Brown v. Winman et al

Filing 28

ORDER granting in part and denying in part 25 Motion for Leave to Withdraw Claims Under Title 18 U.S.C. § 1111 and for Leave to File and Serve Amended Complaint under Rule 15(a)(2) and denying 19 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Terrence W. Boyle on 10/6/2015. Copy of order sent to pro se plaintiff via US Mail to Donald Brown 505 W 150th St., Apt. #1, New York, NY 10031. (Romine, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:15-CV-59-BO
DONALD BROWN,
Plaintiff,

v.
GEORGE WINMAN, III, et al.,
Defendants.

)
)
)
)
)
)
)

ORDER

This matter is before the Court on defendants' motion to dismiss [DE 19] and plaintiff's
motion for leave to withdraw claims and to file an amended complaint [DE 25]. For the
following reasons, plaintiff's motion is granted in part and denied in part and defendant's motion
is denied as moot.
BACKGROUND
Plaintiff, who is African American, alleges that defendants, who are Caucasian, have
taken possession of his land located in Beaufort County, North Carolina, and have blocked him
from having access to it because of his race. The events underlying the complaint began in 2008
and lasted until at least October 15, 2012. Plaintiff alleges that defendant George Winman III
refuses to leave plaintiff's land because African Americans should not own property and that
defendant's wife, who is also a named defendant, does not want to share the road that leads to
plaintiff's property with African Americans. Plaintiff alleges that defendants' actions have
prevented plaintiff from coming and going from his property.
Following this Court's order allowing plaintiff to proceed past frivolity review,
defendants filed a motion to dismiss, alleging that plaintiff's initial complaint brought claims
under criminal statutes that do not provide for civil liability. In response, plaintiff filed the

instant motion to amend his complaint to allow for claims under 42 U.S.C. § 1982 and the
Thirteenth Amendment to the United States Constitution.
DISCUSSION
Plaintiff understandably moves to withdraw his original claims, which were based on
violations of 18 U.S.C. §§ 241 and 249, as these are criminal statutes that do not provide a basis
for civil damages. See, e.g., Anderson-El v. Chief ofAuxiliary Services, 5: 1 l-CT-3170-D, 2012
WL 5305782 (E.D.N.C. Mar. 12, 2012). He simultaneously moves to amend to allege causes of
action under 42 U.S.C. § 1982 and the Thirteenth Amendment. Leave to amend a pleading "shall
be freely given when justice so requires." Fed. R. Civ. P. l 5(a). A district court may deny a
motion to amend, however, when the amendment would be futile. Laber v. Harvey, 438 F.3d
404, 426 (4th Cir. 2006). A motion to amend is futile where, inter alia, the amended complaint
would not survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Perkins v. United States, 848 F. Supp. 1236, 1241 (S.D. W. Va. 1994) ("If the
proposed amendment cannot withstand a motion to dismiss, the court may deny it."); see also

Katyle v. Penn Nat'! Gaming, Inc., 637 F.3d 462, 471 (4th Cir. 2011) ("Futility is apparent ifthe
proposed amended complaint fails to state a claim under the applicable rules and accompanying
standards.").
Section 1982 provides that "[a]ll citizens of the United States shall have the same right ..
. to inherit, purchase, lease, sell, hold, and convey real and personal property." 42 U.S.C. § 1982.
The Supreme Court has held that section 1982 should be construed broadly "to protect not
merely the enforceability of property interest acquired by black citizens but also their right to
acquire and sue property on an equal basis with white citizens." Memphis v. Green, 451 U.S.
100, 120 (1981). The statute applies to private parties, not just government actors. See, e.g.,

2

Jones v. Alfred H Mayer Co., 392 U.S. 409, 413 (1968). To establish a prima facie case, plaintiff

must allege that (1) he is a racial minority; (2) defendant intended to discriminate on the basis of
race; and (3) the discrimination concerned activities listed in section 1982. See, e.g., Lawrence v.
Courtyards at Deerwood Ass 'n, Inc, 318 F. Supp. 2d 1133, 1150 (N.D. Ill. 2004).

Here, plaintiff plausibly has alleged that he is a racial minority and that he was treated in
a discriminatory manner on the basis of his status as such. Accordingly, the issue before the
Court is whether defendants' alleged actions involved the right "to inherit, purchase, lease, sell,
hold, and convey" real property. § 1982. Lawsuits under section 1982 in the Fourth Circuit most
often appear to involve commercial transactions; there appears to be a dearth of cases involving
interactions between private parties. See, e.g., Dobson v. Cent. Carolina Bank and Trust Co., 240
F. Supp. 2d 516, 523 (M.D.N.C. 2003) (discussing interference with ability to pay off credit line
and make a deposit in a commercial establishment); Painter's Mill Grille, LLC v. Brown, 716
F.3d 342, 352 (4th Cir. 2013) (discussing defendants' alleged attempts to drive plaintiffs' from
the leased premises and injure their business). Other courts have held, however, that "when a
racially motivated attack is made upon a person's home, that person does not truly enjoy the
same freedom to acquire, hold, and use property as a similarly situated white citizen." Cotton v.
Duncan, No. 93-C-3875, 1993 WL 473622, *4 (N.D. Ill. Nov. 15, 1993).

The Court does not agree with defendant's argument that section 1982 is only applicable
within the context of purchasing or selling a home. This argument belies the plain language of
the statute. Indeed, defendant even cites a number of cases involving claims under section 1982
that do not involve purchasing or selling a home. Byrd v. Brandeburg, 922 F. Supp. 60 (N.D.
Ohio 1996); Cotton, 1993 WL 473622. Defendants attempt to qualify these cases under an
exception for acts that are violent or dangerous, as the defendants in Brandeburg firebombed

3

plaintiffs home and the defendants in Cotton allegedly burned a cross on plaintiffs property.
The Court sees this conduct not merely as violent or dangerous, but as conduct intended to drive
an individual out of his home. This analysis is in line with other courts. See, e.g., Egan v.

Schmock, 93 F. Supp.2d 1090, 1093-94 (N.D. Cal. 2000). While actions that merely interfere
with an individual's enjoyment of his home may not give rise to claims under section1982,
discriminatory conduct designed to drive an individual out of his home is prohibited. See id. at
1093-94 (finding "that allegations of violent or intimidating acts motivated by a discriminatory
animus" are sufficient to state a claim under section 1982 where plaintiff alleges "an intent to
drive [plaintiff] out of [his] home"). Here, plaintiff alleges that defendant blocked access to his
property and threatened him because he is black. These alleged actions clearly interfere with
plaintiffs right to hold property and demonstrate intent to drive plaintiff out of his home. As
such, they are sufficient to state a claim under section 1982, and plaintiffs motion to amend the
complaint to add a claim under section 1982 is granted.
The Thirteenth Amendment, however, does not create a private right of action upon
which recovery may be obtained. See, e.g. Nattah v. Bush, 770 F. Supp. 2d 193, 204-05 (D.D.C.
2011 ). It instead reserves to Congress the task of enforcing the prohibition on slavery through
appropriate legislation. U.S. Const. amend. XIII,§ 2. Accordingly, the Amendment itself bars
private suits in federal court to enforce Section 1. Holland v. Bd of Trs. of Univ. of Dist. of

Columbia, 794 F. Supp. 420, 424 (D.D.C. 1992). Amendment of plaintiffs complaint to add a
claim under the Thirteenth Amendment would be futile, thus plaintiffs motion to amend the
complaint to add a claim for relief under the Thirteenth Amendment is denied.
In sum, plaintiffs motion to amend the complaint is granted in part and denied in part.
Plaintiffs claims under the criminal statutes are withdrawn and defendant's motion to dismiss is

4

denied as moot. Plaintiff may proceed only on the violation of section 1982 listed in the amended
complaint and is directed to file an amended complaint listing only that claim for relief no later
than November 6, 2015.
CONCLUSION
For the foregoing reasons, plaintiffs motion to amend [DE 25] is GRANTED IN PART
and DENIED IN PART, and defendant's motion to dismiss [DE 19] is DENIED AS MOOT.
Plaintiff is DIRECTED to file an amended complaint conforming to the ruling in this Order no
later than November 6, 2015. The Clerk of Court is DIRECTED to mail plaintiff a copy of this
Order at his last known address.

SO ORDERED, this

__k__ day of October, 2015.

UNITED STATES DISTRICTJUGE

5