Due v. Tallahassee Theatres, Inc.

• Decision Date: 26 June 1964
• Docket Number: No. 21121.,21121.
• Citation: 333 F.2d 630
• Parties: Patricia Stephens DUE, John Due and Gloria Smith, Appellants, v. TALLAHASSEE THEATRES, INC., et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

333 F.2d 630 (1964)

Patricia Stephens DUE, John Due and Gloria Smith, Appellants, v. TALLAHASSEE THEATRES, INC., et al., Appellees.

No. 21121.

United States Court of Appeals Fifth Circuit.

June 26, 1964.

Jerome J. Bornstein, Orlando, Fla., Murray A. Gordon, New York City, Herbert L. Heiken, Edwin Marger, Miami Beach, Fla., Tobias Simon, Howard W. Dixon and Irma Robbins Feder, Miami, Fla., for appellants.

Roy T. Rhodes, City Atty., Leo L. Foster, Wilfred C. Varn, Robert M. Ervin, Seymour H. Rowland of Parker, Foster & Madigan, Tallahassee, Fla., for appellee, W. P. Joyce, Sheriff.

Before TUTTLE, Chief Judge, BROWN, Circuit Judge, and BREWSTER, District Judge.

TUTTLE, Chief Judge:

This is an appeal from orders of the district court dismissing a civil rights complaint in its entirety as against the two theatre corporations and their managers, and as against city officials and the City of Tallahassee and as to the first three of five "claims" of the complaint against W. P. Joyce, Sheriff of Leon County, Florida, for failure to state a claim upon which relief can be granted, and from a summary judgment in favor of the Sheriff defendant as to "claims" four and five of the complaint.

The orders of the trial court dismissing the complaint for failure to allege a claim on which relief could be granted can be quickly disposed of. These orders were clearly in error. The complaint alleged joint conduct by the Theatre Corporation and their managers, the city government and the Sheriff of Leon County, amounting to a conspiracy to deny the plaintiffs and the class they represented civil rights asserted under Sections 1981, 1982, 1983 and 1985, Title 42 United States Code Annotated.

We take the following statement from the brief of appellee Joyce, which brief has been accepted in full by the other appellees:

"The substance of this conspiracy is said to be that the Appellees, under color of law, pursue and enforce a policy of requiring white persons in Tallahassee to conduct their private business establishments on a segregated basis, which object is accomplished by requiring peace officers to disperse or arrest and jail any negroes attempting to secure services on a non-segregated basis. The Appellants allege that all of the previously enumerated acts specific allegations dealing with the refusal of the Theatres to permit Negroes to enter the theatres even after, on one occasion, purchasing tickets were done in pursuance of the conspiracy, and that the said actions of the Appellees constitute State action prohibited by the Fourteenth Amendment."

We think it is clear that the allegations of the complaint, as stated by the appellees themselves in the foregoing language, clearly allege a claim upon which relief could be granted by the trial court. It appears, in fact, to be a classical allegation of a civil rights cause of action. The trial court must have been so doubtful as to the ability of the appellants to prove these allegations that it thought that there was no substance in the complaint. However, this Court has repeatedly held that if the complaint alleges facts, which, under any theory of the law, would entitle the complainant to recover, the action may not be dismissed for failure to state a claim. Arthur H. Richland Company v. Harper, 5 Cir., 302 F.2d 324.¹ There is no doubt about the fact that the allegations here stated a claim on which relief could be granted, if the facts were proved. See Lombard v. Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338, and Peterson v. City of Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323.

We next turn to the summary judgment entered in favor of Sheriff Joyce as to claims four and five of the complaint. In the first place we do not think these claims can be separated from the remaining claims. Each of the claims after the first adopts all of the allegations contained in claim one. Each of them alleges joint action by all defendants. The Sheriff filed his motion for summary judgment and supported his motion by affidavit, which, in effect, asserted on oath that he had not conspired with anyone with respect to any of the matters alleged in the complaint. He also asserted that such arrests as he had conducted or supervised had been pursuant to an order of the Chancery Judge who had granted a temporary restraining order against picketing in front of the theatres involved in the dispute, a broad order that was subsequently modified to some extent when it became apparent that the court's order clearly went beyond any permissible limits. Appellants filed no counter-affidavit. However, we must also look to anything testified to by them in the depositions taken of them by counsel for Joyce, for, of course, if a conflict of fact appears from the depositions taken in connection with the motion for summary judgment, this issue of fact could not be resolved on a motion for summary judgment.

It is plain from the depositions that none of the plaintiffs could point to any agreement or statement or specific proof to show the existence of a conspiracy by the official defendants among themselves or with the theatre defendants. Nevertheless they testified to conduct by city and Sheriff's...