Lee v. Hodges

• Decision Date: 29 June 1963
• Docket Number: No. 8813.,8813.
• Citation: 321 F.2d 480
• Parties: Davis LEE, Appellant, v. Dr. J. B. HODGES, Superintendent of School District No. 5, et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

321 F.2d 480 (1963)

Davis LEE, Appellant, v. Dr. J. B. HODGES, Superintendent of School District No. 5, et al., Appellees.

No. 8813.

United States Court of Appeals Fourth Circuit.

Argued January 24, 1963.

Decided June 29, 1963.

Davis Lee, pro se.

Jack F. McIntosh, Anderson, S. C. (Sherard & McIntosh, Anderson, S. C., on the brief), for appellees.

Before SOBELOFF, Chief Judge, and HAYNSWORTH and BRYAN, Circuit Judges.

SOBELOFF, Chief Judge.

Appearing pro se and asserting jurisdiction in the United States District Court for the Western District of South Carolina under 28 U.S.C.A. §§ 1331 and 1343, Davis Lee, a Negro who publishes "a weekly Negro newspaper" in Anderson, South Carolina, instituted this action against certain school officials. He alleged what he believes to be claims arising under the First and Fourteenth Amendments to the United States Constitution and the Civil Rights Act, Rev. Stat. §§ 1977-1980(3), 42 U.S.C.A. §§ 1981-1983, 1985(3). The defendants include the members of the School Board of School District Number 5 in Anderson; Dr. J. B. Hodges, Superintendent of School District Number 5; B. M. Wakefield, principal of Westside High School; and B. L. Davis, principal of the South Fant Street School. Plaintiff alleged that the two school principals are Negroes and that their schools are within the jurisdiction of District Number 5. The complaint set forth in great detail a series of instances in which Lee contends the defendants, acting within their capacities as agents of the state, have joined in a conspiracy to deny, and have actually denied, him his federal rights.¹ Plaintiff asserts that his opposition to the NAACP is the reason for the actions taken by the defendants.

In support of his major ground of complaint the plaintiff offers to prove that he applied to the defendants on several occasions in the months of March and April, 1962, for the use of facilities in the above-mentioned schools for a banquet to honor Negro employees of the city who had been in service for fifteen or more years. He contends that the defendants, unlawfully discriminating against him, consistently denied his requests.² At the outset the plaintiff was informed "that School District policies do not permit use of school facilities for private social functions." Upon further inquiry he was told that he had "not given details relative to the type banquet" he planned. He was asked to "please complete the enclosed application form and, at the bottom, describe briefly the kind of function he had in mind, how people were to be selected for invitations and how it was to be financed." Plaintiff asserts that no other applicant had been required to submit such data. He alleges that he later received a letter stating that his application was rejected pursuant to paragraph six of the policies and procedures of District Number 5 governing use of school facilities. This paragraph provides that:

"School property shall not be used for private social functions, regular commercial ventures, regular business for profit, or for meetings of controversial nature liable to arouse ill feeling, jealousy, dissension or that might be resented by a considerable number of people in the community."

Without contesting the facial constitutionality of paragraph six, plaintiff alleges that it has been unevenly applied to him. Specifically he offers to prove that: In March, 1961, a local church group conducted a program at the Westside High School to raise money for the defense of youths arrested in Sumter, South Carolina, sit-in demonstrations. In March, 1962, the Veterans of Foreign Wars gave a dance at the South Fant Street School; a charge of one dollar per person was made for admission and liquor was freely sold. During May, 1962, Jehovah's Witnesses conducted three days of meetings at the Westside High School. Also in May, 1962, candidates in the Anderson Democratic Primary spoke in a District Number 5 school and in July, 1962, a Republican candidate for the United States Senate spoke in one of its schools. In addition, a local radio station disc jockey has had several quartets perform at one of the District Number 5 schools; admission fees of one dollar per person were charged.

Plaintiff's position is that by denying his request but permitting these other uses, some social, some business, some controversial, to be made of school facilities, the defendants interpreted paragraph six in a manner that discriminates invidiously against him. He also charges other instances in which the defendants have violated his federal rights and contends that the totality of their prejudicial actions demonstrates the existence of a conspiracy the purpose of which is to deprive him of his federal rights.³

The defendants filed no answer but, pursuant to their motion, the District Court dismissed the complaint on the grounds that it failed to state a claim upon which relief could be granted and that it failed to show that the action was one arising under the Constitution and laws of the United States. The posture of the case requires us, for the purposes of this appeal, to take the plaintiff's allegations as true.⁴ Intimating no view on whether the plaintiff should ultimately prevail, we hold that it was error for the District Court to dismiss the complaint without holding a hearing to determine the facts.

In this discussion it is difficult to make a nice division between the two stated grounds for dismissal. Bell v. Hosse, 31 F.R.D. 181, 183 (M.D.Tenn. 1962). Taking up first the jurisdictional question, we are of the opinion that the District Court erred in its conclusion that there was no federal jurisdiction over the complaint. See, e. g., Moss v. Hornig, 314 F.2d 89 (2d Cir. 1963). Minimal standards for determining whether federal jurisdiction exists have been set by the Supreme Court. It has directed that:

"Before deciding that there is no jurisdiction, the District Court must look to the way the complaint is drawn to see if it is drawn so as to claim a right to recover under the Constitution and laws of the United States. For to that extent `the party who brings a suit is master to decide what law he will rely upon and * * * does determine whether he will bring a "suit arising under" the * * * Constitution or laws of the United States by his declaration or bill.\' citation omitted * * * Where the complaint, as here, is so drawn as to seek recovery directly under the Constitution or laws of the United States, the federal court, but for two possible exceptions later noted, must entertain the suit. * *

* * * * * *

"* * * The previously carved out exceptions are that a suit may sometimes be dismissed for want of jurisdiction where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous." Bell v. Hood, 327 U.S. 678, 681-683, 66 S. Ct. 773, 775-776, 90 L.Ed. 939 (1946). See Baker v. Carr, 369 U.S. 186, 198-200, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Wheeldin v. Wheeler, 373 U.S. 647, 83 S.Ct. 1441, 10 L.Ed. 2d 605 (1963).

Review of the complaint persuades us that plaintiff explicitly presents federal claims that are neither "immaterial," nor "wholly insubstantial and frivolous," nor "patently without merit." Plaintiff directs attention to the First and Fourteenth Amendments and to the Civil Rights statutes. From his complaint it is evident that he claims substantial injury, under color of state law, at least to his right to the equal protection of the laws; and he also appears to rely upon the due process and the privileges and immunities clauses of the Fourteenth Amendment.⁵ Federal jurisdiction over this complaint is well founded and the possible existence of state remedies does not affect this jurisdiction. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946); Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); McNeese v. Board of Education, 373 U.S. 668, 83 S. Ct. 1433, 10 L.Ed.2d 622 (1963); Moss v. Jones, 288 F.2d 342, 344 (6th Cir.), cert. denied, 368 U.S. 868, 82 S.Ct. 98, 7 L.Ed.2d 65 (1961).⁶

Having decided that there is jurisdiction, we reach the cognate question, "whether the complaint states a cause of action on which relief could be granted * * *." Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776 (1946). We do not consider how strong a case the plaintiff may be able to prove or whether he will in the end prevail, for "we have been admonished that * * * `a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' See Conley v. Gibson, 355 U.S. 41 at 45-46, 78 S.Ct. 99 at 101-102, 2 L.Ed.2d 80 1957." Thompson v. Brotherhood of Sleeping Car Porters, 316 F.2d 191 (4th Cir. March 25, 1963) (No. 8729). Accord, Marshall v. Sawyer, 301 F.2d 639, 647 (9th Cir. 1962); Bell v. Hosse, 31 F.R.D. 181, 183-184 (M.D. Tenn.1962). We cannot at this time say that plaintiff's complaint is so utterly deficient and insubstantial as to be subject to dismissal in toto under the Conley test. It cannot be said that the allegations, if proved, could not conceivably entitle him to federal relief.⁷

We agree with the District Court that no claim has been stated under Rev. Stat. §§ 1977 and 1978, 42 U.S.C.A. §§ 1981 and 1982. By their very terms, these provisions provide for equal treatment of persons of different races⁸ and, by plaintiff's concession, there is in this case no issue of racial discrimination. The question remains whether his claims are cognizable under Rev.Stat. § 1979, 42 U.S.C.A. § 1983,⁹ and Rev.Stat. § 1980 (3), 42 U.S.C.A. § 1985(3).¹⁰ We hold that they are.

The complaint is that the plaintiff has been deprived of freedom of the press by being excluded from legitimate access to news; that he is being harassed and his...