342 F.2d 727 (4th Cir. 1965), 9607, Williams v. Lewis

Docket Nº:9607, 9644.
Citation:342 F.2d 727
Party Name:Charles E. WILLIAMS, Petitioner, v. Honorable Oren R. LEWIS, United States District Judge. Charles E. WILLIAMS, Appellant, v. HOWARD JOHNSON'S INC. OF WASHINGTON, Appellee.
Case Date:February 04, 1965
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 727

342 F.2d 727 (4th Cir. 1965)

Charles E. WILLIAMS, Petitioner,

v.

Honorable Oren R. LEWIS, United States District Judge.

Charles E. WILLIAMS, Appellant,

v.

HOWARD JOHNSON'S INC. OF WASHINGTON, Appellee.

Nos. 9607, 9644.

United States Court of Appeals, Fourth Circuit.

February 4, 1965

Argued Jan. 12, 1965.

Page 728

Charles E. Williams, pro se, petitioner in No. 9607 and appellant in no. 9644.

Richard A. Mehler, Washington, D.C. (James H. Simmonds, Arlington, Va., on brief), for appellee in No. 9644.

Before HAYNSWORTH, Chief Judge, and SOBELOFF, BOREMAN, BRYAN and J. SPENCER BELL, Circuit Judges, sitting en banc.

PER CURIAM:

These not unrelated appeals were heard at the same time and will be here considered and dealt with together.

No. 9644.

Charles E. Williams (plaintiff) brought this action to recover damages because he, a Negro, was allegedly discriminatorily refused service in defendant's restaurant in Alexandria, Virginia. The original complaint in the instant case was filed November 4, 1960, in the United States Court for the District of Columbia and, on defendant's motion, was stricken in its entirety. Pursuant to leave granted, the plaintiff then filed his first amended complaint. By order, the case was transferred to the United States District Court for the Eastern District of Virginia.

After extensive pretrial discovery by both parties, plaintiff filed a second amended complaint which was dismissed and, upon appeal, the dismissal was affirmed. 1 Plaintiff then filed a third amended complaint, the case came on for hearing on June 19, 1962, and the complaint was dismissed. 2 On appeal it appeared to this court that there had been a good faith misunderstanding of the parties as to the scope of the hearing before the District Court, and the judgment below was neither affirmed nor reversed but vacated and remanded for the purpose of affording a full hearing on the merits after proper notice. 3

In remanding, this court, in an opinion by Chief Judge Sobeloff, said:

'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.' (323 F.2d at 105.)

The opinion alludes to the evidence offered by the plaintiff and states the conclusion that such evidence is not clear enough, without a further showing, to compel the inference ('state action')

Page 729

urged by the plaintiff. Clearly, in unambiguous language, the opinion directs:

'* * * If the plaintiff has any additional evidence to offer bearing on the prosecutor's statements or activities, or if he has additional proof of a state action pertinent to the subject matter, he should be allowed to present it and the defendant should have an opportunity to meet it.' (323 F.2d at 107.)

Compliantly the District Court held a hearing on April 1, 1964, and, in a memorandum opinion filed on August 6, 1964, stated:

'* * * All depositions, exhibits, interrogatories and admissions taken during the previous hearings, together with such additional depositions, interrogatories and admissions tendered by either party, were made a part of the record in this case. In addition the plaintiff called three witnesses--the Commonwealth's Attorney of Alexandria, Virginia, the Vice President of the defendant corporation, and the Executive Secretary of the Virginia Restaurant Association-- and testified extensively himself.

'Upon careful review of the record thus made, the Court again finds the 'denial of service was a voluntary act upon the part of the manager of the restaurant'-- there was no state involvement in the conduct complained of, and the suit will be dismissed at the...

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