EDMUND A. SARGUS, JR., District Judge.
Plaintiffs, William Wells, Priscilla Wells, Jalisa Gibson, Shanay Gibson, J.W., and J.D.W. (collectively "Plaintiffs"), bring this action against Defendants, including Defendant Brandon Rhodes ("Rhodes"), alleging violations of 42 U.S.C. § 1982, 42 U.S.C. § 1985, 42 U.S.C. § 3617 of the Fair Housing Act ("FHA"), and Ohio Revised Code § 2307.70. This matter is before the Court for consideration of Rhodes' Motion for Summary Judgment as to all of Plaintiffs' claims. (ECF No. 94.) At this time, the Court will also consider Plaintiffs' Motion for Partial Summary Judgment on the Issue of Liability against Rhodes.
During March 2011, Plaintiffs William Wells and Priscilla Wells lived in Marengo, Ohio with their four children: Plaintiffs Jalisa Gibson, Shanay Gibson, J.W., and J.D.W. (See W. Wells Dep. 7, ECF No. 92.) Plaintiffs are African Americans. Marengo is a rural area and the record indicates that few African Americans live there.
The facts surrounding the underlying March 2011 incident are largely undisputed. During the evening of March 2, 2011, and into the early morning of March 3, 2011, Rhodes and D.G. were drinking at D.G.'s home. (See Rhodes Dep. 15, 43.) According to Rhodes, he and D.G., together with D.G.'s cousin, consumed approximately a thirty — pack of beer between the three of them. (Id.) Rhodes stated that while they were drinking D.G. — after discussing a relationship between Rhodes' sister and J.W. — constructed a cross out of wood. (See Rhodes Dep. 16-19, 22.) D.G. wrote "KKK will make you pay" and "Nigger" with a permanent marker on the cross. (D.G. Dep. 47.) During his deposition, Rhodes estimated that the cross was five feet tall and four feet wide. (Rhodes Dep. 23.)
Rhodes and D.G. loaded the cross into Rhodes' truck. (Id. at 25.) D.G. then grabbed a can of gasoline and put it into the truck. (D.G. Dep. 54.) Rhodes drove — accompanied by D.G. — to Plaintiffs' residence, which he estimated was three to four miles from D.G.'s house. (Rhodes Dep. 25-26.) According to D.G., they traveled a longer route to avoid main roads. (D.G. Dep. 58.) Rhodes parked between 50 to 100 yards from Plaintiffs' house. (Rhodes Dep. 27.) D.G. and Rhode carried the cross and laid it on Plaintiffs' front lawn. (Id. at 26-27.) They then poured gasoline on the cross and D.G. lit the cross on fire with a lighter.
Rhodes denies that D.G. and he had any specific purpose in burning the cross, stating that they were "being stupid" and that "[i]t just happened." (Rhodes Dep. 15, 18.) Nevertheless, both Rhodes and D.G. testified to having a general understanding of the Ku Klux Klan; the Ku Klux Klan's hatred for African Americans; and the threatening, or hateful, message typically associated with a burning cross. (See Rhodes Dep. 10-12, 33-38; D.G. Dep. 18-20.) Moreover, Rhodes was aware that Plaintiffs were an African American family and that the messages D.G. wrote on the cross indicated hatred against African Americans. (See Rhodes Dep. 36-37.) Likewise, D.G. admitted that he would not have written the messages on the cross if Shanay Gibson had not been African American. (D.G. Dep. 93.)
In November 2012, Rhodes signed a plea agreement to criminal charges stemming from his conduct in March 2011. The plea agreement stated "that the purpose of burning the cross at the residence was to intimidate an African-American juvenile who lived at the residence and interfere with the juvenile's housing rights." (Plea Agreement ¶ 3, ECF No. 102-1.)
Although the facts of the underlying event are largely undisputed, the parties dispute what, if any, injury Plaintiffs suffered
Plaintiffs, however, have also testified regarding the distress they have suffered as a result of the incident. For example, during their deposition testimony, Plaintiffs averred to experiencing fear and anxiety as a result of the cross burning. (See, e.g., W. Wells Dep. 56, 60-61; P. Wells Dep. 69; J.D.W. Dep. 26. 29; J.W. Dep. 39, 45, 48, 55; J. Gibson Dep. 48, 84-85, ECF No. 87; S. Gibson Dep. 52-53, 68, ECF No. 91.) Certain Plaintiffs, and most prominently Shanay Gibson, reported trouble sleeping after the incident. (See, e.g., S. Gibson Dep. 54, 99; J.D.W. Dep. 34.) Additionally, Plaintiffs stated that they have considered moving because of the cross burning. (See, e.g., W. Wells Dep. 61-62; J.D.W. Dep. 32; S. Gibson Dep. 65.)
On August 22, 2011, the Court held a default judgment hearing regarding damages at which time Plaintiffs testified regarding how the cross burning has impacted them. (See generally Hearing Tr., ECF No. 80.) In addition to testifying to the fear and anxiety that the incident caused, Plaintiffs stated that the cross burning has changed their family's dynamic. (See, e.g., id. at 17, 24, 30-31, 51, 56-57.) For example, Jalisa Gibson testified that, since the incident, her family tends to become frustrated with one another. (Id. at 17.) Shanay Gibson stated that since the cross burning her family has basically become "shut up in the house ...." (Id. at 24.) Furthermore, Ms. Wells indicated that the cross burning took the comfort of the family's home away from them. (Id. at 40.)
Plaintiffs filed this action against Defendants Rhodes, D.G., Larry Matthew Gandee, and Alisa Dawn Gandee on March 11, 2011. Rhodes answered Plaintiffs' Amended Complaint in April 2011. In August 2011, the Court held a hearing concerning default judgment as to the remaining Defendants. On December 7, 2011, 2011 WL 6100325, the Court granted default judgment against Defendants D.G., Larry Matthew Gandee, and Alisa Dawn Gandee for compensatory damages, court costs and expenses in maintaining the action, and reasonable attorney's fees. (ECF No. 61.) Following a subsequent motion, the Court denied relief from this judgment.
Rhodes now moves for summary judgment as to all of Plaintiff's claims. Plaintiffs, in turn, move for summary judgment on their federal claims as to the issue of liability.
Summary judgment is appropriate "if the movant shows that there is no genuine
The "party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions" of the record which demonstrate "the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. 2548. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56). "The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). A genuine issue of material fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505; see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (the requirement that a dispute be "genuine" means that there must be more than "some metaphysical doubt as to the material facts"). Consequently, the central issue is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, Inc., 477 U.S. at 251-52, 106 S.Ct. 2505.
As detailed above, Plaintiffs brings this action pursuant to 42 U.S.C. § 1982, 42 U.S.C. § 1985, 42 U.S.C. § 3617 of the Fair Housing Act ("FHA"), and Ohio Revised Code § 2307.70. The Court will consider each claim independently.
Plaintiffs first maintain that Defendants actions violated 42 U.S.C. § 1982. Section 1982 specifically provides:
42 U.S.C. § 1982. Section 1982 gives rise to a private cause of action based on private racial discrimination relating to housing. See, e.g., Campbell v. Robb, 162 Fed. Appx. 460, 474-75 (6th Cir.2006) (outlining general requirements for a claim under § 1982); United States v. Brown, 49 F.3d 1162, 1166 (6th Cir.1995) ("Section 1982 was enacted to enable Congress to enforce the Thirteenth Amendment, specifically to prohibit all racial discrimination, private and public, in the sale and rental of property.") (internal quotations omitted). Moreover, the United States Court of Appeals for the Sixth Circuit has concluded that the right to "hold" property must be construed given "the broad construction
Outside of the context of discrimination in the actual buying and renting of property, there is relatively limited case law regarding the requirements for a § 1982 claims. See Bryant v. Polston, No. IP 00-1064, 2000 WL 1670938, at *5 (S.D.Ind. Nov. 2, 2000) ("Few reported cases discuss the applicability of Section 1982 to harassing and intimidating conduct by neighbors...."). Cases to address § 1982, within similar contexts, generally indicate that the statute applies to acts of intimidation that are directed at a plaintiff's property and racially motivated. See, e.g., James v. Vill. of Willowbrook, 2012 WL 3017889, at *12 (N.D.Ill. July 19, 2012) (holding that "allegations of harassment of a homeowner with the intent to deprive him of the right to use his property because of race are sufficient to state a claim under § 1982"); Whisby-Myers v. Kiekenapp, 293 F.Supp.2d 845, 850 (N.D.Ill.2003) (allegations that neighbor detonated a Flash Simulator and yelled racial epithets at homeowner stated a claim under § 1982); Zhu v. Countrywide Realty Co., Inc., 160 F.Supp.2d 1210, 1232 n. 30 (D.Kan.2001) (indicating that § 1982 applies to "claims for relief from discrimination in holding or conveying property and such actions as cross-burning and fire-bombing"); Egan v. Schmock, 93 F.Supp.2d 1090, 1093 (N.D.Cal.2000) ("[A]llegations of violent or intimidating acts motivated by a discriminatory animus are sufficient to state a claim for deprivation of the right to `hold' real property as guaranteed under § 1982."); Byrd v. Brandeburg, 922 F.Supp. 60, 64-65 (N.D.Ohio 1996) (granting summary judgment on a plaintiff's § 1982 claim where a defendant threw a Molotov cocktail at the plaintiff's house); Cotton v. Duncan, No. 93 C 3875, 1993 WL 473622, at *4 (N.D.Ill. Nov. 15, 1993) ("Attempting to erect and ignite a cross that reads `KKK Rules' on an African — American family's lawn is precisely the type of conduct section 1982 is designed to remedy.").
Finally, within the similar context of 42 U.S.C. § 1981, the Sixth Circuit has provided that a plaintiff must establish that "(1) he belongs to an identifiable class of persons who are subject to discrimination based on their race; (2) the defendant intended to discriminate against him on the basis of race; and (3) the defendant's discriminatory conduct abridged a right enumerated in section 1981(a)."
In this case, the Court finds that Plaintiffs are entitled to summary judgment as to their § 1982 claims against Rhodes. As a preliminary matter, it is undisputed that Rhodes acted in concert with D.G. to burn a cross on Plaintiffs' front lawn. It is also undisputed that Plaintiffs, as African Americans, belong to an identifiable class that has been subject to discrimination based on race. Both Rhodes and D.G. were aware that Plaintiff's were an African American family. Moreover, based on the record evidence, a
Rhodes' denial of specific intent does not saves him from summary judgment under the circumstances of this case. As detailed above, Rhodes testified during his deposition that he did not have any specific intention with regards to his actions because he "wasn't thinking" and he was "being stupid ...." (Rhodes Dep. 15, 23.) Although the Court does not contest the stupidity of Rhodes' actions, the evidence still does not establish a triable issue of fact surrounding Rhodes' intent for the purposes of § 1982.
Finally, to the extent Rhodes maintains that Plaintiffs have not shown sufficient injury to be entitled to judgment on a § 1982 claim, the Court disagrees. Even assuming Plaintiff is required to show a compensable injury — in addition to the denial of the right embedded within § 1982 — Plaintiffs have met such a requirement. Although there is a genuine issue of dispute regarding the quantity of damages, Plaintiffs have sufficiently established that they have suffered at least some level of damages from emotional distress as a result of the cross burning.
Plaintiffs also contend that Defendants' actions constitute a civil conspiracy pursuant to 42 U.S.C. § 1985(3). Plaintiffs contend that Defendants conspired to deprive them of the right to equal protection of the laws. They specifically invoke the property rights that § 1982 protects. Rhodes asserts that he is entitled to summary judgment because he had no intention to deprive Plaintiffs of their property rights. Additionally, Rhodes contends that Plaintiffs have failed to submit evidence of actual injury.
Section 1985(3) states as follows:
42 U.S.C. § 1985(3). The Sixth Circuit has outlined the elements of a § 1985(3) claim as follows:
Radvansky v. City of Olmsted Falls, 395 F.3d 291, 314 (6th Cir.2005). Importantly, although § 1985(3) provides a cause of action based on the deprivation of federal rights it "does not grant or create a substantive right" in and of itself. Bowden v. City of Franklin, Kentucky, 13 Fed.Appx. 266, 272 (6th Cir.2001).
Within the context of a conspiracy claim against a private party, a claimant must satisfy two prongs to demonstrate the purpose element of § 1985(3). Specifically, to prove a private conspiracy, "a plaintiff is required to show: `(1) that some racial, or perhaps otherwise class-based, invidiously discriminatory animus [lay] behind the conspirators' action, and (2) that the conspiracy aimed at interfering with rights that are protected against private, as well as official, encroachment.'" McGee v. Schoolcraft Cmty. Coll., 167 Fed. Appx. 429, 435 (6th Cir.2006) (emphasis added) (quoting Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 268, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993)).
The Supreme Court has recognized that there are few applicable rights for the purpose of private conspiracies under § 1985(3). Bray, 506 U.S. at 278, 113 S.Ct. 753. Thus far, the Supreme Court has only expressly recognized the Thirteenth Amendment right to be free from involuntary servitude and the Thirteenth Amendment right to interstate travel. Id. The Supreme Court also held, prior to Bray, "that § 1985(3) may not be invoked to redress violations of Title VII." Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 381, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979). The Novotny Court reasoned that to allow a § 1985(3) claim based on Title VII would damage the comprehensive process Congress intended in enacting Title VII. See id. at 375-78, 99 S.Ct. 2345. In concurrences, Justices Powell and Stevens both maintained that § 1985(3) only applies to constitutional rights. Id. at 379-85, 99 S.Ct. 2345. Justice Stevens specifically reasoned that "[t]he import of the language, however, as well as the relevant legislative history, suggests that the Congress which enacted both provisions was concerned with providing federal remedies for deprivations of rights protected by the Constitution and, in particular, the newly ratified Fourteenth Amendment." Id. at 382-83, 99 S.Ct. 2345. Finally, the Supreme Court has rejected § 1985(3) private conspiracy claims based on private infringement of First Amendment Rights. Bray, 506 U.S. at 278, 113 S.Ct. 753 (citing United Broth. of Carpenters & Joiners of Am., Local 610,
In this case, Plaintiffs rely on their property rights under § 1982 to establish their § 1985(3) claims. Whether § 1985(3) allows for a private conspiracy claim based on rights embedded within § 1982, and similarly § 1981, is an unsettled question of law.
Prior to Bray, this Court held that § 1985(3) allows for a cause of action based on § 1981. Hudson v. Teamsters Local Union No. 957, 536 F.Supp. 1138, 1147 (S.D.Ohio 1982). The Court reasoned that, unlike Title VII, § 1981 "is not derived from a statutory scheme whose policies would be frustrated by the relitigation under another remedial statute." Id. Other federal courts to more recently consider this issue have reached mixed results. Compare, e.g., Jimenez v. Wellstar Health Sys., 596 F.3d 1304, 1312 (11th Cir.2010) ("[B]ecause conspiracies to violate rights protected by Title VII cannot form the basis of § 1985(3) suits, ... and because the Supreme Court has been conservative in designating which rights litigants may enforce against private actors under § 1985(3), we hold conspiracies to violate rights protected under § 1981 are likewise insufficient to form the basis of a § 1985(3) claim."); Brown, 250 F.3d at 805-06 (concluding in dicta that § 1981 and § 1982 cannot form the basis for a § 1985(3) claim); with, e.g., Antonio, 701 F.Supp.2d at 779 ("`The right conferred by § 1981 to be free from private interference in the making and enforcement of contracts arguably is precisely the sort of federal right which would be among the `few' giving rise to a remedy under § 1985(3).'") (quoting Spectronics Corp. v. TCI/TKR, Inc., 17 F.Supp.2d 669, 671-672 (W.D.Ky.1998)); Bryant, 2000 WL 1670938, at *7 ("Section 1982 provides a sufficient predicate for a Section 1985(3) claim.").
The Court concludes that § 1982 provides an adequate basis for a private conspiracy claim under § 1985(3).
In this case, for the same basic reasons as Plaintiffs' § 1982 claim, the Court finds that Plaintiffs are entitled to summary judgment pursuant to § 1985(3). Given the circumstances of this case, a reasonable jury could only conclude that discriminatory animus motivated Rhodes' actions. Moreover, Rhodes aimed his actions at interfering with Plaintiffs' use of their property. See Bray, 506 U.S. at 276, 113 S.Ct. 753 ("[T]he `intent to deprive of a right' requirement demands that the defendant... must act at least in part for the very purpose of producing it."). Once again, Rhodes and D.G. directed their actions at Plaintiffs' property, bringing a cross to Plaintiffs' front lawn and setting the cross on fire. From these actions it is clear that at least part of their purpose was to disturb Plaintiffs' right to use their property. Finally, Plaintiffs have made a sufficient showing of injury to be entitled to summary judgment. In addition to demonstrating deprivation of their § 1982 rights,
Both parties also seek summary judgment as to Plaintiffs' claims under the FHA. The parties specifically dispute whether Rhodes' conduct interfered with Plaintiffs' property rights within the meaning of 42 U.S.C. § 3617.
The FHA provides in relevant part:
42 U.S.C. § 3617. Relatedly, § 3604 states in 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, color, religion, sex, familial status, or national origin." Id. § 3604(a).
The Sixth Circuit has set forth the following elements for a § 3617 claim:
Hood v. Midwest Sav. Bank, 95 Fed.Appx. 768, 779 (6th Cir.2004). Moreover, "a plaintiff is required to demonstrate `discriminatory animus' to prevail on an interference claim under the Act." HDC, LLC
As with § 1982, there is limited FHA case law addressing threatening or intimidating acts taken against a person's property after acquisition.
In light of the evidence in this case, the Court holds — once again applying similar reasoning as with Plaintiffs' § 1982 and § 1985 claims — that Plaintiffs are entitled to summary judgment.
Finally, Rhodes moves for summary judgment as to Plaintiffs claims under Ohio Revised Code § 2307.70.
Section 2307.70 states in relevant part:
Ohio Rev.Code § 2307.70(A) (emphasis added). When bringing a claim under Ohio Revised Code § 2307.70 for emotional distress based on ethnic intimidation, a plaintiff "must still present sufficient evidence on the elements of emotional distress in order to recover for damages caused by the alleged ethnic intimidation." Hayes v. Heintz, No. 79335, 2002 WL 1041370, at *3 (Ohio Ct.App.2002).
Here, Rhodes contends that Plaintiffs have failed to provide sufficient evidence of emotional distress. In Ohio, a plaintiff may recover for emotional distress even when such distress is not accompanied by physical injury. Hayes, 2002 WL 1041370, at *4. The emotional injury must be severe, such that "`a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case.'" Ford Motor Credit Co. v. Ryan, 189 Ohio App.3d 560, 590, 939 N.E.2d 891 (Ohio Ct.App.2010) (quoting Paugh v. Hanks, 6 Ohio St.3d 72, 78, 451 N.E.2d 759 (Ohio 1983)).
Under Ohio law, a plaintiff "must present some `guarantee of genuineness' in support of his claim to prevent summary
In this case, Rhodes is not entitled to judgment as a matter of law as to Plaintiffs' § 2307.70 claims. Plaintiffs have presented sufficient evidence regarding the anxiety and fear they have experienced as a result of the cross burning to raise an issue of fact as to emotional distress damages. Although Plaintiffs do not present medical evidence, each Plaintiff testified regarding his or her own experiences. Additionally, during their testimony, Plaintiffs corroborated the distress that other family members have experienced. For example, a number of other Plaintiffs support Shanay Gibson's assertion that she has experienced significant trouble sleeping following the cross burning. (See, e.g., J.W. Dep. 45-46.) Moreover, given the extreme nature of Defendants' conduct, Plaintiffs' have presented sufficient evidence concerning Ohio's objective severity requirement for emotional distress damages.
Contrary to Rhodes' assertion, Hayes does not require a different result. In Hayes, an Ohio appellate court found that a plaintiff failed to produce sufficient medical evidence that the defendants conduct aggravated her Lupus. 2002 WL 1041370, at *5. The court stressed that "[e]xcept as to questions of cause and effect, which are so apparent as to be matters of common knowledge, the issue of causal connection between an injury and a specific subsequent physical disability involves a scientific inquiry and must be established by the opinion of medical witnesses...." Id. In this case, Plaintiffs attempt to link some physical injuries, for example Ms. Gibson's headaches, to the cross burning. At the same time, however, in addition to physical injury, Plaintiffs also provide that the cross burning led to fear and anxiety. Under the circumstances of this case, medical evidence is not necessary for a reasonable jury to find that the burning of a cross with racial threats written on it led Plaintiffs to suffer severe emotional distress in the form of fear and anxiety.
For the foregoing reasons, Plaintiffs Motion for Partial Summary Judgment on the Issue of Liability is
