Settle v Burriss Brief for Appellant

    IN THE

UNITED STATES COURT OF APPEALS 
FOR THE EOURTH CIRCUIT

NO. 73-1022

INEZ B. SETTLE,
Appellant,

v.
FRED BURRISS and MACK'S 
STORES OF SHALLOTTE, INC.,

Appellees.

On Appeal from the United States District Court for 
the Eastern District of North Carolina

BRIEF FOR APPELLANT

J. LeVONNE CHAMBERS 
JAMES C. FULLER, JR.

Chambers, Stein, Ferguson & Lanning 
237 West Trade Street 
Charlotte, North Carolina 28202

JACK GREENBERG 
SYLVIA DREW

10 Columbus Circle
New York, New York 10019

CHARLES L. BECTON
Chambers, Stein, Ferguson & Lanning
157 East Rosemary Street
Chapel Hill, North Carolina 27514

CONRAD O. PEARSON
203 1/2 East Chapel Hill 
Durham, North Carolina

FRANK CHERRY
Post Office Box 751 
Wilmington, North Carolina

Attorneys for Appellant



TABLE OF CONTENTS

Questions Presented ...............................  1
Statement of the Case . „ ......................... 2

Argument
I. THE ACTION AND CONDUCT OF DEFENDANTS,

ALTHOUGH A PRIVATE CITIZEN AND COR­
PORATION, WERE SUFFICIENTLY CLOTHED 
WITH STATE AUTHORIZATION AND IMMUNITY 
TO CONSTITUTE STATE ACTION "UNDER 
COLOR OF LAW" WITHIN THE MEANING OF

Page

42 U.S.C. §1983............................. 6

II. THE PLEADINGS ARE SUFFICIENT TO
ESTABLISH A CLAIM FOR RELIEF UNDER
42 U.S.C. §1981............................. 15

Conclusion 17



Table of Cases: Page

Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970) r toU f JLt. ,

Amalgamated Food Employees Union Local 590 
v. Logan Valley Plaza, 391 U.S. 308 (1968)

Burton v. Wilmington Parking Authority,
365 U.S. 715 (1961) ................ .. •

6,12

Collins Vo Viceroy Hotel Corp., 338 F. Supp. 
390 ( 1972) .......................

Conley v. Gibson, 355 U.S. 41 (1957)
DeCarlo v. Joseph Horne & Co.. 251 F. Supp. 935 

(W.D. Pa. 1966) ...........................
Foman v. Davis, 371 U.S. 178 (1962) • • • ° »
Hawkins v. North Carolina Dental Society, 355 

F.2d 718 (4th Cir. 1966) . . . . . . . . . .
Hill v. Toll, 320 F. Supp. 185 (E.D. Pa. 1970)
Ihrke v. Northern States Power Co., 459 F .2d 

566 (8th Cir. 1972)
Jones v. Alfred H. Mayer, Co., 392 U.S. 409 (1968)
Klim v. Toll, 320 F. Supp. 185 (E.D. Pa. 1970)
Lombard v. Louisiana, 373 U.S. 267 (1963) . .
LaVoie v. Bigwood, 457 F.2d 7 (1st Cir. 1972)
Marsh v. Alabama, 326 U.S. 501 (1946) . . . .
Monroe v . Pape, 365 U.S. 167 (1961) ........
Moses v. Washington Parish School Board, 330 

F. Supp. 1340 (E.D. La. 1971) ............

10 
16

10 

16

6,10,13,15 
10

6.12.15 
16 
10

6,11,13,14,15
6.12.15 

6,12
11

McLauren v. Oklahoma State Regents for Higher 
Education, 339 U.S. 637 (1950) ............

16

16

Peterson v. City of Greenville. 373 U.S. 244 
(1963) ..................... 6,11,13,14,15

li



Page

Reitman v. Mulkey, 387 U.S. 369 (1967) 6,10
Robinson v. Florida, 378 U.S. 153 (1964) 6,11
Sackett v. Beaman, 399 F.2d 884 (4th Cir. 1968) 16
Screws v. United States, 325 U.S. 91 (1944) 12
Shelley v. Kraomer, 334 U.S. 1 (1947) 6,13
Simkins v. Moses H. Cone Hospital, 323 F.2d

959 (4th Cir. 1963) 12
Smith v. Hampton. Training School for Nurses,

360 F.2d. 577 6,12,15
Sullivan v. Little Hunnington Park,

396 U.S. 229 (1969) " 16
Walker Process & Chemical, Iric. v. Food Machinery

& Chemical Corp., 387 U.S. 172 (1965) 16

Warren v. Cummings, 303 F„ Supp„ 803
(D. Colo. 1969) 14

Wevandt v. Mason's Stores, Inc., 279 F. Supp.
283 (W.D. Pa. 1968) 14

Williams v. United States, 341 U.S. 97 (1951) 6,15
Williams v. United States, 405 F.2d 234

,(4th Cir. I960) 16
Statutes;
28 U.S.C. §1343 ' 2,3
42 U.S.C. §1981 2,3,4,5,15,16
42 U.S.C. §1983 2,3,4,5,6,8,13,16

42 U.S.C. §2000 (a) 16
N.C. Gen. Stat.§14-40 9

ill



Page

N.C. Gen. Stat. § 1 5 - 3 9 .............................. 9
N.C. Gen. Stat. § 1 5 - 4 5 .............................. 9
N.C. Gen. Stat. §14-72.1   3,4,8,9,11,12,14

N.C. Gen. Stat. §14-72.1 ( c ) .........................  11

iv



IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 73-1022

INEZ B. SETTLE,
Appellant,

v.
FRED BURRISS and MACK'S 
STORES OF SHALLOTTE, INC.,

Appellees.

On Appeal from the United States District Court for 
the Eastern District of North Carolina

BRIEF FOR APPELLANT

QUESTIONS PRESENTED
The plaintiff-appellant is a black citizen residing in 

Brunswick County, North Carolina. While shopping at defendants' 
store the plaintiff was detained and deprived of her liberty by 
defendants pursuant to a state statute which authorized such 
detention and arrest and provided immunity against any state 
criminal or civil proceeding. Defendants restrained, detained 
and searched the plaintiff because of her race and color,



pursuant to policies and 'practices of discriminating against 
blacks.

1. Do allegations setting forth the above set forth suf­
ficient grounds to invoke federal jurisdiction under 42 U.S.C.
§1983 and 28 U.S.C. §1343? .

2. Do merchants operating stores open to the public act 
under color of state law within the meaning of 42 U.S.C. §1983 
when, pursuant to state statutes providing authority, encourage­
ment and immunity, they restrain and deprive one of one’s liberty 
and discriminate against one because of race and color?

3. Do merchants, who discriminate against blacks because
of race and color, pursuant to state statutes providing authority, 
encouragement, and immunity deny black citizens equal privileges
and.accommodations in violation of 42 U.S.C. §1981?

. • .«* K
: 4. Does 42 U.S.C. §1981 provide protection for black citizens
'/ \ / '.from racially discriminatory policies and practices of a merchant
1 / /

whp denies black citizens equal accommodations, treatment, services 
and the right to trade and to enter contracts of purchases different 
from those generally offered to white citizens solely because of 
race and color?

STATEMENT 01° TUB CASE
This appeal by plaintiff is from decisions and orders of 

the United States District Court of the Eastern District of

-2-



p  -! -TT -C i ^  v—, 1 - i  4  4 -  T> -  r » “U  4 - v o  l y p n ^ v i f  4" r>  /!. O  T 1 O  ^  ^  1 O  p  ^piainui-j-j. o cuiû xuxiiu wiu'u'jui- w-w *«-. w  ̂. v# or iy^
1981 and 28 U.S.C. §1343. The plaintiff alleged that she is 
a black citizen of Brunswick County, North Carolina; that on 
October 30, 1971 she was shopping at the defendants' store to 
purchase groceries and other merchandise; that while in the 
store, the defendant falsely alleged that the plaintiff con­
cealed some merchandise and restrained, detained, and searched 
the plaintiff and deprived the plaintiff of her liberty without 
any cause; that the plaintiff had not concealed any merchandise 
and none was found; that the acts complained of were made in the 
presence of other patrons of the store causing humiliation and 
serious harm to plaintiff; that defendants acted under and pur­
suant to N.C.-Gen. Stat. §14-72.1 which authorized such detention 
and arrest and provided immunity to the defendants from any state 
proceeding; that the detention and deprivation of the plaintiff's 
liberty were done by the defendants pursuant to their policies 
and practices of discriminating against black citizens solely 
because of their race and color. The plaintiff alleged that the 
defendants acted under color of state law; that the defendants' 
conduct deprived the plaintiff of due process of law, constituted 
an unreasonable search and seizure, constituted an unreasonable

North Carolina finding no federal jurisdiction and dismissing

invasion of the plaintiff's privacy and liberty and a deprivation



of her right to equal protection of the law; that defendants' 
conduct violated the rights of the plaintiff secured by the 
Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the 
Constitution of the United States and 42 U.S.C. §§1983 and 1981. 
The plaintiff sought to recover damages, a declaratory judgment 
of the unconstitutionality of N.C. Gen. Stat. §14-72.1,, and an 
injunction against the enforcement of the statute. The plaintiff 
also sought under the pendant jurisdiction of the court common 
law relief for damages for assault and battery, false imprison­
ment, slander and intentional infliction of mental distress.

The action was initially instituted on May 1, 1972
(A__(___ ) and more detailed specifications of the defendants'
conduct and deprivation of the plaintiff's rights were set forth 
in an amended'complaint, filed July 4, 1972. (A h? )

Defendants filed answers to the initial complaint (A<7 7 )
but before responding to the amended,complaint the court entered

1/an order dismissing the complaint."™

The court states in the order that it was denying leave 
to plaintiff to amend the complaint. The court considered the 
amended complaint, however, as though properly filed and reasoned 
that neither the original nor the amended complaint set forth 
sufficient bases to establish federal jurisdiction under 42 U.S.C. 
§1983. See in this connection the court's order of November 30, 
1972 refusing to vacate the earlier order and rejecting plaintiff's 
contention that jurisdiction should also be found under 42 U.S.C. 
§1981. We have accordingly treated the issue as the court below 
with the court ruling on the merits of the complaint. We do 
discuss below, however, the propriety of the amendment.

-4



The court reasoned that it did net have jurisdiction over the
action toe an s c. 4 -1 ”. /~} -p  ^  , r  r~s r~ \ V> .<*■> 4- ^  4~ -I v-> r - r  • • ^ v-> ^  /-> 'V~

U i i v ;  u o i u u w u i j ,  u o  v v s - i .  o  x i v y  e . v - a . i j . v j  u j  *>-*. -u of
law" as required by 42 U.S.C. §1983. The court held that the 
defendants were private citizens and that jurisdiction pursuant 
to 42 U.S.C. §1983 could only attach where defendants were state
officials. _)

The plaintiff filed a motion for reconsideration of the 
order on October 25, 1972, alleging that this was also as pro­
ceeding under 42 U.S.C. §1981 and that Section 1981 does not 
require state action. The plaintiff further alleged that there 
was sufficient state involvement to justify the proceeding under 
42 U.S.C. §1983 (A J-5__)

By order filed November 30, 1972, the court refused to 
vacate its earlier order and directed that the action be dis­
missed. (A 0- % )

The plaintiff gave notice of appeal. (A c 3 d  )

-5-



ARGUMENT
I

THE ACTION AND CONDUCT OF DEFENDANTS,
ALTHOUGH A PRIVATE CITIZEN AND COR­
PORATION, WERE SUFFICIENTLY CLOTHED 
WITH STATE AUTHORIZATION AND IMMUNITY 
TO CONSTITUTE STATE ACTION "UNDER 
COLOR OF LAW" WITHIN THE MEANING OF 
42 U.S.C. §1983.

While 42 U.S.C. §1983 requires that a plaintiff establish 
state involvement in the conduct complained of and that the 
perpetrator acted "under color of state law", state action 
and color of law may be found in the conduct of private 
individuals where there is significant state involvment. E.g., 
Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970); Amalgamated 
Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S.
308 (1968); Reitman v. Mulkey, 387 U.S. 369 (1967); Robinson v. 
Florida, 378 U.S. 153 (1964); Peterson v. City of Greenville,
373 U.S. 244 (1963); Lombard v. Louisiana, 373 U.S. 267 (1963); 
Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961); 
Williams v. United States, 341 U.S. 97 (1951); Shelley v. Kraemer, 
334 U.S. 1 (1947); Marsh v. Alabama, 326 U.S. 501 (1946); Ihrke 
v. Northern States Power Co., 459 F.2d 66 (8th Cir. 1972);
LaVoie v. Bigwood, 457 F.2d 7 (1st Cir. 1972); Smith v. Hampton 
Training School for Nurses, 360 F.2d 577 (4th Cir. 1966); Hawkins. 
v. North Carolina Dental Society. 355 F.2d 718 (4th Cir. 1966)

-6-



Here, the participation of the state was extensive. (1) The 
restrictions imposed on plaintiff's liberty, the invasion of her 
privacy and the unreasonable search were done by the defendants 
only because the state, by statute, had authorized and encouraged 
the act and had granted defendant immunity from civil liability.
(2) Defendants, although not officially designated as state 
officers, were actively engaged in enforcing state policies. The 
state may not avoid and ignore constitutionally protected rights 
by delegating its governmental responsibilities to private 
citizens and immunizing them from civil and criminal liability.
(3) The. state has delegated authority to defendants in broad 
general terms which permits and encourages defendants to engage 
in racially discriminatory practices and other conduct which 
would violate constitutionally protected rights if done by the 
state. In electing to exercise the statutory authority thus 
granted defendants must be held to the same constitutional stand­
ards which are applicable to the state. (4) In detaining and 
searching the plaintiff pursuant to state statute and invoking 
the immunity provided, defendants and the state are jointly 
involved in conduct which deprives the plaintiff of constitutionally 
protected rights. Here, defendants' action, with the authority
and encouragement, of the state, is no different than the private 
restaurateur discriminating with the aid of a police officer or 
the private property owner invoking the aid of the state judiciary 
to enforce racially restrictive covenants. (5) Defendants,

-7-



clothed with the sanction, encouragement and immunity of the 
state in seeking to deny equal accommodations and services to 
the plaintiff were clearly state officers acting under color of 
state law within the meaning of N.C. Gen Stat. §1983. The 
plaintiff was obligated to submit to the detention and search. 
She was obligated for this limited purpose to waive or forego 
her constitutionally protected rights just as though the 
detention, arrest and search had been made by a duly designated 
police officer.
1- Defendants Were Expressly Authorized and Encouraged 

to Engage In The Conduct Complained of and Were 
Granted Immunity From The Civil and Criminal Sanctions.
During the 1971 Legislature, N.C. Gen. Stat. §14- 72,1 was 

amended to expressly authorize merchants to detain and arrest 
persons on the premises of their establishment and provided them 
whch, immunity against proceedings resulting from such conduct.

V V /-•"

■ • ' ' ,N,C. Gen. Stat. §14-72.1(c):' • . ' *
- "A merchant, or his agent or employee,
or a peace officer who detains or causes the 
.arrest of any person shall not be held civilly 
liable for detention, malicious prosecution, 
false imprisonment, or false arrest of the 
person detained or arrested, where such deten­
tion is in a manner for a reasonable length of 
time, if in detaining or in causing the arrest 
of such person, the merchant, or his agent or 
employee, or the peace officer had at the time 
of the detention or arrest probable cause to 
believe that the person committed the offense 
created by this section. If the person being

-8-



detained by the merchant, or his agent or 
employee, is a minor 16 years of age or

y  <j  u  l  iv-j c :  jl /  u u c  a i c r u u u a u  w o .  u j . o  u u i ,  w o -  \ _ H i

ployee, shall call or notify, or make a 
reasonable effort to call or notify the 
parent or guardian of the minor, during 
the period of detention."

This legislation established the authority of merchants 
to make arrests in abrogation of the common law. Prior to this 
legislation, private citizens, including merchants and their 
agents, could only detain and arrest other citizens when a 
felony was committed in their presence (N.C. Gen. Stat. §14-40); 
when assistance was demanded by a police officer (N.C. Gen. Stat 
§15-45); or where certain breaches of the peace occurred in 
their presence (N.C. Gen. Stat. §15-39). But for N.C. Gen. Stat 
§14-72.1 only a police officer could make an arrest of or detain 
a person who was believed to have committed a misdemeanor in 
his presence. Private citizens could not.

N.C. Gen. Stat. §14-72.1 thus for the first time in the 
history of the state authorized a specific group of persons to 
perform the traditional role of police officers.

Further, the statute provides an incentive and encourage­
ment for this specified group by granting immunity to them from 
civil sanctions.

The authority and encouragement to merchants provided by 
N.C. Gen. Stat. §14-72.1 is no different from that considered

-9-



by the Supreme Court in'Reitman v. Mulkey, supra, and by this 
court in Hawkins v. North Carolina Dental Society, supra. In 
those cases, the constitutional provision in question simply 
eliminated sanctions against private discrimination. No state 
officer was involved. The state constitutional provision 
simply authorized private citizens to discriminate.

In DeCarlo v. Joseph Horne and Co., 251 F. Supp. 935 
(W.D. Pa. 1966) the district court found no distinction in a 
situation factually similar to plaintiff's case where private 
detectives made an arrest pursuant to a similar state statute:

"I can see no practical or substantial 
legal distinction between this case where a 
store detective is legally entitled to make 
an arrest under a state'statute specifically 
implemented for this purpose which implicitly 
clothes the defendants with such right, and in 
so doing, violates the accused constitutional

. i; rights, and a situation where a police officer
by making an arrest by virtue of his authority 
infringes upon rights." I.d. at 937.V \ /'< • •' < i

The .language and principle of DeCarlo has been expressly adopted
f. '

by other courts in factually analogous cases. See Collins v. 
Viceroy Hotel Corn.. 338 F. Supp 390 ( 1972); Klim v.
Jones, 315 F. Supp. 109 (N.D. Ca. 1970); Hill v. Toll. 320 
F.Supp. 185 (E.D. Pa. 1970). As in these cases, we are not 
here involved with purely private acts of a merchant, but with 
pervasive effects of state legislation that encourages and, 
indeed, makes possible the action complained of.

-10-



The State of North Carolina has, in this instance, provided 
the vehicle of discrimination by enacting N.C. Gen. Stat. §14-72.1 
further, it has provided the catalyst for this illegal use by 
offering immunity as an encouragement to merchants and their 
agents to accept the State's invitation to a joint excursion 
pursuant to N.C. Gen. Stat. §14-72.1(c). The state is, therefore, 
as involved as though the plaintiff has been deprived of her 
liberty by some duly designated policeman or other state official.

2. Defendants' Action Has Been Clothed With The 
Sanction and Authority of the State and Is 
An Exercise of the Proprietary Functions of 
the State.
By express authorization, the state has permitted and 

encouraged the arrest and detention of private citizens and 
thp: deprivation of liberty, the invasion of privacy and 
arbitrary racial discrimination.V \ /■/■' * t ' f• It is clear that such infringements of constitutionally
• V , v . ’/protected rights when carried out by public officials may be 
redressed- in the federal courts. Monroe v. Pape, 365 U.S.
167 (1961). There is no logical basis for failing to provide 
similar protection where private citizens act pursuant to and 
with the encouragement of state law in effecting a similar 
state purpose. See Peterson v. City of Greenville, supra;
Robinson v. Florida, supra; Lombard v. Louisiana, supra.

Defendants have been delegated a governmental function.

-11-



In exercising that authority, defendants are subject to the 

same prohibitions of the Fourteenth Amendment as other state 
officials. Marsh v. Alabama, supra; Amalgamated Food Employees 
Union, Local 590 v. Logan Valley Plaza, supra; LaVoie v. Bigwood, 
supra; Ihrke v. Northern States Power Co., supra.

The plaintiff respectfully submits that since the state 
cannot ignore and deprive citizens of constitutionally protected 
rights directly, it must not be allowed to do so indirectly by 
shifting its governmental functions to private citizens and 
attempting to erect immunity for such parties as they discharge 
the state's governmental obligations. Marsh v. Alabama, supra; 
Ihrke v. Northern States Power Co., supra. See also, Smith v. 
Hampton Training School for Nurses, supra; Simkins v. Moses H. 
Cone, Hospital, 323 F2d 959 (4th Cir. 1963) . Nor is it material 
that’ the party acting exceeded the express authority of the 
statute,Msgrews v. United States. 325 U.S. 91 (1944). See also
Agickes v. S. H. Kress & Co., supra.
3. IHt D1UC

Private
AU CT.11U.
Citizens

leidi /iULlJ
to Arrest

iurxi_y ueieqatea 1 0  
and Detain Citizens

and the Immunity Provided Sanctions Arbitrary
and Capricious Denials of Egual Protection
and Due Process,

The broad and general language of N. C. Gen. Stat. §14-72.1 
permits a private citizen, with limited exceptions, to detain 
and arrest citizens notwithstanding the decision to do so is

-12-



based on the race and color and denies the victim equal protection 
and due process of lav;. Where private citizens are thus clothed 
with the sanction and encouragement of the state and immunity, 
the state is as much involved in the deprivation of constitutionally 
protected rights as though expressly provided by statutes Cf.
Shelley v. Kraemer, supra; Peterson v. City of Greenville, supra; 
Lombard v. Louisiana, supra; Adickes v, S. H. Kress & Co., supra; 
Hawkins v 0 North Carolina Dental Society, supra.

Defendants here, by state statute have been authorized and 
encouraged to perpetuate policies of racial discrimination and 
to arbitrarily deprive citizens of constitutionally protected 
rights. The state has insulated their conduct in protecting 
them against claims of false imprisonment, false arrest, and 
malicious prosecution. Thus clothed with the sanction and 
authority of the state, defendants are free to carry on in the 
operation of their business such racially discriminatory practices 
and other conduct as they desire.

The district court reasoned that defendants were not 
officials of the state and that the plaintiff may invoke the 
court's jurisdiction under 42 U.S.C. §1983 only where state 
officials are involved. The cases above clearly demonstrate, 
however, that state action and color of state law may be found 
where officially designated state officials are not involved.



The district court cites in support of its holding 
Weyandt v. Mason's Stores, Inc.. 279 F. Supp. 283 (W.D. Pa. 1958). 
Weyandt is a poorly-reasoned decision that plays games of seman­
tics with the word authority while ignoring the reality of the 
state's active involvment within the defendants' conduct. See
also, Warren v. Cummings, 303 F. Supp. 803 (D. Colo. 1969) which

2 /follows Weyandt.

As in Peterson, supra and Lombard. supra. North Carolina in 
N.C. Gen. Stat. §14-72.1 has provided means to carry out a policy 
of depriving citizens of constitutional, protective rights. The 
policy of the state to permit a limited class of citizens to 
make arrests, to detain and to discriminate against citizens 
who might be about their premises is no different than the state 
statutes, city ordinances and the oral state policies of discrimi­
nation condemned in Peterson, supra and Lombard, supra.

2 / _The court in Warren emphasizes that the statute in ques­
tion merely codified an already-existing right of Colorado 
citizens to make arrests whenever a crime was committed in their 
presence. The court reasoned that since no new right was given 
in the enactment of the statute, it contained nothing to,"encourage 
the activity (as it would if, for example, it granted immunity 
from suit to those making such an arrest.)" Id. at 806.

A close reading of Warren actually lend support to the 
position of plaintiff herein. For, in North Carolina a new 
right of arrest and detention was given, and immunity from suit 
was granted to those making an arrest pursuant to the statute 
in question.

14



The state action is provided by the statute. Peterson, supra; 
Lombard, supra; Adickes, supra; Williams, supra; Smith, supra.
In seeking to implement the -statute, defendants were acting 
under color of state law. Smith, supra; Hawkins, supra; LaVoie, 
supra and Ihrke, supra.

II
THE PLEADINGS ARE SUFFICIENT TO • .
ESTABLISH A CLAIM FOR RELIEF
UNDER 42 U.S.C. §1981.

In dismissing the plaintiff's claim under 42 U.S.C. §1981, 
the district court reasoned that the detention, search, and 
assault complained of were directed against the plaintiff as an 
individual irrespective of color and, therefore, included no 
charge of racial discrimination to warrant jurisdiction under 
42 U.S.C. §1981. However, this ignores plaintiff's stated
allegation that such behavior was pursuant to a policy and practice 
of discrimination against blacks by the defendants and further 
that the specific acts to which plaintiff was subjected were 
directed against her because of her race and color.

42 U.S.C. 1981 is not provincially restricted to
cover only those cases falling within the shadow of public 
accommodations: That is, a denial of service. Rather,
42 U•. S. C. §1981 prohibits any special or additional restriction 
or condition imposed persons because of race or color. „

15



Cf. Sullivan v. Little Hunninqton Park, 396 U.S. 229 (1969).
See also, McLauren v. Oklahoma State Regents for Higher Education. 
339 U.S. 637 (1950) (additional condition of sitting apart from 
white students imposed on black students as a prerequisite to 
enjoyment of right to equal education); Moses v. Washington Parish 
School Board, 330 F. Supp. 1340 (E.D. La. 1971), aff'd 456 F.2d 
1285 (5th Cir. 1972) (black students subjected to in-school 
segregation by use of test scores even after admitted to school 
on integrated basis).

Like 42 U.S.C. §2000(a) , §1981 flatly prohibits discrimina­
tion on the basis of race or color in service, accommodations, 
and treatment in establishments such as that operated by the 
defendants. Defendants' actions in detaining, restraining, and 
searching the plaintiff for reasons motivated by race was nothing

i ,-s. f- k

mare, than, an attempt, through statutory’ law and custom, to con-
V v ‘

t:ihue c6 .impress upon the plaintiff the "badge of slavery".
~±> Jones-v. Alfred H. Mayer Co.. 392 U.S. 409 (1968). The 
customs and practices of defendants complained of herein continue 
to perpetuate 'the sordid business of racial discrimination." 
Adickes v. S. H. Kress & Co., supra.

Whether the plaintiff can muster sufficient evidence to 
substantiate the allegation of the amended complaint is not a 
question before the court. Since the district court dismissed

-16-



the case on the pleadings, the statements contained in the com­
plaint must be taken as true and considered in the light most 
favorable to the plaintiff for purposes of this appeal. Walker 
Process & Chemical, Inc, v. Food Machinery & Chemical Corp.,
387 U.S. 1/2 (1965). See F.R.C.P. 8 (f). See also, Conley v.
Gibson, 355 U.S. 41 (1957) (complaint should only be dismissed 
if it clearly appears that no set of facts exists which could 
support plaintiff's claim.)

It is clear that plaintiff's motion for leave to amend 
her original complaint should have been allowed. Foman v.
Davis, 371 U.S. 178 (1962); Conley v. Gibson, supra; Williams 
Vo United States, 405 F.2d 234 (4th Cir. 1968); Sackett v. Beaman.
399 F.2d 884 (4th Cir. 1968).

However, in both orders filed by the district court, the 
decision to deny the motion to amend is based on the trial court's 
conclusion that plaintiff's amended complaint did not state a 
claim under 42 U.S.C. §1981 and 1983 for which relief could be 
granted. Therefore, plaintiff submits that this court should 
conclude that the district court erred in not granting plaintiff's 
motion for leave to amend. Further, since the district court 
ruled on the questions of the sufficiency of plaintiff's alle­
gations to state a claim under 42 U.S.C. §§1981 and 1983, plain­
tiff submits that this court should rule on the merits of plaintiff's

-17-



claims thereunder in accord with the authority and discussion
S 0"t OH t 2.0OV 0 m

CONCLUSION
Plaintiff respectfully requests that the Order of the 

court below be reversed and the case be remanded with instruc­
tions in accord with the authority set out by plaintiff above.

Respectfully submitted,

Jc LEVONNE CHAMBERS 
JAMES C. FULLER, JR.

Chambers, Stein, Ferguson & Lanning 
237 West Trade Street 
Charlotte, North Carolina 28202

CHARLES L. BECTON
Chambers, Stein, Ferguson & Lanning
157 East Rosemary Street
Chapel Hill, North Carolina 27514

FRANK CHERRY
Post Office Box 751 
Wilmington, North Carolina

JACK GREENBERG 
SYLVIA DREW

10 Columbus Circle
New York, New York 10019

CONRAD 0. PEARSON
203 1/2 East Chapel Hill Street 
Durham, North Carolina

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