The opinion of the court was delivered by: BONSAL
Defendant, S. H. Kress & Company (Kress), moves for summary judgment pursuant to Rules 12 and 56, F.R.Civ.P. Plaintiff cross moves for an order granting leave to plaintiff to amend her complaint pursuant to Rule 15, F.R.Civ.P.
On November 12, 1964, plaintiff commenced this action to recover damages under Title 42 U.S.C. § 1983.* Her complaint alleges that defendant, acting both under color of state law (Count I) and in conspiracy with the Chief of Police of Hattiesburg, Mississippi, and his agents (Count II), denied plaintiff service at defendant's lunch counter in Hattiesburg because she sought to eat in the company of Negroes. Plaintiff also seeks an order for leave to amend her complaint to allege a third cause of action (Proposed Third Count) under Sections 1 and 2 of the Civil Rights Act of 1875 (Act of March 1, 1875, ch. 114, 18 Stat. 335).
For the purposes of defendant's motion for summary judgment, the allegations and inferences of fact set forth in the pleadings, affidavits and other materials before the court must be viewed in the light most favorable to the plaintiff, United States v. Diebold, Inc., 369 U.S. 654, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962); Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S. Ct. 486, 7 L. Ed. 2d 458 (1962), and summary judgment may be granted only if there is "no genuine issue as to any material fact." Rule 56(c), F.R.Civ.P.
The undisputed facts for the purposes of this motion are as follows:
During the summer of 1964, the plaintiff, a white New York City school teacher, was a volunteer Freedom School teacher in Hattiesburg, Mississippi. On August 14, 1964, plaintiff and six Negro students sought to integrate the Hattiesburg Public Library, but were refused the use of its facilities and shortly thereafter the library was closed by the Chief of Police of Hattiesburg. On leaving the library, plaintiff and the six students proceeded to a Woolworth store for the purposes of eating lunch and, on the way, plaintiff observed policemen following them. Since the Woolworth store was crowded, the plaintiff and her group went to defendant's store and sat down in two lunch booths and ordered lunch. The waitress took the orders of the six Negroes, but refused to take plaintiff's order. The six Negroes refused to eat unless plaintiff was served. They left the store and had proceeded only a short distance when a police officer, previously observed by plaintiff, arrested her for vagrancy.
Count I of Plaintiff's Complaint:
In Count I of her complaint, plaintiff alleges that defendant has denied her the "equal enjoyment of a place of public accommodation by reason of her association with Negroes." She grounds her cause of action on 42 U.S.C. § 1983, which provides that any person who "under color of" state law deprives another of "rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law * * *."
Defendant argues that mere private discrimination is not encompassed by § 1983. Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); Civil Rights Cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 (1883). In addition, defendant refers to recent cases holding that a restaurant owner who refuses service on racial grounds pursuant to common law permitting the owner to "select his patrons as he desires," but not compelling him "to segregate customers" does not act under color of law. Williams v. Howard Johnson's Inc. of Washington, 323 F.2d 102, 105 (4th Cir. 1963); Williams v. Lewis, 342 F.2d 727 (4th Cir. 1965), cert. denied, Williams v. Howard Johnson's Inc. of Washington, 382 U.S. 814, 86 S. Ct. 30, 15 L. Ed. 2d 61 (1965); Williams v. Hot Shoppes, Inc., 110 U.S.App.D.C. 358, 293 F.2d 835 (1961), cert. denied, 370 U.S. 925, 82 S. Ct. 1562, 8 L. Ed. 2d 505 (1962); Williams v. Howard Johnson's Restaurant, 268 F.2d 845 (4th Cir. 1959).
However, as pointed out in various law review articles, the concept of "state action" has been greatly expanded in recent years. Lewis, "The Meaning of State Action," 60 Colum.L.Rev. 1083 (1960); Pollak, "Racial Discrimination and Judicial Integrity: A Reply to Professor Wechsler," 108 U.Pa.L.Rev. 1 (1959); Van Alstyne and Karst, "State Action," 14 Stan.L.Rev. 3 (1961). To satisfy the requirement of "state action" in this case, the plaintiff points to Mississippi Code, § 2046.5 (1956), which provides:
"Business customers, patrons or clients - right to choose - penalty for violation.
1. Every person, firm or corporation engaged in any public business * * * in the State of Mississippi * * * [is] authorized and empowered to refuse to sell to, wait upon or serve any person that the owner, manager or employee of such public place of business does not desire to sell to, wait upon or serve * * *.
3. Any person who enters a public place of business in this state * * * and is requested or ordered to leave therefrom by the owner, manager or any employee thereof, and * * * refuses ...