Douglas Energy Relief Association et al v. City of Douglas, Georgia et al

Filing 63

ORDER Granting 28 Defendants' MOTION for Summary Judgment. The Clerk of Court is directed to enter the appropriate judgment and close the case. Signed by Chief Judge Lisa G. Wood on 7/30/2013. (csr)

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DOUGLAS ENERGY RELIEF
ASSOCIATION (D.E.R.A.), TONI
DES'HAZOR, ANNIE PEARL BLACK,
VERA FREEMAN, and EDWARD
FREEMAN,
Plaintiffs,
VS.

CITY OF DOUGLAS, GEORGIA,
DENNIS JOSEY, RONALD L.
HENDERSON, TONY PAULK, JACKIE
WILSON, OLIVIA PEARSON, ROBERT
MOORE, JR., PAUL ELLIOTT, JOHNNY
LEE ROPER, SR., and OSCAR STREET
Defendants.

[•)

I

CV 5 10-083

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Presently before the Court is a Motion for Summary Judgment
filed by Defendants. See Dkt. No. 28. For the reasons stated
below, Defendants' Motion is GRANTED.

In this suit, Plaintiffs allege that the City of Douglas
fraudulently inflated the electrical usage rates for AfricanAmerican residents, forcing them to pay excessive amounts for
electricity. See Dkt. Nos. 1, 61. Plaintiffs contend that,

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while the rates were the same, African-Americans paid
significantly more because their kilowatt usage was fraudulently
inflated by Defendants. See Dkt. Nos. 1, 61. Thus, the crux of
Plaintiffs' claims is that their actual electrical usage (the
number of kilowatts they in fact used) differed from the
electrical usage reported in their utility bills and that
discrepancy was because of their race.
Earlier, this Court denied Defendants' Motion for Summary
Judgment due to the cursory nature of both parties' briefs on
the matter and ordered supplemental briefing to allow the
parties an opportunity to support and clarify their positions.
See Dkt. No. 59.
In that Order, the Court noted that Plaintiffs "had[d]
presented absolutely no evidence that any disparity in
electricity expenses was because of the consumers' race." Dkt.
No. 59. The Court warned that "[e]vidence that Defendants
overcharged African-Americans for electricity because of their
race is essential to Plaintiff's claims; evidence that there is
a disparity is not enough." Dkt. No. 59.
Plaintiffs filed their supplemental brief and presented
additional documentation. See Dkt. No. 61. In the supplemental
brief, Plaintiffs indicated they intended to proceed with five
claims. See Dkt. No. 61. Plaintiff identified these five
causes of action as (1) "Constitutional Violations including the
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Civil Rights Act of 1983 and Title VIII of the Civil Rights Act
of 1968;I1 (2) "Fraud and Misrepresentation;" (3) "Breach of
Contract;" (4) "Negligence;" and (5) "Intentional Infliction of
Emotional Distress." Dkt. No. 61. Plaintiffs attached as
exhibits to their supplemental brief 1,947 pages of documents.
See Dkt. No. 61, Exs.

1_26.2 The vast majority of those pages

consist of utility bills sent to various individuals for various
different billing periods and letters sent from Plaintiffs
regarding their allegations of discrimination.
Defendants also filed a supplemental brief in support of
their Motion for Summary Judgment. See Dkt. No. 62. Defendants
mainly reiterated their earlier arguments. See Dkt. No. 62.
Both parties are represented by counsel.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(a), summary
judgment is appropriate "if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." The court must view
the evidence and draw all inferences in the light most favorable

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Violations of federal statutes are not constitutional violations.
However, the Court interprets Plaintiffs' first cause of action as a
42 U.S.C. § 1983 claim asserting violations of the Constitution and
federal statutes.
2
Some of Plaintiffs' attachments are titled with exhibit numbers that
do not correspond with the exhibit numbers reflected in the docket.
Thus, the docket system's exhibit twenty refers to a document titled
by Plaintiffs "Exhibit 18 Roy Wadley Report." All citations in this
Order refer to the exhibit numbers generated by the docket system.
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to the nonrnovant. Adickes v. S.H. Kress & Co., 398 U.S. 144,
157-59 (1970) . The party seeking summary judgment must first
identify grounds that show the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24
(1986). To discharge this burden, the movant must show the
court that there is an absence of evidence to support the
nonmoving party's case. Id. at 325. The burden then shifts to
the nonmovant to go beyond the pleadings and present affirmative
evidence to show that a genuine issue of fact does exist.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). A
mere scintilla of evidence in support of the non-movant is
insufficient to defeat a motion for summary judgment. Id. at
252. Rather, the plaintiff must present "evidence on which the
jury could reasonably find for the plaintiff." Id.
DISCUSSION

Central to all of Plaintiffs' claims is proof that the
kilowatt usage reported on Plaintiffs' utility bills was
incorrect and that such information was improperly inflated
because of Plaintiffs' race. Plaintiffs cite in their
supplemental brief several pieces of documentation Plaintiffs
presumably believe indicate discrimination. Upon reviewing—page
by page—the specific documents cited by Plaintiff, the Court
concludes that Plaintiffs have utterly and completely failed to
support their allegations with evidence.
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I. Federal Claims

Plaintiffs' supplemental briefing seems to indicate that
Plaintiffs wish to proceed with a 42 U.S.C. § 1983 claim for
violations of the Equal Protection Clause and certain provisions
of the Fair Housing Act, namely 42 U.S.C. §§ 3604-05. See Dkt.
No. 61.
As a threshold requirement, to recover under § 1983, the
conduct complained of must have been committed by a person
acting under color of state law. See Lugar v. Edmondson Oil
Co., Inc., 457 U.S. 922, 924 (1982). Defendants' counsel argues
that the "under color of state law" requirement has not been
satisfied. Defendants' counsel cites numerous cases dealing
with the issue of when a private entity acts as a state. See
Dkt. No. 62 (citing Gorenc v. Salt River Project Agr. Imp. &
Power Dist., 869 F.2d 503 (9th Cir. 1989); Jackson v. Metro.
Edison Co., 419 U.S. 345 (1974); Burton v. Wilmington Parking
Auth., 365 U.S. 715 (1961); Carlin Commc'ns, Inc. v. Mountain
States Tel. & Tel. Co., 827 F.2d 1291 (9th Cir. 1987)). All
defendants in the present case are either governmental bodies
(the City of Douglas) or governmental officials. Thus, this
case is readily distinguishable from the cases cited by
Defendants' counsel involving private organizations. The
Eleventh Circuit has indicated that a division of a city
"clearly satisf[ies]" the state action requirement for a § 1983
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claim. See Kearson v. So. Bell Tel. & Tel. Co., 763 F.2d 405,
406 (11th Cir. 1985). Accordingly, Defendants' counsel's state
action argument is unpersuasive.
"[T) establish an equal protection claim, a plaintiff must
demonstrate that (1) 'he is similarly situated with other
persons who received' more favorable treatment; and (2) his
discriminatory treatment was based on some constitutionally
protected interest such as race." Jones v. Ray, 279 F.3d 944,
946 (11th Cir. 2001) (quoting Damiano v. Fla. Parole & Prob.
Comm'n, 785 F.2d 929, 932-933 (11th Cir. 1986)). Likewise, to
establish a disparate treatment claim under the Fair Housing
Act, a plaintiff must demonstrate he has been treated
differently than similarly situated people outside of the
protected class. Schwarz v. City of Treasure Island, 544 F.3d
1201, 1216 (11th Cir. 2008); see also Gallagher v. Magner, 619
F.3d 823, 831 (8th Cir. 2010) ("Disparate-treatment claims under
the [Fair Housing Act] are tested under the same framework as
Title VII disparate-treatment claims," which requires comparison
of similarly situated individuals)
The evidence closest to what Plaintiffs would need to
establish disparate treatment is a chart with two columns
purporting to compare the utility costs of twenty-six AfricanAmerican public housing residents to the utility costs of
twenty-one Caucasian public housing residents. See Dkt. No. 61,
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Ex. 22 at 000331-HUD-FOIA-DERA-000334-HUD-FOIA-DERA (titled
"Exhibit 21 Part of HUD Investigation"). Elsewhere in the
record, Plaintiffs have indicated that they acquired the
information on Caucasian public housing residents from Freedom
of Information Act ("FOIA") requests. See Dkt. No. 34, Ex. 2;
Dkt. No. 61, Ex. 20. According to the chart, the utility costs
of the Caucasian residents of the public housing authority
ranged from $271.35 to $30.16 whereas the utility costs for the
African-American residents of the public housing authority
ranged from $567.67 to $173.35. Dkt. No. 61, Ex. 22, 000333HUD-FOIA-DERA.
This evidence, however, is insufficient. Plaintiffs have
failed to demonstrate to the Court that the Caucasian public
housing residents were similarly situated. Some public housing
residents whether Caucasian or African-American might have
similar living quarters in terms of size and energy efficiency.
The chart, however, does not contain any information about a
multitude of other factors that would indicate the two groups
were similarly situated. The chart does not identify whether
both groups live in the same housing development. The chart
does not include the billing period for the representative
bills. Elsewhere in the record, Plaintiffs indicate that all
the Caucasian public housing resident bills obtained through the
FOIA request were bills due on February 16, 2005. See Dkt. No.
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61, Ex. 20, 7-8. The Plaintiffs, however, indicate that the
representative African-American's bills are dated from numerous
different billing periods and mostly from 2004. See Dkt. No.
61, Ex. 22, 000336-HUD-FOIA-DERA.
Plaintiffs have not cited a shred of evidence indicating
that the Caucasian comparator's actual usage (rather than the
usage rate indicated by the bills) was similar to the AfricanAmerican's actual usage. A finder of fact, on the limited
information provided by the chart, could not extrapolate to find
that the only relevant (or even a relevant) difference between
the twenty-one Caucasian individuals and the twenty-six AfricanAmerican individuals was their race.
The other evidence cited by Plaintiffs falls even shorter
from the mark. Plaintiffs contend that a document identified as
a "DERA Billing Spreadsheet" reveals that residents of
predominantly African-American wards "were charged significantly
higher amounts for electrical services than residents of"
predominantly Caucasian wards. Dkt. No. 61, at 5 n.2. The
actual spreadsheet, which spans approximately 240 pages, does
not support that assertion. See Dkt. No. 61, Exs. 17-19. The
spreadsheet contains the account numbers, street addresses,
names, and billing information for DERA members from different
billing periods. Columns in the spreadsheet indicate the
reported usage and total bill amounts for the billing periods
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listed. The spreadsheet does not indicate in which ward the
individuals reside or the individual's race. Thus, by viewing
the spreadsheet, it is impossible for the Court to compare
African-American usage rates (actual or reported) to Caucasian
usage rates.
Plaintiffs state "[a]n analysis of 1331 electric bills
obtained by DERA for the period of 2005, confirmed that DERA
members were charged the average usage of 1534 killowatts per
billing cycle, which is significantly over the national average
of 928." Dkt. No. 61, at 6. As support, Plaintiffs cite
generally Exhibits 2 through 15. Those exhibits, which total
over a thousand pages, consist mainly of an unorganized
collection of power bills from the City of Douglas to various
individuals for various billing periods. Even assuming those
exhibits supported that assertion, that figure does not indicate
that Plaintiffs' usage rates were fraudulently inflated. There
is no information to indicate how residence size, climate
conditions, energy efficiency, and other factors compare between
DERA members and the average United States citizen.
Plaintiffs' supplemental brief also asserts that "[i]n
addition to the higher kilowatt usage, on the average, in 2005,
residents of Wards 2 and 3 paid $291.23 per month for electrical
services based on the DERA analysis versus the $100.00 per month
average that the City resident paid" and cites a news article as
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authority. See Dkt. No. 61, at 6-7. First of all, the actual
newspaper segment cited, which concerns DERA's legal actions,
says "Freeman[, one of the plaintiffs,] has stated that AfricanAmerican customers pay an average of $450 per month in utility
bills, while white customers pay in the neighborhood of $68 per
month." Dkt. No. 61, Ex. 16. Again, that quote conveys no
information as to whether the two groups are similarly situated
with regard to actual utility use. 3
Plaintiffs' supplemental briefing states:
Defendants opine that the variables of home quality
and poor insulation explain the disparity in
electrical usage. However, expert witnesses for the
Plaintiffs Roy Wadley and Willis Papillion indicate
the improbability of that theory.
Dkt. No. 61, at 10-11. Such evidence would indeed help
Plaintiffs' case. However, neither expert witness makes any
such statement. Wadley's "Expert Witness Testimony Report"
contains no information as to how "home quality and poor
insulation" would impact electrical usage. See Dkt. No. 61, Ex.
20. Likewise, Papillion's conclusions solely concern alleged
flaws in the Housing & Urban Development (HUD) investigation.
See Dkt. No. 61, Ex. 25.
Plaintiffs aver that African American residents were
discriminatorily charged power adjustment charges. Plaintiffs
Presenting the newspaper article at trial to prove the truth of those
figures would raise obvious hearsay issues. See United States v.
Baker, 432 F.3d 1189, 1211-12 (11th Cir. 2005)
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have not explained what a power adjustment charge is or why it
was not properly charged to some individuals. Many of the DERA
member's utility bills submitted to this Court do not include
such a charge. See, e.g., Dkt. No. 61, Lx. 2, 000670-HUD-FOIADERA-00068 4-HUD-FOIA-DERA.
In sum, Plaintiffs' supplemental briefing fails to identify
for the Court evidence to support their allegation that
Defendants inflated the electrical usage of African-Americans.
They have not identified any evidence regarding whether the
usage amounts reported in DERA member's utility bills differed
from their actual usage. Nor have they identified any evidence
from which a finder of fact could infer that Plaintiffs were
treated differently than other individuals who were similarly
situated. The closet Plaintiffs have come to identifying such
evidence is a chart which shows that twenty-one Caucasian public
housing authority residents had lower bills than twenty-six
African-American public housing residents. However, the chart
gives no information as to the billing periods used, the actual
electrical usage of those individuals, or any other information
touching on whether the comparators were similarly situated.
II. State Law Causes of Action

Plaintiffs' other causes of action are all predicated on
racial discrimination on the part of Defendants. Plaintiffs'
fraud and misrepresentation claim is based on the alleged
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fraudulent manipulation of Plaintiffs' kilowatt usage.
Likewise, the breach of contract claim involves Defendants'
supposed bad faith in willfully inflating kilowatt usage for
African-American consumers. Plaintiffs aver that Defendants are
liable for gross negligence because "Defendants have perpetrated
fraudulent conduct, misrepresentations, violations of
Plaintiffs' civil rights, breach of contracts, intentional bad
faith dealings, and violations of fair housing laws." Finally,
Plaintiffs' intentional infliction of emotional distress is
based on discriminatory billing. Without evidence that
Plaintiffs' electrical usage was improperly inflated,
Plaintiffs' state law claims fail.
CONCLUSION

The Court has given Plaintiffs more than ample time and
opportunity to come forward with proof of their claims. The
poorly organized, incomplete, misidentified, and largely
inadmissible stack of articles, bills, and allegations falls
woefully shy. Based on the foregoing, Defendants' Motion for
Summary Judgment, Dkt. No. 28, is GRANTED.

The clerk of court

is directed to enter the appropriate judgment and close the
case.

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SO ORDERED, this 30th day of July, 2013.

SA GODBEY kOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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