Willie v. Harris County, Texas, Civ. A. No. 11926.

• Decision Date: 31 January 1962
• Docket Number: Civ. A. No. 11926.
• Citation: 202 F. Supp. 549
• Parties: Joseph R. WILLIE, Hugh H. Ford, Lee O. Mosely and D. Farris Barclay, Plaintiffs, v. HARRIS COUNTY, TEXAS, Bill Elliott, W. Kyle Chapman, V. V. Ramsey, Phillip E. Sayers and E. A. Lyons, Defendants.
• Court: U.S. District Court — Southern District of Texas

202 F. Supp. 549

Joseph R. WILLIE, Hugh H. Ford, Lee O. Mosely and D. Farris Barclay, Plaintiffs, v. HARRIS COUNTY, TEXAS, Bill Elliott, W. Kyle Chapman, V. V. Ramsey, Phillip E. Sayers and E. A. Lyons, Defendants.

Civ. A. No. 11926.

United States District Court S. D. Texas, Houston Division.

January 31, 1962.

Dent, King, Walker & Wickliff, Roberson L. King, Houston, Tex., for plaintiffs.

Butler, Binion, Rice & Cook, Jack Binion and Thomas P. Alexander, Houston, Tex., for defendants.

INGRAHAM, District Judge.

Plaintiffs, Joseph R. Willie, Hugh H. Ford, Lee O. Mosely and D. Farris Barclay, Negro citizens and taxpayers, bring suit in their own behalf and for others similarly situated against the County Judge and Commissioners, constituting the Commissioners Court of Harris County, Texas, the administrative authority of the county, seeking the nonsegregated use of Sylvan Beach Park, a public recreational facility owned and administered by defendant Harris County. Plaintiffs invoke the equitable jurisdiction of this court under Title 28 U.S.C.A. § 1343, predicating their action upon Title 42 U.S.C.A. § 1983. They allege that their right to equal protection of the laws, as guaranteed by the Fourteenth Amendment to the United States Constitution, has been denied them; that they have exhausted their administrative remedies; that they are entitled to bring this suit as a class action under Rule 23, Fed. Rules Civ.Proc., 28 U.S.C.A.; and that they are entitled to a declaratory judgment and permanent injunction restraining defendants from continuing a policy of racial segregation and discrimination against the Negro race respecting the public use of Sylvan Beach Park.

Defendants, while not denying that Sylvan Beach is operated according to a policy of segregation, maintain that under the facts and the law, none of the named defendants are responsible for depriving the plaintiffs of any rights, privileges or immunities under color of any statute, ordinance, regulation, custom or usage, as per the language of Title 42 U.S.C.A. § 1983; that plaintiffs have not exhausted their administrative remedies; and that plaintiffs are not entitled to bring a class action based on equal protection.

The facts which initially gave rise to this dispute have been stated in Willie v. Harris County, Texas, 180 F.Supp. 560, 562 (D.C.S.D.Tex.1960), and will not be repeated in detail. In essence, the plaintiffs sought admission to Sylvan Beach, which was denied to them because of their race. At the first trial of this cause it was adjudged that plaintiffs must exhaust their administrative remedies before becoming eligible to seek relief through the federal courts. Accordingly, it was held that the action was premature, with the court retaining jurisdiction in order to give the plaintiffs a reasonable opportunity to exhaust their administrative remedies. In that opinion this court directed the plaintiffs to first seek redress from the Park Director, the Park Commission, or the County Commissioners Court. This was deemed essential to clearly delineate the alleged deprivation of plaintiffs' rights. As it was there explained:

"Defendants' position regarding segregation or integration of the park is not established by any official action or affirmative policy. Apparently the question of segregation or integration has never been presented to defendants regarding Sylvan Beach Park. There is no indication that a petition, application, or appeal for permission to use the park as plaintiffs desire would not be received by defendant and acted upon in good faith. If they had consulted these authorities, plaintiffs might have obtained the relief here requested or, at least, would have so defined the facts through defendants' refusal to grant their petition that the court might find a clear deprivation of rights." 180 F.Supp. at 563.

Plaintiffs, on February 18, 1960, filed a formal petition with the Harris County Commissioners Court, requesting the nonsegregated use of Sylvan Beach Park and all its facilities. Since the filing of this request, no action has been taken by the Commissioners Court except to hand over the petition to their attorneys. As such, no relief was obtained through the petition, but the treatment of the petition by the Commissioners Court, plus the stipulated facts admitting that the park is segregated, corroborates the logical inference to be drawn from the original refusal of admittance; viz., that an actionable wrong of a continuing nature has been and is being committed against these plaintiffs, which will persist if not abated by this court's action.

The law is clear that governmentally enforced racial segregation or discrimination is prohibited. Historically, discrimination in the use and enjoyment of public recreational facilities, whether the product of state or local law, or of acquiesced-in custom or usage, has repeatedly been challenged in the federal courts as constituting a denial of the equal protection of the laws, with the result that the laws have been declared unconstitutional and the customs and usages have been enjoined.¹ While there is no constitutional compulsion directed toward a state or its subdivisions to furnish recreational facilities, nevertheless, if the affirmative choice is made, "So long as such facilities are open to use by the public, the only lawful and constitutional use thereof is on an equal basis without discrimination in any form on account of color or race." Shuttlesworth v. Gaylord, Civil Action No. 9505, 202 F.Supp. 62 (D.C.N.D.Ala.1961).

Thus it is clear that plaintiffs have a clearly enunciated constitutional right not to be denied access to or use of public facilities because of their race or color. It is further clear from the evidence that this right has been denied them in their attempted use of Sylvan Beach. Defendants' contentions in opposition to the granting of the requested relief speak to the procedural aspects of the case and not to the existence of the asserted right. These contentions are without merit.

In the first instance, it is charged that plaintiffs have no valid claim against these particular defendants under Title 42 U.S.C.A. § 1983. This is said to follow from a claimed failure to connect the original refusal of plaintiffs' admittance to Sylvan Beach with a showing that this refusal was the product of an officially endorsed policy of segregation or discrimination because of race. In other words, the defendants wish to create the inference that the uniformed attendant, wearing a badge, taking money and allowing cars to enter at the gate of the park, who turned the plaintiffs away, might have been acting in his individual capacity, for which plaintiffs would have no redress under Title 42 U.S.C.A. § 1983, since state action would not be involved. Williams v. Yellow Cab Company, 200 F. 2d 302 (3rd Cir. 1952). As an attempt at avoidance of the claim for relief against these particular defendants, this line of reasoning assumes the characteristics of an affirmative defense, which must be both pleaded and proved with particularity. Simply to raise the somewhat improbable possibility is insufficient to negate or rebut the more plausible conclusion that this individual was acting in an official capacity as agent for the park. Plaintiffs have satisfied their burden of proof in establishing that they sought admission to the park and were turned away; that Sylvan Beach is operated on a segregated basis, as admitted in defendants' brief and in the stipulated facts; and that the specific defendants who comprise the Commissioners Court were given ample opportunity through the presentation of plaintiffs' petition to either deny that the individual was an agent or, if an agent, to deny that he was acting in any official capacity. In the alternative, defendants had the occasion to promulgate a change in policy away from the admittedly segregated use of the park. Instead, the Commissioners Court chose to say nothing, by taking no official action on the petition. All of these facts considered together indicate that a justiciable wrong was committed against these plaintiffs for which the named defendants are ultimately responsible because of their controlling relationship to the operation of the park.

Contrary to the defendants' contention, plaintiffs are not amiss in choosing not to make the Park Manager or the Park Commission party defendants inasmuch as they are subject to the control of the Commissioners Court and would be little more than supernumeraries in these proceedings.

Defendants' contention that the case of United States v. Alabama, 267 F.2d 808 (5th Cir. 1959), is authority for their position that plaintiffs have no justiciable claim against these particular defendants, is not valid. That action was instituted by the Attorney General of the United States, under Title 42 U.S.C.A. § 1971, against the State of Alabama, the Registration Board of Macon County, Alabama, and named individuals, to obtain preventative relief against acts and practices depriving citizens of their right to vote because of their race. The Fifth Circuit held that Section 1971(c) did not confer federal court jurisdiction over a state, the board of registrars, as then constituted, or the named individuals, as such. Subsequent to this decision, Section 1971 was amended to allow suit against a state under the circumstances present in the Alabama case, with the result that the Supreme Court reversed and remanded the case with instructions to reinstate the action against the State of Alabama under authority of Section 1971, as amended. 362 U.S. 602, 80 S.Ct. 924, 4 L.Ed.2d 982 (1960). The defendants contend that this case is authority for the proposition that the Commissioners Court or its individual members are not suable under Section 1983, because Section 1983 is "couched in the same language" as Section 1971 prior to amendment, which would not support an analogous suit against a county's...