Waterman, Moore and Hays, Circuit Judges. Waterman, Circuit Judge (dissenting).
The facts of this case are not in dispute. Plaintiff-appellant is a school teacher and resident of New York. In the summer of 1964, she volunteered to teach Negro students in a Mississippi Freedom School. On August 14, 1964, plaintiff, accompanied by six Negro students, entered the Hattiesburg, Mississippi, public library and requested the use of the library facilities. This request was refused, and they were told to leave. When they refused, the police were summoned, and the library was closed by the Chief of Police.
After their eviction from the library, plaintiff and the students proceeded to the Woolworth store in Hattiesburg for the purpose of eating lunch. Since the Woolworth store was crowded, they went instead to the Kress store, sat in booths near the lunch counter and sought to be served. Plaintiff, a Caucasian, admitted that one of the reasons the group chose Kress was that it served Negroes, and Kress claims to be a leader in the recognition of civil rights in the South. However, the waitress at the Hattiesburg store, acting under the orders of the store manager, took the orders of the Negroes but refused to serve plaintiff because she was in their company. According to the plaintiff, the waitress stated, "We have to serve the colored, but we are not going to serve the whites that come in with them." After she was refused service, plaintiff and the students left the store. Plaintiff's movements were under surveillance by the Hattiesburg police from the time that she and the students left the library, and as the group left the Kress store she was arrested and jailed by the police on a vagrancy charge.
Plaintiff brought this action for damages against Kress in the United States District Court for the Southern District of New York, alleging that she was discriminated against because of her race in violation of the equal protection clause of the Fourteenth Amendment and in violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983, which provides:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
As a second cause of action, plaintiff alleged that there was a conspiracy between Kress and the Hattiesburg police to refuse to serve her and to arrest her as she left the store. However, except for the facts given above, plaintiff presented no relevant facts tending to support this conspiracy claim. She asked damages of $50,000 on the first claim and $500,000 on the conspiracy count.
Kress moved for summary judgment, pursuant to Fed.R.Civ.P. 56, with respect to both claims in the complaint. On February 26, 1966, Judge Bonsal denied the motion with respect to the first cause of action, granted defendants summary judgment on the conspiracy claim, and permitted plaintiff to amend the complaint. 252 F. Supp. 140 (SDNY 1966). Plaintiff appeals from these orders. After an amended complaint was filed, a pre-trial order specifying the issues to be tried and the witnesses to be called was stipulated to by the plaintiff and entered by Chief Judge Ryan on August 2, 1966. Trial commenced before Judge Tenney and a jury on February 14, 1967, and at the close of plaintiff's case, a verdict was directed for defendant. Plaintiff appeals from the judgment entered on this verdict.
Kress' motion for a directed verdict at the end of plaintiff's case was granted for failure to make out a prima facie case of discrimination in violation of the Fourteenth Amendment*fn1 and Section 1983. In determining the triable issues, both Judge Tenney and (then) Chief Judge Ryan followed the opinion handed down by Judge Bonsal which held that for plaintiff to succeed on the merits she had to show some "state action" or state involvement in the alleged discrimination because purely private discrimination is not prohibited by § 1983 or the Fourteenth Amendment. Specifically, Judge Bonsal held that plaintiff must prove at the outset that:
(1) a custom existed on August 14, 1964, in the State of Mississippi and in Hattiesburg of refusing service in restaurants to whites in the company of Negroes, and
(2) this custom was enforced by the State of Mississippi pursuant to Mississippi Code Section 2046.5,*fn2 a criminal trespass statute. Judge Bonsal also intimated that plaintiff would have to establish that the store manager knew of, and acted pursuant to, § 2046.5 in refusing plaintiff service. Judge Tenney did not reach this latter point as he ruled that plaintiff had failed to prove that such a custom existed or that it was enforced under § 2046.5.
At the trial plaintiff testified that in her opinion it was the custom and usage in Hattiesburg not to serve white persons in the company of Negroes. However, plaintiff had never been in the State of Mississippi prior to June 1964 and had never visited Hattiesburg until July of that year. She did not have any personal knowledge of facts that would tend to show that such a custom existed. And each of the three students called by plaintiff as witnesses testified that they knew of no instances in which a white person had been refused service in Hattiesburg, Mississippi, while in the company of Negroes who were offered service. This failure of proof is not strange in light of the fact that Negroes only recently had been served in such establishments on an integrated basis.
One day before trial, plaintiff notified defendant that she intended to have two expert witnesses testify on the relevant customs and usages in Mississippi and Hattiesburg. The District Court sustained Kress' objection to these witnesses testifying on the ground that plaintiff had totally failed to abide by the pre-trial order requiring "prompt" notice to opposing counsel if any additional expert witnesses were to be called. The exclusion of these witnesses was within the trial court's discretion. Thompson v. Calmar S.S. Corp., 331 F.2d 657, 662 (3rd Cir.), cert. denied, 379 U.S. 913, 85 S. Ct. 259, 13 L. Ed. 2d 184 (1964); Clark v. Pennsylvania RR., 328 F.2d 591, 594-595 (2d Cir. 1964).
The proof presented by plaintiff was clearly insufficient to prove "custom, or usage, of any State" within the meaning of § 1983. The statute requires that the discriminatory custom or usage be proved to exist in the locale where the discrimination took place, and in the State generally. Plaintiff's proof on both points was deficient. It is true that in 1956 the Mississippi legislature passed, in addition to the trespass statute referred to above, Mississippi State Senate Concurrent Resolution No. 125 condemning and protesting the Supreme Court's school integration cases (Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083 (1955)), and a resolution, found in Miss.Code § 4065.3, directing the entire executive branch of government and all persons responsible thereto, including the police, to give effect to the Senate Concurrent Resolution, described as the "Resolution of Interposition." See also Miss.Code § 2056(7), a broad conspiracy statute passed in 1954 which, inter alia, makes it a crime to conspire to overthrow or violate the segregation laws of the State. However, these 1956 enactments are clearly insufficient by themselves to prove that in 1964 Mississippi had a custom of separating the races in restaurants. Williams v. Howard Johnson's Inc., 323 F.2d 102, 106 (4th Cir. 1963); Comment, 50 Cornell L.Q. 473, 494 (1965). The trespass statute, Miss.Code § 2046.5, is the only enactment not dealing with school integration and it, by itself, sheds no light on Mississippi customs and usages. Since plaintiff failed to prove custom or usage, we do not have to decide whether she also had to prove that the custom or usage was enforced by a state statute. See United States v. Guest, 383 U.S. 745, 761, 774, 86 S. Ct. 1170, 16 L. Ed. 2d 239 (1966) (concurring opinions of a majority of the Court indicating that such a showing of "state action" may not be necessary).
Plaintiff also contends on appeal that, assuming she has failed to prove the existence of a discriminatory state custom, she has nevertheless shown that she was discriminated against in violation of § 1983 because the refusal to serve her was "under color" of the state trespass statute, Miss.Code § 2046.5. The "under color" of law provision in § 1983 has been construed to mean the same as "state action" under the Fourteenth Amendment. United States v. Price, 383 U.S. 787, 794 n. 7, 86 S. Ct. 1152, 16 L. Ed. 2d 267 (1966). The state action concept has been expanding over the years, but some state involvement in the racial discrimination has always been required. See Reitman v. Mulkey, 387 U.S. 369, 87 S. Ct. 1627, 18 L. Ed. 2d 830 (1967); United States v. Guest, 383 U.S. 745, 86 S. Ct. 1170, 16 L. Ed. 2d 239 (1966); Lombard v. State of Louisiana, 373 U.S. 267, 83 S. Ct. 1122, 10 L. Ed. 2d 338 (1963); Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961); Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948); see generally Silard, A Constitutional Forecast: Demise of the "State Action" Limit on the Equal Protection Guarantee, 66 Colum.L.Rev. 855 (1966); Comment, 50 Cornell L.Q. 473 (1965); ...