United States District Court, S.D. Ohio, Western Division
DARRYL O. MASON PLAINTIFF
ADAMS COUNTY REC, ET AL. DEFENDANTS
MEMORANDUM OPINION AND ORDER
William O. Bertelsman United States District Judge
a civil rights case brought under the 1968 Fair Housing Act,
42 U.S.C. § 1983, 42 U.S.C. § 1985. Following
briefing on Defendants' Motions to Dismiss under
Fed.R.Civ.P. 12(b)(1), the Court held a hearing on the matter
and asked Plaintiff to file a proposed injunction to clarify
the relief he sought. Having been duly advised, the Court now
issues this Memorandum Opinion and Order.
a case about old land deeds and plat maps that contain
racially restrictive covenants. In 2012, someone-perhaps
Plaintiff-requested deeds and plat maps covering 29
properties across mostly Southwest Ohio. Each property was
in a different Ohio county. All 29 County Recorders furnished
the documents, each of which contained a reference to a
is no evidence that any of the racial restrictions had been
enforced since May 3, 1948, when the Supreme Court prohibited
a court from enforcing such restrictions in Shelley v.
Kraemer. 334 U.S. 1 (1948). The restrictions here come
from documents recorded between 1922 (Pike County) and 1957
(Lawrence County)- all predating the 1968 Fair Housing Act.
Darryl O. Mason, alleges the “publishing of the
covenants intimidates and discourages [him], and other
similarly situated persons, from choosing to live in areas
containing such restrictive covenants.” (Pl. Resp.,
PageID# 297). There is no evidence Plaintiff has ever
visited, attempted to purchase, or attempted to lease any of
the properties. Nonetheless, Plaintiff alleges he is entitled
to have the County Recorders redact the racially restrictive
covenants from the deeds and plat maps, and that he is
eligible for punitive damages because the Recorders have
housed and provided copies of the 29 documents.
Though third-party standing may be available in a case
involving racially restrictive covenants, that does not
excuse Plaintiff from showing injury, causation, and
Supreme Court has long held that the Constitution requires a
Plaintiff to show he was injured, that the Defendant was the
cause of the injury, and that the Defendant can redress the
injury. Sierra Club v. Morton, 405 U.S. 727, 741
(1972). This Constitutional requirement is essential to
discourage suits by those with merely an ideological stake in
the litigation. See United States v. Richardson, 418
U.S. 166, 192 (1974)(Powell, J., concurring). The Supreme
Court thus has found that a “plaintiff generally must
assert his own legal rights and interests, and cannot rest
his claim to relief on the legal rights and interests of
third parties.” Warth v. Seldin, 422 U.S. 490,
are exceptions, however. The Supreme Court has created
prudential standing requirements, which are not
constitutionally required but govern standing nonetheless.
See Henry P. Monaghan, Third Party
Standing, 84 Colum. L. Rev. 277, 278 (1984). The Supreme
Court has used this authority to loosen standing requirements
in a case involving racially restrictive covenants. See
Barrows v. Jackson, 346 U.S. 249, 257 (1953).
Barrows-which arose in the wake of Shelley v.
Kraemer, 334 U.S. 1 (1948)-white homeowners sought
damages in state court when their neighbor rented to
African-Americans in contravention of their agreed racially
restrictive covenant. Barrows, 346 U.S. at 251. The
defendant moved to dismiss on the grounds that plaintiffs
requested relief would constitute state action denying
non-Caucasian citizens equal protection of the laws in
violation of the Fourteenth Amendment. The state trial and
appellate courts agreed. Id. at 252. The Court noted
that to “compel respondent to respond in damages would
be for the State to punish her for her failure to perform her
covenant to continue to discriminate against non-Caucasians
in the use of her property.” Id. at 254.
Court went further, however, and held that the case presented
a “unique situation” warranting third-party
standing. Id. at 257; see also Ronald D.
Rotunda & John E. Nowak, Applying Third Party
Standing Rules, 1 Treatise on Const. L. §
2.13(f)(iii)(3) (March 2016). The Court thus found standing
to assert the constitutional defense, not based solely on the
defendant's potential liability for damages, but also on
the injury to the African-American lessees, who were not
parties to the case.
in the rare case that implicates third-party standing, a
Plaintiff must meet two hurdles instead of one. See
Gladstone Realtors v. Village of Bellwood, 441 U.S. 91,
99-100 (1979). First, the Plaintiff must show he was
personally injured by the Defendant and that the Court can
redress the harm. See Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81
(2000); see also Erwin Chemerinsky, Federal
Jurisdiction § 2.3.4 at 84 (6th ed. 2012)(“It
must be stressed that the person seeking to advocate the
rights of third parties must meet the constitutional standing
requirements of injury, causation, and redressability in
addition to fitting within one of the [prudential]
exceptions.”). This constitutional requirement is in
addition to - not a substitute for - the prudential
requirement of showing that “it would be difficult if
not impossible for the persons whose rights are asserted to
present their grievance before any court.”
Barrows, 346 U.S. at 257.
Plaintiff fails both requirements for third-party standing.
He does not meet the Constitutional requirement of showing a
concrete and particularized injury caused by Defendants that
is redressable by this Court. This opinion will address those
points below. But, to the extent Plaintiff is attempting to
present the grievances of others who are affected by the
racially restrictive covenants on file in various Ohio County
Recorder offices, there is no showing that it would be
“difficult if not impossible” for those
individuals to bring a suit on their own. Barrows,
346 U.S. at 257.
Taxpayer standing is inapplicable to this
has also alluded to taxpayer standing, but that doctrine is
also inapplicable. In general, federal courts do not
recognize standing merely based on a plaintiff's status
as a taxpayer or his interest in seeing that Treasury funds
are spent in accordance with the Constitution. See
Massachusetts v. Mellon, 262 U.S. 447, 485-86 (1923);
Erwin Chemerinsky, Federal Jurisdiction § 2.3.4
at 59 (6th ed. 2012). Instead, courts require a
“concrete and particularized” injury to ...