Sweet v. Childs, 73-3842

• Citation: 507 F.2d 675
• Decision Date: 31 January 1975
• Docket Number: No. 73-3842,73-3842
• Parties: Rudolph SWEET et al., Plaintiffs, Eddie Rhyne at al., Plaintiffs-appellants, v. Robert E. CHILDS, etc., et al., etc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 675

507 F.2d 675

Rudolph SWEET et al., Plaintiffs, Eddie Rhyne at al., Plaintiffs-appellants, v. Robert E. CHILDS, etc., et al., etc., Defendants-Appellees.

No. 73-3842.

United States Court of Appeals, Fifth Circuit.

Jan. 31, 1975.

Kent Spriggs, Tallahassee, Fla., Nathaniel R. Jones, James I. Meyerson, New York City, for plaintiffs-appellants.

William H. Jeffress, Jr., R. Stephen Browning, Washington, D.C., for amicus curiae.

Joseph A. Sheffield, Marianna, Fla., for defendants-appellees.

Charles E. Miner, Jr., Gen. Counsel of Fla. Bd. of Ed., Gene T. Sellers, Counsel, Tallahassee, Fla., for Fla. State Bd. of Ed.

Appeal from the United States District Court for the Northern District of Florida.

Before BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges.

BELL, Circuit Judge:

Appellants brought this civil rights action ¹ individually and on behalf of other black students attending public schools in Jackson County, Florida. Joined as defendants were the Principal of Marianna High School, the Superintendent of Schools in Jackson County, and the Jackson County School Board (hereinafter collectively referred to as 'county officials'), ² as well as various state officials who comprise the Florida State Board of Education (hereinafter referred to as 'state officials'). Appellants alleged that the county officials had implemented certain disciplinary policies and procedures which resulted in a pattern and practice of racial discrimination throughout the Jackson County public school system. The state officials were alleged to have sanctioned, through inaction, the claimed discriminatory policies and procedures. Claims were also enumerated as to violations of the Thirteenth Amendment, due process, and freedoms of speech and assembly.

Declaratory and injunctive relief was sought including, inter alia, specific relief in the form of directing the state officials to submit a plan to effect the discontinuation of the discriminatory disciplining, and directing the county officials to submit proposed rules governing student misconduct and punishment. They also asked the court to direct the county officials to expunge the records of all black students adversely affected by the alleged unconstitutional practices.

After first denying appellants' motion for preliminary injunction, and then denying motions to dismiss by both state and county officials, the district court granted an uncontested motion for summary judgment made by the state officials. Upon trial without jury on the merits of the allegations remaining against the county officials, the court dismissed appellants' claims, and denied appellants' motion for a rehearing on the summary judgment. ³ This appeal is from the final judgment entered pursuant to this order.

Appellants contend that the district court erred in sustaining the state officials' motion for summary judgment because genuine issues of material fact existed as to their case against the state officials. They dispute, furthermore, the legal conclusions reached by the lower court on the merits of the summary judgment motion. With respect to their case against the county officials, appellants argue that the district court erred in failing to declare the actions of the county officials to have been violative of their equal protection, due process, and free speech rights, and in failing to enjoin further disciplinary action as racially discriminatory. We affirm.

I.

The disciplinary actions which are at the center of this controversy were taken by Jackson County school officials during the two-year period following court-ordered desegregation of the public school system in 1970. Racial confrontations which took place on January 3 and 6, 1972, were catalysts for the disciplinary actions taken against the appellants. On January 3, interracial fighting broke out at Marianna High School. Although no student was disciplined solely for his participation in the fight, four students were expelled who had participated in the fight and committed other specific acts of misconduct. ⁴ Appellant Small disobeyed the order of Principal Lowell Centers to cease fighting, and attempted to provoke further disruption. Appellant Long, when commanded by an assistant principal to stop fighting, threatened the administrator with a stool. Later that day, appellants Nance and Heatrice, together with Small, confronted a teacher, verbally abused him, and physically threatened him. The threat on the part of Nance was in the form of holding a piece of broken concrete in his hand as if to strike the teacher.

On January 10, the parents of these four students were notified that the Jackson County Superintendent of Schools was recommending that the school board expel their children from school. Hearings were held on January 20, resulting in the expulsion of Small, Long, Nance and Heatrice.

Three days after the melee of January 3, black students staged a sitdown in the hallways of Marianna High. Principal Centers persuaded the students to disperse, and held a conference with a group of them so that they might choose whether they wanted to return to classes or leave the school grounds and take a zero for the day. The students chose to leave. As they departed, however, they violated their arrangement with the principal by encouraging other black students still in class to leave with them. This caused further disruption throughout the school. Later, the principal announced over local radio that all who had left school that day would be suspended for ten days. Included in this group of 124 students were named appellants Pittman, Sweet, and Smith.

The parents of the students who had been suspended were notified and afforded conferences with school officials beginning on January 10. Within three days, conferences had been held with the parents, and all suspensions were lifted. All students were reinstated before the end of the original ten day period of suspension.

Appellant Pittman, although reinstated as a part of the suspended group, was expelled on January 20 along with the four appellants discussed above. ⁵ Cited in the expulsion resolution of the school board were various acts of misconduct by Pittman between October 1971 and January 1972, including his participation in the January 6 disruptions and his non-cooperation with school officials during his post-suspension conference. ⁶

II.

On February 12, 1973, the state officials moved for a summary judgment based upon the pleadings, interrogatories, and answers to interrogatories that had been filed. They alleged that there was no genuine issue of material fact and that they were entitled to judgment as a matter of law. Appellants failed to respond to the motion. More than a month later, the district court granted summary judgment. Appellants moved for rehearing on April 24, over two months after the original motion had been filed. They alleged 'facts in the nature of evidence' which they felt the court should have considered in ruling on the summary judgment motion. No affidavit was offered. The court denied the motion for rehearing.

Rule 56(b), F.R.Civ.P., permits a defendant to move at any time, with or without supporting affidavits, for a summary judgment. Once a proper motion is filed, though, Rule 56(e), F.R.Civ.P. provides that

an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

It was the intent of the drafters that the above portion of Rule 56 would discourage a party from merely standing on his pleadings in the face of a summary judgment motion. See Notes of Advisory Comm. on 1963 Amendment, 28 U.S.C.A. at 416.

The Supreme Court in Adickes v. S. H. Kress & Co., 1970, 398 U.S. 144, 159-161, 90 S.Ct. 1598, 26 L.Ed.2d 142, 155-156 has agreed with the Rules Advisory Committee as to the thrust of Rule 56(e). The district court in Adickes had granted a summary judgment and, to the petitioner's argument for reversal on appeal, the respondent contended that the petitioner had failed properly to contest the original motion. The Court stated that it is the movant's burden 'to show initially the absence of a genuine issue concerning any material fact.' Id. The Court found that the respondent in Adickes had failed to carry this burden. Had it been successful, however, the Court, in dicta, stated that 'Rule 56(e) would then have required petitioner to have done more than simply rely on the contrary allegation in her complaint.' Id. For a similar analysis, see First National Bank v. Cities Service Co., 1968, 391 U.S. 253, 289-290, 88 S.Ct. 1575, 20 L.Ed.2d 569, 592-593.

The Fifth Circuit has consistently followed the Adickes analysis of Rule 56(e), that once a movant carries his burden of showing no genuine issue of material fact, it is the non-movant's burden to rebut this showing with his own 'affidavit or otherwise.' If he fails to do so, the summary judgment, if otherwise appropriate, is affirmed. See, e.g., E. C. Ernst, Inc. v. General Motors Corp., 5 Cir., 1973, 482 F.2d 1047, 1049; Garcia v. American Marine Corp., 5 Cir., 1970, 432 F.2d 6, 7-8; Lovable Co. v. Honeywell, Inc., 5 Cir., 1970, 431 F.2d 668, 670-671.

The state officials made an initial showing of the absence of disputed facts. Appellants failed to establish the contrary. Thus the summary judgment is due to be affirmed provided the second prerequisite, that the movant is 'entitled to a judgment as a matter of law,' is fulfilled. Rule 56(c), F.R.Civ.P. See Ranger Insurance Co. v. Algie, 5 Cir., 1973, 482 F.2d 861, 863; Dozier v. United States, 5 Cir., 1973, 473 F.2d 866, 868-869. We hold that the district court did not err in its determination that the state officials were entitled to a judgment as a matter of law.

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