Tippins, et al. v. City of Dadeville, Alabama, et al.

Filing 50

MEMORANDUM OPINION AND ORDER: it is ORDERED that Dfts' 37 motion for summary judgment is GRANTED. Signed by Chief Judge William Keith Watkins on 3/31/2016. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
DIANN TIPPINS

)
)
and
)
)
GENEVA HEARD
)
)
Plaintiffs,
)
v.
)
)
CITY OF DADEVILLE, ALABAMA, )
)
MAYOR MIKE INGRAM, in his
)
capacity as Mayor of Dadeville, and
)
)
SHARON HARRELSON, in her
)
capacity as an agent of the City of
)
Dadeville,
)
)
Defendants.
)

CASE NO. 3:13-CV-368-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Before the court is Defendant’s motion for summary judgment. (Doc. # 37.)
Plaintiff responded in opposition (Doc. # 39), and Defendant replied (Doc. # 41).
For the reasons that follow, the motion is due to be granted.
I. JURISDICTION AND VENUE
The court exercises jurisdiction pursuant to 28 U.S.C. § 1331. The parties
do not contest personal jurisdiction or venue.

II. STANDARD OF REVIEW
To succeed on summary judgment, the movant must demonstrate “that there
is no genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[T]he court must view the
evidence and the inferences in the light most favorable to the nonmovant.” JeanBaptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).
The party moving for summary judgment “always bears the initial
responsibility of informing the district court of the basis for the motion.” Celotex
Corp. v. Catrett, 477 U.S. 317 (1986). This responsibility includes identifying the
portions of the record illustrating the absence of a genuine dispute of material fact.
Id. Or a movant who does not have a trial burden of production can assert, without
citing the record, that the nonmoving party “cannot produce admissible evidence to
support” a material fact. Fed. R. Civ. P. 56(c)(1)(B); see also Fed. R. Civ. P. 56
advisory committee’s note (“Subdivision (c)(1)(B) recognizes that a party need not
always point to specific record materials. . . . [A] party who does not have the trial
burden of production may rely on a showing that a party who does have the trial
burden cannot produce admissible evidence to carry its burden as to the fact.”).
If the movant meets its burden, the burden shifts to the nonmoving party to
establish—with evidence beyond the pleadings—that a genuine dispute material to
each of its claims for relief exists. Celotex, 477 U.S. at 324. A genuine dispute of

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material fact exists when the nonmoving party produces evidence allowing a
reasonable fact finder to return a verdict in its favor. Waddell v. Valley Forge
Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001). On the other hand, “[i]f the
evidence is merely colorable or is not significantly probative, summary judgment
may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986).
“A mere ‘scintilla’ of evidence supporting the [nonmovant’s] position will
not suffice; there must be enough of a showing that the [trier of fact] could
reasonably find for that party,” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.
1990), and the nonmoving party “must do more than simply show that there is
some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Conclusory allegations based on
subjective beliefs are likewise insufficient to create a genuine dispute of material
fact and do not suffice to oppose a motion for summary judgment. Holifield v.
Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (per curiam). Hence, when a
plaintiff fails to set forth specific facts supported by appropriate evidence sufficient
to establish the existence of an element essential to his case and on which the
plaintiff will bear the burden of proof at trial, summary judgment is due to be
granted in favor of the moving party. Celotex Corp., 477 U.S. at 323.

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III.

FACTS1

On Memorial Day, Monday, May 30, 2011, Ian Tippins (“Ian”), the
nineteen-month-old son of Plaintiff Diann Tippins (“Tippins”), died by accidental
drowning in Milbrook, Alabama. (Doc. # 28-1 at 2; Doc. 37-1 at 6.) The Tippins
family is African-American.

On Wednesday, June 1, 2011, Ian’s godmother,

Plaintiff Geneva Heard, called the City of Dadeville and spoke with the City Clerk,
Sharon Harrelson, to inform her that Tippins wanted a burial plot in the Dadeville
Cemetery. (Doc. # 37-1 at 45.) Harrelson told Heard to come to City Hall the next
day at 11:00 a.m. (Doc. # 37-1 at 45.)
At the appointed time on Thursday, June 2, 2011, four women – Tippins;
Heard; Tippins’s sister, Glenda Russell; and Tippins’s coworker and friend,
Almitra Ankton – arrived at Dadeville City Hall to inquire about the purchase of a
burial plot for Ian in Dadeville Cemetery. (Doc. # 37-2 at 8; Doc. # 37-1 at 6-9.)
Sharon Harrelson, the City Clerk, met with the four women to assist them with
purchasing a plot in cemetery. (Doc. # 37-1 at 10.) In her job as City Clerk,
Harrelson does not normally assist people with finding cemetery plots. (Doc. # 375 at ¶ 2.) She has limited personal knowledge of the cemetery, and she does not
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Defendants have presented evidence tending to contradict some of the facts set forth in
this opinion. However, to the extent that a dispute exists as to any of the facts or evidence, all
conflicts in the evidence have been resolved in Plaintiffs’ favor, and the court has drawn all
reasonable inferences from the evidence in the light most favorable to Plaintiffs. For purposes of
summary judgment, disputed factual averments not supported by evidence have been
disregarded. See Fed. R. Civ. P. 56(c) (setting for requirements for supporting and opposing a
motion for summary judgment).
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know who is buried where. (Doc. # 37-5 at ¶ 2.) However, Harrelson assisted the
four women on that day because the city employee who typically dealt with
matters concerning the cemetery had been reassigned to assist with cleanup from a
recent tornado and was not available. (Doc. # 37-4 at 5.)
The Dadeville Cemetery has an old section and a new section. The old,
original section of the cemetery dates back to the 1800s. (Doc. # 37-4 at 14.) The
records for the old section of the cemetery are in “terrible shape.” (Doc. # 37-5 at
¶ 2.) Some graves in the older section have no markers at all. (Doc. # 37-4 at 16.)
Historically, black families were buried on one side (“the left side”) of a fence in
the old section the cemetery, and white families on the other side (“the right side”).
(Doc. # 37-4 at 21.) At least some white people are buried on the left side. (Doc. #
37-4 at 13.) The right side is maintained better than the left side. (Doc. # 37-1 at
17-18.) By common practice among those familiar with the cemetery, the left side
of the old section is commonly called “the black side,” and the right side is
commonly called “the white side.” (See Doc. # 37-4 at 11; Doc. # 37-1 at 42-43;
Doc. # 39-1 at ¶ 2. However, it is undisputed that Harrelson never referred to the
left side as “the black side” or the right side as “the white side.” (Doc. # 37-1 at
37.)
At some point prior to the time Harrelson began to work for the City of
Dadeville, the City purchased the new section of the cemetery because the old

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section had become overcrowded. (Doc. # 37-4 at 12.) Both black and white
people were buried in the new section, and there is no evidence that the new
section was ever segregated. (Doc. # 37-1 at 43; Doc. # 37-4 at 11-12.)
At City Hall, Harrelson showed the four women a map or book2 of the
cemetery, but, because Tippins could not “tell anything” from the map or book, she
wanted to go to the cemetery to pick out a plot. (Doc. # 37-1 at 10.) Tippins asked
Harrelson if “it would be best if [the four women] just went on over to start
looking, and [Harrelson] said yes and she would meet [them] over there.” (Doc. #
37-1 at 10.) Before the women left, Harrelson remarked to Plaintiffs that it was not
her job to help them and that she was supposed to be on her lunch break. (Doc. #
37-1 at 47.)

At some point before driving to meet the four women at the

cemetery,3 Harrelson spoke with Al Ford, head of maintenance for the City of
Dadeville and the father of Almitra Ankton, who informed her that Heard’s family
already had burial plots in the cemetery.4 (Doc. # 37-4 at 7.) Ford asked Harrelson
to help the Tippins family find a plot because the family had financial difficulties

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Tippins does not recall whether the material Harrelson showed her was a map or a book,
and she does not remember what it looked like. The material was not in a format easily readable
or understandable, and Tippins could not tell from the material what the available plots looked
like or where they were located. (Doc. # 37-1 at 11-12.)
3

The record on summary judgment does not make clear whether Harrelson spoke to Al
Ford before the four women arrived at City Hall.
4

Heard’s family has a number of individual plots in left side of the old section of the
cemetery. (Doc. 37-1 at 42; Doc. # 37-4 at 10.)
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and had lost a child. (Doc. # 37-4 at 7.)
After the four women left the meeting with Harrelson at City Hall, Heard
drove them to the cemetery. (Doc. # 37-1 at 10.) When they arrived at the
cemetery, they walked over to look at the graves of Queen Ester Rowe and her
husband, Wilbert Rowe. (Doc. # 37-1 at 5, 14-15.) Heard was related to the
Rowes, and Tippins had attended the Rowes’ funerals as a friend of their family.
(Doc. # 37-1 at 5, 16.)
Harrelson arrived at the cemetery after the four women. She parked near
Heard’s car, and she met them where they were standing by the Rowes’ graves.
(Doc. # 37-1 at 7, 16-17, 19, 47; Doc. # 37-4 at 8.) The group then looked at
several areas throughout the cemetery. Harrelson had the map or book with her.
(Doc. # 37-1 at 17.) Harrelson informed the women that plots were available in the
area known as the new cemetery. (Doc. # 37-2 at 11.) However, Tippins was not
interested in the new cemetery because the monument that she wanted would not
be allowed in the new section. (Doc. # 37-2 at 11.) Tippins requested a plot in the
right side of the older section of the cemetery. (Doc. # 37-2 at 11.) Harrelson told
Plaintiffs that no plots were available on the right side. (Doc. # 37-1 at 19, 21, 23.)
However, according to Tippins, after Harrelson stated that plots were not
available on the right side, the group nevertheless continued to look for plots on the
right side because “[Harrelson] was not 100 percent sure” whether plots were

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available there, since she did not have “a map or anything” with her that would
definitively “show whether [plots were] available or not.” (Doc. # 37-1 at 20.)
While the group was looking for a plot, Harrelson was “helpful by trying to
help [the four women] pick a spot,” but she also made statements several times to
the effect that helping the women was not her job, that it was hot out, and that it
was her lunchtime. (Doc. # 37-1 at 47.) Harrelson smoked at the cemetery and did
not offer words of condolence to Tippins. (Doc. # 37-1 at 50.) At her deposition,
Heard opined that Harrelson’s lack of friendliness could have been “just [her]
personality.” (Doc. # 37-1 at 46.)
Tippins decided that she wanted a plot in a certain shady area on the right
side. (Doc. # 37-1 at 21.) Harrelson told Tippins that no plots were available in
the shady area. (Doc. # 37-1 at 21.) According to Tippins, Harrelson then “went on
to follow up with” the fact that she would have to check availability there and call
them back. (Doc. # 37-1 at 21.) Heard asked if Harrelson could verify availability
in the shady spot and call them back that afternoon. (Doc. # 37-1 at 21, 48.)
Harrelson said that she could call them back the following day, but that would not
work for Tippins, who needed to find a burial plot that day. (Doc. # 37-1 at 21,
48.) Despite Harrelson’s offer to check and call her back, Tippins did not provide
Harrelson a telephone phone number to call her back because, at that point, she
“was done.” (Doc. # 37-1 at 21-22.) However, Heard provided Harrelson her own

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home telephone number. (Doc. # 37-1 at 22, 23-24).
The four women then left the cemetery. (Doc. # 37-1 at 24.) The last thing
Tippins said to Harrelson before leaving was: “I have to lay my son to rest in two
days. It’s difficult enough. All I need is for you to help me.” (Doc. # 37-1 at 24.)
In the car, Tippins was upset and crying, and she told the other women that she
could not believe what had just happened. (Doc. # 37-1 at 25.)
Upon departure from Dadeville, Plaintiff Tippins called a co-worker, who
recommended two potential burial sites in the Alexander City area. (Doc. # 37-1 at
27-28.)

Following that phone call, Tippins and Russell drove to Hillview

Cemetery, one of the locations recommended by her co-worker. (Doc. # 37-1 at
28.)

At Hillview Cemetery, Tippins found suitable burial plots for Ian, her

husband, and herself, which she purchased at that time. (Doc. # 37-1 at 29.) By
3:30 in the afternoon that day, Tippins had purchased one of the plots. (Doc. # 371 at 42.)
Meanwhile, while Tippins was attempting to locate an alternative burial plot,
Harrelson asked the mayor, Defendant Mike Ingram, to help her take a large map
to the cemetery “to see if there was any way that [they] could find available
space.” (Doc. # 37-4 at 16.) Harrelson asked Mayor Ingram to assist because the
map they needed to consult was so large that two people were required to carry and
use it. (Doc. # 37-4 at 16-17.) Harrelson and Mayor Ingram determined that some

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of the areas that had interested Tippins might be available. (Doc. # 37-4 at 16-17,
Doc. # 37-5 at 2-3.) They then returned to City Hall to check deeds to confirm
availability. (Doc. # 37-4 at 17.)
At around 3:35 p.m. that same day, Harrelson called Heard to tell her that
several of the plots Tippins wanted were available after all. (Doc. # 37-1 at 42;
Doc. # 37-2 at 13.) Mayor Ingram also spoke with Heard during that telephone
conversation. (Doc. # 37-2 at 17.) Heard testified that, during the call, Mayor
Ingram told her: “[d]own from the fence from the white side down through the
black side over in the front of IGA, that spot y’all was looking at over there in the
shaded area is available.” (Doc. # 37-2 at 17.) Heard told Mayor Ingram and
Harrelson that she would tell Tippins about the available plots and then call them
back to let them know if Tippins still wanted a spot. (Doc # 37-2 at 19.)
Heard then called Tippins and explained that the plot in the shady spot on
the right side of the cemetery was available for her to purchase. (Doc. # 37-2 at
19.) Tippins replied that she had already purchased a burial plot for Ian and was
no longer interested in the plot in the Dadeville Cemetery. (Doc. # 37-2 at 19.)
Shortly thereafter, Heard spoke to Mayor Ingram by telephone and told him that
Tippins had already bought a burial plot for her son and would not need the one in
Dadeville Cemetery. (Doc. # 37-2 at 20.)

According to Heard, Mayor Ingram

said he was “sorry. He wasn’t smart or anything like that.” (Doc. # 37-1 at 57.)

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To Heard, the Mayor seemed sincere during the conversation. (Doc. # 37-1 at 57.)
IV. PROCEDURAL HISTORY
On May 30, 2013, Tippins and Heard filed a complaint against the City of
Dadeville, Alabama; Mayor Mike Ingram, in his official capacity as Mayor of
Dadeville; and Sharon Harrelson, in her official capacity as an agent of the City of
Dadeville.

(Doc. # 1.)

The complaint set forth six counts.

In Count One,

Plaintiffs alleged that Defendants discriminated against Plaintiffs and denied them
accommodations on the basis of race in violation of 42 U.S.C. § 2000a by
“refus[ing] to allow them to purchase a burial plot on the ‘white side’ of the
cemetery . . . .” (Doc. #1 at 5; Doc. # 18 at 7.) In Count Two, Plaintiffs alleged
that Mayor Ingram and Harrelson “conspired . . . for the purpose of depriving,
either directly or indirectly, Plaintiffs . . . , who are African-Americans and part of
a protected class, of the equal protection of the laws or of equal privileges and
immunities,” in violation of 42 U.S.C. § 1985. (Doc. # 1 at 6-7.) Counts Three,
Four, Five, and Six were state-law claims for fraud, civil conspiracy, and
intentional failure to provide services by a public utility, and the tort of outrage.
Plaintiffs requested compensatory damages, punitive damages, and a declaratory
judgment. (Doc. # 1 at 8-12.)
On June 24, 2013, Defendants responded with a motion to dismiss. (Doc. #
5.) On March 19, 2014, the court denied the motion as to Count One and granted

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the motion as to all other counts. (Doc. # 18.)
On April 2, 2014, Defendants filed a second motion to dismiss, in which
they argued that Count One was due to be dismissed on grounds that cemeteries
are not a “place of public accommodation” as defined by 42 U.S.C § 2000a. (Doc.
# 27.) The court construed the motion to dismiss as a motion for judgment on the
pleadings and granted the motion without prejudice to Plaintiffs to amend the
complaint on or before June 4, 2014. (Doc. # 27.)
On June 4, 2014, Plaintiffs filed an amended complaint asserting a single
claim that they were discriminated against on the basis of race in violation of 42
U.S.C. § 1982 when they were denied the right to purchase a burial plot on the
“white side” of Dadeville’s public cemetery.

(Doc. # 30.) On June 20, 2014,

Defendants filed an answer to Plaintiffs’ amended complaint. (Doc. # 31.)
On July 16, 2015, Defendants filed a motion for summary judgment. (Doc.
# 37.) Defendants argue that Heard has no standing to sue under 42 U.S.C. § 1982.
Defendants also argue that Tippins’s claims are subject to summary judgment
because she cannot produce evidence that her ability to purchase a cemetery plot
was denied or hindered on the basis of race. Because the court concludes that
these two arguments are well-taken, the court pretermits any discussion of all other
arguments Defendants raise on summary judgment.

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V.
A.

DISCUSSION

Heard Cannot Assert a Claim Under 42 U.S.C. § 1982.
Section 1982 grants “[a]ll citizens of the United States . . . the same right, in

every State and Territory, as is enjoyed by white citizens thereof to inherit,
purchase, lease, sell, hold, and convey real and personal property.” 42 U.S.C. §
1982. There is no evidence that Heard’s right to purchase real property was
hindered in any way. Heard did not attempt to purchase a cemetery plot. Tippins
was the only Plaintiff who sought to purchase a plot. (Doc. # 37-1 at 45.) Because
there is no evidence that Heard’s right to purchase property was impeded, she has
no standing to assert a § 1982 claim, and she cannot establish an essential element
of a § 1982 claim. Accordingly Defendants are entitled to summary judgment on
Heard’s § 1982 claim.5
B.

There Is No Evidence that Tippins’s Right to Purchase a Cemetery Plot
Was Impeded on the Basis of Race.
To prevail on a claim under 42 U.S.C. § 1982, Tippins must show that she

was denied the ability to purchase a cemetery plot on the basis of her race. 42
U.S.C. § 1982; see Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413 (1968)
(“Whatever else it may be, 42 U.S.C. § 1982 is not a comprehensive open housing
law. . . . [§ 1982] deals only with racial discrimination.”); Lawrence v. Courtyards
5

Even if Heard had standing to raise a § 1982 claim, her claim would be subject to
summary judgment for the same reason that Tippins’s is: this record contains no evidence that
racial animus on the part of any Defendant prevented the purchase of a cemetery plot.
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at Deerwood Ass’n, Inc., 318 F. Supp. 2d 1133, 1150 (S.D. Fla. 2004) (“To
establish a prima facie case [of discrimination under § 1982], a plaintiff must
allege facts to show that: (1) the plaintiff is a racial minority; (2) the defendant
intended to discriminate on the basis of race; and (3) the discrimination concerned
activities addressed in [§] 1982.”).
Tippins alleges that the City, through Harrelson and Mayor Ingram, did not
accommodate Tippins’s request to purchase a cemetery plot in time for her to be
able to make the purchase. (Doc. # 39 at 4.) The record confirms that Tippins
could not purchase the plot she wanted in the Dadeville Cemetery because
Harrelson and Mayor Ingram were unable to confirm the availability of the plot
before Tippins found and purchased an alternative plot elsewhere. The record also
confirms that Harrelson and Mayor Ingram were aware that a speedy confirmation
was essential because Tippins needed to purchase a burial plot that day. For
purposes of ruling on the summary judgment motion, the court will assume,
without deciding, that the delay in confirming the plot was sufficient to constitute a
deprivation of Tippins’s right to purchase property. However, there is no evidence
that either Harrelson or Mayor Ingram delayed the plot purchase – and thereby
denied Tippins’s right to purchase property – on the basis of race.
Taken in the light most favorable to Tippins, the record establishes that
Harrelson was insensitive and rude to Tippins by failing to offer condolences,

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commenting repetitively on the heat and her missed lunch break, and repeatedly
reminding the women that it was not her job to help them, all while Tippins was
freshly grieving the loss of her son. However, there is no evidence in this record
that Harrelson’s rudeness signaled a reluctance to assist Tippins with the purchase
of the cemetery plot on the basis of her race or the race of her son. Section 1982
does not prohibit rudeness, even rudeness to a grieving mother; it prohibits denying
a person the right to purchase property on the basis of race. 42 U.S.C. § 1982; see
Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) (“[T]his Court has
repeatedly stated that the civil rights laws were not intended to be a ‘civility
code.’”).
There is evidence that, while the four women were at the cemetery,
Harrelson did not immediately tell Tippins that she could have the plot she wanted
on the right side. However, there is no evidence that Harrelson’s failure to provide
on-the-spot confirmation of availability of right side plots was the product of racial
discrimination. Instead, the undisputed evidence establishes that Harrelson’s initial
failure and/or delay in agreeing to sell Tippins a plot was because, as a result of
poor recordkeeping, confirmation would require Harrelson to do additional work to
ensure that any promised plot was indeed available.
Tippins argues that racial animus is confirmed by the fact that, when
Harrelson and Mayor Ingram called Heard to inform her that Tippins’s desired plot

15

was available, Mayor Ingram used the terms “white side” and “black side” to
describe the location of the plot. Tippins’s argument fails for two reasons.
First, there is no evidence that Mayor Ingram’s use of the terms “white side”
and “black side” signaled racial animus or a refusal to sell a cemetery plot in any
area of the cemetery on the basis of race. Mayor Ingram used the term while
calling to confirm that Tippins could purchase a plot in the right side of the
cemetery. Plaintiffs’ own evidence establishes that the terms were historically and
commonly used to describe different areas of the cemetery, and Plaintiffs
themselves used the terms for that same convenient purpose. (See Doc. # 37-4 at
11 (Plaintiffs’ attorney describing the left side and stating that “we will also for
convenience call [the left side] the black side”); Doc. # 37-1 at 42-43 (Heard’s
deposition testimony that “you’ve got this fence going down through there, and
this is the white side and this is the black side”; “that’s how it’s always been
identified” by “pretty much everybody”; and “that’s the way it’s always been
identified; I live in Dadeville”); Doc. # 39-1 at ¶ 2 (Tippins’s affidavit stating that
“[c]itizens around Dadeville refer to the left side of the [c]emetery as the ‘black
side’ and the right side of the cemetery as the ‘white side’”).)
Second, there is no evidence that Mayor Ingram participated in or caused
any delay in securing the plot; rather, Mayor Ingram’s assistance enabled
Harrelson to confirm availability that day. (Doc. # 37-4 at 16-17.) Thus, even if

16

Mayor Ingram held any racial animus, his racial animus in no way interfered with
Tippins’s purchase of the plot.
Because Tippins has provided no evidence to establish that she was
prevented from purchasing a cemetery plot on the basis of race, Defendants are
entitled to summary judgment on Tippins’s claim.
VI.

CONCLUSION

Accordingly, it is ORDERED that Defendants’ motion for summary
judgment (Doc. # 37) is GRANTED.
Final judgment will be entered separately.
DONE this 31st day of March, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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