Williams v. Howard Johnson's Inc. of Washington

• Decision Date: 17 September 1963
• Docket Number: No. 8931.,8931.
• Citation: 323 F.2d 102
• Parties: Charles E. WILLIAMS, Appellant, v. HOWARD JOHNSON'S INC. OF WASHINGTON, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

323 F.2d 102 (1963)

Charles E. WILLIAMS, Appellant, v. HOWARD JOHNSON'S INC. OF WASHINGTON, Appellee.

No. 8931.

United States Court of Appeals Fourth Circuit.

Argued June 11, 1963.

Decided September 17, 1963.

Charles E. Williams, pro se.

Richard A. Mehler, Washington, D. C. (James H. Simmonds, Arlington, Va., on brief), for appellee.

Before SOBELOFF, Chief Judge, and HAYNSWORTH and J. SPENCER BELL, Circuit Judges.

SOBELOFF, Chief Judge.

As in an earlier appeal, 268 F.2d 845 (1959), Charles E. Williams is here seeking review of an order dismissing an action brought by him against Howard Johnson's Inc. to recover damages under the Civil Rights statutes, Rev.Stat. § 1979, 42 U.S.C.A. § 1983¹ and Rev.Stat. § 1980(3), 42 U.S.C.A. § 1985(3).² The present action arises from the defendant's refusal to serve him at its restaurant in Alexandria, Virginia, on November 5, 1959. A civil penalty for denying him the full enjoyment of the restaurant accommodations is also prayed under the Civil Rights Act of March 1, 1875, ch. 114, §§ 1 & 2, 18 Stat. 335.³ The complaint alleged that the plaintiff was denied service, not because of any private prejudice on the part of the restaurant manager, but because of an existing state policy and custom which required the exclusion of Negroes from such facilities. It further alleged that the participation of the defendant in carrying out this state policy and custom of racial segregation constituted both a deprivation of a constitutionally protected right and also an aiding or abetting of such a practice. The plaintiff's basic contention is that he is entitled to recover for this discriminatory denial of service, because it was the product of state action and falls within the prohibition of the Fourteenth Amendment and the Civil Rights laws. The District Court held to the contrary and dismissed the complaint. Williams v. Howard Johnson's Inc. of Washington, 210 F.Supp. 295 (E.D.Va.1962).

The fundamental question in this appeal is whether the record discloses such evidence of state participation and involvement in the discriminatory conduct as to require us to hold that the District Court was in error in determining the "denial of service was a voluntary act on the part of the manager of the restaurant."

However, a preliminary procedural question needs to be considered. There is controversy as to what properly constituted the record in the District Court upon which the case should have been decided there, and what constitutes the record before us. This dispute arises from a disagreement between the parties as to whether the District Court's hearing on June 19, 1962, was on plaintiff's motion for summary judgment or was a trial on the merits. At this hearing defendant made a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. The plaintiff contends that the motion for summary judgment which he served on June 13, 1962, six days before the date set for a hearing, and which he renewed at the hearing, was a submission of his case on "the pleadings, depositions, answers to interrogatories, and admissions on file," Rule 56(c), Fed.R.Civ.P.,⁴ rather than on defendant's admissions alone which, the plaintiff says, were the real basis for the trial court's findings of fact. The defendant urges that the motion for summary judgment was not properly before the court since it was not "served at least 10 days before the time fixed for the hearing" as is required by Rule 56(c).⁵

It is the defendant's position that the trial court properly disposed of the case on the merits, with the record limited to the defendant's admissions and the few exhibits it offered in evidence.⁶ This theory is predicated on plaintiff's failure to offer in evidence at the hearing certain depositions and answers to interrogatories upon which he appears to have relied. Plaintiff counters by saying that these items were before the court under the broader admissibility standards of Rule 56(c) and this was his reason for offering no other testimony or proof. Thus, when the trial court invited both sides to present their evidence (the court postponing decision on all motions until after it had heard the evidence), the plaintiff responded by submitting his case on "the record." He apparently presumed that this would include the elaborate depositions, interrogatories and admissions obtained through pre-trial discovery devices. But the court thereafter found that plaintiff had failed to satisfy his burden of proof by resting his case on the admissions and declining to "call a single witness or offer in evidence the depositions or any of the answers to interrogatories to prove the allegations of his complaint."

It is ordinarily within the discretion of the trial court to refuse to pass on a motion for summary judgment and to proceed with a trial on the merits where the movant first requests the court to rule thereon at the hearing or where he has not given the opposing party the requisite notice.⁷ To grant a motion for summary judgment the court must be satisfied that the pleadings, depositions, admissions and answers to interrogatories show "that there is no genuine issue as to any material fact." Rule 56(c), Fed.R.Civ.P. Where the record is such that the court is in doubt, it has the discretion to postpone consideration of the motion for summary judgment until after a hearing on the merits. The principles governing summary judgment procedure should be applied in a common sense manner to the realities of the litigation at hand. Particularly is this true where the trial court is called upon to decide a constitutional question on summary judgment on a potentially inadequate factual presentation.⁸

Irrespective, however, of the procedural dispute, the central question which the District Court decided, and which is the heart of this appeal, remains the same — whether the plaintiff has established that the refusal to serve him constituted "state action," and not merely private conduct. The opinion of the trial court recites that "the admissions thus made do not sustain the plaintiff's allegations. * * * Even if the Court were to consider the answers to the interrogatories and the depositions (which were not made a part of the record) as evidence in this case, this would not cure the paucity of the plaintiff's proof."

We would be loath to nonsuit the plaintiff on narrow procedural grounds if we thought the record disclosed a claim upon which he was entitled to relief. Our review takes into account, broadly, the defendant's admissions,⁹ the restaurant manager's deposition,¹⁰ the answers to interrogatories¹¹ and the pleadings.

Upon the entire record we think it is indisputable that plaintiff was denied service for the sole reason that he is a Negro. The response of the defendant to one of plaintiff's allegations that it is without knowledge sufficient to form a belief that he is a Negro is utterly evasive and frivolous, in light of the earlier protracted litigation between the parties and his appearance with the defendant's counsel in court, where they could not have failed to observe that he is a Negro. Such a response could not have been seriously intended. These and similar denials are contradicted by the restaurant manager's deposition wherein he testified that he refused to serve Williams because he felt that it was better not to serve a Negro. Further acknowledgements were elicited to the effect that the plaintiff was not personally distasteful to the manager; that he (the manager) feels no prejudice against Negroes merely because there are some undesirable ones; that he was not in jeopardy of losing his job if he did serve a Negro; and that the decision to grant or deny service to Negroes was left by the restaurant owners to the individual manager's discretion.

But establishing that the plaintiff was denied service because he was a Negro still does not meet the crucial test of state involvement. In this regard plaintiff contends that the manager's decision was induced by an existing state custom and policy. As support he points to: (1) certain state statutes in other contexts requiring racial segregation, such as the commitment of epileptics, Va.Code Ann. § 37-182, the commitment of prisoners, id. § 53-42, the maintenance of separate poll tax lists for the two races, id. § 24-120, the maintenance of separate real and personal property books by the tax assessor, id. §§ 58-790 & 58-880, and racial distinctions in the licensing of fraternal benefit societies, id. § 38.1-597; (2) a long-standing state custom of treating Negroes as social inferiors to Caucasions as manifested by a state rule of decision that making reference to a white man as a Negro is slanderous per se;¹² (3) a certain statement made by the Fairfax County Commonwealth's Attorney to a police officer, reported in a Washington, D. C., newspaper, which defendant's manager conceded he had heard of "by word of mouth," to the effect that the prosecutor considered it against the law of Virginia for a Negro juror to be accommodated in the local courthouse cafeteria, and that the prosecutor ordered the juror's money returned because "Virginia law prohibits integrated dining."

Upon this basis the plaintiff argues that the failure of the state to provide a remedy for private discriminatory conduct, akin to the federal Civil Rights statutes, constitutes an abdication by the state of its responsibility to insure its citizens the equal protection of the laws.

The listed allegations may well be true. However, they do not, either separately or in the aggregate, present an actionable claim for damages for abridgment of individual rights "unless to some significant extent the State in any of its manifestations has been found to have become involved in it." Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961). The existence of state statutes perpetuating racial discrimination in areas...