Sandra Adickes v. S. H. Kress and Company

MOORE, Circuit Judge:

The facts of this case are not in dispute. Plaintiff-appellant is a school teacher and resident of New York. In the summer of 1964, she volunteered to teach Negro students in a Mississippi Freedom School. On August 14, 1964, plaintiff, accompanied by six Negro students, entered the Hattiesburg, Mississippi, public library and requested the use of the library facilities. This request was refused, and they were told to leave. When they refused, the police were summoned, and the library was closed by the Chief of Police.

After their eviction from the library, plaintiff and the students proceeded to the Woolworth store in Hattiesburg for the purpose of eating lunch. Since the Woolworth store was crowded, they went instead to the Kress store, sat in booths near the lunch counter and sought to be served. Plaintiff, a Caucasian, admitted that one of the reasons the group chose Kress was that it served Negroes, and Kress claims to be a leader in the recognition of civil rights in the South. However, the waitress at the Hattiesburg store, acting under the orders of the store manager, took the orders of the Negroes but refused to serve plaintiff because she was in their company. According to the plaintiff, the waitress stated, “We have to serve the colored, but we are not going to serve the whites that come in with them.” After she was refused service, plaintiff and the students left the store. Plaintiff’s movements were under surveillance by the Hattiesburg police from the time that she and the students left the library, and as the group left the Kress store she was arrested and jailed by the police on a vagrancy charge.

Plaintiff brought this action for damages against Kress in the United States District Court for the Southern District of New York, alleging that she was discriminated against because of her race in violation of the equal protection clause of the Fourteenth Amendment and in violation of the Civil Rights Act *123of 1871, 42 U.S.C. § 1983, which provides :

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution. and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

As a second cause of action, plaintiff alleged that there was a conspiracy between Kress and the Hattiesburg police to refuse to serve her and to arrest her as she left the store. However, except for the facts given above, plaintiff presented no relevant facts tending to support this conspiracy claim. She asked damages of $50,000 on the first claim and $500,000 on the conspiracy count.

Kress moved for summary judgment, pursuant to Fed.R.Civ.P. 56, with respect to both claims in the complaint. On February 26, 1966, Judge Bonsai denied the motion with respect to the first cause of action, granted defendants summary judgment on the conspiracy claim, and permitted plaintiff to amend the complaint. 252 F.Supp. 140 (SDNY 1966). Plaintiff appeals from these orders. After an amended complaint was filed, a pre-trial order specifying the issues to be tried and the witnesses to be called was stipulated to by the plaintiff and entered by Chief Judge Ryan on August 2, 1966. Trial commenced before Judge Tenney and a jury on February 14, 1967, and at the close of plaintiff’s case, a verdict was directed for defendant. Plaintiff appeals from the judgment entered on this verdict.

I.

Kress’ motion for a directed verdict at the end of plaintiff’s case was granted for failure to make out a prima facie case of discrimination in violation of the Fourteenth Amendment1 and Section 1983. In determining the triable issues, both Judge Tenney and (then) Chief Judge Ryan followed the opinion handed down by Judge Bonsai which held that for plaintiff to succeed on the merits she had to show some “state action” or state involvement in the alleged discrimination because purely private discrimination is not prohibited by § 1983 or the Fourteenth Amendment. Specifically, Judge Bonsai held that plaintiff must prove at the outset that:

(1) a custom existed on August 14, 1964, in the State of Mississippi and in Hattiesburg of refusing service in restaurants to whites in the company of Negroes, and

(2) this custom was enforced by the State of Mississippi pursuant to Mississippi Code Section 2046.5,2 a criminal *124trespass statute. Judge Bonsai also intimated that plaintiff would have to establish that the store manager knew of, and acted pursuant to, § 2046.5 in refusing plaintiff service. Judge Tenney did not reach this latter point as he ruled that plaintiff had failed to prove that such a custom existed or that it was enforced under § 2046.5.

At the trial plaintiff testified that in her opinion it was the custom and usage in Hattiesburg not to serve white persons in the company of Negroes. However, plaintiff had never been in the State of Mississippi prior to June 1964 and had never visited Hattiesburg until July of that year. She did not have any personal knowledge of facts that would tend to show that such a custom existed. And each of the three students called by plaintiff as witnesses testified that they knew of no instances in which a white person had been refused service in Hattiesburg, Mississippi, while in the company of Negroes who were offered service. This failure of proof is not strange in light of the fact that Negroes only recently had been served in such establishments on an integrated basis.

II.

One day before trial, plaintiff notified defendant that she intended to have two expert witnesses testify on the relevant customs and usages in Mississippi and Hattiesburg. The District Court sustained Kress’ objection to these witnesses testifying on the ground that plaintiff had totally failed to abide by the pre-trial order requiring “prompt” notice to opposing counsel if any additional expert witnesses were to be called. The exclusion of these witnesses was within the trial court’s discretion. Thompson v. Calmar S. S. Corp., 331 F.2d 657, 662 (3rd Cir.), cert. denied, 379 U.S. 913, 85 S.Ct. 259, 13 L.Ed.2d 184 (1964); Clark v. Pennsylvania RR., 328 F.2d 591, 594-595 (2d Cir. 1964).

III.

The proof presented by plaintiff was clearly insufficient to prove “custom, or usage, of any State” within the meaning of § 1983. The statute requires that the discriminatory custom or usage be proved to exist in the locale where the discrimination took place, and in the State generally. Plaintiff’s proof on both points was deficient. It is true that in 1956 the Mississippi legislature passed, in addition to the trespass statute referred to above, Mississippi State Senate Concurrent Resolution No. 125 condemning and protesting the Supreme Court’s school integration cases (Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955)), and a resolution, found in Miss.Code § 4065.3, directing the entire executive branch of government and all persons responsible thereto, including the police, to give effect to the Senate *125Concurrent Resolution, described as the “Resolution of Interposition.” See also Miss.Code § 2056(7), a broad conspiracy statute passed in 1954 which, inter alia, makes it a crime to conspire to overthrow or violate the segregation laws of the State. However, these 1956 enactments are clearly insufficient by themselves to prove that in 1964 Mississippi had a custom of separating the races in restaurants. Williams v. Howard Johnson’s Inc., 323 F.2d 102, 106 (4th Cir. 1963); Comment, 50 Cornell L.Q. 473, 494 (1965). The trespass statute, Miss.Code § 2046.5, is the only enactment not dealing with school integration and it, by itself, sheds no light on Mississippi customs and usages. Since plaintiff failed to prove custom or usage, we do not have to decide whether she also had to prove that the custom or usage was enforced by a state statute. See United States v. Guest, 383 U.S. 745, 761, 774, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966) (concurring opinions of a majority of the Court indicating that such a showing of “state action” may not be necessary).

IV.

Plaintiff also contends on appeal that, assuming she has failed to prove the existence of a discriminatory state custom, she has nevertheless shown that she was discriminated against in violation of § 1983 because the refusal to serve her was “under color” of the state trespass statute, Miss.Code § 2046.5. The “under color” of law provision in § 1983 has been construed to mean the same as “state action” under the Fourteenth Amendment. United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966). The state action concept has been expanding over the years, but some state involvement in the racial discrimination has always been required. See Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967); United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966); Lombard v. State of Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338 (1963); Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L. Ed. 1161 (1948); see generally Silard, A Constitutional Forecast: Demise of the “State Action” Limit on the Equal Protection Guarantee, 66 Colum.L.Rev. 855 (1966); Comment, 50 Cornell L.Q. 473 (1965); Henkin, Shelley v. Kramer: Notes for a Revised Opinion, 110 U.Pa. L.Rev. 473 (1962); Van Alstyne & Karst, State. Action, 14 Stan.L.Rev. 3 (1961); Lewis, The Meaning of State Action, 60 Colum.L.Rev. 1083 (1960). No state involvement in the discrimination having been shown, plaintiff failed to prove a violation of § 1983.

V.

This brings us to plaintiff’s argument that the requisite state action may be found solely from the state encouragement of discrimination inherent in Miss.Code § 2046.5. This argument is based on the recent case of Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), which upheld the California Supreme Court’s decision that Art. 1, § 26 of the California Constitution was unconstitutional under the Fourteenth Amendment. The Mulkeys had sued Reitman alleging that he had refused to rent to them an apartment solely on account of their race, in violation of California open housing legislation, Cal.Civ.Code §§ 51, 52, passed in 1959. Defendant moved for, and was granted summary judgment on the ground that §§ 51, 52 had been rendered null and void by the recent amendment to the California Constitution. Section 26, initiated as Proposition 14, provided that the state shall not “deny, limit or abridge * * the right of any person * * * to decline to sell, lease or rent” his property “to such person or persons as he, in his absolute discretion, chooses.” This amendment was added pursuant to an initiative and referendum vote in 1964, and was intended to repeal anti-discrimination housing legislation passed in 1959,1961 and 1963.

*126The Mulkeys appealed to the California Supreme Court which reversed the grant of summary judgment on the ground that § 26 violated the equal protection clause of the Fourteenth Amendment. The Supreme Court of the United States affirmed, agreeing with the California court that “the prohibited state involvement could be found ‘even where the state can be charged with only encouraging,’ rather than commanding discrimination.” 387 U.S. at 375, 87 S.Ct. at 1631. According to the Court, the California court was justified in concluding that § 26 did not merely repeal certain statutes, restoring the status quo ante, but “was intended to authorize, and does authorize, racial discrimination in the housing market. The right to discriminate is now one of the basic policies of the State.” 387 U.S. at 381, 87 S.Ct. at 1634.

While plaintiff is not seeking to have the enforcement of Miss.Code § 2046.5 declared unconstitutional, she points out that the main issue before the Court in Reitman was whether § 26 involved the state in the otherwise private discrimination and that the Supreme Court held that it did. We must, therefore, decide whether the State of Mississippi by passage of § 2046.5 “encouraged” the discrimination practiced by Kress. We are of the opinion that it did not.

In Reitman the California court was faced with a much publicized constitutional amendment which repealed prior anti-discrimination legislation and set up the right to discriminate as a policy of the state. The Supreme Court specifically noted that “the right to discriminate, including the right to discriminate on racial grounds, was now embodied in the State’s basic charter, immune from legislative, executive, or judicial regulation at any level of state government. Those practicing racial discrimination need no longer rely solely on their personal choice. They could now invoke express constitutional authority, free from all censure or interference of any kind from official sources.” 387 U.S. at 377, 87 S.Ct. at 1632. In the instant case, Mississippi has passed a statute which, as to restaurateurs at least, merely restated the common law rule allowing them to serve whomever they wished. See R. v. Rymer, 2 Q.B. 136, 40 L.J.M.C. 108 (1877); 21 Halsbury, Laws of England § 941 at 447 (3rd ed. 1957). See also Williams v. Howard Johnson’s Restaurant, 268 F.2d 845 (4th Cir. 1959). The common law is presumed to apply in Mississippi. See Western Union Telegraph Co. v. Goodman, 166 Miss. 782, 146 So. 128 (1933). Furthermore, in Reitman, the Supreme Court did not, and the California court did not, “rule that a State may never put in statutory form an existing policy of neutrality with respect to private discriminations.” 387 U.S. at 376, 87 S.Ct. at 1631. At least as applied to this case, we think the state must do more than it has done for the required state action to be found.

VI.

Although the denial of service to plaintiff probably constituted a violation of the Civil Rights Act of 1964, there is no provision for a damage remedy in that statute. Nor can the violation of that Act form the basis of a claim under § 1983 since the injunctive remedy in that Act is the exclusive avenue of redress. 42 U.S.C. § 2000a-6(b); United States v. Johnson, 269 F.Supp. 706 (N.D.Ga.1967), prob. juris. noted, 389 U.S. 910, 88 S.Ct. 241, 19 L.Ed.2d 258; reversed, 390 U.S. 563, 88 S.Ct. 1231, 20 L.Ed.2d 132, on ground that proprietors or owners were not involved — only outsiders. Plaintiff’s reliance on that Act is therefore misplaced.

VII.

Plaintiff also contends that it was improper for Judge Bonsai to grant summary judgment on the conspiracy cause of action. Plaintiff’s claim was wholly conclusory; she alleged no facts that would tend to suggest a conspiracy; and the chances of her proving such a conspiracy at the trial were nil. The grant of summary judgment was there*127fore proper. Birnbaum v. Trussell, 347 F.2d 86 (2d Cir. 1965); Powell v. Workmen’s Comp. Board, 327 F.2d 131, 137 (2d Cir. 1964).

Affirmed.

. Sections 1 and 5 of the Fourteenth Amendment read as follows:

“Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
“Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

. “Mississippi Code, Section 2046.5 (1956). “Business customers, patrons or clients— right to choose — penalty for violation.

“1. Every person, firm or corporation engaged in public business, trade or profession of any kind whatsoever in the State of Mississippi, including, but not restricted to, hotels, motels, tourist courts, lodging houses, restaurants, dining room or lunch counters, barber shops, beauty parlors, theatres, moving picture shows, or other places of entertainment and amusement, including public parks and swimming pools, stores of any kind wherein merchandise is offered for sale, is hereby authorized and empowered to choose or select the person or persons he or it *124desires to do business with, and is further authorized and empowered to refuse to sell to, wait upon or serve any person that the owner, manager or employee of such public place of business does not desire to sell to, wait upon or serve; provided, however, the provisions of this section shall not apply to corporations or associations engaged in the business of selling electricity, natural gas, or water to the general public, or furnishing telephone service to the public.

“2. Any public place of business may, if it so desires, display a sign posted in said place of business serving notice upon the general public that ‘the management reserves the right to refuse to sell to, wait upon or serve any person,’ however, the display of such a sign shall not be a prerequisite to exercising the authority conferred by this act.

“3. Any person who enters a public place of business in this state, or upon the premises thereof, and is requested or ordered to leave therefrom by the owner, manager or any employee thereof, and after having been so requested or ordered to leave, refuses so to do, shall be guilty of a trespass and upon conviction therefor shall be fined not more than five hundred dollars ($500.00) or imprisoned in jail not more than six (6) months, or both such fine and imprisonment.

“4. If any paragraph, sentence, clause, phrase, or word of this act shall be held to be unconstitutional for any reason, such holding of unconstitutionality shall not affect any other portion of this act.”