UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GARY LYNN POWELL,

Plaintiff, CASE NO. 08-13952

HON. LAWRENCE P. ZATKOFF

v.

INKSTER HOUSING AND REDEVELOPMENT

COMMISSION and TONY LOVE, individually 

and in his official capacity,

Defendants.

_________________________________/

OPINION AND ORDER

AT A SESSION of said Court, held in the

United States Courthouse, in the City of Port Huron, 

State of Michigan, on the 18th day of June, 2009

 PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF

 UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This matter is before the Court on Defendant Tony Love’s (“Love”) “Motion for Summary

Judgment Pursuant to Fed. R. Civ. P. 12(b)(6)” (Docket #9). Plaintiff filed a timely response and

Love elected to not file a reply. The Court finds that the facts and legal arguments pertinent to the

motion are adequately presented in the parties’ papers, and the decision process will not be aided

by oral arguments. Therefore, pursuant to E.D. Mich. Local R. 7.1(e)(2), it is hereby ORDERED

that the motion be resolved on the briefs submitted, without this Court entertaining oral arguments.

For the reasons set forth below, Defendant’s motion is GRANTED IN PART and DENIED IN

PART.

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II. BACKGROUND

Defendant Inkster Housing and Redevelopment Commission (“IHRC”) is a governmental

agency established as a housing commission to provide decent, safe and sanitary housing to qualified

recipients. At all times pertinent to this case, Love was the Executive Director of IHRC. Plaintiff,

a Caucasian male, was hired as a custodian at IHRC in 2005. Plaintiff was suspended without pay

on or about July 13, 2007, and his employment was terminated on or about September 5, 2007.

Plaintiff filed a three count Complaint in this Court. In Count I, Plaintiff alleges Defendants violated

Title VII by discriminating against him on the basis of his race. In Count II, Plaintiff alleges

Defendants deprived him of his civil rights in violation of 42 U.S.C. §1983. The Court previously

dismissed the third count, wherein Plaintiff alleged a violation of state law. Plaintiff has sued Love

in his official capacity as IHRC’s Executive Director, and in his individual capacity as a person.

Love now seeks dismissal of all Plaintiff’s claims against him.

III. STANDARD OF REVIEW

Although Love has titled his motion as one for summary judgment, it is in fact a motion to

dismiss pursuant to Fed. R. Civ. P. 12(b)(6), and the Court will analyze it accordingly. A motion

brought pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be

granted tests the legal sufficiency of Plaintiff’s complaint. The Court must accept as true all factual

allegations in the complaint, and any ambiguities must be resolved in Plaintiff’s favor. Jackson v.

Richards Medical Co., 961 F.2d 575, 577 (6th Cir. 1992). A district court’s grant of a motion to

dismiss is proper when there is no set of facts that would allow Plaintiff to recover. Carter by

Carter v. Cornwall, 983 F.2d 52, 54 (6th Cir. 1993).

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IV. ANALYSIS

A. Title VII Claim

Love argues that there is no individual employee liability under Title VII in the Sixth Circuit.

See Wathen v. General Electric Co., 115 F.3d 400, 406 (6th Cir. 1997) (“the statutory scheme [of

Title VII] itself indicates that Congress did not intend to impose individual liability on employees”)

(citation omitted). Plaintiff acknowledges that Wathen controls in the Sixth Circuit, but Plaintiff

believes Wathen was wrongly decided. Therefore, to preserve the issue for appeal, Plaintiff’s brief

contains a substantive argument in opposition to Love’s motion to dismiss the individual liability

claim against Love. The Court also recognizes that Wathen is controlling on this issue.

Accordingly, Plaintiff’s Title VII claim against Love is hereby dismissed.

B. Section 1983 Claim

Love contends that Plaintiff’s 42 U.S.C. § 1983 claim against Love in his “official capacity”

is redundant of Plaintiff’s Section 1983 claim against the governmental agency, IHRC, and should

be dismissed. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (any claims against a public official in his

official capacity must be treated as a suit against the governmental entity itself); Barber v. City of

Salem, Ohio, 953 F.2d 232, 237 (6th Cir. 1992) (same). Plaintiff concedes that his Section 1983

claim against Love in his official capacity should be dismissed as redundant. Accordingly, the Court

hereby dismisses Plaintiff’s 42 U.S.C. § 1983 claim against Love to the extent that Love is being

sued in his official capacity.

Love also contends that Plaintiff’s 42 U.S.C. § 1983 claim against Love should be dismissed

to the extent that Plaintiff has sued Love in his individual capacity. Love relies on the Sixth

Circuit’s opinion in Akers v. Alvey, 338 F.3d 491, 500 (6th Cir. 2003), wherein the Court of Appeals

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upheld a district court’s grant of summary judgment on individual liability claims against a

supervisor in a 42 U.S.C. § 1983 action. As Plaintiff correctly argues, however, the Akers case

involved a Section 1983 claim based on alleged Title VII violations. As Title VII claims cannot be

brought against public officials in their individual capacities, see Wathen, supra, the Sixth Circuit

granted summary judgment in Akers. 

In this case, however, Plaintiff’s Section 1983 claim is based on an alleged violation of the

Equal Protection Clause of the Fourteenth Amendment, not on an alleged violation of Title VII. The

law is well-established that public officials and employees can be held liable individually under 42

U.S.C. § 1983. See, e.g., Hafer, 502 U.S. at 27 (governmental officials may be held personally liable

for damages under Section 1983 based upon actions taken in their individual capacities); Mitchell

v. McNeil, 487 F.3d 374, 376 (6th Cir. 2007) (“government officials sued in their individual

capacities may be held liable under § 1983 when they violate constitutional rights that are ‘clearly

established’”) (citation omitted). The Court therefore finds that Plaintiff’s Section 1983 claim

against Love in his individual capacity presents a claim upon which relief can be granted.

Accordingly, the Court concludes that Plaintiff’s Section 1983 claim against Love in his individual

capacity is not subject to dismissal at this stage of the proceedings.

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V. CONCLUSION

Accordingly, and for the reasons set forth above, Defendant Tony Love’s “Motion for

Summary Judgment Pursuant to Fed. R. Civ. P. 12(b)(6)” is GRANTED IN PART and DENIED IN

PART.

IT IS SO ORDERED.

S/Lawrence P. Zatkoff 

LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

Dated: June 18, 2009

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of this Order was served upon the attorneys of record

by electronic or U.S. mail on June 18, 2009.

S/Marie E. Verlinde 

Case Manager

(810) 984-3290

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