Rackley v. Board of Trustees of Orangeburg Regional Hospital Brief and Appendix for Appellants

    In the

Inttefc (Emirt nf Appeals
F or t h e  F ou rth  C ircu it

No. 8731

J am elle  R a c k l e y , a m in or b y  her m oth er and  n ext fr ie n d , 
Gloria R ack ley , and  G loria R ack ley ,

— v.—
Appellants,

B oard of T rustees of t h e  Orangeburg  R egional H o spital , 
a body public, and H . F. M abry , Director of the Orange­
burg Regional Hospital,

Appellees.

appeal  from  t h e  u n ited  states district  court for t h e

EASTERN DISTRICT OF SOUTH CAROLINA 
COLUMBIA DIVISION

BRIEF AND APPENDIX FOR APPELLANTS

J ack  G reenberg 
M ic h ael  M eltsner

10 Columbus Circle 
New York 19, New York

M a t t h e w  J . P erry 
L in co ln  C. J e n k in s , J r .

1107V2 Washington Street 
Columbia 1, South Carolina

Attorneys for Appellants



INDEX TO BRIEF
PAGE

Statement of the Case ....................................................  1

Questions Involved ............................................................  5

Statement of F acts............................................................  5

A rg u m en t  :

I. The Court Below Erred in Denying Appellants’ 
Motion for Preliminary Injunction When the 
Affidavits Supporting Said Motions Were Not 
Materially Controverted by Appellees ..............  10

II. The Court Below Erred in Striking From the 
Complaint Allegations as to (a) Racial Segre­
gation in Room and Ward Facilities and (b) 
Funds Granted to Appellee Hospital by the 
United States..........................................................  15

(a) The Motion to Strike Allegations of Seg­
regated Room and Ward Facilities..............  15

(b) The Motion to Strike Allegations of Grants
of United States Funds .............................. 16

C onclusion  ..............   17

T able of C ases

Augustus v. Board of Public Instruction, ------  F. 2d
------ (No. 19408, July 24, 1962) .... ..................... .......  15

Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961) ....... 14
Bolling v. Sharpe, 347 U. S. 497 ................................... 16,17
Browder v. Gayle, 142 F. Supp. 707 (M. D. Ala. 1956), 

afPd 352 U. S. 903 14



11
PAGE

Brown v. Board of Education, 347 U. S. 483 ........... . 14
Brown & Williamson Tobacco Corp. v. United States,

201 F. 2d 819 (6th Cir. 1953) ................. ......... ..........  15
Burton v. Wilmington Parking Authority, 367 U. S.

715 ....................... ..................................................... . 14

Christian v. Jemison, 303 F. 2d 52 (5th Cir. 1962) ..... 13

Dawson v. Mayor, 220 F. 2d 386 (4th Cir. 1955), aff’d 
350 U. S. 877 ....................................... ......... ......... .........  14

Fleming v. South Carolina Electric and Gas Co., 224
F. 2d 752 (4th Cir. 1955) .............................................  14

Frasier v. Board of Trustees of the University of N. C.,
134 F. Supp. 589 (M. D. N. C. 1955) ............. .........  14

Henry v. Greenville Airport Commission, 284 F. 2d 631
(4th Cir. 1960) ........................................................ 12, 13,14

Heyward v. Public Housing Administration, 238 F. 2d 
689 (5th Cir. 1956) ............................. .................... 16

Nash v. Air Terminal Services, 85 F. Supp. 545 (E. D.
Va. 1949) .................... ..... .............................................  16

Pierce v. Society, 268 U. S. 510 .....................................  16

Royal Brewing Co. v. Missouri K. & T. Ry. Co., 217 
F. 146 (D. Kan. 1914) ................................................  12

Turner v. Randolph, 195 F. Supp. 671 (W. D. Tenn. 
1961) ...................................................... ........................  14

O th e r  A u th o rities

2 Moore’s Federal Practice 2nd ed. Sec. 12.21(2) 
pp. 2317-2319 ................................................................. 15



INDEX TO APPENDIX
PAGE

Relevant Docket Entries ................................................. la

Complaint ..................................   2a

Verification.................................................   9a

Exhibit A ...........................................................................  10a

Motion for Preliminary Injunction.................................  16a

Affidavit of Gloria Rackley .............................................  18a

Excerpts From the Deposition of Gloria Rackley....... 21a

Motion to Strike .........................................   34a

Request for Admissions..................................................... 35a

Answer ...............................................................................  38a

Motion for Advisory Jury .............................................  41a

Response to Request for Admissions ..........................  42a

Motion to Strike ..................   45a

Affidavit of H. F. Mabry ..........................    46a

Order of July 13, 1962 ..................................................... 47a

Ill



I n the

United States (tart nf Appeals
F oe t h e  F o u rth  C ircu it

No. 8731

J am elle  R a c k l e y , a m in or b y  h er m oth er and next fr ien d , 
G loria R a c k le y , and G loria R ack ley ,

—v.—
Appellants,

B oard of T rustees of t h e  O rangeburg R egional H ospital , 
a body public, and H. F. M abry , Director of the Orange­
burg Regional Hospital,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OF SOUTH CAROLINA 

COLUMBIA DIVISION

BRIEF FOR APPELLANTS

Statement of the Case

This action was tiled in the United States District Court 
for the Eastern District of South Carolina, Columbia Divi­
sion on March 24, 1962, against the Board of Trustees of 
the Orangeburg Regional Hospital, a public hospital oper­
ated pursuant to authority conferred by the laws of the 
State of South Carolina and H. F. Mabry, Director of the 
Hospital (4a).

Appellants are a Negro minor child and her mother both 
of whom are residents of the City and County of Orange­



2

burg, who have used and may reasonably expect to continue 
to use the facilities of the Orangeburg Regional Hospital 
(3a, 4a, 18a, 36a, 42a).

Appellants prayed for a preliminary and permanent in­
junction restraining appellees from making any distinctions 
based upon race in regard to the use and admission to use 
of the facilities of the Orangeburg Regional Hospital. 
Along with the verified complaint, appellants filed a Motion 
for Preliminary Injunction. In support of the Motion for 
Preliminary Injunction, an affidavit was filed relating the 
discriminatory practices upon which the motion was 
founded (9a, 16a-20a).

On May 14, 1962 appellees took the deposition of appel­
lant Gloria Rackley (21a-33a).

On May 22, appellees moved to strike the allegations of 
paragraph six from the complaint on the ground that the 
allegations were immaterial and prejudicial (34a). Para­
graph six of the complaint alleges:

(A) The United States has given three hundred 
thousand dollars ($300,000.00) to the Orangeburg Re­
gional Hospital for the purpose of expansion.

(B) The Orangeburg Regional Hospital has, from 
time to time, received other substantial sums of money 
from the United States for construction and expansion 
of facilities (5a).

On May 24, 1962 appellants filed twenty requests for 
Admissions Horn the appellees (35a). Appellees’ response 
to the Requests was filed June 7, 1962 (42a).

On June 2, 1962, appellees filed their answer with a 
motion for advisory jury attached (38a). By their answer 
appellees averred that:



3

. . . the hospital now provides two small waiting rooms, 
one of which is generally used by white persons having 
business at the hospital, one generally used by Negroes 
who have business at the hospital (39a).

As to the two incidents of racial discrimination alleged 
in the complaint, appellees stated, “ Neither the defendant 
H. F. Mabry nor any member of the Board of Trustees of 
the hospital has any personal knowledge of [these] allega­
tions . . . ” (39a).

But “ on information and belief” appellees alleged “ that 
while it is the custom for members of the two races to use 
separate waiting rooms . . .  the plaintiff Gloria Rackley 
was allowed to remain in the waiting room usually used by 
white persons until her business at the hospital had been 
completed and until after her daughter had been discharged 
as a patient. Her insistence on continuing to occupy this 
small and crowded waiting room after her business was 
over and after she had been asked to leave, was a trespass 
for which she was properly removed” (39a).

On June 7, 1962, appellees moved to strike from para­
graph seven of the complaint allegations as to the main­
tenance of separate ward and room facilities for patients 
at the Orangeburg Regional Hospital (45a).

On June 18, 1962, appellees filed the affidavit of II. F. 
Mabry, Director of the Hospital which stated: “ that he was 
not the Director of the Hospital in October 1961 but he has 
investigated the circumstances surrounding the events re­
ferred to in the complaint and on the basis of that investi­
gation believes the averments of paragraphs 7, 9, and 10 
of the answer” (46a).

Appellees filed no other counter affidavits or other refu­
tation of appellants’ factual allegations.



4

At a hearing held June 18, 1962, the Motion for Prelim­
inary Injunction and the Motions to Strike were argued 
before the Court.

By an order filed July 13, 1962, the Court, Judge George 
Bell Timmerman sitting, denied appellants’ Motion for 
Preliminary Injunction and granted appellees’ Motion to 
Strike paragraph VI and as much of paragraph VII as 
reads “ . . . and separate ward and room facilities for 
patients” from the complaint (47a-51a).

In denying apxjellants’ Motion for Preliminary Injunc­
tion, the Court found:

. . . there is no allegations of fact which warrants the 
inference that either or both plaintiffs have suffered 
any injury or that either will suffer irreparable injury 
if a Preliminary injunction is not granted (49a, 50a).

In granting appellees’ Motion to Strike reference in the 
complaint to segregation in ward and room facilities for 
patients, the Court stated:

Whatever there is of controversy concerns the adult 
plaintiff’s complaint that she was asked to move from 
the seat which she apparently had selected after mak­
ing an inspection of seating facilities (50a).

In granting the appellees’ motion to strike paragraph 
VI of the complaint alleging receipt by the Hospital of 
financial aid from the United States, the Court ruled the 
allegations immaterial to whether appellees violated ap­
pellants’ civil rights (50a).

Appellants filed notice of appeal to this Court on July 
21, 1962 (la).



Questions Involved

1. Whether the court below erred in denying appellants’ 
Motion for Preliminary Injunction where a publicly owned 
hospital maintained racially segregated waiting rooms and 
excluded and harassed appellants, who are Negroes, on 
two separate occasions and caused one appellant to be 
arrested when she attempted to use waiting room facilities 
provided for white persons.

2. Whether the court below erred in granting appellees’ 
motions to strike from the complaint:

(a) Allegations as to racial segregation in the room and 
ward facilities of a public hospital when appellants alleged 
injury therefrom and had used the services of the hospital 
and could reasonably be expected to use services of the 
hospital in the future;

(b) Allegations as to the United States government funds 
granted to said hospital for construction purposes when 
appellants alleged racial discrimination in deprivation of 
their rights guaranteed by the due jnocess and equal pro­
tection clauses of the Fourteenth Amendment and the duo 
process clause of the Fifth Amendment to the Constitution 
of the United States.

Statement of Facts

The appellees in this case are the Board of Trustees of 
the Orangeburg Regional Hospital and H. F. Mabry, Direc­
tor of the Hospital. The Orangeburg Regional Hospital 
was operated until 1953 as a facility of the City of Orange­
burg (10a-15a, 42a, 48a). In that year, by an Act of the 
General Assembly of the State of South Carolina (appended 
to the complaint as Exhibit “A ”, 10a-15a) it was directed



6

that the Hospital be operated under a board of trustees 
consisting of eleven members, five appointed by the City 
Council of the City of Orangeburg; five by the legislative 
delegation from Orangeburg County; and the remaining 
member appointed by the medical staff of the hospital. The 
hospital is now owned by the County of Orangeburg, South 
Carolina (42a) which furnishes funds to pay for the ser­
vices rendered charity patients (42a). Funds furnished by 
the United States were used to aid construction of addi­
tions to the physical plant of the Hospital (36a, 43a, 39a). 
Appellee Mabry is presently the Director of the Hospital 
but he was not the Director of the Hospital in October, 
1961 when the events recited in the complaint occurred 
(46a).

The Orangeburg Regional Hospital is the only public 
hospital in Orangeburg County and the only public hospital 
in the area of appellants’ residence (4a, 18a, 36a, 42a).

Appellants are Negro residents of the City and County 
of Orangeburg and citizens of the State of South Carolina 
and the United States (3a). Appellant Gloria Rackley is 
an elementary school teacher in the City of Orangeburg 
(22a). Appellant Jamelle Rackley is her minor daughter 
(18a).

On October 12, 1961, while Gloria Rackley was teaching 
school, her daughter, who was attending school at the time, 
was injured in a playground accident (22a). She was taken 
by the Director of the Health Educational Program to the 
Orangeburg Regional Hospital where she was X-rayed and 
treated for a dislocated bone in her finger (23a). Gloria 
Rackley was notified of the accident and arrived at the 
Hospital emergency room as the doctors were finishing an 
X-ray examination. She was told that her daughter would 
be given an anesthesia and taken to surgery for treatment 
(23a). She began to wait in the emergency room but was



7

directed by the nurse on duty to tlie waiting room (24a). 
She went to what she thought was the only waiting room in 
the Hospital (30a). She stated upon examination by aj> 
pellees’ counsel, that while seated there:

A man was in the doorway motioning to me through 
the door in the corridor, and I rushed out thinking 
that probably she had got up there and started scream­
ing, you know, and they needed me in surgery with 
her, so I went to him and he started walking down the 
corridor and I walked on with him without any ex­
planation or an inquiry, and when he got to a turn in 
the corridor, the turn that leads down to what is 
the Colored Ward or wing, he pointed and told me 
that there was a waiting room down there. That is 
all he said: “ There is a waiting room down there” 
and I asked why was he telling me this, I was com­
fortable, I had found a waiting room and he repeated 
the statement: “ I said, there is a waiting room down 
there” and I asked again, why was he telling me this, 
and I asked: “Who are you” and he said: “ It doesn’t 
matter who I am” and we turned around and started 
back up the corridor in the same direction from which 
we had come, so I walked back with him and he went 
to the left and I went back to the right. He went 
into a door marked “Director” and I went back into 
the waiting room and sat. A little later a Nurse came 
and said something, I ’m not sure I ’m going to remem­
ber her words—

Q. Could you identify the first man? A. Later I 
found it was Mr. Roach, who is Director of the Hos­
pital, but he did not identify himself at that time.

Q. You learned he was Mr. Roach? A. Yes.
Q. Go ahead? A. A nurse came who seemed to be 

an important Nurse. I don’t know much about uniforms



8

but she had on all the things, a cap and some pins 
and all, and she told me something that meant there 
was a waiting room somewhere else. She didn’t ask 
me to go. She didn’t ask me to leave. She just said: 
“You can find your way around there” or something, 
and I asked her why was I being told this and she said: 
“ There is a difference, you know” and I asked what 
was the difference and she turned on her heels and 
said: “ I thought you would cause trouble” and left. 
I think the next thing that happened was, the Chief 
of Police came (24a, 25a).

The Chief of Police and another officer arrived at the 
waiting room and informed Appellant that she would have 
to leave or she would be arrested (26a). At this time, her 
daughter was still upstairs receiving treatment (26a). Ap­
pellant complied (26a, 27a).

She found the two doctors who had treated her daughter 
in the emergency room and one of them, Dr. Frierson, 
“ spoke rather sharply. He told me that I knew better . . . 
He said ‘you know our customs’ so we had I guess, a 
difference, I could not understand or see why the police­
man should be called to enforce customs. I Avanted to 
know what laws I had broken and why I should be taken 
from the Hospital and he told me that I should take my 
daughter and leave, that he was washing his hands of the 
whole thing” (27a).

But Dr. Brabham, the other doctor, told appellant to 
wait until her daughter was released from the recovery 
room. Ten or fifteen minutes later Jamelle Rackley was 
released and mother and daughter left the hospital. Before 
they left, the doctors gave Mrs. Rackley an appointment 
card which directed her to bring her daughter to the hos­
pital on October 26, 1961 in order to have the cast removed 
from her hand (27a).



9

On October 26, 1961, Gloria Rackley took her daughter 
to the Hospital for removal of the cast. Mrs. Rackley was 
present in the emergency room until Dr. Frierson removed 
the cast. The Doctor then took Jamelle Rackley to the 
X-ray room two doors down the hall. Mrs. Rackley went 
to the waiting room from which she had been ejected by 
the police two weeks previously (2Sa-30a). She was asked 
by appellees’ Counsel (30a):

Q. Isn’t there a waiting room adjacent to the Negro 
ward there?
And answered:

A. I am not sure. Now this might be what they 
call a waiting room. There is a little hole or what 
you call it, a recessed area in the hallway that has 
some straight benches and seats but I can’t believe this 
is a waiting room . .. (30a).

Mrs. Rackley chose a seat in the waiting room (30a, 31a). 
Other persons were present but the room was not crowded 
(31a). Shortly, thereafter, Dr. Frierson approached Mrs. 
Rackley and told her he wanted her to come up to the X-ray 
room. She told him she would remain in the waiting room 
(31a). He replied, “ She’s alone and she needs you” (31a). 
Mrs. Rackley said she would wait for her daughter where 
she was (31a). At this Doctor Frierson stated: “ I don’t 
think you care anything about your daughter” (31a). Doctor 
Frierson left and a few moments later returned to tell Mrs. 
Rackley, “Well, you can go to her” (32a). When Mrs. Rack- 
ley refused to go, her daughter was sent to her (32a).

Mrs. Rackley testified that, “ then Roach, the Director, 
came . . . and said ‘Have they finished with your daughter’ 
or something like that and I said ‘I understand they have.’ 
He said, ‘Well why don’t you go? What are you waiting



10

f o r f  And I told him that I was waiting for my car, which 
was to come. It was in the shop and I told him it was com­
ing, and he said: ‘It’s not going to come in here, they’re not 
going to bring it in here are they"? Go on out on the street 
and wait for it’ ” (32a).

When Mrs. Rackley and her daughter failed to leave the 
waiting room, Mr. Roach motioned to a man in plainclothes 
who identified himself as a police officer (32a, 33a). Mrs. 
Rackley was placed under arrest and later charged with 
trespass (33a).

ARGUMENT

I.
Tlie Court Below Erred in Denying Appellants’ Motion 

for Preliminary Injunction When the Affidavits Support­
ing Said Motion Were Not Materially Controverted By 
Appellees.

Appellants moved for a preliminary injunction on the 
verified complaint and affidavit of appellant Gloria Rackley 
which supported the averments of racial discrimination al­
leged in the complaint. In response, appellees introduced 
an affidavit of II. F. Mabry, Director of the Hospital and 
the deposition of Gloria Rackley taken by appellees’ counsel 
(21a-33a, 46a). As the deposition eloquently corroborates 
the verified complaint and prior affidavit of Mrs. Rackley 
(21a-33a), any dispute as to material facts must have been 
raised by the affidavit of Hospital Director Mabry (46a).

The pertinent portion of Mabry’s affidavit states, as 
follows:

That he was not the Director of the Hospital in Octo­
ber, 1961 but he has investigated the circumstances



11

surrounding the events referred to in the complaint and 
on the basis of that investigation believes the averments 
of paragraphs 7, 9 and 10 of the answer (emphasis 
added).

Paragraph 7 of the answer admits that the hospital main­
tains two waiting rooms “ one of which is generally used by 
white persons . . . one generally used by Negroes.” Para­
graph 10 of the answer generally denies the paragraph in 
the complaint which alleges appellants are entitled to in­
junctive relief (39a).

Paragraph 9 of the answer states as follows:

On information and belief, that while it is the custom 
for members of the two races to use separate waiting 
rooms, and though the waiting room usually used by 
Negroes was more convenient to the emergency room 
and X-ray room where Jamelle Rackley was being- 
treated, the plaintiff Gloria Kackley was allowed to 
remain in the waiting room usually used by white 
persons until her business at the hospital had com­
pleted and until after her daughter had been discharged 
as a patient. Her insistence on continuing to occupy 
this small and crowded waiting room after her business 
was over and after she had been asked to leave was 
a trespass for which she was properly removed. On 
information and belief, they deny that Jamelle Rack- 
ley was removed from the waiting room. On informa­
tion and belief, they deny that they have violated any 
provision of the Fourteenth or Fifth Amendments. 
(Emphasis added.) (39a)

The only opposition, therefore, which appellees have pro­
duced to appellants’ affidavit on knowledge and the verified 
complaint is an affidavit on belief that an allegation in a



12

pleading on information ancl belief is true. This is com­
pound hearsay of no probative value. There is no reason 
why in this case the court below should not have followed 
the general rule which is that a verified complaint or affi­
davit standing undenied may be presumed true. See Royal 
Brewing Co. v. Missouri K. & T. By. Co., 217 F. 146 (D. 
Kan. 1914). Cf. Henry v. Greenville Airport Commission, 
284 F. 2d 631, 632 (4th Cir. 1960).

The failure of appellees to oppose appellants’ proof in a 
significant manner is emphasized by the fact that witnesses 
able to provide opposition if, indeed, opposition could be 
forthcoming, were in appellees’ control. The two doctors 
who treated Jamelle Rackley, the nurse on duty in the 
emergency room, the nurse who accosted Mrs. Rackley in 
the waiting room and former Hospital Director Roach, any 
of whom could have contradicted Mrs. Rackley in significant 
detail, appellees have chosen to ignore. Nor have appellees 
called upon the police officers who gave Mrs. Rackley the 
choice of leaving the waiting room or jail on October 12, 
1961 or the plainclotliesman who arrested her on October 
26, 1961. This Court found in Henry v. Greenville Airport 
Commission, 284 F. 2d 631, 632 (4th Cir. 1960), that failure 
to produce testimony from a friendly witness, within a 
party’s control, is tantamount to an admission that the 
witness’s testimony would not controvert the claims asserted 
against the party withholding the testimony. Certainly, this 
rule applies here.

Rather than affidavits or testimony from eye witnesses 
within their control appellees have relied upon the uncross- 
examined belief of Director Mabry, who was not Director 
of the Hospital at the time the events occurred, that the 
uncross-examined information and belief of nameless others 
is true. In contrast, appellees have cross-examined appel­
lant Gloria Rackley’s statements on knowledge.



13

Finally, in determining the legal effect of Director 
Mabry's affidavit the ambiguity of the allegations of the 
answer to which it refers must be considered. The verified 
complaint and affidavit of appellant Gloria Rackley describe 
two distinct expulsions from the white waiting room, one 
on October 12, 1961 and the other on October 26, 1961 
(5a-/a; 18a-20a). Whatever relevance appellees’ contention 
that appellants’ business in the hospital had been completed 
might have to the events of October 26 (when appellants 
were waiting to be picked up by an automobile and taken 
from the Hospital), it says nothing about the events of the 
12th of October which, it is uncontradicted, occurred prior 
to Jamelle Rackley’s release from the recovery room and 
prior to the receipt by appellant Gloria Rackley of an 
appointment card from the attending physicians (27a) 
Director Mabry’s affidavit was, therefore, in effect, an 
ambiguous denial of specific allegations which is insufficient, 
m such a context, to raise a material issue of fact. See 
Christian v. Jemison, 303 F. 2d 52, 55 (5th Cir. 1962).

In view of appellees’ failure to traverse materially the 
affidavit and verified complaint which had been before 
them, or to produce witnesses in opposition to it, the rule 
of Henry v. Greenville Airport Commission, 284 F. 2d 631 
633 (4th Cir. 1960) applies. Under similar circumstances 
this Court held in Henry that:

The District Court has no discretion to deny relief 
bv preliminary injunction to a person who clearly es­
tablishes by undisputed evidence that he is being 
denied a constitutional right. See Clemons v. Board of 
Education, 6 Cir. 228 F. 2d 853, 857; Board of Super­
visors of Louisiana State University, etc., v. Wilson, 
340 U. S. 909 ..  . Morgan v. Com. of Virginia, 328 U. S.



14

The conclusion is all the more appropriate in light of 
appellees’ admission that the hospital maintains separate 
waiting rooms for the two races (39a). As the Fifth Cir­
cuit said in Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 
1961):

What is forbidden is the state action in which color 
(i.e., race) is the determinant. It is simply beyond the 
constitutional competence of the state to command that 
any facility either shall be labeled as or reserved for 
the exclusive or preferred use of one rather than the 
other of the races.

It is well settled that officers and agents of government 
may not place the “power, property and prestige” of the 
State behind racial segregation. Burton v. Wilmington 
Parking Authority, 367 U. S. 715, 725. This is true regard­
less of the facility involved. Browder v. Gayle, 142 F. Supp. 
707, 717 (M. D. Ala. 1956), aff’d 352 U. S. 903 (interstate 
travel) ; Dawson v. Mayor, 220 F. 2d 386 (4th Cir. 1955), 
aff’d 350 U. S. 877 (recreational facilities); Brown v. Board 
of Education, 347 U. S. 483, and Frasier v. Board of Trus­
tees of the University of N. C., 134 F. Supp. 589, 592 (M. D. 
N. C. 1955), aff’d 350 U. S. 979 (public education), or the 
form of segregation supported; Henry v. Greenville Airport 
Commission, 284 F. 2d 631 (4th Cir. 1960) (separate wait­
ing rooms); Fleming v. South Carolina Electric and Gas 
Co., 224 F. 2d 752 (4th Cir. 1955) (segregated bus seating); 
Turner v. Randolph, 195 F. Supp. 671 (W. D. Tenn. 1961) 
(segregated washrooms).

As the principles of law applicable are settled and appel­
lees have tiled only vague and tenuous opposition to the 
facts shown, appellants are entitled to relief on the author­
ity of Henry v. Greenville Airport Commission, supra.



15

II.

The Court Below Erred in Striking From the Com­
plaint Allegations as to (a) Racial Segregation in Room  
and Ward Facilities and (b ) Funds Granted to Appellee 
Hospital By the United States.

Motions to strike are not favored. As the Fifth Circuit
held recently in Augustus v. Board of Public Instruction, 

F . 2d (No. 19408, July 24, 1962) a case in which 
the District Court ordered stricken allegations on behalf
of Negro school children attacking segregation of Negro 
teachers, principals and other personnel:

A disputed question of fact cannot be decided on 
motion to strike. It is true, also that when there is no 
showing of prejudicial harm to the moving party, the 
courts generally are not willing to determine disputed 
and substantial questions of law upon a motion to 
strike. Under such circumstances, the court may prop­
el h, and we think should, defer action on the motion 
and leave the sufficiency of the allegations for deter­
mination on the merits.

See Brown v. Williamson Tobacco Corp. v. United States, 
201 F. 2d 819, 822 (6th Cir. 1953); 2 Moore’s Federal Prac­
tice 2nd ed. Sec. 12.21(2) pp. 2317-2319.

(a) The Motion to Strike Allegations of Segregated 
Room and Ward Facilities

In gi anting appellees’ motion to strike allegations as 
to segregated ward and room facilities, the court below 
relied upon the fact that appellants’ only alleged exclusion 
from the white waiting room (50a). But appellants also 
alleged injury from the maintenance of separate ward and 
room facilities resulting in “ deprivation of the opportunity



16

of receiving medical care in the only public hospital in 
their locality free from racial discrimination” (7a). It is 
admitted by appellees that the Orangeburg Regional Hos­
pital is the only public hospital in the area of appellants’ 
residence (36a, 42a). It is admitted that appellants have 
used the facilities of the Hospital in the past (36a, 43a). As 
appellants can enter no other hospital in their area, it is 
certainly reasonable to conclude they will use the Hospital 
in the future. Appellants, therefore, are faced with a real 
likelihood of injury from the racially discriminatory poli­
cies of the Hospital and have a right to submit proof of 
these policies and the resulting injury suffered. See Pierce 
v. Society, 268 U. S. 510.

(1>) The Motion to Strike Allegations of Grants 
of United States Funds.

As fundamental as the Fourteenth Amendment’s prohibi­
tion on state imposed racial discrimination is the Fifth 
Amendment’s proscription of federally imposed racial dis­
crimination. Polling v. Sharpe, 347 U. S. 497. To the ex­
tent that the hospital in question has been built and main­
tained by substantial sums of money from the federal 
government, the Fifth Amendment, therefore, also applies. 
Nash v. Air Terminal Services, 85 F. Supp. 545 (E. D. Va. 
1949), held in 1949, before the separate but equal doctrine 
was finally discredited, that a federally owned airport may 
not segregate where Negro facilities are inferior to white 
ones. Obviously, in view of later legal developments which 
definitively have struck down separate but equal, no public 
facility can now segregate whether the facilities are equal 
or not. Similarly, Heyward v. Public Housing Administra- 
tion, 238 F. 2d 689 (5th Cir. 1956), held that a cause of 
action under the Fifth Amendment was stated against the 
Public Housing Authority in charging it with racial dis­
crimination in expending federal funds for public housing.



17

Id. at 696. And, of course, Bolling v. Sharpe, supra, estab­
lishes a parallel proposition with regard to federally main­
tained schools.

There is neither reason in logic nor authority why sub­
stantial sums of federal money should be insulated from 
the constitutional requirement of non discriminatory appli­
cation by the fact that said sums may be given to state 
officers for maintenance of a facility rather than said facil­
ity being maintained by federal officers themselves. Plain­
tiff respectfully submits, therefore, that paragraph VI of 
the Complaint alleging this federal participation also 
states a cause of action and that this portion of the Com­
plaint should not have been stricken as immaterial.

CONCLUSION

W herefore , f o r  the fo re g o in g  reason s, it is resp ectfu lly  
subm itted  that the ju d gm en t below  should  be reversed .

Respectfully submitted,

J ack  G reenberg 
M ic h ael  M eltsner

10 Columbus Circle 
New York 19, New York

M a t t h e w  J. P erry 
L in co ln  C. J e n k in s , Jr.

1107% Washington Street 
Columbia 1, South Carolina

Attorneys for Appellants.