Gaines v. Dougherty County Board of Education Brief for Appellants

    Unities S ta ir s  (Em irt ai A p p a l s
F or the F ifth Circuit 

No. 22606

I n the

A. J. L ewis,

-v.-
Appellant,

Maevine Collier and Carrie Collier,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF MISSISSIPPI

BRIEF FOR APPELLANT

Carsis A. H all

I I 51/2  North Farish Street 
Jackson, Mississippi

Jack Greenberg 
Derrick A. Bell, Jr.
Mblvyn Zarr

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellant

A nthony G. A msterdam 
Of Counsel



I N D E X

PAGE

Statement of the C ase........................................................  1

Specification of E r r o r ........................................................  4

A bgument :

Appellant’s Eemoval Petition Adequately States 
a Case for Eemoval Under 28 U. S. C. §1443(1) .... 4

Conclusion .................................................................................  6

T able oe Cases:

Hudson v. Leake County School Board, C. A. No. 3382 .. 2

New York v. Galamison, 342 F. 2d 255 (2nd Cir. 1965), 
cert. den. 380 U. S. 977 (1965) ......................................  5

Peacock v. City of Greenwood, 5th Cir., No. 21655, 
June 22, 1965 ................................................................ 2,4,5

Eachel v. Georgia, 342 F. 2d 336 (5th Cir. 1965) .........  2, 4

Shelley v. Kraemer, 334 U. S. 1 (1948) ........................... 5

Statutes Involved:

28 U. S. C. §1443 ..................................................................  4

28 U. S. C. §1443(1) 4



I n  the

H m tih  ©mart uf Appeals
F or the F ifth Circuit 

No. 22606

A. J. Lewis,

— v.~
Appellant,

Marvine Collier and Carrie Collier,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF MISSISSIPPI

BRIEF FOR APPELLANT

Statement of the Case

This is an appeal from an order of United States Dis­
trict Judge Harold Cox remanding to the Mississippi court 
from which appellant had removed it a civil action—osten­
sibly an eviction action—arising out of a campaign of 
harassment and intimidation designed to, and with the 
effect of, preserving segregation in the public schools of 
Leake County, Mississippi and frustrating federal court 
orders requiring desegregation.



2

On November 6, 1964, appellant filed in the United States 
District Court for the Southern District of Mississippi his 
verified petition for removal (R. 2-8). Appellees made no 
motion to remand, hut the court below remanded ex mero 
motu, holding “ [t]hat the petition for removal was im- 
providently filed and is without merit and that this Court 
has no jurisdiction of this civil suit”  (R. 10).

Since the case was remanded without hearing on the 
jurisdictional facts, the factual allegations of the removal 
petition must be taken as true for purposes of this appeal. 
Rachel v. Georgia, 342 F. 2d 336 (5th Cir. 1965); Peacock 
v. City of Greenwood, 5th Cir., No. 21655, June 22, 1965. 
Those allegations are as follows.

•Appellant, a Negro resident of Carthage, Leake County, 
Mississippi, has lived for some years, together with his 
wife and four children, at 306 West Mann Street, under 
an oral month-to-month lease with appellees.

In March 1963, a suit was filed in the United States Dis­
trict Court for the Southern District of Mississippi seek­
ing desegregation of the public schools of Leake County, 
Mississippi. Hudson v. Leake County School Board, C. A. 
No. 3382. After protracted litigation and severe harass­
ment of the Negro plaintiffs by some elements of the 
community, the court entered an order on July 6, 1964 
requiring the school board to submit a desegregation plan 
and, on July 29, 1964, approved the Board’s plan calling 
for the desegregation of the first grade in September, 
1964.

Prior to the opening of school, appellant, together with 
many Negro parents who had planned to enroll their chil­



3

dren in the desegregated school, were put under severe 
pressure by employers and creditors not to do so. Only 
appellant resisted these pressures and enrolled his child, 
Debora, in the first grade of the previously all-white 
Carthage School on September 1, 1964.

Repercussions immediately followed:

1. On September 2, 1964, appellant was fired from his 
job at a Carthage lumber company;

2. Appellant was the object of threats of violence suffi­
ciently serious to necessitate a request for an investigation 
by federal authorities;

3. On October 20, 1964, appellant received a letter from
appellees demanding that he vacate the premises by Octo­
ber 25, 1964.1..................

On November 3, 1964, appellant was served a summons 
to appear in the Justice of the Peace Court, Carthage, 
Mississippi, on November 6, 1964, to defend an eviction ac­
tion brought by appellees. Appellant’s petition for removal 
was thereupon filed, prior to the time of trial.

Judge Cox’s remand order was, entered on April 29, 
1964 (R. 10); notice of appeal was timely filed May 7, 
1964 (R. 11).

1 Appellant had earlier been assured by Mr. Collier (who is the 
only Negro policeman in the City of Carthage) that no effort 
would be made to force, him out, but by October 17, 1964, Mrs. 
Collier had informed appellant that his continued occupancy of 
the premises was endangering appellees’ welfare.



4

Specification of Error

The court below erred in holding that appellant’s peti­
tion for removal did not state a removable case under 
28 U. S. C. §1443.

A R G U M E N T

Appellant’ s Removal Petition Adequately States a 
Case for Removal Under 28  U. S. C. § 1 4 4 3 (1 ) .

Appellant alleged in his petition for removal the fol­
lowing (R. 4-5):

The eviction action against [appellant] is carried 
on with the sole purpose and effect of harassing 
[appellant] and punishing him for attempting to ex­
ercise his right to have his daughter attend a de­
segregated public school, pursuant to orders of [the 
United States District Court for the Southern Dis­
trict of Mississippi] and the requirements of the Four­
teenth Amendment to the Constitution of the United 
States. [Appellees’] eviction action is designed to frus­
trate [the] Court’s orders of July 6 and July 29, 1964 
for, due to community sentiment and pressures, it is 
unlikely that [appellant] will be able to establish an­
other residence in Carthage.

The sufficiency of this allegation to confer jurisdiction 
on the court below is clearly established by Peacock v. City 
of Greenwood, 5th Cir., No. 21655, June 22, 1965.2

2 Federal rules of notice type pleading are applicable to peti­
tions for removal. Peacock; Rachel v. Georgia, 342 F. 2d 336 (5th 
Cir. 1965). Thus, “bare bones” allegations are sufficient, “unless 
there is patently no substance in [them]”  (342 F. 2d at 340).



5

Appellant relies upon the equal protection clause of the 
Fourteenth Amendment, which is clearly a “ law providing 
for the equal civil rights of citizens of the United States, 
or of all persons within the jurisdiction thereof.” Peacock; 
New York v. Galamison, 342 F. 2d 255 (2nd Cir. 1965), cert, 
den. 380 U. S. 977 (1965).

In Peacock, the Court held sufficient an allegation that 
the removed action was being employed to thwart the re­
moval petitioners’ efforts to assist Negroes to register to 
vote; Peacock clearly controls a case in which the removed 
action is employed to thwart the efforts of removal peti­
tioners to enroll their children in a desegregated public 
school pursuant to federal court order.

The fact that Peacock involved a criminal prosecution 
rather than a civil action, as here, is a difference without 
a distinction. No distinction is made in the removal statute 
itself. And the fact that appellees are “ private” persons 
does not alter the conclusion that enforcement by a state 
court of a plan to harass and intimidate those seeking de­
segregation of public schools is a denial of equal protec­
tion of the laws. Shelley v. Kraemer, 334 U. S. 1 (1948).

Appellant concedes, as he must, that “ [o ]f  course, such 
allegations must be proved if they are challenged” (Pea­
cock, slip op. p. 10). Appellant merely seeks the oppor­
tunity to prove that the action against him is part and 
parcel of a plan to harass and intimidate those seeking to 
desegregate the public schools of Leake County pursuant 
to federal court order.



6

CONCLUSION

For the foregoing reasons, the order of the district 
court remanding appellant’s case should be reversed.

Respectfully submitted,

Carsie A. H all

115% North Farish Street 
Jackson, Mississippi

Jack Greenberg 
Derrick A. Bell, Jr.
Melvyn Zarr

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellant

A nthony G. A msterdam 
Of Counsel



7

CERTIFICATE OF SERVICE

I hereby certify that on August , 1965, I  served a 
copy of the foregoing Brief for Appellant on appellees 
Marvine and Carrie Collier, 308 West Mann St., Carthage, 
Mississippi, by mailing same to them by United States 
registered mail, postage prepaid.

Attorney for Appellant