wayne Wright pur-

suant to F.R.Civ.P. 30(b)(6) (“Wright 30(b)(6) Depo.”) at 62

(“I recall Mr. Noriega raising the issue that the violations

had continued or were ongoing at different work sessions

of the city council.”); see also Wright indiv. Depo. at 22

(“Q: And then you remember a planning meeting with

the city council, in which Mr. Noriega complained about

the Sardonells; is that correct? A: Yes.”)).

On January 25, 1999, respondent City Code Compli-

ance Officer Vince Blackmon sent a letter to the Sardon-

ells alleging, “[t]here have been continuous complaints to

the City concerning business vehicles parked on your

premises; also, numerous deliveries.”2 However, the City

officials’ admissions and the other testimony above bring

2 (Letter dated Jan. 25, 1999-from Vince Blackmon to

Douglas Sardonell (Exh. D-5 to D. Sardonell Depo.) (emphasis

added))

10

to light that the complaints against the Sardonells originated

only with City Councilman Noriega. See pp. 6-9 supra. It is

undisputed that the Sardonells could have one business

vehicle and receive four or fewer deliveries a month

at Douglas’ house, pursuant to Douglas’ business license.

City of Powder Springs, Zoning District Regulations

§ 7.07.02.02.05 (one business vehicle permitted);

§ 7.07.02.02.08 (four or fewer deliveries a month permitted);

(Plaintiffs’ Exhibit Wright # 3 to Wright indiv. Depo.).

Although on some occasions a second vehicle for business

purposes had been parked at Douglas’ home, from well

before Charlene rented her home to black citizens, the affi-

davits of the Sardonells’ neighbors above, and the respon-

dents’ admissions, give rise to a reasonable inference that

respondents were willing to allow this so long as Charlene’s

house was not being rented to black citizens. See pp. 6-9

supra. The Sardonells’ neighbors have never complained

about a second business vehicle being parked on some occa-

sions at the Sardonells’ home. They aver seeing only one

business vehicle there on a regular basis. (Long Aff. { 9 (“It

is my personal observation that in 1998 and 1999 only one

van marked as a business vehicle was parked at the home of

Douglas Sardonell on a regular basis.”); G. Powell Aff. {5 (“I

saw in 1999, on a regular basis, only one van marked with

Douglas Sardonell’s business logo and parked at this loca-

tion.”)). The neighbors further aver that there was no signifi-

cant loading and unloading of materials at the Sardonells’

home. (Long Aff. { 5 (“During the period between 1998 and

1999, I did not observe any significant loading of any mate-

rials at [Douglas’ home].”); G. Powell Aff. { 5 (“[Bletween

1995 and 1999, I observed no significant or ongoing loading

or unloading of materials at [Douglas’ house]”)).

OP RA Nh De NS ee et

11

In order to bring a stop to the surveillance and the

unfounded accusations, the Sardonells requested a land

use permit for Douglas’ home, to put the matter to rest.

This brought Douglas and Charlene before the City

Council on March 1, 1999, and neighbors of the Sardon-

ells attended the City Council meeting in their support.

(Transcript of March 1, 1999 City Council Meeting pp. 1-2

(Exh. A to [First] Affidavit of Betty Brady, City Clerk,

City of Powder Springs (sworn to Dec. 8, 2000)); and

Noriega Depo. at 75). In the meantime, a commercial

location from which he could conduct the business of A

Cool Flame in Powder Springs was identified by Douglas,

and at the March 1, 1999 City Council meeting, Douglas

and Charlene explained to the City Council:

[Charlene:] We have located and will be mov-

ing into a commercial place April first. . . . [W]e

really don’t need to be getting letters and phone

calls for the next thirty days. . . . [Douglas:] [W]e

want the harassment stopped because we have

been harassed. . . . [W]e need to have them stop

bothering us because we don’t bother anybody.

(Transcript of March 1, 1999 City Council Meeting, p. 1).

When Charlene further informed the City Council at its

meeting on April 5, 1999 that Douglas’ business had moved

as of April 1, 1999, the matter was closed. (Transcript of

April 5, 1999 City Council Meeting, pp. 1-4 (Exh. A to

[Second] Affidavit of Betty Brady (sworn to Dec. 8, 2000))).

Or so the Sardonells thought.

During the week of April 12, 1999, City Councilman

Noriega again called City Manager Wright about the Sar-

donells (Wright indiv. Depo. at 39-40), and at the City

Council’s work session on Wednesday, April 14, City

12

Councilman Noriega introduced the issue of taking some

action against the Sardonells. (Wright indiv. Depo. at 81

(“I remember at the work session, when Mr. Noriega

raised the issue [of “tak[ing] action against the Sardon-

ells”] the week the citation was issued.”); see id. at 25-28).

City Manager Wright then immediately surveilled the

Sardonells’ home. (See text immediately below). Wright

had personally surveilled the Sardonells’ home many

times before this, but he concedes he does not remember

seeing any violations of city ordinances on these prior

occasions. (G. Powell Aff. J 12 (“I observed Wayne

Wright often driving a City of Powder Springs vehicle

and surveilling the Sardonell home in late 1998 and 1999,

including many weekends.”); Wright indiv. Depo. at 74

(“A. ...I went by [Douglas’ house] prior to the land use

permit hearing [March 1, 1999]... [aJnd I may have been

by earlier as well. Q: Do you recall what you observed

when you went by, other than in April of ‘99. A: I don’t

remember seeing any — well — I don’t remember. I don’t

remember seeing any violations. . . .Q: You don’t remem-

ber any violations? A: No... . ”)).

Wright contends, however, that when he surveilled

the Sardonells’ home for “a few minutes,” after the phone

call from Noriega and the City Council work session on

April 14, 1999, he as well as two of his employees saw

several business vehicles and other activities on Douglas’

property. (Wright 30(b)(6) Depo. at 22-24, 48; Wright

indiv. Depo. at 39-41)).

Based on this alleged observation, on April 16, 1999

the City of Powder Springs Police Department issued a

citation at Douglas’ home to Charlene alleging that she

13

had operated a business without a license. (Wright indiv.

Depo. at 76). It is undisputed that the citation was issued

upon the personal request of City Manager Wright. Speci-

fically, Wright telephoned the City of Powder Springs

Chief of Police, who reports to Wright, and “asked the

chief of police to issue a citation.” (Wright indiv. Depo. at

109). Wright admitted at his deposition that he has never

before or since personally requested that the Chief of

Police issue a citation against anyone. (Id. at 112) (“Q: The

question is: Can you tell me that you have ever, other

than with the Sardonells, requested directly — you, your-

self — that the chief of police have a citation issued to a

citizen for a violation of a city ordinance? A: And I think

I've clearly answered that question. Q: Answer the ques-

tion “yes” or “no,” please, sir. A: No.”).

The Chief of Police in turn directed Lieutenant James

Freeland to issue the citation. (Freeland Depo. at 46-47).

As Lieutenant Freeland explained in his deposition, he

had patrolled the Sardonells’ street -once a week during

1999 and, based on those patrols, he “had no reason to be

concerned about any illegal activities at [Douglas’

house].” (Id. at 35-37). Lieutenant Freeland responded to

the Chief’s instruction to issue the citation: “ ‘Well, I

don’t know what this is,’ and the chief reminded me -

well, basically what it comes down to is a police officer

has to obey any lawful order given to him by a superior,

okay? . . . 1 was to go cite the Sardonell residence. . . . So

that’s what I did.” (Id. at 46-47).

When Charlene requested a jury trial of the charge,

the case against her was bound over to State Court of

Cobb County, Georgia (from Powder Springs Recorder’s

Court). (E.g., Wright 30(b)(6) Depo. at 58). Charlene then

14

endured months with the charge left hanging over her

head until - more than one year after the original citation

had been issued and was still not resolved — new charges

issued against Charlene. This time the charges were that

Charlene had parked business vehicles on the premises of

Douglas’ house. (Waiver of Formal Arraignment and

Notice of Return, State Court of Cobb County, Case #

OOM2078 (April 19, 2000)). These criminal charges against

Charlene carried penalties of “up to 12 months incarceration

and/or a $1,000 fine or any combination of the two.” Id. And

Charlene had to endure having these charges hanging over

her for yet another four months, until the independent Cobb

County solicitor’s office dropped the charges. See Entry of Nolle

Prosequi, Aug. 14, 2000, State Court of Cobb County, Cobb

Judicial Circuit (Glover, J.).

The City of Powder Springs would give the Sardon-

ells no rest — none. Immediately upon Douglas’ moving A

Cool Flame to a business location on April 1, 1999, new

obstacles were erected there by the City to Douglas’

lawful use and enjoyment of the commercial property in

Powder Springs. Specifically, as the commercial landlord

avers in his affidavit:

After Douglas Sardonell leased the rental

location, I was told by a City of Powder Springs

official . . . that I would have to obtain a Certifi-

cate of Occupancy, including a Fire Marshall

Certificate, if I wanted to continue to lease the

rental location to Douglas Sardonell. Prior to my

leasing the rental location to Douglas Sardonell,

I had never been requested to obtain such a

Certificate of Occupancy or Fire Marshall Certif-

icate for any tenant.

McTyre Aff. at {{ 3-4.

ae

nde OO oe Bh ene

15

After “just a little over a month” at this new location,

Douglas determined it was best to move A Cool Flame

out of Powder Springs altogether, to Smyrna, Georgia.

(Douglas’ Depo. at 20). The harassment by respondents

had become too great. Sadly, the resulting need to move

Dougias’ business during the onset of the spring/summer

air conditioning season in Georgia limited the business’

growth. (Id. at 77). Even so, the surveillance activities by the

City of Powder Springs continued for months after A Cool

Flame was moved out of Powder Springs, as the Sardonells’

neighbors confirm. (See Long Aff. J 11 (“I continue to see

cars marked with the City of Powder Springs emblem, which

continue to survey the home of Douglas Sardonell.”) (sworn

to Jan. 5, 2001); G. Powell Aff. | 14 (“I, as of this day,

continue to observe City of Powder Springs vehicles driving

by and surveilling the Sardonell home on a weekly basis.”)

(sworn to Dec. 26, 2000); S. Powell Aff. { 8 (“I have observed

that surveillance of Douglas Sardonell’s home continues on a

regular basis, and that surveillance of this home is being

done by individuals driving City of Powder Springs vehi-

cles.”) (sworn to Dec. 18, 2000); see also D. Sardonell Aff. {J 26

(“[S]urveillance of my home continues to this day, despite

the fact that my business operations were moved out of the

City of Powder Springs in May of 1999.”) (sworn to Jan. 8,

2001)).

One further, sad piece of evidence attesting to a racial

basis for City code compliance actions in Powder Springs

is provided by an African-American gentleman who lives

in the same subdivision as the Sardonells, Edward Har-

per. Mr. Harper explains:

16

{ 4. I [have been] issued two (2) letter warn-

ings by Code Compliance Officer Vince Black-

mon for having grass that was too tall.

{ 5. In my observation, there was no differ-

ence in the height of my grass and other neigh-

bors who were of the Caucasian race who lived

on my block.

{ 6. To the best of my knowledge, none of

my Caucasian neighbors were ever given warn-

ings by City officials for having grass that was

too tall.

Affidavit of Edward Harper {¥ 4-6 (sworn to Jan. 8,

2001).

The record amply permits a reasonable factfinder to

conclude that City Councilman Gary Noriega, City Man-

ager Wayne Wright and City Code Compliance Officer

Vince Blackmon engaged in a pattern of racially moti-

vated discrimination against Douglas and Charlene Sar-

donell by means of frequent surveillance, unfounded

accusations, and criminal charges that were later dropped

by an independent prosecuting authority, all for the pur-

pose of punishing Charlene’s having exercised her right

to lease her home to black citizens.

The District Court’s Summary Judgment Order

Petitioners instituted this federal civil rights action in

the federal district court for the Northern District of

Georgia, Atlanta Division, alleging that the respondents’

actions violated the federal civil rights statutes, 42 U.S.C.

§§ 1981, 1982, 1983 and 1985, and the Fair Housing Act,

17

42 U.S.C. § 3604.3 Named as defendants were respondents

City Councilman Noriega, City Manager Wright, and City

Code Compliance Officer Vince Blackmon, in their official

capacities and individually; the City of Powder Springs;

and others.

After other pre-trial proceedings, the district court

(Carnes, J.) entered summary judgment for respondents

on all counts. A single theme unified the district court’s

reasoning in rejecting every one of petitioners’ claims

under the federal civil rights statutes above: a supposed

lack of standing for petitioners Douglas and Charlene — as

white citizens - to avail themselves of the fundamental

protections afforded by the federal civil rights statutes

even though they had alleged discrimination against

them because Charlene rented her house to black citizens.

App. 30-31 (“Plaintiffs . . . appear to be alleging that they

were discriminated against . . . because they entered into

a contract with a black person. Plaintiffs have not cited

any case law allowing this sort of ‘association’ claim

under § 1981.”); App. 31-32 (“[P]laintiffs’ situation would

not appear to fit within the scope of a § 1982 claim. In a

typical § 1982 claim, a plaintiff must show . . . that he is

a member of a racial minority .. . ”); App. 33-34

(Ҥ 1985(3) . . . was intended to encompass only those

conspiracies motivated by animus against the kind of

classes Congress was trying to protect. . . . Plaintiffs have

not alleged that they were a member of a class discrimi-

nated against. . . . Accordingly, plaintiffs’ section 1985

claim fails as well.”); App. 22-23 (“[I]t would seem that

3 Petitioners further alleged violations of the Fourteenth

Amendment’s Due Process and Equal Protection Clauses. U.S.

Const. amend. XIV § 1.

18

plaintiffs lack any standing to bring a FHA claim [sic]... .

Plaintiffs .. . have failed to provide one cite to a case in

which this sort of claim was cognizable under the

FHA.”).

Moreover, in rejecting petitioners’ § 1982 claim in

particular, the district court relied solely on the supposed

lack-of-standing rationale described and quoted above.

(App. 31-32).

The Eleventh Circuit Proceedings

In a brief order, the Eleventh Circuit affirmed. The

Eleventh Circuit approved, without significant analysis,

the district court’s decision as “a carefully drawn order of

37 pages.” App. 2. The Eleventh Circuit mentioned only

in passing petitioners’ claims under the federal civil

rights statutes, including § 1982. App. 2-4.

In particular, even though petitioners devoted over

three pages of their opening brief in the court of appeals

to the critical point that they, as white citizens, neverthe-

less had standing to sue under the federal civil rights

statutes (see Brief of Appellants at 29-32), the Eleventh

Circuit let stand without even a comment the district

court’s conclusion that petitioners, as white citizens, were

without standing to obtain redress for discrimination

against them because Charlene rented her home to black

citizens. The Eleventh Circuit failed to address or correct

the district court’s reasoning, in particular, as to peti-

tioners’ claim under 42 U.S.C. § 1982, even though no

alternative reason had been given by the district court as

to why petitioners’ § 1982 claim should not be allowed to

proceed to trial.

19

A timely petition for rehearing and rehearing en banc

was denied without comment.

+

REASONS FOR GRANTING THE WRIT

The Eleventh Circuit’s Decision Conflicts with

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229

(1969) and Should Be Summarily Reversed.

In Sullivan v. Little Hunting Park, Inc., 396 U.S. 229

(1969), this Court held that “there can be no question but

that” a white citizen who has been discriminated against

because he has rented property to a black citizen “has

standing to maintain [an] action” under 42 U.S.C. § 1982.

See 396 U.S. at 237 (citing Barrows v. Jackson, 346 U.S. 249,

259 (1953)). The discriminatioin against the white lessor

in Sullivan took the form of expulsion from a local recre-

ational facility. Id. at 235-36. The Court reasoned that it

was imperative, in order to achieve the purposes of

§ 1982, for the white lessor to have standing under the

statute:

If [a] sanction, backed by a state court judgment,

can be imposed, then Sullivan is punished for

trying to vindicate the rights of minorities pro-

tected by § 1982. Such a sanction would give

impetus to the perpetuation of racial restrictions

on property. That is why we said in Barrows v.

Jackson, 346 U.S. 249, 259 . . . that the white

owner is at times ‘the only effective adversary’

of the unlawful restrictive covenant.

396 U.S. at 229; see Des Vergnes v. Seekonk Water Dist., 601

F.2d 9, 14 (1st Cir. 1979) (“[T]o invoke § 1981 or § 1982

one need not be a member of the racial class protected by

20

the statute.”) (citing Sullivan); Cutting v. Muzzey, 724 F.2d

259, 259-61 (1st Cir. 1984) (“[T]he district court erred in

dismissing [this federal civil rights] action for lack of

standing” where the plaintiff housing developer alleged

that the defendant town planning board’s imposition of

“outrageous conditions” on the developer’s subdivision

construction project, “was motivated by racial animus

towards the plaintiff’s purchasers, all of whom had Ital-

ian surnames.”); Dale v. City of Chicago Heights, 672

F. Supp. 330, 331 (N.D. Ill. 1987) (“In Counts I and II,

plaintiffs, a white couple, allege that defendants violated

42 U.S.C. §§ 1981 and 1982 through a pattern of conduct

designed to punish the plaintiffs for, and interfere with,

the rental of their property to black tenants. . . . Counts I

and II do set forth claims upon which relief may be

granted.”) (citing Sullivan and Barrows); Pisello v. Town of

Brookhaven, 933 F. Supp. 202, 215-16 (E.D.N.Y. 1996)

(Plaintiff developer “alleges that he was subject to ongo-

ing harassment by the defendants as a result of his pro-

viding housing to low income minorities. . . . [T]hese

allegations fall under the penumbra of section 1981 cases

in which the non-minority plaintiff is retaliated against as

a result of his failure to discriminate in the contractual

context.”) (collecting authorities).

Sullivan applies with even greater force here. The

respondents -— City Councilman Noriega, City Manager

Wright, City Code Compliance Officer Blackmon, and the

City proper - wield governmental power, not mere pri-

vate social power as did the private recreational facility

in Sullivan. The respondents issued a citation and pressed

criminal charges against Charlene, carrying the possi-

bility of one (1) year in prison and/or a $1000 fine each.

21

After making Charlene endure a delay of months await-

ing resolution of the charges, finally the charges were

dropped by the independent Cobb County solicitor’s

office. See p. 14 supra. If the discriminatory harassment

inflicted on petitioners by these respondents goes unre-

dressed, respondents will be confirmed of their ability to

escape the federal civil rights statutes in the future, and

petitioners or other property owners in respondents’

jurisdiction will be deterred — or further deterred — from

renting their homes to anyone except whites. Members of

minority groups who would have otherwise considered

moving into respondents’ jurisdiction will be hampered

or deterred from doing so because of discrimination

against them by would-be landlords. As petitioners

argued in the court of appeals, moreover: “[T]Jhe potential

class of litigants challenging such unlawful conduct

would be limited to those who are very often the most

intimidated, and who possess the least opportunity to

challenge such violations of the law: a result the drafters

of these federal laws surely did not intend.” Brief of the

Appellants [in the Eleventh Circuit] at 31. The purposes

sought to be served by the federal civil rights statutes

relating to nondiscrimination in the transfer of property

will have been utterly thwarted in the City of Powder

Springs, Georgia.

As described above, the only reason given by the

district court for rejecting petitioners’ § 1982 claim — that

whites lack standing to sue under § 1982 for discrimina-

tion against them because they rented to blacks - is

absolutely wrong under this Court’s established prece-

dent. See Sullivan, supra. Yet the Eleventh Circuit neces-

sarily approved this major tenet of the district court’s

22

“reasoning” — it being the central premise of what the

Eleventh Circuit heralded as the district court’s “carefully

drawn order of 37 pages.” App. 2; see pp. 17-18 supra. The

Eleventh Circuit never addressed petitioners’ § 1982

claim as distinct from several of petitioners’ other claims.

The court of appeals stated-in the final two sentences of

its order: “We have reviewed the other counts and speci-

fic allegations. The record does not support a finding that

the district court committed reversible error.” App. 4.

First, this begs the question - what did the court of

appeals understand the law to be, in the light of which it

reviewed the record? Certainly, if the Eleventh Circuit

accepted the district court’s central legal conclusion — as

the Eleventh Circuit’s order affirming the decision dic-

tates that it did (applauding the “district court’s carefully ~

drawn order of 37 pages”) — the Eleventh Circuit’s con-

clusion that the record somehow does not support a

§ 1982 claim is utterly without merit. As described above,

the record more than permits a reasonable factfinder to

infer that the respondents have engaged in racially moti-

vated punishment of the Sardonells because of Charlene’s

exercise of her right to rent her house to black citizens.

Second, it is evident from the the Eleventh Circuit’s

order that the court’s review of the record was not careful

or conducted in the light most favorable to the Sardon-

ells. Specifically, the order is inaccurate and misleading in

stating that the Sardonells attended “numerous city coun-

cil meetings . . . [but] never mentioned . . . any retaliatory

measures being taken against them by the City.” App. 4.

First, the record plainly shows that the criminal charges

against Charlene - the most egregious retaliatory actions

— were filed after the two City Council meetings. Compare

23

p. 11 supra (the City Council meetings were on March 1,

1999 and April 5, 1999) with pp. 12-14 supra (citation issued

April 16, 1999; other charges issued April 19, 2000). Sec-

ond, the transcripts of the City Council meetings show

plainly that, at the March 1, 1999 City Council meeting, the

Sardonells vigorously objected to many of the City’s retal-

latory actions as of that date. See p. 11 supra (quoting

Douglas and Charlene). Charlene attended the April 5,

1999 City Council meeting alone, in order to confirm to the

City Council that Douglas’ business had moved on April 1,

1999, as previously discussed with the City Council on

March 1, 1999, in order to bring an end to the City’s

harassment, which end sadly was not forthcoming.

Had the City of Powder Springs imposed a formal tax

on rentals of property to black citizens, the tax law or any

enforcement thereof would clearly violate § 1982, and

could successfully be challenged in an action brought by a

white landlord under Sullivan above. The harassment of

petitioners here by respondents is every bit as powerful as

a formal “tax” - perhaps more so because it is more

clandestine - in deterring and penalizing property rentals

to black citizens. “The right to ‘lease’ is protected by

§ 1982 against the actions of third parties,” 396 U.S. at 237,

such as respondents here. The district court should have

permitted the Sardonells to proceed to trial on their § 1982

claim; certainly summary judgment should not have been

granted and affirmed on the basis of the fundamental

misconception that § 1982 does not permit a white person

to sue.*

* The district court - in language nowhere adverted to by

the Eleventh Circuit - suggested that the individual

24

The more things have changed, the more they have

stayed the same. The State of Georgia was in times past a

respondents (defendants in the district court) were entitled to

“qualified immunity” because they were not acting contrary to

clearly established law. App. 29 n.13. However, as Sullivan

shows, the law is clearly established against respondents’

wrongful actions and, therefore, respondents have no

entitlement to qualified immunity. See Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982); see also Pisello, 933 F. Supp. at 219 (“[T]he

individual defendants are not entitled to qualified immunity.

The Amended Complaint alleges that the individual defendants

conspired to run [plaintiff developer] out of business because he

places low income minority families in their community. In the

Court’s view, these allegations lay at the heart of this federal

civil rights case. As stated above, the fact that the plaintiff is

white does not alter this conclusion.”).

The district court further suggested that respondent

Noriega was entitled to “legislative immunity” to the extent he

was “ruling on zoning and land issues.” App. 29 n.13. However,

as detailed above, none of Noriega’s conduct insofar as relevant

to petitioners’ § 1982 claim involves any “ruling on zoning and

land use issues.” See pp. 5-15 supra. Accordingly, legislative

immunity lends Noriega no relief.

Lastly, the district court suggested that petitioners could

not establish municipal liability against respondent City of

Powder Springs under Monell v. Department of Soc. Services, 436

U.S. 658, 690 (1978). App. 29 n.13. This suggestion lacks any

merit as well. Petitioners more than satisfy the Monell criteria.

Under Monell, “it is when execution of a government's policy or

custom, whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy,

inflicts the injury that the government as an entity is responsible

under § 1983.” 436 U.S. 658, at 694. In light of the record above,

the actions and directives of City Councilman Noriega, City

Manager Wright, and City Code Compliance Officer Blackmon

against petitioners “may fairly be said to represent official

policy.” Id.; see also Pembaur v. Cincinnati, 475 U.S. 469, 480-81

(1986) (“[W]here action is directed by those who establish

Rs TMP A Red Mee Tem 1 Oe iM een ah.

AD orb, eae,

25

bastion of the Confederacy with all for which it stood.

During the Reconstruction era and until near modern

times, segregation and discrimination prevailed. Today,

one might have hoped that a case like this would not

arise. It has. The breadth of protection afforded by Con-

gress in § 1982 to citizens victimized by racial discrimina-

tion in leasing property - white or black - has been

rendered nugatory by the district judge’s crabbed sur-

mise as to the scope of the federal civil rights statutes,

and three judges of the United States Court of Appeals

for the Eleventh Circuit have failed to find this funda-

mental, pervasive error in the district court’s opinion

worthy of reversal or mention.

Where a court of appeals’ decision conflicts with the

established law of this Court, this Court will grant the

writ of certiorari and summarily reverse the lower court’s

decision, even where the lower court’s decision is

unpublished. See, e.g., Major League Baseball Players Ass'n

v. Garvey, 532 U.S. 504, 505 (2001) (per curiam) (“Because

the Court’s determination conflicts with our cases .. . we

grant the petition for a writ of certiorari and reverse.”),

reversing, 2000 WL 1801383 (9th Cir. Dec. 7, 2000) (per

curiam) (unpublished), judgt. order reported at 243 F.3d

547; Clark County School Dist. v. Breeden, 532 U.S. 268, 270

(2001) (per curiam) (where court of appeals’ ruling was

contrary to “what was plain from our previous deci-

sions,” petition for certiorari granted and court of

governmental policy, the municipality is equally responsible

whether that action is to be taken only once or to be taken

repeatedly. To deny compensation to the victim would therefore

be contrary to the fundamental purpose of § 1983.”).

26

appeals’ judgment reversed), reversing, 2000 WL 991821

(9th Cir. July 19, 2000) (per curiam) (unpublished), judgt.

order reported at 232 F.3d 893; see also Sao Paulo State of

Federative Republic of Brazil v. American Tobacco Co., Inc.,

122 S. Ct. 1290, 1292 (2002) (per curiam) (“[T]his case is

easily disposed of. . . . The Fifth Circuit’s decision is

inconsistent with Liljeberg v. Health Services Acquisition

Corp., 486 U.S. 847 . . . (1988). . . . Accordingly, we grant

the petition for certiorari, reverse the judgment of the

Court of Appeals, and remand the case for proceedings

consistent with this opinion.”); Arkansas v. Sullivan, 532

U.S. 769, 771 (2001) (per curiam) (“Because the Arkansas

Supreme Court’s decision on rehearing is flatly contrary

to this Court’s controlling precedent, we grant the State’s

petition for a writ of certiorari and reverse.”); Ohio v.

Reiner, 532 U.S. 17, 21 (2001) (per curiam) (“The Supreme

Court of Ohio’s determination that [the defendant] did

not have a valid Fifth Amendment privilege . . . clearly

conflicts with [our cases]. . . . [T]he petition for a writ of

certiorari is granted, the court’s judgment is reversed,

and this case is remanded for further proceedings not

inconsistent with this opinion.”).

For the sake of petitioners Douglas and Charlene

Sardonell, of citizens who reside or who would choose to

reside in Powder Springs if housing were available to

them on a non-discriminatory basis, and of other plain-

tiffs who may encounter the same federal courts in future

civil rights matters, this Court should grant the petition,

summarily reverse the judgment of the Eleventh Circuit

to the extent that it affirms the entry of summary judg-

ment on petitioners’ § 1982 claim (and petitioner’s § 1983

Lal, Sah

27

claim insofar as it is premised on their § 1982 claim5) and

remand the case for further proceedings.

¢

CONCLUSION

This Court should grant the petition, summarily

reverse in part the Eleventh Circuit’s judgment as to

petitioners’ § 1982 claim and its § 1983 claim insofar as

premised on the § 1982 claim, and remand the case for

further proceedings.

Respectfully submitted,

JACQUELINE K. Taytor, Eso. ANTHONY J. Vuatas, Eso.

J. TayLor & Associates, LLC Counsel of Record

400 Corp. Spectrum Bldg. P.O. Box 192

1950 Spectrum Circle 102 Ridge Road

Atlanta, GA 30067 Mt. Holly Springs, PA 17065

(770) 857-4383 (717) 486-7702

° Section 1983 of course does not provide a substantive

right of itself, but rather “provides a method for vindicating

federal rights elsewhere conferred” such as in § 1982. Graham v.

Connor, 490 U.S. 386, 393-94 (1989).

App. 1

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 01-12824

Non-Argument Calendar

D.C. Docket No. 99-01921-CV-JEC-1

EVA CHARLENE SARDONELL,

DOUGLAS SARDONELL,

Plaintiffs-Appellants,

versus

GARY NORIEGA, individually and

as Council Member, City of Powder Springs,

WAYNE WRIGHT, individually and as City

Manager, City of Powder Springs,

RICHARD SAILORS, individually and as

Mayor, City of Powder Springs,

VINCE BLACKMON, individually and as

Code Compliance Officer,

CITY OF POWDER SPRINGS,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Georgia

(Filed December 18, 2001)

Before CARNES, HULL and GODBOLD, Circuit Judges.

App. 2

PER CURIAM:

Plaintiffs are landlords and business owners in the

City of Powder Springs, Georgia. They have filed this

action against The City of Powder Springs, Georgia; Gary

Noriega, individually and as Council Member; Wayne

Wright, individually and as City Manager; Richard

Sailors, individually and as Mayor; Vince Blackmon, indi-

vidually and as Code Compliance Officer.

Plaintiffs allege in count I that Defendants were

guilty of acting in concert and under color of state law to

conspire to deny Plaintiffs the right to rent their residence

to individuals without regard to race in violation of 42

U.S.C. § 3604. Count II alleges Defendants’ conduct is

actionable under 42 U.S.C. § 1983 as a violation of Plain-

tiffs’ right to equal protection and substantive due pro-

' cess and their right not to be deprived of property rights

without procedural due process of law. Count III alleges

that Defendants’ conduct is actionable under 42 U.S.C.

§ 1981 as a violation of Plaintiff's right to equal protection

under the laws and their right to make and enforce con-

tracts without regard to race. Count IV alleges that

Defendant’s conduct is actionable under 42 U.S.C. § 1982

as a violation of Plaintiff’s right to equal protection under

the laws and their right to buy, sell, or lease property

without regard to race. Count V alleges Defendants con-

spired to deprive Plaintiffs of their constitutional rights

to equal protection and due process of law in violation of

42 U.S.C. § 1985.

Defendants moved for summary judgement. The

court considered the arguments. It entered a carefully

drawn order of 37 pages granting Defendants’ motion.

App. 3

The basis of the order is that there was no connection

between the alleged acts and a violation of the Fair Hous-

ing Act, or 42 U.S.C. §§ 1981, 1982, 1983 and 1985. Plain-

tiffs appeal. We affirm.

In Defendants’ motion for summary judgment they

argued that Plaintiffs failed to state a cognizable claim

under the Fair Housing Act. The district court agreed. On

appeal Plaintiffs say that they identified specific portions

of the Fair Housing Act and then stated facts which

supported their claim. Therefore they have stated a cogni-

zable claim under the Fair Housing Act. They are wrong.

In their brief Plaintiffs cite to their Memorandum and

Opposition to Defendants’ Motion for Summary Judg-

ment for the proposition that they cited the relevant Fair

Housing Act provisions. In their memorandum Plaintiffs

cite 42 U.S.C. § 3604(2), (3), and (5). However, these

subsections do not exist. After carefully comparing the

Plaintiffs’ memorandum and brief to the Fair Housing

Act the court concluded that the appropriate cites were 42

U.S.C. § 3604(a), (c), and (e).!

1 42 U.S.C. § 3604 states in its relevant part: “it shall be

unlawful - (a) To refuse to sell or rent after the making of a bona

fide offer, or to refuse to negotiate for the sale or rental of, or

otherwise make unavailable or deny, a dwelling to any person

because of race . . . (c) To make, print, or publish, or cause to be

made, printed, or published any notice, statement, or

advertisement, with respect to the sale or rental of a dwelling

that indicates any preference, limitation, or discrimination

based on race . . . (e) For profit, to induce or attempt to induce

any person to sell or rent any dwelling by representations

regarding the entry or prospective entry into the neighborhood

of a person or persons of a particular race.”

App. 4

Plaintiffs then attempt to support the above allega-

tions with evidence that the City of Powder Springs

retaliated against them for renting to non-whites. One of

the alleged retaliations was that the City sent Plaintiffs a

letter stating that they were in violation of the City’s

home occupation business license. During numerous city

council meetings regarding the home occupation business

license Plaintiffs never mentioned the Fair Housing Act

or any retaliatory measures being taken against them by

the City.

In the district court Plaintiffs alleged other retaliatory

acts. However they did not cite in the district court or in

this Court any case law or other relevant authority that

the type of alleged retaliation they assert is cognizable

under the Fair Housing Act. We cannot say that the

district court erred in granting Defendants’ summary

judgment motion regarding the Fair Housing Act.

Plaintiffs allege that the district court erred in failing

to allow them to file an amended complaint and a second

amended complaint. They also assert that the district

court erred in deciding not to strike portions of Defen-

dants’ Brief in Support of the Motion for Summary Judg-

ment. Specifically Plaintiffs argue that the brief was

replete with citations that were not in appropriate form

because they contained the incorrect court, date and case

reporter or this information was missing. These argu-

ments are without merit.

We have reviewed the other counts and specific alle-

gations. The record does not support a finding that the

district court committed reversible error.

AFFIRMED.

era erie Soe ret

pa Oe RA EAS NLA. Lib ater) yt

iain kak eth NA ri ANAS

App. 5

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

EVA CHARLENE

SARDONELL and DOUGLAS

SARDONELL,

Plainitffs,

CIVIL ACTION NO.

1:99-CV-1921A-JEC

V.

GARY NORIEGA,

individually and as a Council

Member, City of Power

Springs, WAYNE WRIGHT,

individually, and as City

Manager, City of Powder

Springs, RICHARD SAILORS,

individually, and as Mayor,

City of Powder Springs,

VINCE BLACKMON,

individually, and as Code

Compliance Officer, City of

Powder Springs, and the

CITY OF POWDER SPRINGS,

Defendants.

Nm eee eee eee eee ee Se”

ORDER

(Filed April 19, 2001)

This case is presently before the Court on plaintiffs’

Motion for Leave to File a Second Amendment to Com-

plaint [48], defendants’ Motion for Summary Judgment

[50], plaintiffs’ Motion to Strike Portions of Defendants’

Brief [60], plaintiffs’ Motion for Hearing on Defendants’

Motion for Summary Judgment [61], plaintiffs’ Motion for

App. 6

Leave of Court to File Excess Page Limitation [65], and

plaintiffs’ Motion to Continue Consideration of Defen-

dants’ Motion for Summary Judgment [66]. The Court has

reviewed the record and the. arguments of the parties

and, for the reasons set out below, concludes that plain-

tiffs’ Motion for Leave to File a Second Amendment to

Complaint [48] should be DENIED, defendants’ Motion

for Summary Judgment [50] should be GRANTED, plain-

tiffs’ Motion to Strike Portions of Defendants’ Brief [60]

should be DENIED, plaintiffs’ Motion for Hearing on

Defendants’ Motion for Summary Judgment [61] should

be DENIED, plaintiffs’ Motion for Leave of Court to File

Excess Page Limitation [65] should be GRANTED, and

plaintiffs’ Motion to Continue Consideration of Defen-

dants’ Motion for Summary Judgment [66] should be

DENIED AS MOOT.

BACKGROUND

Plaintiffs Charlene and Douglas Sardonell are hus-

band and wife. (compl. [1] at { 2.) They are white citizens

of Cobb County, Georgia, residing in Powder Springs,

Georgia. (Defs.’ stmt. of Mat. Facts as to Which There Is

No Dispute [50] at ¥ 1.)! Mr. Sardonell owns a home

1 The local rules of this district require the nonmovant of a

motion for summary judgment to respond to each of the

movant’s numbered material facts. The rules state, “All material

facts contained in the moving party’s statement which are not

specifically controverted by the respondent’s statement should

be deemed admitted.” LR 56.1.B.(2), NDGa. Nonetheless, rather

than comply with this rule, plaintiffs simply filed their own

statement of material facts, which makes no reference to

defendants’ statement. While the Court could deem all of

App. 7

located at 3891 Blythewood Circle, Powder Springs, Geor-

gia (hereinafter the “3891 house”), and Mrs. Sardonell

owns a home located at 3890 Blythewood Circle, Powder

Springs, Georgia (hereinafter the “3890 house”). (Id. at

{1 2-3.) Since 1995, the Sardonells have operated a family

business, “A Cool Flame Heating and Air, Inc.,” from the

3891 house. (Id. at {J 4, 6; Pls.’ Stmt. of Mat. Facts [58] at

q 8.) Mr. Sardonell has held a business license for this

business since 1995. (Id. at | 5; Id. at ¥ 8.) Because the

Sardonells were operating the business from a residence,

they were required to have a Customary Home Operation

License.2 (Comp. [1] at ¥ 9.) Plaintiffs state that they

possessed such a license and operated their business

without interference from the defendants up until Sep-

tember 1998. (Id.)

_ In September 1998, Mrs. Sardonell rented the 3890

house to an African-American family, pursuant to Section

8 of the United States Department of Agriculture Housing

Program. (Defs.’ Stmt. of Mat. Facts [50] at { 35; Pls.’

Stmt. of Mat. Facts [58] at { 7.) Plaintiffs allege that prior

to renting to this family, they were approached by a

n‘‘ thbor, Betty Jo Murphy, who requested that they

defendants’ facts admitted, it will make an attempt to discern

which facts plaintiffs intended to deny. Facts to which plaintiffs

made no response, however, are deemed admitted.

2 The City of Powder Springs allows individuals to conduct

the business of certain “customary home occupations” without

obtaining a land use permit for operating a business in a

residential area. The local ordinance lists twelve criteria for

operating as a customary home based business, including

restrictions on signage, vehicles, deliveries, and employees at

the house. (Br. in Supp. of Mot. for Summ. J. [17] at Ex. B.)

App. 8

refrain from renting to a non-white family. (Pls.’ Stmt. of

Mat. Facts [58] at { 8.) Murphy, defendant Gary Noriega’s

mother-in-law, allegedly stated that she could assist them

in finding legal mechanisms to avoid renting to non-

whites. (Id.) Plaintiffs further allege that Murphy later

told another neighbor, Gordon Powell, that she was going

to “see what Gary could do about” the Sardonells renting

through the Section 8 program. (Id. at { 10.)

Plaintiffs claim that immediately after renting the

3890 house, they began to receive communications from

the City of Powder Springs (hereinafter “the City”) that

they were in violation of the City’s home occupation

license in regard to the heating and air business. (Id. at

{ 11.) Plaintiffs admit that the City claimed that they had

received complaints about the activities at the 3891 house.

(Id.)3 Plaintiffs claim that Mr. Sardonell had not been

operating his business any differently than in the past.

(Id. at J 12.) Plaintiffs state that Vince Blackmon, a build-

ing inspector and code compliance officer for Powder

Springs, warned them in a phone call in October 1998 that

there had been complaints about vans parked at their

house. (Pls.’ Stmt. of Mat. Facts [58] at | 15.)

3 Citing the deposition of two neighbors, Murphy and

Mary Sitherwood, plaintiffs claim that it is untrue that the City

had received any complaints about activities at the 3891 house.

(Pls.’ Stmt. of Mat. Facts [58] at J 13.) Sitherwood stated that she

nc*iced several vans at the 3891 house, but stated that she never

complained to the City. Murphy also stated that she made no

complaints about the 3891 house. The fact that these two

neighbors did not complain, though, does not establish that

there were no complaints.

App. 9

On January 25, 1999, Blackmon sent Mr. Sardonell a

letter advising him that there had been “continuous com-

plaints to the City concerning business vehicles parked

on [the Sardonell’s] premises; also, numerous deliveries.”

(Defs.’ Stmt. of mat. Facts [50] at | 16; Pls.’ Stmt. of Mat.

Facts [58] at { 15.) Blackmon’s letter explained that the

Sardonells were in violation of their Customary Home

Occupation License due to the number of business vehi-

cles parked at the house and the fact that they received

deliveries there. (Pls.’ Stmt. of Mat. Facts [58] at { 15.)

The Sardonells were advised that they either needed to

“remove all exterior evidence of a home business” or

apply for a land use permit. (Id.) They were given until

January 28, 1999 to comply with the letter. (Id.)

The Sardonells decided to appear before the City

Council to request a land use permit. (Id. at | 16.) Prior to

the City Council meeting, however, plaintiffs had to

attend the council workshop/agenda meeting and a zon-

ing and planning meeting. (Id.) Plaintiffs claim that at the

zoning and planning meeting, Mayor Sailors made the

statement that Mrs. Sardonell’s plans to rent her house

through Section 8 sounded like a threat to him. (Id. at

{ 17.)* The zoning and planning committee voted to let

the matter go before the entire City Council. (Id.)

The Sardonells appeared at the March 1, 1999, Pow-

der Springs City Council meeting to request a land use

permit. (Defs.’ Stmt. of Mat. Facts [50] at | 17; Pls.’ Stmt.

of Mat. Facts [58] at {{ 16, 17.) At the meeting, the

4 It is unclear to the Court whether or not the Sardonells

utilized the Section 8 program.

App. 10

Sardonells informed the city council members that they

had located commercial property at 4018 Finley Road,

Suite B, Powder Springs, Georgia, and were planning on

moving their business there as of April 1. (Id. at | 18; Id.

at { 20.)

The discussion centered around whether the Sardon-

ells needed to obtain a land use permit for the thirty or so

days that they would continue to operate their business

from 3891 Blythewood Circle until they moved to Finley

Road. the Sardonells stated that they would be able to

comply with all aspects of their Customary Home Occu-

pation License during the thirty days, except for the

restriction on having more than one business vehicle on

the premises. After a prolonged discussion, the City

Council concluded that the most appropriate action was

to continue consideration of the Sardonells’ land use per-

mit application until the next City Council meeting early

in April, at which time the issue would hopefully be

mooted if the Sardonells were able to move their business

to Finley Road as planned. (Defs.’ Stmt. of Mat. Facts [50]

at J 23.) The stated purpose of this vote was “to allow the

Sardonells to continue to have two vans on their property

until the first meeting in April.” (Id.)

The Sardonells also raised the issue of how to handle

their business license when they relocated. (Id. at { 19.)

They were told that they did not have to apply for a new

license, that they could simply file a change of address.

(Id. at { 20.) Defendants claim that neither of the Sardon-

ells disputed that they were in violation of their Custom-

ary Home Occupation License or that the complaints filed

against them had anything to do with the tenants at the

3890 house. (Id. at { 21.) Plaintiffs, however, state that

App. 11

they asserted at this meeting that they were not in viola-

tion of the City’s Home Occupation Ordinance and claim

that there were neighbors at the meeting who supported

their ability to continue operating their business without

interference.

The Sardonells appeared at the next City Council

meeting, conducted April 5, 1999. (Defs.’ Stmt. of Mat.

Facts [50] at { 24; Pls.’ Stmt. of Mat. Facts [58] at { 22.)

Mrs. Sardonell stated that she had decided that even

though they had relocated their business to Finley Road,

she wanted to pursue the land use permit for the 3891

house because she wanted to be able to park her vans

there if she needed to. (Id. at J 25; Id. at | 22.)5 Mayor

Sailors asked Mrs. Sardonell is [sic] she had transferred

the business license to the Finley Road location, to which

she responded affirmatively. (Defs.’ Stmt. of Mat. Facts

[50] at { 24.) The City Attorney, Ms. Bandy, instructed

Mrs. Sardonell that as long as they did not have a busi-

ness license for and were not conducting a business from

the 3891 house, there were no zoning restrictions that

would prohibit the Sardonells from parking their vehicles

at their home. (Id. at { 26.) Bandy mentioned to Mrs.

Sardonell that there may be “certain regulations about

parking on the street and that kind of thing,” but that the

City Council did not handle issues relating to residences

that had nothing to do with business licenses. Although

Mrs. Sardonell wanted assurance that she was free to

park her vans at her home, Bandy made it clear to her

that he was not in a position to tell her whether she could

> Plaintiffs claim that they had moved the business on or

before April 1, 1999. (Pls.’ Stmt. of Mat. Facts [58] at ¥ 28.)

App. 12

possibly be in violation of some other city ordinance. (Id.

at J 27.) The City Council and Mayor then voted affirma-

tively to grant Mrs. Sardonell’s withdrawal of her land

permit use application. (Id. at { 28.) Plaintiffs made no

allegations at this meeting that they had been wrongly

targeted by the city. (Id. at { 29.)

By this time, Mr. Sardonell had filled out the paper-

work to transfer the business license to the new location.

(Id. at { 30.)® Plaintiffs claim that no business operations

involving the heating and air company took place at the

3891 house after April 1, 1999. (Pls.’ Stmt. of Mat. Facts

[58] at J 24.) Defendants, however, state that after

numerous complaints of business activities at the 3891

house, City Manager Wayne Wright asked the chief of

police to issue a citation. (Defs.’ Stmt. of Mat. Facts [50] at

{ 31.) Wright states that his request was in the normal

course of business and was not the first time he had made

such a request. (Id:)

On April 19, 1999, Mrs. Sardonell was issued a cita-

tion for violating a city zoning ordinance prohibiting

individuals from operating a business without a license.

6 Plaintiffs allege that the business license was never

transferred because the city imposed “roadblocks” to its

transfer. (Pls.’ Stmt. of Mat. Facts [58] at J 29.) Mr. Sardonell

claims that he was not allowed to pay the transfer fee and that

the landlord was told, for the first time in the fourteen years he

had been renting the building, that he had to obtain an

inspection by the fire department and an occupational permit

before the Sardonells could operate their business. (Id. at J 30.)

Mr. Sardonell claims he never received a new or amended

license, and in May 1999, moved his business outside the City of

Powder Springs. (Id. at J 32.)

App. 13

(Defs.’ Stmt. of Mat Facts [50] at ¥ 33; Pls.’ Stmt. of Mat.

Facts [58] at ¥ 24.)7 Plaintiffs claim that at the time Mrs.

7 Neither parties’ statement of the facts contains a

recitation of what happened with the citation. Defendants’

original statement of material facts did give this background,

and it is discussed below simply to provide a timeline of events:

A hearing was held before Judge Steve Yaklin on June 23,

1999. (Defs.’ Stmt. of Mat. Facts [17] at [J 14-15; Id. at Exh. H.)

The city’s position at the hearing was that the Sardonells had

transferred their business license as of April 1, but continued to

conduct business from the 3890 house subsequent to that date.

(Id. at Ex. H. at 2.) The City stated that its officials had observed

vans picking up equipment from the home after April 1. (Id. at

Ex. H. at 3.) After observing the vans for several weeks, the City

concluded that the Sardonells had continued to operate their

business from this location, which was no longer licensed.

Mrs. Sardonell’s argument at the hearing appears to be that,

although she had asked to transfer the business license to the

Finley Road address, she was never informed that the transfer

was complete, and therefore, at the time she was issued the

citation, she had a valid business license for the 3890 house. (Id.

at Ex. H. at 8.) Accordingly, Mrs. Sardonell contended that she

was not guilty of operating a business without a license. She

also stated that, if the City felt that she had violated zoning laws

by having the vans make pick-ups from the 3890 house, she

should have been cited for violating the appropriate zoning ,

laws, not operating without a business license. (Id. at Ex. H. at

8-9.) Mrs. Sardonell made no mention of any discriminatory

animus by the defendants towards her or her husband.

After hearing the arguments of the parties and the

testimony of witnesses who observed the vans at the

Blythewood property, Judge Yaklin stated that although he

acknowledged Mrs. ardonell’s technical defense that the

transfer of the license may not have been finalized at the time of

the citation, he was going to find that at the time the citation was

issued, Mrs. Sardonell was no longer licensed to conduct

business at the Blythewood Circle house. (Id. at Ex. H. at 11.)

App. 14

Sardonell received the citation, Mr. Sardonell owned two

business vans and, at most times, only one of these vans

was parked at their home. (Pls.’ Stmt. of Mat. Facts [58] at

{ 26.) Plaintiffs then filed suit on July 27, 1999. (compl.

[1].) As noted below, the criminal charge against Mrs.

Sardonell was later dismissed.

Plaintiffs’ complaint alleges that defendants’ actions

violated the Fair Housing Act, as well as 42 U.S.C.

§§ 1981, 1982, 1983, and 1985. On January 12, 2000, defen-

dants filed a motion for abstention on the grounds that

there was an ongoing state proceeding concerning this

case. (Mot. for Abstention [10].) Although discovery had

not yet closed, defendants filed a motion for summary

judgment on January 31, 2000. (First Mot. for Summ. J.

[17].) On March 3, 2000, the Court issued an Order deny-

ing without prejudice defendants’ motion for summary

judgment and suspending discovery. (Order [31].) The

Court later granted defendants’ motion for abstention,

and the case was stayed for a period of time. (Order [35].)

Upon motion by plaintiffs to reopen the case because

an entry of nolle prosequi had been entered as to the

Because the violation carried with it up to a twelve month jail

sentence, Mrs. Sardonell then requested that the matter be

transferred to State Court for trial. (Id. at Ex. H. at 12.) At the

conclusion of the June 23 hearing, Judge Yaklin signed an order

binding the case over to State Court. As of the time Plaintiff filed

her complaint in this Court on July 23, 1999, the State Court had

not yet scheduled a trial or taken any further action regarding

the citation.

App. 15

underlying state claim, the Court reopened these pro-

ceedings. (Order [41].)®

Plaintiffs thereafter filed a motion to file a second

amended complaint. (Mot. for Leave to File Pls.’ Second

Amendment to Compl. [48].) Defendants have renewed

their motion for summary judgment. (Mot. for Summ. J.

[50].) The Court addresses these and several other miscel-

laneous motions in this Order.

DISCUSSION

I. Motion for Summary Judgment

A. Summary Judgment Standard

Summary judgment is appropriate when the “plead-

ings, depositions, answers to interrogatories, and admis-

sions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a

matter of law.” Fep. R. Civ. P. 56(c). A fact’s materiality is

determined by the controlling substantive law. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is

genuine when the evidence is such that a reasonable jury

could return a verdict for the nonmovant. Id. at 249-50.

Summary judgment is not properly viewed as a

device that the trial court may, in its discretion, imple-

ment in lieu of a trial on the merits. Instead, Rule 56 of

the Federal rules of Civil Procedure mandates the entry

of summary judgment against a party who fails to make a

§ Curiously, plaintiffs appealed the grant of their own

motion to reopen. (Notice of Appeal [44].)

App. 16

showing sufficient to establish the existence of every

element essential to that party’s case on which that party

will bear the burden of proof at trial. Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). In such a situation, there

can be no genuine issue as to any material fact, as a

complete failure of proof concerning an essential element

of the non-moving party’s case necessarily renders all

other facts immaterial. Id. at 322-323 (quoting Feb. R. Cr.

P. 56(c)).

The movant bears the initial responsibility of assert-

ing the basis for his motion. Id. at 323. However, the

movant is not required to negate his opponent's claim.

The movant may discharge his burden by merely “ ‘show-

ing’ — that is, pointing out to the district court — that there

is an absence of evidence to support the non-moving

party’s case.” Id. at 325. After the movant has carried his

burden, the non-moving party is then required to “go

beyond the pleading” and present competent evidence

designating “specific facts showing that there is a genu-

ine issue for trial.” Id. at 324. While the court is to view

all evidence and factual inferences in a light most favor-

able to the non-moving party, Samples v. City of Atlanta,

846 F.2d 1328, 1330 (11th Cir. 1988), “the mere existence of

some alleged factual dispute between the parties will not

defeat an otherwise properly supported motion for sum-

mary judgment; the requirement is that there be no genu-

ine issue of material fact.” Anderson, 477 U.S. at 247-48

(1986).

App. 17

B. Plaintiffs’ Claims

1. Fair Housing Act

Before addressing the merits of plaintiffs’ Fair Hous-

ing Act claim, the Court pauses to state that it is difficult

to even discern legal underpinnings of this claim. In their

complaint, plaintiffs state, “The conduct of the Defen-

dants constitute a violation for the 42 U.S.C. § 3604 in that

defendants acted in concert and under color of state law

to conspire to deny plaintiffs the right to rent their resi-

dence to individuals without regard to race. (Compl. [1]

at J 21.) That is the full extent that the Fair Housing Act

is discussed in the complaint. In their motion for sum-

mary judgment, defendants argue that plaintiffs have

failed to state a cognizable claim under the Fair Housing

Act. (Br. in Supp. of Mot. for Summ. J. [50] at 10-38.) The

Court must agree.

Plaintiffs contend that they have stated a claim under

42 U.S.C. § 3604. In its entirety, § 3064 reads:

As made applicable by section 3603 of this title

and except as exempted by sections 3603(b) and

3607 of this title, it shall be unlawful —

(a) To refuse to sell or rent after the making of;

a bona fide offer, or to refuse to negotiate for the

sale or rental of, or otherwise make unavailable

or deny, a dwelling to any person because of

race, color, religion, sex, familial status, or

national origin.

(b) To discriminate against any person in the

terms, conditions, or privileges of sale or rental

of a dwelling, or in the provision of services or

facilities in connection therewith, because of

App. 18

race, color, religion, sex, familial status, or

national origin.

(c) To make, print, or publish, or cause to be

made, printed, or published any notice, state-

ment, or advertisement, with respect to the sale

or rental of a dwelling that indicates any prefer-

ence, limitation, or discrimination based on

race, color, religion, sex, handicap, familial sta-

tus, or national origin, or an intention to make

any such preference, limitation, or discrimina-

tion.

(d) To represent to any person because of race,

color, religion, sex, handicap, familial status, or

national origin that any dwelling is not available

for inspection, sale, or rental when such dwell-

ing is in fact so available.

(e) For profit, to induce or attempt to induce

any person to sell or rent any dwelling by repre-

sentations regarding the entry or prospective

entry into the neighborhood of a person or per-

sons of a particular race, color, religion, sex,

handicap, familial status, or national origin.

(f)(1) To discriminate in the sale or rental, or to

otherwise make unavailable or deny, a dwelling

to any buyer or renter because of a handicap of -

(A) that buyer or renter,

(B) a person residing in or intending to reside

in that dwelling after it is so sold, rented, or

made available; or

(C) any person associated with that buyer or

renter.

(2) To discriminate against any person in the

terms, conditions, or privileges of sale or rental

:

'

:

;

j

App. 19

of a dwelling, or in the provision of services or

facilities in connection with such dwelling,

because of a handicap of -

(A) that person; or

(B) a person residing in or intending to reside

in that dwelling after it is so sold, rented, or

made available; or

(C) any person associated with that person.

(3) For purposes of this subsection, discrimina-

tion includes -

(A) a refusal to permit, at the expense of the

handicapped person, reasonable modifications

of existing premises occupied or to be occupied

by such person if such modifications may be

necessary to afford such person full enjoyment

of the premises except that, in the case of a

rental, the landlord may where it is reasonable

to do so condition permission for a modification

on the renter agreeing to restore the interior of

the premises to the condition that existed before

the modification, reasonable wear and tear

excepted.

(B) a refusal to make reasonable accommoda-

tions in rules, policies, practices, or services,

when such accommodations may be necessary

to afford such person equal opportunity to use

and enjoy a dwelling; or (C) in connection with

the design and construction of covered multi-

family dwellings for first occupancy after the

date that is 30 months after September 13, 1988,

a failure to design and construct those dwellings

in such a manner that -

App. 20

(i) the public use and common use portions of

such dwellings are readily accessible to and

usable by handicapped persons;

(ii) all the doors designed to allow passage

into and within all premises within such dwell-

ings are sufficiently wide to allow passage by

handicapped persons in wheelchairs; and

(iii) all premises within such dwellings contain

the following features of adaptive design:

(I) an accessible route into and through the

dwelling;

(II) light switches, electrical outlets, thermo-

stats, and other environmental controls in acces-

sible locations;

(III) reinforcements in bathroom walls to allow

later installation of grab bars; and

(IV) usable kitchens and bathrooms such that |

an individual in a wheelchair can maneuver

about the space.

(4) Compliance with the appropriate require-

ments of the American National Standard for

buildings and facilities providing accessibility

and usability for physically handicapped people

(commonly cited as “ANSI A117.1”) suffices to

satisfy the requirements of paragraph (3)(C)(iii).

(5)(A) Ifa State or unit of general local govern-

ment has incorporated into its laws the require-

ments set forth in paragraph (3)(C), compliance

with such laws shall be deemed to satisfy the

requirements of that paragraph.

(B) A State or unit of general local government

may review and approve newly constructed

covered multifamily dwellings for the purpose

App. 21

of making determinations as to whether the

design and construction requirements of para-

graph (3)(C) are met.

(C) The Secretary shall encourage, but may not

require, States and units of local government to

include in their existing procedures for the

review and approval of newly constructed cov-

ered multifamily dwellings, determinations as

to whether the design and construction of such

dwellings are consistent with paragraph (3)(C),

and shall provide technical assistance to States

and units of local government and other persons

to implement the requirements of paragraph

(3)(C).

(D) Nothing in this subchapter shall be con-

strued to require the Secretary to review or

approve the plans, designs or construction of all

covered multifamily dwellings, to determine

whether the design and construction of such

dwellings are consistent with the requirements

of paragraph 3(C).

(6)(A) Nothing in paragraph (5) shall be con-

strued to affect the authority and responsibility

of the Secretary or a State or local public agency

certified pursuant to section 3610(f)(3) of this

title to receive and process complaints or other-

wise engage in enforcement activities under this

subchapter. |

(B) Determinations by a State or a unit of gen-

eral local government under paragraphs (5)(A)

and (B) shall not be conclusive in enforcement

proceedings under this subchapter.

(7) As used in this subsection, the term “cov-

ered multifamily dwellings” means -

App. 22

(A) buildings consisting of 4 or more units if

such buildings have one or more elevators; and

(B) ground floor units in other buildings con- .

sisting of 4 or more units.

(8) Nothing in this subchapter shall be con-

strued to invalidate or limit any law of a State or

political subdivision of a State, or other jurisdic-

tion in which this subchapter shall be effective,

that requires dwellings to be designed and con-

structed in a manner that affords handicapped

persons greater access than is required by this

subchapter.

(9) Nothing in this subsection requires that a

dwelling be made available to an individual

whose tenancy would constitute a direct threat

to the health or safety of other individuals or

whose tenancy would result in substantial phys-

ical damage to the property of others.

42 U.S.C. § 3604.

Defendants contend that plaintiffs have failed to state

a claim that any of the defendants, in either their official

or individual capacities, discriminated against plaintiffs

in violation of the FHA by intentionally discriminating,

taking actions that create a disparate impact, or failing to

make appropriate accommodations. Indeed, plaintiffs fail

to allege any impact on the rental of their home to the

African-American family, and it would seem that plain-

tiffs lack any standing to bring a FHA claim.? In response,

9 Defendants also point out that the FHA exempts “any

single-family house sold or rented by an owner provided that

such individual owner does not own more than three such

single-family houses at one time.” 42 U.S.C. § 3603(b)(1).

App. 23

plaintiffs state that their claims “are based upon the

Defendants’ violation of 42 U.S.C. § 3604 sections (2), (3),

and (5).” (Pls.’ Mem. and Opp’n to Defs.’ Mot. for Summ.

J. [58] at 17.) In support of her argument that these

subsections provide plaintiffs relief, however, plaintiffs’

counsel cites no cases in which § 3604(2), (3), or (5) are

mentioned. (See id. at 18-19.) This is not surprising, as

there are no subsections (2), (3), or (5) to § 3604.

The Court has conducted its own independent anal-

ysis, and simply cannot discern the basis of plaintiffs’

claims. From the facts alleged by plaintiffs, it appears that

what they are trying to claim is that defendants retaliated

against them for renting to non-whites. Plaintiffs, how-

ever, have failed to provide one cite to a case in which

this sort of claim was cognizable under the FHA. Plain-

tiffs are not acting pro se. In fact, they have had two

different firms work on this case. As such, the Court

would think that if counsel were so convinced that such a

case existed, able counsel would have been able to iden-

tify such a case, or at least cite to analogous cases. Instead

of citing any case law, however, plaintiffs simply repeat

the facts of the case again. Without any direction from

plaintiffs as to the legal underpinnings of their FHA

claim, the Court has no option but to GRANT defen-

dants’ motion for summary judgment on this count.

2. Section 1983

Plaintiffs’ second claim is that “[t]he conduct of the

defendants [is] actionable under 42 U.S.C. § 1983 as a

violation of the plaintiffs’ right to equal protection under

the laws and substantive due process, as well as their

App. 24

right not to be deprived of property rights without pro-

cedural due process.” (Compl. [1] at { 23.) Section 1983

provides a federal remedy for the deprivation of rights,

privileges, or immunities protected by the Constitution or

the laws of the United States.1° See Patsy v. Board of

Regents, 457 U.S. 496, 502-08 (1982); Mitchum v. Foster, 407

U.S. 225, 238-42 (1972); McNeese v. Board of Educ., 373 U.S.

668, 671-72 (1963). In order to establish a claim under

§ 1983, plaintiffs must show a violation of a right secured

by the Constitution of the United States, and also that the

deprivation of that right was committed by a person

acting under color of state law. Cummings v. DeKalb

County, 24 F.3d 1349 (11th Cir. 1994); see also Graham v.

Connor, 490 U.S. 386, 393-94 (1989) (“§ 1983 ‘is not itself a

source of substantive rights,’ but merely provides ‘a

10 42 U.S.C. § 1983 provides:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any Sate

or Territory or the District of Columbia, subjects or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable

to the party injured in the action at law, suit in equity,

or other proper proceedings for redress, except that in

any action brought against a judicial officer for an act

or omission taken in such officer’s judicial capacity,

injunctive relief shall not be granted unless

declaratory decree was violated or declaratory relief

was unavailable. For the purposes of this section, an

Act of Congress applicable exclusively to the District

of Columbia shall be considered to be a statute of the

District of Columbia.

App. 25

method for vindicating federal rights elsewhere con-

ferred’ ”) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3

(1979)).

In their complaint, plaintiffs claim that defendants’

behavior violated their rights to equal protection under

the law, substantive due process, and the right not to be

deprived of property rights without procedural due pro-

cess. (Compl. [1] at { 23.) Plaintiffs’ brief in response to

defendants’ motion for summary judgment provides no

further elucidation as to the legal underpinnings of this

claim. The Court nonetheless reviews the elements of

each constitutional claim to illustrate why plaintiffs’

claim fails.

a) Equal Protection

“Equal protection claims can be divided into three

broad categories. The first and most common type is that

a statute discriminates on its face.” E&T Realty v. Strick-

land, 830 F.2d 1107, 1112 n.5 (11th Cir. 1987) (citations

omitted). Plaintiffs do not assert that such a statute is at

issue in this case. “The second type of equal protection

claim is that neutral application of a facially neutral stat-

ute has a disparate impact.” Id. Plaintiff’s complaint does

not appear to assert a disparate impact claim.

“The third type of claim is that defendants are

unequally administering a facially neutral statute.” Id.

While a liberal reading of plaintiffs’ pleading may indi-

cate that this is the type of claim that they are attempting

to bring, they have failed to assert the required elements

of this claim. “In order to prevail on an equal protection

an

App. 26

claim based on the application of a facially neutral stat-

ute, it must be established that: (1) the plaintiff was

treated differently than similarly situated persons; and (2)

the defendant unequally applied the facially neutral stat-

ute for the purpose of discriminating against the plain-

tiff.” Strickland v. Alderman, 74 F.3d 260, 264 (11th Cir.

1996) (citing E&T Realty, 830 F.2d at 1109-10). Regarding

the second prong, an “unequal application” claim

- requires “an element of intentional or purposeful dis-

crimination.” Snowden v. Hughes, 321 U.S. 1, 8 (1944).

The Court assumes that plaintiffs’ equal protection

claim is that defendants selectively enforced the city’s

Home Occupation Business License requirement, refused

to transfer their business license, and refused to grant

plaintiffs a land use permit, and cited Mrs. Sardonell for

operating a business without a license for the discrimina-

tory reason that plaintiffs had rented their other house to

an African-American family. In order to state a claim for

selective enforcement, however, plaintiffs must show that

there were other similarly situated individuals who were

treated differently. In their brief in opposition to defen-

dants’ motion for summary judgment, plaintiffs state “the

affidavits of John Long and Gordon and Sheila Powell all

set forth their observation that there are numerous viola-

tions of the City’s municipal ordinances and in and

around the neighborhood that the plaintiffs live in.” (Pls.’

Mem. and Opp’n to Defs.’ Mot. for Summ. J. [58] at 30.)

Upon reviewing those affidavits, however, the Court saw

no mention of instances of the City failing to enforce City

ordinances. (Affs. [56].) Having provided the Court with

no comparators at all, similarly situated or not, plaintiffs’

equal protection claim fails as a matter of law.

App. 27

b) Procedural and Substantive Due Process

The Court is unsure of the basis of plaintiffs’ substan-

tive due process claim. Plaintiffs cite one case is [sic]

support of their claim, Hibben v. Smith, 191 U.S. 310

(1903). Hibben involved a challenge to the method in

which real property was assessed. The Court can find no

correlation between Hibben and the present case that

would serve to elucidate plaintiffs’ due process claims. In

their complaint, plaintiffs also allege that defendants

have violated their “right not to be deprived of property

without due process of law.” (Compl. [1] at {| 23.) As with

the previous two claims, plaintiffs fail to flesh out the

basis for their procedural due process claim. It is insuffi-

cient for a plaintiff to merely allege a claim and in sup-

port recite the facts without providing any legal analysis.

While a plaintiff need only provide a defendant notice of

his claims in the complaint, at the summary judgment

stage, the nonmovant certainly should be prepared to

argue his claim. This necessarily involves citing legal

authority or, if none exists, explaining to the court why it

should forge new ground in the law. Here, plaintiffs have

done neither. The Court will not act as legal advocate for

one party, doing its legal research and creating its argu-

ments, as it would be unfair to the other side to do so. In

the present case, the Court is surprised defendants were

even able to respond to plaintiffs’ claims, as vague as

plaintiffs were in making them.!!

11 Although the Court is uncertain of the exact nature of

plaintiffs’ claims, it would appear that both their substantive

and procedural due process claims are foreclosed under Rymer

v. Douglas County, 764 F.2d 796 (11th Cir. 1985). In Rymer, the

- App. 28

Plaintiff has failed to establish a prima facie case of

§ 1983 discrimination. As stated above, a § 1983 claim

plaintiffs sued the county after the county issued a building

permit for a lot that turned out to be unsuitable for residential

use because a high water table precluded the use of a septic

system. As to the substantive due process claim, the court

stated:

The current test in this circuit as to whether there has

been a violation of substantive due process in the

context of § 1983 is twofold. First it must be

determined whether there has been a deprivation of a

federal constitutionally protected interest, and

secondly, whether the deprivation, if any, is the result

of an abuse of governmental power sufficient to raise

an ordinary tort to the stature of a constitutional

violation.

Id. at 801. In the present case, plaintiffs have failed to allege a

deprivation of a constitutionally protected interest. If plaintiffs

base this claim on the failure of Powder Springs to grant them a

land use permit, the claim clearly fails. See DeKalb Stone, Inc. v.

County of DeKalb, Georgia, 106 F.3d 956, 959 (11th Cir. 1997) (“It is

well established that land use rights, as property rights

generally, are state-created rights [rather than constitutional].”).

As to procedural due process, the Rymer court stated as

follows:

Under Hudson, a plaintiff cannot bring a property

claim against a governmental body if the~

governmental body being sued provides a meaningful

post-deprivation remedy. 104 S. Ct. at 3203. The Court

determined that a constitutional tort did not exist

unless the state refused to provide a meaningful post-

deprivation remedy. It is our determination that the

law of Georgia provides an adequate means to address

the claims alleged by appellants in this case. A county

and its officials can be sued under Georgia law for the

type of injury alleged by the appellants.

Id. at 803.

App. 29

requires a showing of two elements: “(1) the act or omis-

sion deprived plaintiff of a right, privilege or immunity

secured by the Constitution or laws of the United States,

and (2) that the act or omission was done by a person

acting under color of law.” Parratt v. Taylor, 451 U.S. 527,

535 (1981), overruled on other grounds by Daniels v. Wil-

liams, 474 U.S. 327, 330 (1986). Plaintiff has failed to assert

that he was denied a federal right, privilege, or immu-

nity.!2 Accordingly, the Court GRANTS defendants’

motion for summary judgment as to plaintiff’s § 1983

claim.}3

12 A violation of §§ 1981, 1982, and 1985 could also give rise

to a § 1983 claim, but as discussed in greater detail below,

plaintiffs have failed to make a prima facie case under any of

these statutes either.

13 In addition to this fatal flaw, defendants also argue that

defendants Noriega and Sailors were entitled to legislative

immunity because they were acting in their official capacities

ruling on zoning and land use issues. See Baytree of Inverray

Realty Partners v. City of Lauderhill, 873 F.2d 1407, 1409 (11th Cir.

1989) (holding absolute legislative immunity available for

defendants regarding failure to grant an application to amend a

city zoning ordinance). Further, defendants allege that all

individual defendants are entitled to qualified immunity

because plaintiffs have failed to establish that they acted in

violation of clearly established law. Lastly, defendants contend

that the City of Powder Springs and the defendants in the

official capacities are immune from suit because plaintiffs failed

to establish liability under Monnell v. Department of Soc. Servs.,

436 U.S. 658, 690 (1978). Having found that plaintiffs failed to

establish that they were denied a federal right, the Court need

not reach any of these issues. It notes, however, that all of these

defenses appear to be sound.

App. 30

3. Section 1981

Plaintiffs’ third claim is that defendants violated 42

U.S.C. § 1981. Section 1981 prohibits racial discrimination

in the making and enforcing of contracts. The statute

reads:

All persons within the jurisdiction of the United

States shall have the same rights 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.

42 U.S.C. § 1981.

To establish a prima facie case of discrimination

under § 1981, a plaintiff must prove purposeful discrimi-

nation. Patterson v. McLean Credit Union, 491 U.S. 164, 175

(1989). The elements of a section 1981 claim are: “(1) That

plaintiff is a member of a racial minority; (2) An intent to

discriminate on the basis of race by the defendant; and (3)

That the discrimination concerned . . . the right to ‘make

and enforce contracts.’” Baker v. McDonald's Corp., 686

F. Supp. 1474, 1481 (S.D. Fla. 1987), aff'd by 865 F.2d 1272.

Although the language of § 1981 speaks of racial minor-

ities, it is applicable to racial discrimination against white

persons as well. See McDonald v. Santa Fe Trail Transp. Co.,

427 U.S. 273, 287 (1976).14 Plaintiffs, however, do not

appear to be alleging that they were discriminated

against because they were white, but rather, because they

entered into a contract with a black person. Plaintiffs

14 The Court’s understanding of the facts is that while Mrs.

Sardonell’s tenants are black, plaintiffs are both white.

App. 31

have not cited any case law allowing this sort of “associa-

tion” claim under § 1981. Furthermore, while there are

circumstances where a plaintiff may have standing to

assert a claim on behalf of a third party, plaintiffs have

not alleged that this is what they are doing, nor do the

facts indicate that third-party standing would be appro-

priate in this case.

More importantly perhaps, plaintiffs have not

asserted that defendants interfered with their ability to

“make and enforce contracts.” None of the defendants’

actions related to the agreement between Mrs. Sardonell

and the tenants, and there is no indication that the rental

agreement was impacted in any way by defendants’

alleged actions. Accordingly, defendants’ motion for sum-

mary judgment is GRANTED as to plaintiffs’ § 1981

claim.

4. Section 1982

Plaintiffs’ fourth claim alleges a violation of 42 U.S.C.

§ 1982. Section 1982 provides: “All citizens of the United

States shall have the same right, in every State and Terri-

tory, as is enjoyed by white citizens thereof to inherit,

purchase, lease, sell, hold, and covey [sic] real and per-

sonal property.” Again, as with the claims discussed

above, plaintiffs have failed to describe the legal under-

pinnings of their claim, and plaintiffs’ situation would

not appear to fit within the scope of a § 1982 claim. In a

typical § 1982 claim, a plaintiff must show:

(1) that he is a member of a racial minority; (2)

that he applied for and was qualified to rent or

purchase certain property or housing; (3) that he

App. 32

was rejected; and (4) that the housing or rental

opportunity remained available thereafter.

Bell v. Mike Ford Realty Co., 857 F. Supp. 1550 (S.D. Ala.

1994). Plaintiffs’ claim simply does not fit this framework,

and plaintiffs have provided the Court with no further

explanation of why they feel they have a cognizable

§ 1982 claim. Accordingly, plaintiffs’ § 1982 claim fails as

a matter of law.

5. Section 1985

Plaintiffs’ last claim is that defendants entered into a

conspiracy to deprive plaintiff of equal protection of the

laws in violation of 42 U.S.C. § 1985. Although plaintiffs

do not specify, the Court assumes that they are bringing

their claim under § 1985(3), which provides in part:

If two or more persons .. . conspire . . . for the

purpose of depriving, either directly or indi-

rectly, any person or class of persons of the

equal protection of the laws, or of equal privi-

leges and immunities under the laws; or for the

purpose of preventing or hindering the constitu-

ted authorities of any State or Territory from

giving or securing to all persons within such

State or Territory the equal protection of the

laws; .. . in any case of conspiracy set forth in

this section, if one or more persons engaged

therein do, or cause to be done, any act in fur-

therance of the object of such conspiracy,

whereby another is injured in his person or

property, or deprived of having and exercising

any right or privilege of a citizen of the United

States, the party so injured or deprived may

App. 33

have an action for the recovery of damages occa-

sioned by such injury or deprivation, against

any one or more of the conspirators.

42 U,.S.C. § 1985(3).

This section was intended to encompass only those

conspiracies motivated by animus against the kind of

classes Congress was trying to protect. Griffin v.

Breckenridge, 403 U.S. 88, 102 (1971); Kimble v. D.J.

McDuffy, Inc., 648 F.2d 340, 347 (5th Cir.), cert. denied, 454

U.S. 1110 (1981). The central concern of the enactors of 42

U.S.C. § 1985 was “combating the violent and other

efforts of the Klan and its allies to resist and to frustrate

the intended effects of the Thirteenth, Fourteenth and-

Fifteenth Amendments.” United Bhd. of Carpenters &

Joiners, Local 610 v. Scott, 463 U.S. 825, 837 (1983). Before a

defendant can be held liable under this section, a plaintiff

must be a victim of a class-based discrimination. Crowe v.

Lucas, 595 F.2d 985 (5th Cir. 1979). A plaintiff in an action

under this section must demonstrate he is a member of

some class discriminated against, otherwise, his claim

must fail. Hutchens v. Beckham, 521 F. Supp. 426, 429 (S.D.

Ga. 1981).

In addition, in order to recover under § 1985(3),

plaintiffs must allege and prove the following elements:

(1) a conspiracy;

(2) for the purpose of depriving, directly or

indirectly, any person or class of persons of the

equal protection of the laws or of equal privi-

leges and immunities under the laws;

(3) an overt act in furtherance of the object of

the conspiracy; and

App. 34

(4) that the plaintiff (a) was injured in his per-

son or property, or (b) was deprived of having

and exercising any right or privilege of a United

States citizen.

Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986), abro-

gated on other grounds by Nolin v. Isbell, 207 F.3d 1253 (11th

Cir. 2000). “the language of Section 1985 which requires

an intent to deprive one of equal protection or equal

privileges and immunities means that there must be some

racial or otherwise class-based invidiously discriminatory

animus behind the conspirators’ action.” Id. at 1007-08.

Additionally, merely conclusory, vague and general alle-

gations of conspiracy are not sufficient. Fullman v. Grad-

dick, 739 F.2d 553, 556-57 (11th Cir. 1984). “[C]ourts insist

that plaintiffs state with specificity the facts supporting

an allegation of conspiracy in order to control frivolous

conspiracy suits under §§ 1983.” Schlosser v. Coleman, 818

F. Supp. 1534, 1537 (M.D. Fla. 1993) (citing Slotnick v.

Staviskey, 560 F.2d 31 (1st Cir. 1977)). |

As with their other claims, plaintiffs have done noth-

ing more than repeat the facts with no explanation of

their legal significance. Plaintiffs have not alleged that

they were a member of a class discriminated against and

have not alleged a conspiracy with specificity. Accord-

ingly, plaintiffs’ § 1985 claim fails as well.

II. Plaintiffs’ Motion for Leave to File a Second

Amended Complaint

On December 12, 2000, plaintiffs filed a motion to

amend their complaint in order to add two new defen-

dants, Betty Jo Murphy and Catherine Rapener, and to

App. 35

add several new factual allegations as well as a state law

claim. (Mot. for Leave to File Pls.’ Second Am. to Compl.

[48].) Defendants have opposed the motion to amend on

the grounds that (1) at the time plaintiffs filed their

motion to amend, the case has been ongoing for fifteen

months; (2) discovery had closed; (3) plaintiffs have had

full knowledge since their depositions were taken in

March 2000 of whatever role Murphy and Rapener

played; (4) plaintiffs have supplied no reason for the

delay in adding these parties and claims; (5) no new facts

have been developed since discovery; and (6) plaintiffs

have failed to properly present a request to add new

parties. (Id.) Although plaintiffs filed a reply to defen-

dants’ response, they failed to address any of these con-

cerns, and instead simply argued that courts usually

liberally allow amendment and that they would be

unable to bring claims against the new defendants if the

Court did not grant their motion. (Pls.’ Reply to Defs.’

Opp’n to Pls’ Mot. for Leave to File Second Am. Compl.

[57].)

At this stage in the litigation, Rule 15(a) of the Fed-

eral Rules of Civil Procedure allows a party to amend its

pleading “only by leave of court or by written consent of

the adverse party; and leave shall be freely given when

justice so requires.” Fed. R. Civ. P. 15(a). “Courts have

interpreted [amendment] provisions liberally, in line with

the Federal Rules’ overall goal of resolving disputes,

insofar as possible, on the merits and in a single judicial

proceeding.” Spartan Grain & Mill Co. v. Ayers, 517 F.2d

App. 36

214, 220 (5th Cir. 1975).15 In explaining the amendment

standard, the Eleventh Circuit has observed that “unless

a substantial reason exists to deny leave to amend, the

discretion of the district court is not broad enough to

permit denial.” Shipner v. Eastern Air Lines, Inc., 868 F.2d

401, 407 (11th Cir. 1989). In determining whether a sub-

stantial reason exists to deny leave to amend, the district

court should consider the following factors: (1) undue

delay, bad faith, or dilatory motive on the part of the

movant, (2) repeated failure to cure deficiencies by

amendments previously allowed, (3) undue prejudice to

the opposing party by virtue of the allowance of the

amendment, and (4) futility of amendment. Foman v.

Davis, 371 U.S. 178, 182 (1962).

The Court denies plaintiff’s motion to amend on the

basis of plaintiffs’ undue delay. Plaintiffs have offered no

explanation why they did not bring these claims at the

time they filed their original complaint or at least soon

after taking the depositions in March 2000. Instead, plain-

tiffs have delayed until after the discovery period has run

in the case before attempting to add the claims. Permit-

ting this amendment could trigger another discovery

period and would subject defendants to further expense

as a result of plaintiffs’ dilatory actions.

In addition, defendants are correct that in order to

add new defendants, Rule 20 is what controls rather than

15 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.

1981) (en banc), the Eleventh Circuit court of Appeals adopted

as binding precedent all of the decisions of the former Fifth

Circuit Court of Appeals handed down prior to the close of

business on September 30, 1981.

a —_———

seen a

App. 37

Rule 15. Rule 20 of the Federal Rules of Civil Procedure

provides that all persons may be joined in one action as

defendants if plaintiff asserts against them any right to

relief arising out of the same transaction or occurrence

and if questions of law and fact common to all defendants

will arise in the action. Fed. R. Civ. P. 20. Even if the

Court were to construe plaintiffs’ motion as one to add

new parties under Rule 20, the motion fails for the same

reason as their motion to add new allegations and add

the state claim. Plaintiffs did not seek to add defendants

Murphy and Rapener until after the discovery period had

expired, and the Court concludes that they unduly

delayed in seeking to add these defendants. Accordingly,

the Court DENIES plaintiffs’ motion to join Murphy and

Rapener as party defendants.

III. Plaintiffs’ Motion to Strike

Plaintiffs have brought a motion to strike portions of

defendants’ brief in support of their motion for summary

judgment. (Mot. to Strike Portions of the Defs.’ Br. in

Supp. of Mot. for Summ. J. [60].) In their motion to strike,

plaintiffs argue (1) that the Court should not consider an

attachment to the affidavit of Catherine Rapener which

purports to be a business license, but which has obvi-

ously been altered; (2) that the Court should not consider

the transcripts of the City Council meetings because they

are hearsay and not reliable; and (3) that several cases

cited by defendants were not in proper citation form and

therefore should not be considered. The Court did not

rely on the Rapener affidavit or the transcripts in grant-

ing defendants’ motion for summary judgment. Accord-

ingly, there is no need to reach the issue of whether they

App. 38

should be stricken. As to defendants’ citations, the Court

was able to find the cases cited without much difficulty.

The fact that defendants’ counsel may not have cited the

cases in perfect “Bluebook” form is not a legitimate rea-

son to strike the cites from defendants’ argument.

Accordingly, plaintiffs’ motion to strike is DENIED.

CONCLUSION

For the foregoing reasons, the Court finds that plain-

tiffs’ Motion for Leave to File a Second Amendment to

Complaint [48] is DENIED, defendants’ Motion for Sum-

mary Judgment [50] is GRANTED, plaintiffs’ Motion to

Strike Portions of Defendants’ Brief [60] is DENIED,

plaintiffs’ Motion for Hearing on Defendants’ Motion for

Summary Judgment [61] is DENIED, plaintiffs’ Motion

for Leave of Court to File Excess Page Limitation [65] is

GRANTED, and plaintiffs’ Motion to Continue Consider-

ation of Defendants’ Motion for Summary Judgment [66]

is DENIED AS MOOT.

SO ORDERED, this 19 day of April, 2001.

/s/ Julie E. Carnes

JULIE E. CARNES

UNITED STATES DISTRICT

JUDGE

App. 39

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 01-12824-EE

EVA CHARLENE SARDONELL,

DOUGLAS SARDONELL,

Plaintiffs-Appellants,

versus

GARY NORIEGA, individually and as Council

Member, City of Powder Springs,

WAYNE WRIGHT, individually and as City

Manager, City of Powder Springs,

RICHARD SAILORS, individually and as

Mayor, City of Powder Springs,

VINCE BLACKMON, individually and as

Code Compliance Officer,

CITY OF POWDER SPRINGS,

On Appeal from the United States District Court for the

Northern District of Georgia

(Filed Feb. 19, 2002)

ON PETITION(S) FOR REHEARING AND PETITION(S)

FOR REHEARING EN BANC

(Opinion , llth Cir., 19 a * foo %

Before: CARNES, HULL and GODBOLD, Circuit Judges.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no Judge

in regular active service on the Court having requested

that the Court be polled on rehearing en banc (Rule 35,

App. 40

Federal Rules of Appellate Procedure), the Petition(s) for

Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/ [Illegible]

UNITED STATES CIRCUIT JUDGE