Small v. Hudson
| Decision Date | 05 February 1971 |
| Docket Number | Civ. No. 69-4. |
| Citation | 322 F. Supp. 519 |
| Parties | Ethel SMALL, individually, and on behalf of all other persons similarly situated, Plaintiffs, v. Julian HUDSON, Chairman, Lee County Commissioners, Kenneth Daniels, Vice Chairman, Lee County Commissioners, P. A. Geraci, Lee County Commissioner, and Robert Craft, Director, Lee County Welfare and their successors in office, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Enrique Escarraz, III, R. Lawrence DeFrances, Ft. Myers, Fla., for plaintiffs.
Frank A. Pavese, Ft. Myers, Fla., William T. Keen, Shackleford, Farrior, Stallings & Evans, P. A., Tampa, Fla., for defendants.
This is an action for declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201,1 2202,2 and 42 U.S.C. §§ 1983,3 2000a-1.4 Jurisdiction is invoked on the basis of 28 U.S.C. § 1343(3)5 and 42 U.S. C. § 2000a-6.6
Plaintiff Ethel Small, an 87-year old black woman, sues individually and on behalf of all others similarly situated. Former plaintiff, James Floyd Johnson, died on March 19, 1969; upon a Suggestion of Death, he was stricken as plaintiff. Defendants are the Chairman, Vice Chairman, and Members of the Board of County Commissioners of Lee County, Florida, and Robert Craft, Director of County Welfare, County Homes, Lee County, Florida.7
The complaint was filed on January 31, 1969. Defendants' motion to dismiss was denied on July 29, 1969. Also on that date leave was granted to proceed as a class action pursuant to Rule 23(a), (b), F.R.Civ.P. The class consists of needy elderly or infirm Negro persons who reside in, or are otherwise eligible for admission to the county homes for the aged and infirm owned and operated by defendants, but who have been, or are being discriminated against by reason of defendants' practice of maintaining racially segregated county homes for the aged or infirm.
The case was tried to the Court in Fort Myers, Florida, on July 14, 1970. The trial consisted of the testimony of defendant Craft, statements of counsel, and the introduction of exhibits. A transcript of the trial has been prepared. Both parties have submitted proposed findings of fact and conclusions of law.
Lee County owns two homes for the elderly located in Lee County, Florida; defendants maintain, finance and are responsible for the operation of the homes. The facilities are separate and unequal. One of the homes—Rest Haven Home for the Aged—has never in its history had an inmate who was not of minority group background.8 The other home, Shady Rest Nursing Home, is traditionally white: it has had a total of 3 black patients, all of whom were admitted a few weeks before the trial of this case.9
The black facility, Rest Haven, is classified as a home for the aged under Florida law.10 It generally has around 24 inmates. In terms of physical plant, personnel, and services it is grossly inferior to the white home, as defendants freely admit.11 Shady Rest, the white facility, is a nursing home.12 It has an average of around 84 patients and is in every measurable way superior to the black home.
At trial counsel for defendants conceded that prior to 1954 all public facilities in Lee County were segregated. Counsel for defendants quoted defendant Craft as saying that when he assumed office in 1961 there was a "custom" to put the races in separate facilities. Defendant Craft told his counsel that segregation was not maintained from the time he took over. Defendant Craft said that he gave blacks an opportunity to file an application with him—apparently he means an application for admission to Shady Rest. However, he took no affirmative steps to desegregate the homes. Applicants voluntarily asked him for the facility they wanted, and he never told them where to go.
In 1967, the federal government informed defendants that if they wished to receive federal aid, they must take overt steps to end segregation. On April 14, 1967, therefore, defendants posted on the bulletin boards of both homes an "Open Admission Policy Statement for Lee County Nursing Homes.13 The Statement was published in the Fort Myers News-Press on that same date, and was also broadcast over local television and radio. As a final overt step, defendant Craft notified the old Florida State Department of Public Welfare of the publication of the Statement.
Rest Haven has always been a home for the aged; it was never licensed as a nursing home, although it was used as one at times prior to 1967.14 Prior to 1967, Shady Rest was also a home for aged. In that year it was licensed as a nursing home for the first time. Defendants disagree in explaining why Rest Haven was not converted into a nursing home in 1967. According to defendant Hudson's Answer to Plaintiffs' Interrogatory 15, a home for the aged license was requested for Rest Haven because of the unavailability of qualified personnel.15 On the other hand, defendant Craft testified that Rest Haven remained a home for the aged because it had too many beds per room to qualify as a nursing home.16
Rest Haven is located in the black section of town. It is constructed of concrete block and has 2 wards, each with a capacity of 12 beds. The premises are owned by Lee County, but leased to a licensed practical nurse who manages the home. The County does not allocate funds for the operation of Rest Haven. Instead there is an arrangement whereby the manager collects the assistance checks of the inmates, pays 10% of these funds to the county for rent, and keeps the rest to run the home.17 In some cases the county pays $121.50 a month for the board and keep of a patient.18 The County maintains the premises.
Admission to Rest Haven is by voluntary application. Most patients at Rest Haven appear to be persons in need of domiciliary care who requested admission. There are others who sought admission to the white nursing home but were turned away because of the long waiting list, because they were not certified as in need of nursing care, or because of other reasons. It is the practice of defendant Craft to offer a bed at Rest Haven to those unable to gain admission to Shady Rest. Because there is usually an opening, there has never been a waiting list for applicants to Rest Haven. No white person has ever applied for admission.19
Shady Rest is located five miles from the black section of the community. It is made of concrete block, having 4 wings, 2 wards, and 2 rooms, with a total of 84 beds. Shady Rest is run directly by the county; its operating budget comes from county funds.
Admission to Shady Rest is also by voluntary application. No one is admitted unless he is first certified by a physician to be in need of nursing care. There are no standards whereby a physician determines whether a person needs nursing care or domiciliary care. Apparently each physician in the community has his own standards.20
Because of the demand for admission, a waiting list is used. A person is placed on the list at the time he submits his application. At present there are approximately 170 persons (120 females, 50 males) on the list. Only 5 of them are black. Despite the waiting list, admission to Shady Rest is not always on the basis of the earliest name chronologically on the list. In emergency cases or in various other situations where defendant Craft feels the waiting list should be discarded, persons on the list are passed over in favor of others who applied at a later date.21 There are no regulations to limit or control defendant Craft's judgment in determining whether or not to admit someone to Shady Rest ahead of persons on the list who applied earlier. Adherence to the waiting list is therefore at the absolute discretion of defendant Craft.
Although the Shady Rest waiting list was opened to blacks in April 1967, the first black application was not received until January 1968.22
No patient at Rest Haven is currently on the Shady Rest waiting list, even though at least two of them are in need of nursing care. Defendant Craft does not place on the list persons in need of nursing care who are denied admission to Shady Rest but accept his offer of a bed at Rest Haven. Nor does he add to the list the names of Rest Haven inmates whose conditions worsen so as to require nursing care. Through the licensed practical nurse there defendant Craft claims to keep careful track of Rest Haven patients. If a patient's condition appears to warrant nursing care, he has the prerogative of exercising several alternatives. He may transfer the patient to the hospital, or get the patient into a private nursing home, or put the patient on a mental list—known only to him and his caseworker—for admission to Shady Rest.
The case of plaintiff Ethel Small is illustrative. She initially applied for admission to Shady Rest but was turned away for want of a vacancy.23 At the time of her application she was in need of nursing care, although she had not been so certified by a physician.24 After her rejection she accepted defendant Craft's offer of immediate admission to Rest Haven. When first questioned, defendant Craft stated that Mrs. Small was on the Shady Rest waiting list. When a close examination of the list failed to disclose her name, defendant Craft admitted that the only list she was on was an intangible one in his mind. He did add that Mrs. Small was one of the Rest Haven patients in need of nursing care and that he had promised himself that he would move her to Shady Rest.
If there are persons in need of nursing care at Rest Haven, there are also persons at Shady Rest who need only domiciliary care. Of the 84 patients now in Shady Rest, between 65 and 70 require nursing care, while the rest do not.25
Racial segregation in Lee County was de jure until 1954. It was a "custom" at Rest Haven and Shady Rest until October 1961, when defendant Craft took office. From 1961 until 1967 nothing changed, despite d...
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SOUTH FLA. CHAPTER, ETC. v. METROPOLITAN DADE CTY.
...power for purposes of the equal protection clause. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Small v. Hudson, 322 F.Supp. 519 (M.D.Fla. 1971). Accord, Avery v. Midland County, Tex., 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 24 This opinion has been the subject o......