252 F.Supp. 140 (S.D.N.Y. 1966), Adickes v. S. H. Kress & Co.

Citation:252 F.Supp. 140
Party Name:Sandra ADICKES, Plaintiff, v. S. H. KRESS & COMPANY, Defendant.
Case Date:February 26, 1966
Court:United States District Courts, 2nd Circuit, Southern District of New York
 
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Page 140

252 F.Supp. 140 (S.D.N.Y. 1966)

Sandra ADICKES, Plaintiff,

v.

S. H. KRESS & COMPANY, Defendant.

United States District Court, S.D. New York

Feb. 26, 1966

Page 141

[Copyrighted Material Omitted]

Page 142

Donner & Piel, New York City, Eleanor Jackson Piel, New York City, of counsel, for plaintiff.

Donovan, Leisure, Newton & Irvine, New York City, Sanford M. Litvack, Alfred H. Hoddinott, Jr., New York City, of counsel, for defendant.

BONSAL, District Judge.

Defendant, S. H. Kress & Commpany (Kress), moves for summary judgment pursuant to Rules 12 and 56, F.R.Civ.P. Plaintiff cross moves for an order granting leave to plaintiff to amend her complaint pursuant to Rule 15, F.R.Civ.P.

On November 12, 1964, plaintiff commenced this action to recover damages under Title 42 U.S.C. § 1983. 1 Her complaint alleges that defendant, acting both under color of state law (Count I) and in conspiracy with the Chief of Police of Hattiesburg, Mississippi, and his agents (Count II), denied plaintiff service at defendant's lunch counter in Hattiesburg because she sought to eat in the company of Negroes. Plaintiff also seeks an order for leave to amend her complaint to allege a third cause of action (Proposed Third Count) under Sections 1 and 2 of the Civil Rights Act of 1875 (Act of March 1, 1875, ch. 114, 18 Stat. 335).

For the purposes of defendant's motion for summary judgment, the allegations and inferences of fact set forth in the pleadings, affidavits and other materials before the court must be viewed in the light most favorable to the plaintiff, United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962), and summary judgment may be granted only if there is 'no genuine issue as to any material fact.' Rule 56(c), F.R.Civ.P.

The undisputed facts for the purposes of this motion are as follows:

During the summer of 1964, the plaintiff, a white New York City school teacher, was a volunteer Freedom School teacher in Hattiesburg, Mississippi. On August 14, 1964, plaintiff and six Negro students sought to integrate the Hattiesburg Public Library, but were refused the use of its facilities and shortly thereafter the library was closed by the Chief of Police of Hattiesburg. On leaving the library, plaintiff and the six students proceeded to a Woolworth store for the purposes of eating lunch and, on the way, plaintiff observed policemen following them. Since the Woolworth store was crowded, the plaintiff and her group went to defendant's store and sat down in two lunch booths and ordered lunch. The waitress took the orders of the six Negroes, but refused to take plaintiff's order. The six Negroes refused to eat unless plaintiff was served. They left the store and had proceeded only a short distance when a police officer, previously observed by plaintiff, arrested her for vagrancy.

Count I of Plaintiff's Complaint:

In Count I of her complaint, plaintiff alleges that defendant has denied her the 'equal enjoyment of...

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