Tyson v. Cazes, Civ. A. No. 3055.

• Decision Date: 26 February 1965
• Docket Number: Civ. A. No. 3055.
• Citation: 238 F. Supp. 937
• Parties: Dr. Bertrand O. TYSON, Plaintiff, v. Lt. Clarence J. CAZES, Officer Lionel Stein, Officer Lester Haydel, Jr., Officer Samuel Savage, Chief of Police Dennis Songy, Mr. Offie Stewart, Mrs. Lydia Stewart, Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

238 F. Supp. 937

Dr. Bertrand O. TYSON, Plaintiff, v. Lt. Clarence J. CAZES, Officer Lionel Stein, Officer Lester Haydel, Jr., Officer Samuel Savage, Chief of Police Dennis Songy, Mr. Offie Stewart, Mrs. Lydia Stewart, Defendants.

Civ. A. No. 3055.

United States District Court E. D. Louisiana, Baton Rouge Division.

February 26, 1965.

COPYRIGHT MATERIAL OMITTED

Murphy W. Bell, Baton Rouge, La., for plaintiff.

Edward N. Engolio, Plaquemine, La., for defendants Lt. Clarence J. Cazes, Officer Lionel Stein, Officer Lester Haydel, Jr., Officer Samuel Savage, Chief of Police Dennis Songy.

William O. Templet, Middleton & Templet, Plaquemine, La., for defendant Offie Stewart.

WEST, District Judge.

Plaintiff brings this action for money damages, and includes therein a prayer for injunctive relief, alleging that his cause of action arises under Title 42 U.S. C.A. § 1983 and § 1985, and under the Civil Rights Act of 1964, Title 42 U.S. C.A. § 2000a et seq., and that this Court has jurisdiction under the provisions of Title 28 U.S.C.A. § 1331 and § 1343.

According to the complaint filed herein, plaintiff, a Negro, entered the Celebrity Lounge in Plaquemine, Louisiana, at about 2.30 a. m. on July 16, 1964, and ordered a drink. The Celebrity Lounge is a bar which dispenses alcoholic beverages to white patrons only. There are no meals served therein, and this business establishment is in no way connected with any hotel, motel, or other public accommodation facility. It is purely and simply a privately owned and operated bar and lounge located in a small rural community in Louisiana. Plaintiff was informed by the manager or proprietor on duty at that time that they did not serve colored people in the Celebrity Lounge, and plaintiff was then requested to leave the premises. He refused to leave without being served, and "without being told the reason why he was asked to leave." (But his complaint clearly alleges that "Plaintiff was told that they `do not serve colored people,' and asked plaintiff to leave.") Upon his refusal to leave, the manager on duty called one of the owners of the business, Mrs. Lydia Stewart, who immediately came to the lounge. She, as one of the owners, then requested the plaintiff to leave and he again refused. Mrs. Stewart then telephoned the local police, who shortly thereafter arrived at the scene. They conferred with Mrs. Stewart, who again, in the presence of the officers, requested the plaintiff to leave. She informed the plaintiff at that time that it was she, and not the police officers, who was requesting him to leave her premises. Upon his refusal to leave, he was placed under arrest, taken to the local jail, and charged with being drunk, disorderly, and disturbing the peace. He was brought before a local court later that same day, and released on the grounds that there was insufficient evidence to support the charges lodged against him. This suit then followed wherein plaintiff demands $100,000 damages from the defendant police officers, Clarence J. Cazes, Lionel Stein, Lester Haydel, Jr., Samuel Savage, and Chief Dennis Songy, and from the owners of the Celebrity Lounge, Mr. Offie Stewart and Mrs. Lydia Stewart. He further seeks an injunction enjoining all defendants "from engaging in any and all of the acts and conduct herein above set forth." All defendants filed motions to dismiss for lack of jurisdiction, and in the alternative, for failure to state a claim upon which relief can be granted. It is these motions which are presently before this Court.

Plaintiff bases his claim for relief on the allegations in his complaint that "At all times pertinent to this complaint the Celebrity Lounge, owned and operated by defendants Lydia and Offie Stewart, was sic public facility within the intentment sic of the Civil Rights Act of 1964, Title II, section 201(c) and section 201(d)," and that "This action arises under Title 42, U.S.C., sec. 1983, 1985, and this court has jurisdiction of this action under Title 28, U.S.C. 1331, and 1343." In oral argument and brief, plaintiff further contends that if the Celebrity Lounge is not covered under Sections 201(c) and 201(d) of the Act it is covered under Section 202 thereof.

Title 28 U.S.C. § 1331 provides:

"The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States."

Title 28 U.S.C. § 1343 provides:

"The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

"(1) To recover damages for injury to his person or property, or because of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section 1985 of Title 42;

"(2) To recover damages from any person who fails to prevent or to aid in preventing any wrongs mentioned in section 1985 of Title 42 which he had knowledge were about to occur and power to prevent;

"(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States:

"(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote."

Therefore, in order for this Court to have jurisdiction over this matter under Section 1331, the action must arise under the Constitution or laws of the United States, and in order for jurisdiction to vest under Section 1343, the action must arise as a result of (1) a conspiracy mentioned in Section 1985, or (2) a deprivation, under color of state law, statute, ordinance, regulation, custom, or usage, of some right, privilege, or immunity secured by the Constitution or laws of the United States, or (3) damages sustained by plaintiff which are recoverable under some Act of Congress providing for the protection of civil rights.

Thus, in order to determine whether or not this Court has jurisdiction over this matter, it is necessary to examine the statutes under which relief is sought.

Title 42 U.S.C. § 1983 provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state or territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress."

And Title 42 U.S.C. § 1985 provides, in pertinent part:

"(3) If two or more persons in any State or Territory conspire or go in disguise on the highway or in the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; * * * in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators."

The pertinent part of Section 201 of the Civil Rights Act of 1964, Title 42 U.S.C. § 2000a, provides:

"(a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

"(b) Each of the following establishments which serves the public is a place of public accommodation within the meaning of this sub-chapter if its operations affect commerce, or if discrimination or segregation by it is supported by State action:

"(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;

"(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;

"(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and

"(4) any establishment (A) (i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.

"(c) The operations of an establishment affect commerce within the meaning of this subchapter if (1) it is one of the establishments described in paragraph (1) of subsection (b) of this section; (2) in the case of an establishment described in paragraph (2) of subsection (b) of this section, it serves or offers to serve interstate travelers or a substantial portion of the food

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