Jackson v. City of Stone Mountain, 1:00-CV-1075-JEC.

• Decision Date: 28 March 2002
• Docket Number: No. 1:00-CV-1075-JEC.,1:00-CV-1075-JEC.
• Parties: Miles JACKSON, Rusty Hamby, and Confederate Memorial Camp 1432, Sons of Confederate Veterans, Plaintiffs, v. CITY OF STONE MOUNTAIN, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

Page 1337

232 F.Supp.2d 1337

Miles JACKSON, Rusty Hamby, and Confederate Memorial Camp 1432, Sons of Confederate Veterans, Plaintiffs, v. CITY OF STONE MOUNTAIN, et al., Defendants.

No. 1:00-CV-1075-JEC.

United States District Court, N.D. Georgia, Atlanta Division.

March 28, 2002.

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Sam Glasgow Dickson, Office of Sam G. Dickson, Atlanta, GA, for Plaintiffs.

Caryl Summer Black, Office of Caryl Summer Black, Joe L. Fowler, Fowler Hein Cheatwood Passino & Williams, Atlanta, GA, for Defendants.

ORDER

CARNES, District Judge.

This case is before the Court on defendant City of Stone Mountain's Motion for Summary Judgment [44]. The Court has reviewed the record and the arguments of the parties and, for the reasons set forth below, concludes that defendant's Motion for Summary Judgment [44] should be GRANTED in part, and DENIED in part.

BACKGROUND

Plaintiffs filed the original Complaint [1] in this action on April 26, 2000. Plaintiffs alleged that the City of Stone Mountain (the "City"), along with the Mayor and all of the individual members of the City Council, acting under color of state law, deprived the plaintiffs of their constitutional rights under the First, Fourth, Fifth, and Fourteenth Amendments, and the plaintiffs sought damages and injunctive relief under 42 U.S.C. § 1983 ("Section 1983"). Plaintiffs Miles Jackson, Rusty Hamby, and the Confederate Memorial Camp 1432, Sons of Confederate Veterans, alleged that they erected a flagpole in a cemetery owned by the City for the purpose of flying a flag in honor of the approximately 150 Confederate soldiers who are buried in the cemetery, and that agents or employees of the City, acting at the explicit direction of the Mayor and/or the members of the City Council, destroyed the flagpole in violation of the plaintiffs' constitutional rights.

On the same day that the plaintiffs filed their original Complaint, they also filed a Motion for Preliminary Restraining Order [3], requesting that the Court prohibit the defendants from interfering with the proposed ceremony in honor of Confederate Memorial Day that was scheduled for that evening of April 26, 2000. That same day the Court granted the plaintiffs' motion [5].

Pursuant to a Scheduling Order dated July 11, 2000[13], the discovery period in this action expired on December 23, 2000, and motions for summary judgment were due on or before January 19, 2001. Upon a joint motion by the parties [15], the Court extended the deadline for motions for summary judgment through February 16, 2001[19], and all parties filed timely motions for summary judgment [17][28]. On the same day plaintiffs filed their motion for summary judgment, February 16, 2001, they also filed a Motion for Leave to file an Amended Complaint [26], and attached the proposed Amended Complaint to such motion. In the proposed Amended Complaint, the plaintiffs added a cause of action that had not been asserted in the initial Complaint, but they named only the City as a defendant, and did not name the Mayor or any of the individual City Council members as defendants.

In an Order dated April 9, 2001[41], the Court granted the plaintiffs' motion for leave to file the Amended Complaint [26], and also denied the parties' cross-motions for summary judgment without prejudice to re-filing. In addition, the Court requested that the plaintiffs clarify their position regarding the dismissal of their claims against the individual plaintiffs named in the initial Complaint. On May 7, 2001, the plaintiffs responded that they "agree that Mayor Burris should be dismissed" and that they "withdraw any opposition to dismissal of the individual defendants named in the original Complaint." (Pls.' Resp. [42] at 1.) Subsequently, defendant the City of Stone Mountain filed a second Motion for Summary Judgment [44], which is now pending before the Court.

FACTS

Unless otherwise indicated, the Court draws the undisputed facts from "Defendant's Second Statement of Material Facts" ("SMF") [44]. Plaintiffs have failed to file their own Statement of Material Facts in response to defendant's motion, as required by Local Rule 56.1, NDGa. Pursuant to Local Rule 56.1:

The respondent to a motion for summary judgment shall attach to the response a separate and concise statement of material facts, numbered separately, to which the respondent contends there exists a genuine issue to be tried. Response should be made to each of the movant's numbered material facts. All material facts contained in the moving party's statement which are not specifically controverted by the respondent in respondent's statement shall be deemed to have been admitted.

LR 56.1B(2), NDGa (emphasis added). Because plaintiffs have failed to comply with this rule by filing a separate statement of material facts in which they respond to each of the movant's numbered facts, plaintiffs have failed to controvert any of defendant's material facts; thus, pursuant Local Rule 56.1, all of defendant's numbered facts in its Statement of Facts are deemed admitted.

Nevertheless, the Court must view all evidence and factual inferences in the light most favorable to plaintiffs, as required on a defendant's motion for summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); McCabe v. Sharrett, 12 F.3d 1558, 1560 (11th Cir. 1994); Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465, 469 (11th Cir.1993). Accordingly, the Court has referred to the Statement of Material Facts filed by plaintiffs in connection with their original motion for summary judgment [28] in an effort to determine which facts are indeed undisputed, and has assumed the following facts in the light most favorable to the plaintiffs for the purpose of resolving the defendant's motion for summary judgment. Additional relevant facts are included in the discussion below.

The Stone Mountain Cemetery (the "Cemetery") is located within the incorporated boundaries of the City of Stone Mountain, Georgia. (SMF at ¶ 1.) The Cemetery contains the graves of deceased persons dating back to the Civil War, including the graves of approximately 150 Confederate soldiers. (SMF at ¶¶ 2-3.) According to the Complaint, during the Civil War, there was a Confederate hospital located in Stone Mountain that treated many of the Confederate soldiers wounded during the Battle of Atlanta, and the approximately 150 soldiers buried at the Stone Mountain Cemetery were among those who had died at that hospital, "their identities known but to God." (Am. Cpt. [26] at ¶ 4.4.)

The Sons of Confederate Veterans ("SCV"), of which plaintiff Confederate Memorial Camp 1432 (the "Camp") is a part, is described by the plaintiffs as an "organization dedicated to preserving the historical truth about the War Between the States, to honoring the members of the armed services of the Confederate States of America, and to keeping alive the memory of the sufferings of the people of the Southern States at the hands of the invading Federal armies such that such sufferings shall not occur again." (Am. Cpt. [26] at ¶ 4.6.) In recognition and honor of the Confederate war dead in the Cemetery, annual ceremonies have been permitted by the City and conducted by the SCV on Confederate Memorial Day (April 26) for a number of years. (SMF at ¶ 4; Am. Cpt. at ¶ 4.11.) Every year before these ceremonies, members of the SCV place small Confederate flags on each of the Confederate graves, where the flags are left until members of the community, descendants, or other relatives remove them. (Jackson Dep. at 16-17.)

Since April 14, 1989, the City has had a Cemetery Ordinance, which described the rules and regulations related to the use of the Cemetery. (SMF at ¶ 5; Burris Dep., Ex. 18.) Two stone monuments reflecting the Cemetery regulations are placed at the entrance to the Cemetery and at the entrance to the section of the Cemetery containing the graves of the Confederate war dead, respectively. (SMF at ¶ 6.) The Ordinance, as it was in effect from April, 1989 through September, 1999, did not mention anything about flagpoles. (See Burris Dep., Ex. 18.) In addition, the Ordinance gave the "sexton," the person designated and appointed by the Mayor to oversee the Cemetery, a great deal of discretion in managing the operations of the Cemetery:

The Sexton and his/her agents have authority to enter upon any lot and to remove any objectionable thing or any erection that may have been placed there contrary to any regulations, and may remove any dead or dangerous tree, shrub or vine.

* * * * * *

In restricting the manner of improvement and embellishment of lots, the Sexton has no wish to interfere with the taste of the lot owners in regard to the style of their improvements, but in justice to the interest of all, the Sexton reserves the right of preventing the erecting of or removing any structure of enclosure which they shall consider injurious to the immediate locality or prejudicial to the general good appearance of the cemetery .... This end, it will be readily conceded, cannot be attained if each individual is permitted to determine how and what shall be done upon his lot, for no matter how appropriately and tastefully this may be done, the work may be undone by the lack of taste and judgment exhibited by the adjoining lot owner in some glaring combination of colors, unstable monuments, or dilapidated fence.

(Id. at 3-4.)

For at least the last ten years, no flagpole has been erected in the Cemetery. (SMF at ¶ 7.) In 1994, the SCV sought authorization from the Mayor and the City Council of Stone Mountain to erect a flagpole to fly the Confederate flag near the Confederate graves in the Cemetery. (SMF at ¶ 8.) The request was denied. (SMF at ¶ 9.) At the time the Council denied the SCV's request for a flagpole in 1994, Charles Burris was a member of the City Council; in 1997, he was elected Mayor of...