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    IN THE

United States Court of Appeals
FOR THE FOURTH CIRCUIT

No. 8731

JAMELLE RACKLEY, a Minor, by her Mother and next 
friend, Gloria Rackley, and Gloria Rackley,

Appellants,

BOARD OF TRUSTEES of the Orangeburg Regional Hos­
pital, a body public, and H. F. Mabry, Director of the 
Orangeburg Regional Hospital,

BRIEF AND APPENDIX FOR APPELLEES

versus

Appellees.

FILED
C h arlto n  B. H orger

Orangeburg, South CarolinaSEP 17 1962

l M. F. WILLIAMS, JR.
D avid  W. R obinson  

Columbia, South Carolina 
Attorneys for AppelleesCLERK



INDEX
Page

STATEMENT __________________________________  1
I. Did the District Court Err in Denying a

Preliminary Injunction? __________________  3
II. The Motions to Strike____________    7

III. Appealability of Order Striking Allegations ... 7
CONCLUSION __________________________________  7

APPENDIX
Excerpts from Disposition of Gloria Rackley____  52a



TABLE OF CITATIONS
Cases: Page

Brotherhood v. Missouri, 363 U.S. 528 _____________  3, 4
Heyward v. Public Housing Adm., 238 F. 2d 689 ----  6
Kenneday v. Mason, 334 U.S. 249 --------------------------- 6
Markham v. Casper, 152 F. 2d 270 ------------------------- 7
Meiselman v. Paramount, 180 F. 2d 9 4 _____________  3
Metropolitan v. Banion, 86 F. 2d 886 ______________  7
Schultz v. Manufacturers & Traders, 103 F. 2d 771 „  7
Warner v. Gittone, 110 F. 2d 292 --------------------------  3
Yakus v. United States, 321 U.S. 414 — -----------------  3

Constitution of the United States

Fourteenth Amendment________________________  1, 6

Statutes
28 U.S.C.A. 1291 _______________________________ 7
42 U.S.C.A. 291 ( f ) (Hill Burton Act) ___________ 6, 7
42 U.S.C.A. 1981, 1983 _________________________ 1



United States Court of Appeals
FOR THE FOURTH CIRCUIT

No. 8731

JAMELLE RACKLEY, a Minor, by her Mother and next 
friend, Gloria Rackley, and Gloria Rackley,

Appellants,

versus

BOARD OF TRUSTEES of the Orangeburg Regional Hos­
pital, a body public, and H. F. Mabry, Director of the 
Orangeburg Regional Hospital,

Appellees.

BRIEF FOR APPELLEES

Jamelle Rackley, a minor, and her mother Gloria Rack- 
ley instituted this suit against the Trustees of the Orange­
burg Regional Hospital (Hospital) claiming a violation 
of their rights under the Fourteenth Amendment and the 
Civil Rights Statutes (42 U.S.C.A. 1981, 1983). They ask 
for temporary and permanent injunctive relief. From the 
order of the District Court denying a temporary injunction 
and granting the motion of the defendants to strike two 
allegations of the Complaint, the plaintiffs have appealed 
to this Court.

STATEMENT
As developed by the Complaint, by the affidavit of Gloria 

Rackley and by her deposition, the claims of the plaintiffs



2 Rackley v. Board

that they have been denied the equal protection of the law 
because of race may be thus summarized: (2a-8a)

On October 12, 1961 the minor plaintiff suffered a dis­
located or broken finger at play. She was brought to the 
Hospital by the playground supervisor and placed under 
the care of Dr. Brabham and of Dr. Frierson, then on duty 
at the Hospital. They treated the patient in the emergency 
room, in the X-ray room and in surgery. The finger was 
put in a cast and the patient and her mother asked to re­
turn in two weeks for the removal of the cast. No bed 
facility at the Hospital was requested. On October 26, 1961 
the plaintiffs returned to the Hospital, the cast was re­
moved, X-rays were taken, and the patient discharged.

There is no claim that Jamelle’s medical and surgical 
treatment was inferior. The results of the treatment have 
been satisfactory to the plaintiffs. There is no claim of 
racial segregation in surgery, in the X-ray room, or in the 
emergency room. These were the only parts of the Hospital 
in which Jamelle was treated. Neither she nor any one for 
her requested bed, room or ward facilities.

However, the plaintiff Gloria Rackley claims that on 
October 12, 1961 after she had reached the Hospital and 
had checked on her daughter’s condition, she seated her­
self in the Hospital’s public waiting room to await the 
completion of her daughter’s treatment. While there one 
of the Hospital attendants asked her to go to another wait­
ing room, which she declined to do. Thereafter, upon orders 
of the Police Chief, she left the waiting room.

She also claims that when she returned to the Hospital 
on October 26, 1961 for the removal of the cast on her 
daughter’s finger she stayed with her daughter in the 
emergency room while the doctor removed the cast as Ja­
melle was upset and almost fainted when the cast was re­
moved. Jamelle was then taken to X-ray across the hall 
from the emergency room for the customary X-ray check. 
Her mother, though requested by the doctor so to do, de-



Rackley v. Board 3

dined to go into the X-ray room with her daughter and 
seated herself in the public waiting room where she re­
mained until her daughter was brought to her by the doc­
tor who advised her that the patient had been discharged. 
The plaintiffs continued to remain in the waiting room. 
Gloria Rackley was requested by the Hospital Director to 
leave. She declined. Thereafter a police officer arrested 
the plaintiff Gloria Rackley for trespass.

I
Did the District Court Err in, Denying a Preliminary 

Injunction?

The general law with reference to the issuance of a tem­
porary injunction is thus stated by the Supreme Court in 
Yakus v. United States, 321 U.S. 414, 440:

The award of an interlocutory injunction by courts 
of equity has never been regarded as strictly a matter 
of right, even though irreparable injury may other­
wise result to the plaintiff. Compare Scripps-Howard 
Radio v. Federal Communications Commission, 316 
US 4, 10, 86 L ed 1229, 1234, 62 S. Ct 875 and cases 
cited. Even in suits in which only private interests 
are involved the award is a matter of sound judicial 
discretion, in the exercise of which the court balances 
the conveniences of the parties and possible injuries 
to them according as they may be affected by the 
granting or withholding of the injunction. Meccano, 
Ltd. v. John Wanamaker, 253 US 136, 141, 64 L ed 
822, 826, 40 S Ct 463; Rice & A. Corp. v. Lathrop, 
278 US 509, 514, 73 L Ed 480, 482, 49 S Ct 330.

Accord: Brotherhood v. Missouri, 363 U.S. 528, 532.
This Court in Meiselman v. Paramount, 180 F. 2d 94, 96, 

(4th Cir.) quoting from Warner v. Gittone, 110 F. 2d 292, 
293, (3rd Cir.), thus expressed the rule: “ The granting of 
a preliminary injunction is an exercise of a very far-reach­



4 Rackley v. Board

ing power, never to be indulged in except in a case clearly 
demanding it.”  Since the denial of a temporary injunction 
is within the discretion of the trial court, review here is 
limited to a determination as to whether the discretion 
has been abused. Brotherhood v. Missouri, 363 U.S. 528, 
535.

In support of the motion for a preliminary injunction, 
Gloria Rackley’s affidavit says in pertinent part, “ . . . that 
plaintiff and her minor daughter have made use of the 
facilities of said hospital and it is likely that they shall 
make future use thereof. . . .”  (18a) Nowhere else in the 
affidavit is there any reference to the future use of hos­
pital facilities. We submit that this possibility of future 
use does not show any necessity for temporary injunctive 
relief. The plaintiff has made no showing that any Negro 
citizen other than the Rackleys has attempted to use the 
“white” waiting room at the hospital. The affidavit of 
hospital director Mabry establishes that since he became 
director on December 1, 1961 no complaint as to discrim­
ination at the hospital from either white or Negro resident 
has come to his attention. (46a)

Paragraphs seven and nine of the Answer put in issue 
the plaintiffs’ version of the occurrences with reference to 
the use of the waiting room by the plaintiff Gloria Rack- 
ley (39a). The Answer, supported in part by the deposi­
tion of Gloria Rackley, pleads that Glora Rackley’s busi­
ness at the Hospital had been completed when she was 
arrested (39a). The determination of that issue and its 
bearing on the case can only be resolved after testimony is 
taken.

A careful reading of the deposition of Gloria Rackley 
leaves the impression that she invited the arrest about 
which she complains. She thus describes the removal of the 
cast and its effect on her daughter:

. . . some Orderly I suppose, was supposed to be doing
this but Frierson came up and did it himself, and as



Rackley v. Board 5

I said before, she’s timid and sensitive and afraid of 
pain, so she made a production of it, you know, hold­
ing onto me and everything, but I don’t think it hurt 
very much and we got through it all right, and then 
she almost fainted when she saw it was bruised and 
if you know how your skin looks when it has been in 
a cast for a week, and she almost got hysterical over 
this and they were still stiff and twisted, and she 
thought she would be deformed, so we got her settled 
down and he said he would like for her to go for X- 
rays. (29a)

After the removal of the cast the doctor said he would 
like to take X-rays in the room across the hall from emer­
gency (30a). This was done but Gloria Rackley refused 
to leave the waiting room in response to the doctor’s re­
quest that she go with Jamelle while the child was in X- 
ray. This is her language.

Dr. Frierson, the young doctor, came to the door (of 
the waiting room), on, I had not been there very long, 
he just put his head in the door and told me that my 
daughter was in X-ray and that she was alone, he 
wanted me to come to X-ray so I told him I would wait 
there for her, so he said: “ She’s alone and she needs 
you” and I told him I felt sure she would be all right, I 
had seen other Negroes in the hallway and I felt if 
she really needed me someone would come for me if 
she couldn’t. I didn’t tell him all of this. I told him I 
felt she would be all right and I would wait there for 
her, so he said: “ I don’t think you care anything about 
your daughter” and since I was not interested in his 
appraisal of me as a mother, I only was interested in 
his medical opinion of her finger, I just said: “ Oh you 
don’t?” . . .  (31a)

When this testimony is viewed in the light of the plaint­
iffs’ consultations with the Field Secretary of NAACP be­
tween the two visits to the Hospital, the immediate avail­



6 Rackley v. Board

ability of bond money when she was arrested, and the fact 
that she is not paying the expenses of this litigation, the 
conclusion that she went to the Hospital to precipitate the 
incident causing her arrest seems logical (53a, 55a, 57a). 
The powers of the chancellor should not be exercised under 
such conditions, certainly not until the facts are developed 
fully.

As we see the record now before the Court, the constitu­
tional issue of whether a county owned hospital may pro­
vide separate waiting rooms for members of the two races 
is not reached. However in view of the language of the 
Hill-Burton Act (42 U.S.C.A. 291 ( f ) ) authorizing fed­
eral aid for hospitals:

. . . where separate hospital facilities are provided for 
separate population groups, if the plan makes equit­
able provision on the basis of need for facilities and 
services of like quality for each such group; . . .

we do not believe that separate but equal facilities are out­
lawed under either the equal protection or the due process 
clause. The Fourteenth Amendment authorizes the Con­
gress to enact laws to carry into effect the commands of 
the Amendment. In the field of hospital aid the Congress 
has said that separate but equal facilities are appropriate. 
A patient’s recovery is influenced by the composure and 
serenity of his visiting family. It may well be that there 
is sound medical thinking that in geographical areas where 
the races live apart that they should not be mixed in hos­
pital facilities. Apparently the Congress was of that view. 
This determination of constitutionality by a coordinate 
branch of government should not be lightly disregarded 
by the Court.

The constitutionality of an Act of Congress should not 
be decided on a preliminary motion. Kenneday v. Mason, 
334 U.S. 249, 257; cf Heyward v. Public Housing Admin­
istration, 238 F. 2d 689, 698 (5th Cir.) cited by appellants.



Rackley v. Board 7

Unless the Court is prepared to declare this part of the 
Hill-Burton Act unconstitutional, it is difficult to see how 
the plaintiffs can prevail.

II
The Motions to Strike

On motion of the defendants the District Court struck 
from paragraph VII of the Complaint the allegation that 
the hospital maintained on the basis of race . . separate 
ward and room facilities for patients.”  Since neither plaint­
iff had requested ward or room facilities and none had been 
furnished, the question of whether the Hospital places mem­
bers of the Negro and white race in the same ward or in 
adjacent rooms is irrelevant to any issue here. Therefore 
the allegation was properly stricken.

The Court also struck from the Complaint paragraph 
VI which alleges that the Hospital has received construc­
tion and expansion funds from the United States. These 
allegations have no relevancy on the issue of whether the 
defendants have denied plaintiffs due process or the equal 
protection of the laws. No federal agency is a defendant 
here. Therefore they were properly stricken.

III
Appealability of Order Striking Allegations

That portion of the order of the District Court striking 
from the complaint allegations as irrelevant to the issue is 
not a final judgment subject to review under 28 U.S.C.A. 
1291. Metropolitan v. Banion, 86 F. 2d 886, (10th Cir.) ; 
Schultz v. Manufacturers & Traders, 103 F. 2d 771 (2nd 
Cir.) ; Markham v. Casper, 152 F. 2d 270, (7th Cir.).

CONCLUSION
We submit that the order of the District Court denying 

temporary injunctive relief should be affirmed and that the



8 Rackley v. Board

appeal from the order striking portions of the complaint 
dismissed.

CHARLTON B. HORGER 
DAVID W. ROBINSON

Attorneys for the Appellees

September 1962



APPENDIX



52a Rackley v. Board

DEPOSITION OF GLORIA RACKLEY 
(Filed May 14, 1962)

Excerpts in addition to those in Appellants’ Appendix 
(21a-33a) :

Mr, Robinson:
Q. Now let’s go back a minute. I believe you said, after 

you seated yourself, that Dr. Frierson came and asked you 
to go to the X-ray room with your daughter?

A. Yes.
Q. You declined to do it?
A. Yes.
Q. He was the physician in charge?
A. Yes.
Q. And then he came back a second time and reported to 

you that they had concluded working with your daughter?
A. Yes.
Q. Your daughter never was a hospital patient? She was 

an out patient?
A. Yes.
Q. And so she was discharged at that time?
A. I don’t know the ways of hospitals.
Q. Insofar as whatever the hospital was to do for her 

that day, it had been completed?
A. I suppose so. Nothing else has been done since.
Q. That’s what Dr. Frierson told you?
A. Yes, he just told me they had finished with her.
Q. And it was after that that Mr. Roach went to see you 

and after Mr. Roach went to see you, Mr. Judy came in?
A. At the same time. I can say that this was simulta­

neous.
Q. Now when did you first contact anybody connected 

with the NAACP about this?
A. This is a difficult question to answer. I have always 

been in contact with persons with the NAACP.
Q. What is your connection with it?
A. Pm a member.



A ppendix 53a

Q. You are more than that aren’t you?
A. I don’t know. Could I say an ardent member?
Q. Are you a Committeeman?
A. What is a Committeeman? Do you mean, do I have 

some office?
Q. Yes?
A. Do I? I might.
Q. I’m asking you. I haven’t the slightest idea. I’m try­

ing to find out.
A. I’m trying to think if I hold an office right now. I 

don’t.
Q. Well, between October 16th and October 26th, did you 

take up this matter with anybody connected with the 
NAACP?

A. Yes.
Q. With whom?
A. With Rev. Newman.
Q. He’s the Field Secretary for the National Organiza­

tion?
A. Yes. He is more than this. To me he is our friend.
Q. I was trying to get his connection with the NAACP. 

Counsel and I know about it but we have to get it in the 
record here. You did get in touch with him?

A. Yes.
Q. Did you tell him that you were going back on the 

26th of October?
A. They knew that we had another appointment.
Q. Did he advise you what to do when you went back?
A. No. There was nothing to do but to go back.
Q, I understand, but did he advise you what to do in the 

hospital after you went back? Pm not talking about the 
medical angle. I realize he didn’t advise you about that. 
Did he advise you to go back to the same waiting room?

A. No, I have never understood that there is another 
waiting room.

Q. But I’m just trying to see what Rev. Newman advised 
you?



54a Rackley v. Board

A. No. This was never a question.
Q. You did not discuss this matter with Rev. Newman?
A. The matter of the incident in the hospital? Certainly 

yes, but as to where I would sit should I need to sit in the 
hospital, has never been a question.

Q. My point is, whether it’s a question or not, did you 
discuss it with Rev. Newman?

A. I discussed the incident as I have told you, yes,
Q. Did you discuss with him what would happen the next 

time you went to the hospital?
A. That something might happen should I go back do 

you mean?
Q. In other words, you had a conversation with Rev. 

Newman?
A. Yes, and we talked about all of this.
Q. You at that time had an appointment to go back two 

weeks later?
A. Yes.
Q. Now did you discuss with Rev. Newman what you 

should do if you had a similar experience?
A. I didn’t ask what I should do. It was understood that 

I would go back. We discussed this. We discussed the inci­
dent as I have told it to you. We couldn’t discuss the next 
one because it hadn’t happened yet, but it was understood 
that I would go back.

Q. And he understood you were going back to the same 
waiting room?

A. Knowing me, he probably understood this, but he 
didn’t tell me to go back, if this is what you are saying, 
because it was not asked.

Q. What did pass between you and Rev. Newman? What 
conversation did you have with him?

A. We talked about it, not simply as Field Secretary for 
the NAACP but as my friend. He was the Pastor of my 
church for ever so many years, he christened my daughters 
and helped bury my dead daughter and he’s my friend and



A ppendix 55a

I was upset over this and we talked, and I cannot say what 
we said. We just talked about it.

Q. When you say you were upset over this, you were not 
upset over your child’s condition?

A. They told me that she would be all right and I felt 
that I could rely on them. I was not sure. They are not my 
doctors, I had no dealings with them before but she was 
not having sleepless nights or crying any longer and I felt 
that I could rely on their judgment.

Q. Did you discuss with Rev. Newman the bringing of 
this suit?

A. For the first time it happened?
Q. Between the two trips that you made to the hospital?
A. Yes, I wanted to know if I had a suit, the first time. 

This had nothing to do with the second time.
Q. What did he tell you?
A. He felt that maybe I did.
Q. Did you discuss what you would do on the second 

trip?
A. No, I’m saying no. It was just understood that I 

would go. I don’t want to say anything wrong but there 
was no direction.

Q. I’m just trying to get the facts today.
A. There was no direction as to what would be done but 

it was understood that I would return.
Q. Did you arrange to have bond before you went back 

on the 26th of October? Did you have somebody arrange 
to put up bond if you were arrested on the 26th, or did you 
put up bond on the 26th?

A. Yes, bond was put up for me, if that’s what you mean.
4^

Q. Did you talk to Rev. Newman about it?
A. Oh sure.
Q. Did you talk with anybody outside the State who is 

connected with the NAACP?
A. No I don’t think so.



56a Rackley v. Board

Q. I notice you have an attorney named James M. Na- 
breth, III. Do you know him?

A. I have met him.
Q. Also Michael Meltsner. Have you met him?
A. No.
Q. Jack Greenberg. Have you met him?
A. No but I know about him.
Q. You know they are all in the New York office of the 

NAACP?
A. Oh yes.
Q. And you know Mr. Greenberg is now General 

Counsel?
A. Yes. This was with my consent. Mr. Perry is my 

lawyer. He’s representing me.
Q. And you consented—
A. The rest of this is left to him.
Q. So the association of additional counsel is his sug­

gestion?
A. I don’t know if this is the way to say it but it is with 

my consent.
Q. Now have you paid any counsel fees to anybody?
A. No.
Q. Have you been billed for any?
A. No.
Q. Do you expect to be billed for any?
A. No I haven’t thought about it.
Q. Do you expect the NAACP to pick up any bill for 

counsel fees?
A. I suppose they will.
Q. Do you know whether any part of the NAACP has 

taken any action with reference to this case, with reference 
to approve the bringing of it or not?

A. Ask that again?
Q. Are you a member of the Orangeburg Chapter?
A. Oh yes.
Q. Have they taken any action with reference to ap­

proving the bringing of this suit?



A ppendix 57a

A. Yes. Wouldn’t we say yes?
Q. What about the State convention? Has it approved it? 
A. I suppose so.
Q. Has Rev. Newman approved it?
A. Yes.
Q. What about the State Chairman, J. Arthur Brown? 
A. You are asking these things and I’m having to give 

you what I assume to be true.
Q. I’m trying to get what you know?
A. Well, I haven’t asked Mr. Brown.
Q. What about Rev. Newman, have you asked him?
A. I don’t know if I’ve asked him in those words.
Q. Do you have his approval for the bringing of this 

suit?
A. Yes I think so.
Q. And I believe you said the Orangeburg Chapter has 

approved of it?
A. Yes.
Q. Are you a member of the Committee F-63?
A. Yes.
Q. What does that mean?
A. Freedom by ’63.
Q. Are you Secretary of that organization?
A. In our local Chapter?
Q. Yes?
A. Maybe so.
Q. I’m just trying to find out?
A. Am I Secretary of the F-63 ?