Petition for Writ of Certiorari — Haughton v. Wal-Mart Stores, Inc.

> Supreme Court, U.S,

| \ ) FILED

No. 02 67U OCl 292008

IN THE

SUPREME COURT OF THE UNITED STATES

RALSTON HAUGHTON and MARGARET HAUGHTON

husband and wife, Petitioners

Vs.

WAL-MART STORES INC., Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATFS COURT

OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Ralston Haughton, Pro se.

Margaret Haughton, Pro se.

2150 Princeton Street,

Sarasota,_Florida 34237

Tel: 941-724-2912

QUESTIONS PRESENTED FOR REVIEW

1. Whether Title 42 U.S.C. § 1983, and the

Equal Protection Clause of the Fourteenth Amendment

of the United States Constitution, affords the

Respondent Wal-Mart Stores Inc., the right to be

directed, to be advised, and to be authorized by the

states attorney's office to write the race of the

Petitioner on the Petitioners’ check when purchasing

merchandise at the Respondent's store, and Respondent

Wal-Mart Stores Inc., not be rendered a state actor

“under color of state law’.

2. Whether the Equal Protection Clause of the

Fourteenth Amendment of the United States

Constitution, affords Respondent Wal-Mart Store Inc.,

the right to write the race of the Petitioner on the

Petitioners’ check when purchasing merchandise at Wal-

Mart Store Inc., store, without a valid compelling state

interest.

LIST OF PARTIES TO THE PROCEEDINGS IN

THE COURT BELOW

L ASDA Group Limited

2. Richard A. Durose

3 Scott A. Forman, Esquire

4 Hon. Thomas B. McCoun, 111, U.S. Magistrate

Judge

5 Margaret Haughton

6. Ralston Haughton

7. McLane Company, Inc., and its subsidiaries

8 Hon. Steven D. Merryday, U.S. District Judge

9. Sam's East,, Inc.

10. Sam's Property Company

11. Sam's West, Inc.

12. Sam's Real Estate Business Trust

13. Michael C. Scher, Esquire

14. Wal-Mart Property Company

15. | Wal-Mart de Mexico, S.A. de CV.

16. | Wal-Mart Real Estate Business Trust

17. | Wal-Mart Stores East, Inc. Page

18. | Wal-Mart. Com, Inc.

19. | Wares Delaware Corporation

20. Erin A. Webb

i eet ne a it

TABLE OF CONTENTS

Page

Question Presented for Review.........ccccccccccscssesecsosececesees -i-

List of Parties to the Proceedings in this Court......-ii-

a. ss cceaminisnuebiseevensaiiobbemeansaneens -iv-

EE ET a -vi-

Statement of Jurisdiction.................cccccccccocccceoceccoceceeeees., -vii-

Constitutional Provisions, Treaties, Statutes,

Rules and Regulations Involved.u........ccccccscccscsccsesseeees -Viii-

I ss cs sacesmusesncensunenenmeseneeeenes 1

Reason for Granting Wit..............c.cecccssccscsvssscssscssesesesesseenss 7

ESRI EUR 1a siecbiddoidilatibebidilinaubnias 24

Lah iaecasissbhdkscststrpsiriasnssnsnosnsdeadatdaneceesenscnssacinesinnes 25

A. Judgment of Court of sisicdeae bcdiensnmenniteenennienanen 25

I sia csbacsseencdidtndeaeenocinstnadachnsioenasens 26

Fe | 31

Pe ME GIR Cac scsccstscccscccocesasecesceceseessecees 33

E. Constitutional Provisions, Treaties, Statutes,

Rules and Regulations Involved..............c.cc00.0. 37

I seseshmnatmntmuemmaneunens 39

-iii-

TABLE OF AUTHORITIES

CASES

Page

Anderson v. Martin, 375 U.S. 399, 84 S. Ct 454,

11 L.Ed. 2d 430 (1964)......:-ssssssrsserssrssnrsrssssssnssnsennsessets 15,16,19

Ammons v. Dade City 783, F. Dd at 9B7-BB.........eeeerees 21

Baldwin v. Morgan, 287 F.2d at 750-760,

(Sth Cir. 1961)....sessocssceseeeecesessnnnnnsecceseseesrnssreeeessese eee 10

Booker v. City of Atlanta, 776 F. 2d 272

(11th Cit. 1985)qn....ssecsssooorseseeesesseceeessssoresnerreersessnnnsernasng ee 9

Burton v. Wilmington Parking Authority, 81 S. Ct. 856

(ROT aasecseveennssonnnnrsssensentesensnereqverannnsonstnaiae natn aT 13

City of Mobile, Ala v. Bolden, 446 at 120-21, 100 S.Ct

1440 at 1517 (1980).........-cssscvesssssensserscsrsssensnssessnnscnsssensestaees 21

Columbus Board of Education 0. Penick, 443, U.S. 449,

464-65, 99 S. Ct. 2941, 2950, 61 L.Ed. 2d. 666

CII scecccssnsennivcnemaanntmtannnmenmnaitonaamenin rer ere 21

Dowdell v. City of Apopka, 698 F. 2d 1181

(11th. Cir, 1983)... scuapneessessnsnssnsssnnonssnovensceessesesses 21

Duke v. Smith, 13 F. 3d 388, (11th Cir. 1994)... 8

Edmonson v. Leesville Concrete Co., (1991) 500 US. 614,

114 L.Ed. 2d 660, 674, 111 S. Ct. 2077......ssecererceneereeenens 9

Gomillion v. Lightfoot, 364 U.S. 339, 81 S. Ct 125,

siscieainnntt 20

5 L. Ed. 2d. 110 (1960)...-ssssscecssssessnseeesnssesen

Griggs v. Duke Power Co, 401 US. 424, 91 S. Ct. 849,

D8 L.Ed 2d 158(1971)ooooossssssseesssseesesssseeneee pr tene ae

Hunter v. Erickson, 1969, 393 U.S. 385, 89 S. Ct 557,

V1 L. Ed. 2d 616..........cvsscssrvsressnessssnsensssssenssnncnnseseresrasseeenees

Lombard v. Louisiana 373 U.S. 267, 83 S. Ct. 1122,

10 L. Ed. 2d 338 (1963)......--ssssessrsessessreersersssereeersees

Lugar v. Edmondson Oil Co. 457 US. 922, 987, 102 S.

Ct 2744, 2753, 73 L. Ed. 2d 482 (1982).....-.cececereeerererereees 9

Peterson v. City of Greenville 83. S. Ct. 1119(1963)......... 12

Roberis v. Wal-Mart Stores Inc., 769 F. Supp. 1086

(E.D. Mo. 199 1)ovosreravocceseecessceceeeeeeceeeseesooeoesverosenrsnsna rence 22

Robinson v. Florida, 378 U.S. 153, 84 S.Ct. 1119, 10

-iv-

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(nts § Pe DE Vd GaN SA SRA Lae AER S09 De Eh MEAS las. 86 0)

th hile wig. Se Ka.

AK, lala) # arc

Liss SDN Sen INIsoircassndichoeisiesnsdtnakeselesiesinisoesicdedabeianiciibialaans 13

Reitman v. Mulkey, 387 U.S. 369, 87 S. Ct. 1627,

Bs a te I i certiiicceiniccnianenaaahncmieininiandiaial 8

Roger v. Lodge at 102 S. Ct. 3272, at 3280 (1982)......... 22

seidenberg v. McSorleys’ Old Ale House, Inc., 317 F.

Bt meee ee Te 8

Tulsa Professional Collection Services v Pope, 485

U.S. 478, 108 s. Ct. 1340, 99 L. Ed. 2d 565 (1988).....10

United States v. Texas Education Agency, 564 F.2d 162,

l68 (Sth Cir 1977) cert. Den., 443 US. 915, 99 S.Ct.

Pa GE Sat Be OPO CRNe iistinsisesiiamiinsninnsieciaen 21

Village of Arlington Heights v. Metropolitan Housing Dev.,

-orp., 429 US. at 265-66, 97 S. Ct at 563... 22

Nallace v. Debron Corp., 494 F. 2d. 674 (8th Cir. filed

M.S “Te ethcinsseinaeissosansneunnneanisenemnlichinsinsiamanimaniguaiaanaie 20

Nilliams v. Matthews Company 499 F. 2d 819, 826

Tapia citable alaataaediaiiinialabiiilcataael 20

STATUTES

Se Sh Bi suvedlincicwinssiniccsayimnabeememeiiianl -viii-,1,5,7,15

TE | | See ONE ONT ROMER oT -vii-

FMRI: - TNO Tye ccisssnesssisiniecincinsitahaiceslaasiassnbenaiiiliaatts acta 8

CONSTITUTIONAL PROVISIONS

‘ourteenth Amendment to the United States

i icacsicstiinieniscitinisaicianisiiiiatiacaiemi -viii-,1,2,17,21,24

iquai Protection Clause of the Fourteenth

is sisnctincninnicsigesenieomaiiantaieumien -viii-1,5,15,18,22,23

TREATIES

-ONSTITUTIONAL LAW, page 486, (Fifth Edition)

y John E. Nowak, Ronald D. Rotunda we ee

————K—_

OPINIONS BELOW

The July 19, 2002, opinion of the Court of

Appeals, whose judgment is herein sought to be

reviewed, is reported at case number 02-10385-EE, date

of the decision is September 24, 2002, the decision is

unpublished, and is reprinted in the Appendix to this

Petition, at page 26. The prior opinion of the United

States District Court for the Middle District of Florida,

entered December 31, 2001, is reported at case number

01-01131 CV-T-23, the decision is unpublished, and is

reprinted in the Appendix to this Petition at page 32.

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals was entered

on July 19, 2002, and the Petition for Rehearing was

timely filed and was denied on September 24, 2002.

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. § 1254 (1).

CONSTITUTIONAL PROVISIONS, TREATIES,

. STATUTES, RULES

AND REGULATIONS INVOLVED

This case involves the first section of the Fourteenth

Amendment to the Constitution of the United States,

which provides as follows:

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any States deprive any person

of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the

equal protection of the laws.

This case also involves Title 42 U.S.C. Section 12%,

which provides as follows:

Every person who, under color of any statute,

ordinance, regulation, custom, or any State or Territory

or the District of Columbia, 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. For the purposes of

this section, any Act of Congress applicable exclusively

to the District of Colombia shall be considered to be

a statute of the District of Columbia.

TREATIES

CONSTITUTIONAL LAW, page 486, (Fifth Edition)

by John E. Nowak, Ronald D. Rotunda.

STATEMENT OF THE CASE

This is a racial discrimination action brought by

Ralston Haughton and Margaret Haughton, husband

and wife, the Petitioners on May 18, 2001, pursuant to

42 USC. § 1983, for civil rights violations committed

by Respondent, “under color of State law,” which

deprived the Petitioners of rights secured under the

Fourteenth Amendment of the United States

Constitution equal Protection, rights, privileged and

immunities clauses.

The Petitioners are African American citizens and

are proceeding in pro se without the assistance of

counsel, in claims of racial discrimination and racial

segregation, with humiliation, emotional distress and

having been made to feel inferior.

The Petitioners’ Principal claim, pursuant to 42

U.S.C. § 1983 (R1-98), alleges that Respondent writing

“B/F”’ on the check, constitutes “racial discrimination

and racial segregation” in violation of the Equal

Protection Clause of the Fourteenth Amendment of the

the Petitioners seek $100,000,000 in compensation

damages and $100,000,000 in punitive damages because,

the Petitioners’ Constitutional right to be free from

racial discrimination which is guaranteed, secured, and

Protected by the Equal Protection Clause of the

Fourteenth Amendment of the Constitution of the

United States, is “very important,” and because “many

have died to give us this freedom.” The Petitioners’

amended complaint (R1-98) contains three counts. Count

one alleges racial discrimination in violation of the

Fourteenth Amendment and 42 U.S.C. §1983. Counts

two and three allege claims for emotional distress and

loss of consortium, of which the Petitioners seek

$100,000,000 in compensation damages and $100,000,000

Meme mn rere er errr ALT

|

in punitive damages for the injuries Petitioners suffered

from the racial discriminatory actions of Respondent,

claims are wholly dependent on and derivative of the

racial discrimination claim alleged in count one.

While the litigation followed the Petitioners

Constitutional rights, the complaint sought the complete

freedom from racial discrimination of the writing of

race on checks system and provision of equal

protection to all citizens of this nation.

The Respondent established a check writing policy

that was permitted and enforced by the state attorney's

office in Sarasota County, Florida, that requires that

the Petitioners’ race must be written on their check

when they purchase a merchandise at Respondent's

store. This alleged policy was intentionally designed

to operate and was implemented to racially

discriminate against blacks.

There is substantial evidence in the record as 7

shown by, the Petitioners check with B/F written by |

Respondent; affidavit of Nancy Silvia, a white female

whom sworn that she shopped at Respondent's store

and there was no race written on her checks;

Petitioner Margaret Haughton’s deposition testimony

showing that she told other white people that

Respondent wrote the race on her check, and that they

immediately said that, Respondent did not write their

race on their checks; the historical document, and

depositions on record with the Respondent's employees’

testimonies about the alleged policy and its history;

and the omission of evidence and argument showing

any demonstration of any successful relationship as to

combating Respondent's fraudulent check customers.

The Evidence

The pattern of the Respondent racially discriminatory

conduct of the alleged policy had persisted from about

1991, or a considerable time in the United States and

Sarasota County, Florida. Much of the evidence in the

record demonstrated Respondent's use of the state

attorney's office statement, which directed, and advised

Respondent that the state attorney’s office would

prosecute the customers fraudulent checks if the

Respondent wrote the race on the customers checks.

Prior to the alleged policy, Respondent stores

followed the normal procedure as other stores in

accepting customer checks with identification, such as

drivers licenses, telephone numbers and possible other

points, but race was never used, yet the Respondent

chosen to bear up on the Petitioner's race for

identification. Furthermore, the area of the Respondent

store is predominantly white

On February 15, 2001, the Petitioners, Ralston

Haughton and Margaret Haughton, who are African

American, purchased an ink cartridge at the

Respondent store Wal-Mart in Sarasota, Florida.

Petitioners paid for the cartridge with a check, which

Respondent accepted. To verify Petitioner's identity,

Petitioner presented her Florida drivers license.

Respondent wrote the Petitioner's Margaret Haughton

drivers license number and date of birth on the top

of the check. Respondent also wrote “B/F” on the

top of the check (R1- 98, copy of check attached).

When the Petitioner asked the Respondent about the

B/F written on their check , the Respondent responded

that “B/F” means “black, female causing emotional

distress, humiliation, embarrassment and other related

mental anguish upon the Petitioners.

The Respondent stated that, the state attorney’s

office made the statement, directing, and advising

Respondent to write the race on the customers checks,

so that the state attorney’s office could prosecute the

fraudulent check customers, and that they were

following that guideline (R1-81-47-line 14-17). The

Respondent also admitted that, without the state

attorney's office statement directing and advising

Respondent, they would not have written the race of

the Petitioner on the Petitioners’ check (R1-83, 27, line

11- Pg. 29,-line 9).

There is no reasonable distinction that can be found

for the purpose of writing B/F on Petitioners’ check

other than for intentional racial discrimination and

segregation purpose. The record has shown that it is

not the Respondent's policy to write W/F meaning

white female on white females checks because, Nancy

Silvia, a white female sworn and signed an affidavit

(R1-84. Affidavit attached.), that she wrote checks at

Respondent's store Wal-Mart, and there was no “W/F’

written on her checks, also, Margaret Haughton the

Petitioner's deposition in the record shows that, the

Petitioner investigated Respondent's check policy among

white people, and told the white people that

Respondent writes race on checks, of which these

white people immediately told Petitioner that

Respondent did not write race on their checks. (R1-61-

32-line 2-15.) The record shows Carolyn Shelton (R1-

81,-60, line 1-21) deposition testimony, and the Roberts

v. Wal-Mart Stores Inc., 769 F. Supp. 1086 (E.D. Mo.

1991) case that, Respondent has an history of

committing the alleged conduct, and had foreseen that

the alleged policy would hurt black customers. The

record has shown that the alleged policy was not

necessary (See deposition testimony of David Dickerson

which stated that, “ It doesn’t make any difference if race

is written on the checks if it 1s legitimate,”(R1-83-123,

lines 20-Pg. 124- lines 10), also Carolyn enn

deposition testimony which stated that:

“ Q. Does it make your job any easier because you see

the different races on the check?

A. It doesn’t make it easier. It doesn’t make it harder,

because I am not looking at that.” (R1-81-61-line 23, Pg.

62- line 1 ). The record also shows that Respondent

did not argue on, nor has shown any demonstration

of any successful relationship to combating customers’

fraudulent checks. Furthermore, the record shows

Respondent executive employees Carolyn Shelton (R1-81-

63-lines 1-9), and David Dickerson (R1-83-124, lines 1-

10) depositions testimonies shows inconsistencies with

the District Court conclusion that the Respondent

alleged policy is to combat customers fraudulent

checks. (R1-99-3.)

As a result of the actions and racially discriminatory

conduct of Respondent as alleged herein, Petitioners

have sustained damages, including but not limited to

emotional distress, mental anguish, feeling inferior,

embarrassment and humiliation.

After the incident completed of above Petitioners

communicated to Respondent's home office asking

Respondent to cure or correct the discriminatory act of

which the Petitioners complained, but Respondent has

failed and refused to do so, or to even apologize to

the Petitioners.

The Rulings Below

The United States Court of Appeals Eleventh

Circuit rejected the Petitioners Title 42 U.S.C. § 1983,

claim and affirmed the District Court ruling. (Appx-B-

26.) The Court of Appeals did not rule on the

Petitioners’ racial discrimination claim of violation of

the Equal Protection Clause of the Fourteenth

Amendment of the Constitution of the United States.

The Court of Appeals ruled in their opinion (Appx-B-

Pg. 28.) that:

“ Finally, although the state attorney’s office

advised Wal-Mart of the information that it would like

to have to prosecute check fraud, it did not compel or

provide encouragement significant enough for Wal-Mart

to have become a state actor under the state

compulsion test.”

The District Court ruled on the racial discrimination

issue, that the Petitioners’ “failed to present any

credible evidence that Wal-Mart discriminated against

them, intentionally or otherwise, on the basis of race”

(Appx-D-34), and that “no genuine material issue of

fact exists with respect to whether Wal-Mart

intentionally discriminated against the Haughtons”

(Appx-D-34). The District Court further stated that

“the evidence shows the opposite—that Wal-Mart

employs the check identification policy without regard

to race (or any other distinguishing characteristic,

suspect or otherwise).” (Appx-D-34) The District Court

below concluded that, “Wal-Mart store maintained a

policy requiring its cashiers to note identifying

information (e.g., drivers license number, date of birth,

race, and sex) of each customer presenting a personal

check to purchase merchandise, regardless of the

customer's race. Wal-Mart implemented the policy in

order to combat check fraud,” and that Wal-Mart's

conduct was not racial discrimination. (Appx-D-34.)

REASONS FOR GRANTING THE WRIT

I.

Certiorari Should Be Granted to Resolve Conflicts

Of Decisions of This Court And The Lower Courts, ;

and The Special and Important Question Of Federal |

Law Which Should Be Settle By This Court.

The first issues in this case involves Respondent's

policy of writing the race of the Petitioner on the

Petitioners’ check, by the states attorney’s office direction

and advice, which includes statements that the state

attorney's office would prosecute Respondent's

fraudulent customers checks with race written on them,

violating Title 42 U.S.C. § 1983, and not be rendered

a state actor under color of state law, which involves

principles of law, of which settlement by this Court is

important to the Petitioners and the public.

The record evidence established that Respondent's

policy of writing the race of the Petitioner on the

Petitioners’ check was a result of compulsion by the.

state or a symbiotic relationship under the nexus test.

The Petitioners submitted Lombard v. Louisiana 373

U.S. 267, 83 S. Ct. 1122, 10 L. Ed. 2d 338 (1963),

which, in clear contradiction to established law, the

Court of Appeals chose to ignore. Here the Supreme

Court reversed the trespass convictions of sit-in

demonstrators because the city officials, prior to the

demonstration, had condemned sit-ins and stated that

the city was prepared to enforce the law. These

Statements were taken to be official encouragement of —

Store owners to use the state trespass laws in a

discriminatory manner. The Court also held on the

basis of the statement alone that the private

discrimination denial of service to petitioners was

sufficient to make denial state action.

Similar in this case, the record shows Respondent

wrote the race of the Petitioner on the Petitioners’

check (R1- 98, copy of check attached), the state

attorney's office made the statement to Respondent

that, in order to have the customers fraudulent checks

prosecuted (Using Florida Statute 832.) Respondent must

write the race on the customers checks. Respondent's

head of the accounting department Carolyn Shelton

testified that: “When we went to prosecute on the check,

the prosecutor told us we had to have this information in

order to prosecute (R1- 81,- 46 lines 21- Pg. 47- line 7),

also, Carolyn Shelton testified that: ~... if we wanted

to prosecute checks, we had to follow these guidelines in

order to do it. that’s what we do (R1- 81,- 47- lines 14

17). Respondent's store manager David Dickerson

testified that, if it was not for the advice of the state

attorney's office they would not have written the race

of the Petitioner on the Petitioners’ check (R1- 83,-

131,- lines 11- Pg 132- line 24). This evidence shows,

the statement of the state attorney's office to prosecute

Respondent's fraudulent customers checks with race

written on them using Florida Statute 832, has

provided official encouragement causing racial

discrimination, which is encouragement significant

enough to make Respondent a “state actor’ under the

state compulsion test. Also, the Court of Appeals is

in conflict with Seidenberg v. McSorleys’ Old Ale House,

Inc., 317 F. Supp. 593, at 596, (2nd Cir. 1970), which

stated that: “if the state engages in conduct having the

effect of encouraging, tolerating or acquiescing in

discrimination, the Fourteenth Amendment may be

invoked.” also, see Reitman v. Mulkey, 387 U.S. 369,

87 S. Ct. 1627, 18 L. Ed. 2d. 830 (1967).

The Court of Appeals contradicted its own decision

in Duke _v. Smith, 13 F. 3d 388, (11th Cir. 1994), and

has drawn incorrect conclusions contrary to the positive

evidence in the record. Duke v. Smith, Id, which was

cited in their opinion at Appx B- 28 held that:

“Because the Florida legislature has given |

the committee power to “declare {during the

reconsideration process] who is fit to run, and

who by extention is fit to govern,” Duke II at

1404, we are bound by the new precedent in

this Circuit and hold that the procedures out

lined in §103. 101 (2) ( c) constitute state

action.”

The record has positively shown a similarity in

this case that, the state attorney’s office nine point

document, and the statement that advised and directed

Respondent to write race on customers’ checks, gave

Respondent the power to declare [during the customers’

check writing process} whose check to write race on (R1-

98, copy of check attached), and whose check not to

write race on (R1- 84, Nancy Silvia’s testimony that she

is white and Respondent did not write her race on her

check shopping at Respondent store. Affidavit attached ),

also Margaret Haughton’s deposition (R1-61-32-line 2-15).

The Court of Appeals also chose to ignore Lugar

v. Edmonson Oil Co., 457 U.S. 922, 937, 102 S. Ct

2744, 2753, 73 L. Ed. 2d 482 (1982), Edmonson v.

Leesville Concrete Co. (1991) 500 US. 614, 114 LEd. 2d

660, 674, 111 S. Ct 2077, and Booker v. City of Atlanta,

776 F. 2d 272 (11th Cir. 1985), which were all

submitted by the Petitioners.

policy was to remain neutral in such cases. Here, in

the record, the presence of the state attorney's office

9

with the judicial system in connection with the

prosecutions of fraudulent checks under Florida Statute

832, have the effect of a “cachet of legality,” of which

has significantly encouraging Respondent into

committing the alleged act (R1- 81,- 46 lines 21- Pg.

47- line 7).

The record also shows that, race is the determinant

factor throughout this case, and that the state

attorney's office used race as a basis for distinction

through the medium of Respondent (R1- 81,- 46-lines

21- Pg. 47-line 2), also (R1- 83,- 132,-lines 12-24), of

which is clearly forbidden in this Court.

The Court of Appeals has ignored Baldwin_v. Morgan,

287 F.2d at 750-760, (Sth Cir. 1961), which was

submitted by the Petitioners. The Fifth Circuit held

that:

“What is forbidden is the state action in

which color (i.e., race) is the determinant.” Id

754. The Court also stated: “the very act of

posting and maintaining separate waiting room

facilities when done by the railroad Terminal as -

commanded by these state orders is action by

the state’. Id. 755. The Court then went on

to say: “As we have pointed out above the

State may not use race or color as the basis

for distinction. It may not do so by direct

action or through the medium of others who

are under State compulsion to do so”. Id 756.

The Record shows that David Dickerson

Respondent's store manager admitted in his deposition

that if it was not for the advice of the state attorney's

office Respondent would not have committed the

alleged act (R1-83-132,- lines 12-24), also, see (R1-83-133,-

line 6-10).

The Petitioners submitted Tulsa Professional

Collection Services_v Pope, 485 U.S. 478, 108 s. Ct 1340,

10

99 L. Ed. 2d 565 (1988), that was ignored by the

Court of Appeals. Here this Court did find sufficient

involvement of the probate court. It reasoned as

follows:

“The probate court is intimately involved

throughout, and without that involvement the

time bar is never activated. The nonclaim

statute becomes operative only after probate

proceedings have been commenced in state

court. The court must appoint the executor or

executrix before notice, which triggers the time

bar, can be given. Only after this court

appointment is made does the statute provide

for any notice... Finally, copies of the notice

and an affidavit of publication must be filed

with the court... It is only after all of these

actions take place that the time period begins

to run, and in every one of these actions, the

court is intimately involved.”

Similar in this case and the record, the state

attorney's office is intimately involved throughout, and

without that involvement the writing of the Petitioner's

race on the Petitioners’ check would never have been

activated. Respondent race on check policy becomes

operative only after the state attorney's office

involvement has been commenced with Respondent,

which triggers Respondent to write the race of the

Petitioner on the Petitioners’ check. Here, Respondent's

head of the accounting department Carolyn Shelton’s

deposition testimony stated that:

“WNhen we went to prosecute on the check, the

prosecutor told us we had to have this information in order

to prosecute. At that time we started implementing it on

all checks. (R1-81-46-lines 21- Pg. 47-line 2) Carolyn

Shelton’s deposition testimony also stated that, oe

we wanted to prosecute checks, we had to follow these

11

guidelines in order to do it. that’s what we do. (R1-81-

47-lines 14-17). It is only after all of these actions

have taken place that the writing of race on checks

begins.

The state attorney's office has officially recognized

its legitimacy, causing Respondent to rely upon them

for the prosecution of customers fraudulent checks with

race written on the checks. This involvement is so

pervasive and substantial that it must be considered

state action subject to the restrictions of, the Equal

Protection Clause of the Fourteenth Amendment of the

United States Constitution.

CONSTITUTIONAL LAW, page 486, (Fifth

Edition) by John E. Nowak, Ronald D. Rotunda,

stated:

“When state legislation commands a

certain activity, or officially recognizes its

legitimacy, there is no question but that state

action is present whenever someone follows the

guidelines of statute. In such a situation the

challenged activity must be taken to exist

because the state legislature has commanded its

occurrence and continuation. For example, if a

state legislature commands that restaurants serve

food on a racially segregated basis it is clear

that the action of restaurant owners who

discriminate between their patrons on the basis

of race will constitute state action. Also, see

Peterson _v. City of Greenville 83. S.Ct

1119(1963)...

Also, Carolyn Shelton testified in her deposition

that:

“Q. When the state attorney spoke about authorizing it,

you have never said—think that something is not right?

A. My thought was that everybody is going to be

very upset when we write this on their check, everyone,

12

not just black, everyone.

Q. Yes.

A. Yes...” | (R1-8i-60,-line 6-20.).

Respondent knew at the time the state attorney's

office imposed the alleged procedure upon them that it

was wrong, and it would have hurt and emotionally

distress the customers, the state attorney's office

permitted the racial discrimination to occur, officially

recognizing its legitimacy, undisputedly showing that

the alleged act was done under the state attorney's

office authority, of which significantly encouraged

Respondent. See Peterson_v. City of Greenville 83. S.Ct.

1119(1963), also, Schneider _v. Colegio De Abogados De

Puerto Rico, 565 F. Supp. 963 at 973 (ith Cir. 1983).

See also, CONSTITUTIONAL LAW, page 486, (Fifth

Edition) by John E. Nowak, Ronald D. Rotunda, that

stated:

“ Similarly state legislation may encourage

an activity so as to give rise to state action in

the activities of private persons. For example,

state action will be found in a restaurant's

racially restrictive practices where state

legislation requires that restaurants serving

members of minority races have separate toilet

facilities for those persons. ( See Robinson_v.

Florida, 378 U.S. 153, 84 S.Ct. 1119, 10 L.Ed. 2d

323-22.) The restaurant owner who refuses to

serve members of a minority is restricted by

constitutional provision because that decision

must be held to be the result of the state

legislation. To hold otherwise would allow the

state to have helped establish or continue a

practice without any effective remedy.”

The Burton _v. Wilmington Parking Authority, 81 S.

Ct. 856 (1961), makes it appropriate to focus not on

the substantively acceptable governmental decision to

13

lease to a private party, but to focus on the choice of

the private party to commit racial discrimination

Here in this case, the District Court and the Court of

Appeals should have focus not on the state attorney's

office advice to the Respondent to commit racial

discrimination, but to focus on the racial discrimination

choice Respondent has exercised, and on the

substantively unacceptable way in which those choices

are exercised in this specific case. Burton Id., shifts

from the level of rule that tells the lessee, “ serve

whomever you wish, “to the level of the rule adopted

by the lessee himself, “whites only.” In this case the

state attorney's office, tells Respondent “write race on

customers’ checks” if Respondent wishes to receive

benefits of prosecution, Respondent choose to adopt a

policy to write race on “blacks checks only.” For this

the state attorney's office is responsible. The state

attorney's office enables Respondent to engaged in

racial discriminatory conduct upon the Petitioners. The

alleged policy becomes a policy to discriminate, and

without the alleged policy Respondent could never

have discriminated with the check of the Petitioners.

(R1- 98, copy of check attached), (R1-84, Nancy Silvia’s

affidavit supra), (R1-61-32-line 2-15), (R1-83, Pg. 132,-

lines 12-24). (R1-83, Pg. 123-lines 16-Pg. 124line 13.),

also, (R1-83-27,-lines 11- Pg. 28-line 21.), also, (R1-83-

39,-lines 23-Pg. 40, line 1-3), also see Seidenberg 598,

supra. To rule that the states attorney's office

statement, advice and direction to Respondent to write

- the race of the Petitioner on the Petitioners check does

not constitute state action against the background of

racial discrimination, will only help to establish, or

continue racial discriminatory practice.

The United States Court of Appeals Eleventh Circuit

has limited the remedy, by applying to this case

conflicting rulings which has passed upon similar

14

matters thus, this case is affected by those conflicts,

which should be resolved by this Court in order to

establish a uniform approach to 42 U.S.C. § 1983 state

action cases.

L

Other Special and Important Question Of Federal

Law Which Should Be Settle By This Court.

The Petitioners brought this second issue to this

Court for the Court to review because, this case is of

imperative importance to the Petitioners’ Constitutional

rights, and also is such imperative public importance,

and requires immediate settlement in this Court.

This issues involves whether the Equal Protection

Clause of the Fourteenth Amendment of the United

States Constitution, affords Respondent the right to

write the race of the Petitioner on the Petitioners’

check as a distinction of Petitioner's race when

purchasing merchandise at Respondent's store, without

a valid compelling state interest.

The Petitioners case should be governed by the .

“strict scrutiny test” or the same rules as Anderson 0.

Martin, 375 U.S. 399, 84 S. Ct 454 11 L.Ed. 2d 430

(1964). regardless of the source of the document

because, it is a selected type document which the

Respondent uses for benefits or burden. This Court

have determined that writing of race on the

nomination papers and ballots violates the Equal

Protection Clause of the Fourteenth Amendment of the

United States Constitution. By comparison, this case

raises the question whether the writing of the

Petitioner's race on the Petitioners check without a

valid compelling state interest constitutes racial

discrimination violating the Equal Protection Clause of

the Fourteenth Amendment of the United States

Constitution.

15

meme

The District Court concluded that “ no genuine

material issue of fact exists with respect to whether

Respondent intentionally discriminated against the

Haughtons.”(R1-99-4.) However, there are many

decisions of the United States Supreme Court, including

Anderson, supra, that recognized that writing race on

documents involves conducts that can be subjected to

controls that would not be constitutionally permissible

in the case of equal protection under the law.

The District Court should have considered the

character and magnitude of the violation to Petitioners’

Fourteenth Amendment rights, which shows that,

although the Petitioner's name and the Florida drivers

license were written on the check, Respondent

essentially rendered the Petitioners name and drivers

license nugatory by providing a racial cue to anyone

that chose to offer some kind of benefit, selection for

prosecution, or burden at the crucial moment in the

selection process. The primary concern in this, is not

the interests of Respondent that offers benefits or

prosecution, but of the persons in charge of the

selection, and the views espoused by these persons in

charge who could be prejudice or bias against blacks,

or could be induce to racial prejudice, or be encourage

to perform racially prejudice actions upon the

Petitioners, this would not assure the Petitioners equal

protection under the law, rights, privileges and

immunities, which are guaranteed and secured under

the Fourteenth Amendment of the United States

Constitution.

The decisions of the U.S. Supreme Court in

Anderson supra, make clear that: |

“But by placing a racial label on the |

candidate at the most crucial stage in the

electoral process- the State furnishes a vehicle

by which racial prejudice may be so aroused

16

as to operate against one group because of race

and for another. This is true because by

directing the citizen’s attention to the single

consideration of race or color, the State

indicates that a candidate’s race or color is an

important—perhaps paramount consideration in

the citizen’s choice, which may decisively

influence the citizen to cast his ballot along

racial lines”.

The District Court should identify and evaluate the

precise interests put forward by the Respondent as

justification for the burden imposed upon the

Petitioners by the Respondent's policy, and the

legitimacy and strength of each interest, and to

consider the extent to which these interests make it

necessary to burden the Petitioners rights. Respondent

asserts that it has a strong compelling interest in

minimizing fraudulent checks. On the record before

the Court, shows Respondent writing race on checks

policy has not shown to bear a demonstrable

relationship to successful performance of the purpose of

combating fraudulent customers’ checks. Respondent

alleged policy purpose was adopted by the District

Court without meaningful study of the successful

relationship to combating fraudulent customer checks

ability. Respondent did not argue, or show any

evidence that the alleged policy did actually combat

fraudulent customers check, Respondent only assertion

is, the alleged policy is to combat fraudulent

customers’ checks. Apparently, the District Court

conclusion was instituted on Respondent statement that

the alleged policy combated customers fraudulent

checks. Carolyn Shelton, head of the accounting

department testimony (R1-81-43-lines 19-Pg. 45-lines 8.)

however, shows that Respondent did not even know

whether the policy was successful or not, Griggs v.

17

iittala ii ee

7 |

Duke Power Co., 401 U.S. at 431, 91 S. Ct at 853, 28

L. Ed. At 164, held that, if an employment practice

which operates to excludes Negroes can not shown to

be related to job performance, the practice is

prohibited.” also, once a discriminatory impact is

shown, the Respondent carries the burden of proving

that the challenged practice “_bears_a demonstrable

relationship to successful performance of the jobs for

which it was used. Respondent did not carry the

burden of proving that writing race on the Petitioner's

check bears a demonstrable relationship to successful

combating of fraudulent checks.

The District Court did not weigh all the factors,

and decide whether the challenged policy of the

Respondent is unconstitutional. Respondent's policy of

writing race or color on checks whether black or

white violates the Equal Protection Clause of the

Fourteenth Amendment of the United States

Constitution, because it places unequal burdens on the

Petitioners, and is designed to racially discriminate on

blacks, not whites at the selection process, whether it

is for some benefit or burden (R1-84, Nancy Silvia’s

affidavit supra).

The Respondent's alleged policy impairing the

fundamental rights of the Petitioners, must survive the

“strict scrutiny test’ and must narrowly tailored to

_ promote a compelling or overriding state interest to be

able to stand.

The right of the Petitioners to be free from racial

discrimination, and racial segregation is greater. This

Court has sustained the right of the American Negroes

to be free from racial discrimination, and racial

segregation, and the application of the Fourteenth

Amendment of the United States Constitution for

citizens of all races rests on the premise that, it is

prohibited to use race or color as a distinction.

18

—_

aes

While the right of the Respondent to combat check

fraud is important, the interests of the Petitioners to

be free from racial discrimination, and racial

segregation which have caused emotional distress and

other related injuries upon the Petitioners are neither

abstract nor unimportant.

Initially the Petitioners pointed out the analyses of

the District Court below were seriously deficient. The

decision below apparently rest upon the erroneous

premise that Respondent's conduct was not

discriminatory because they were writing race on all

customer checks. As the U.S. Supreme Court said in

Anderson _v. Martin, supra, that “ The State contends

that its Act is nondiscriminatory because the labeling

provision applies equally to Negro and white... we

view the alleged equality as superficial.” Also, in

Hunter _v. Erickson, 1969, 393 U.S. 385, 89 S. Ct 557,

21 L. Ed. 2d 616, the Supreme Court explained:

“ Moreover, although the law on its face

treats Negro and white, Jew and gentile in an

identical manner, the reality is that the law’s

impact falls on the minority. The majority

needs no protection against discrimination and

if did, a referendum might be bothersome but

no more than that. Like the law requiring

specification of candidates’ race on the ballot,

Anderson _v. Martin, 375 U.S. 399, 84 S. Ct 454

11_ L.Ed. 2d 430 (1964), § 137 places -special

burdens on racial minorities within the

governmental process. This is no more

permissible than denying them the vote, on an

equal basis with others.” 393 U.S. at 391, 89 S.

Ct. At 560.

The justification asserted by the Respondent that

the Petitioner's race is for identification purpose is

questionable, the Respondent has shown no valid

19

compelling state interest necessitating its action which

would justify the burden placed upon the Petitioners

in writing race on their check. In Williams _o.

Matthews Company 499 F. 2d 819, 826 (1974), it is

stated that: - |

“ In order to rely upon a “Business necessity

“ justification for a business policy which,

though fair in form, is discriminatory in

operation, a Respondent must demonstrate the

absence of any acceptable alternative that will

accomplish the same business goal with less

discrimination”. See also, Wallace_v. Debron

Corp., 494 F. 2d. 674 (8th Cir. filed Mar. 28,

1974).

The record shows Respondent had the Petitioner's

drivers license and other points, yet chose to bear on

the Petitioner's race for identification purpose.

Furthermore, Respondent executives deposition

testimonies also shows that writing race on customers’

checks was not necessary. David Dickerson’s

deposition testimony stated that:

“Q. .... is it easier or harder to collect on a returned

check based on color?...

A. In collecting a legitimate check, it doesn’t make

any difference. (R1- 83-123,-lines 16- Pg. 124-line 13.),

and also, Carolyn Shelton testimony which stated:

“Q. Does it make your job any easier because you see

the different races on the check?

A. It doesn’t make it easier. It doesn’t make it harder,

because I am not looking at that.”(R1-81-61-line 23, Pg.

62- line 1 ). In Gomillion_v. Lightfoot, 364 US. 339,

81 S. Ct. 125, 5 L. Ed. 2d. 110 (1960), the Supreme

Court held that a law altering a town’s boundaries

constituted racial discriminatory on its face so that no

racially discriminatory purpose inquiry had to be

undertaken in the case, there was no need for

20

evidence of the background of racial discrimination in

this political unit because there could be no reason for

the odd reshaping of the town except for racial

discrimination. Here it clearly shows that, the race

was not necessary, and that race is the factor that

have influenced the choice of the Respondent to write

race on the Petitioners’ check violating the Fourteenth

Amendment of the United States Constitution Equal

Protection Clause, and Title 42 § 1983.

The Supreme Court has recognized that

discriminatory purpose can be shown by proof that the

discriminatory impact is reasonably foreseeable

consequence of the challenged action. See Columbus

Board of Education ov. Penick, 443, U.S. 449, 464-65, 99

S. Ct. 2941, 2950, 61 L.Ed. 2d. 666 (1979), See also

United States v. Texas Education Agency, 564 F.2d 162,

168_(Sth Cir 1977) cert. Den. 443 U.S. 915, 99 S.Ct

3106, 61 L.Ed. 2d 879 (1979), see also Dowdell v. City

of Apopka, 698 F. 2d 1181 (11th. Cir. 1983). Also,

the Eleventh Circuit recognized, Ammons _v. Dade City,

783_F.2d at 988, that; “When it is foreseeable, that the

alleged act will lead to the “foreseeable outcome... then

a discriminatory purpose as found by the District

Court is properly shown.” The record shows that, the

“ultimate effect’ of writing the race of the Petitioner

on the Petitioners’ check, was racially discriminatory,

and the impact was foreseeable (R1- 81, Pg. 60, line

1-21).

The United States Supreme Court has never

hesitated to condemn “neutral” laws that had an

unacceptably adverse impact upon such (fundamental)

rights as free speech, freedom of religion and freedom

from racial discrimination. In City of Mobile, Ala o.

Bolden, 446 at 120-21, 100 S.Ct. 1440 at 1517 (1980),

the Court observed that the District Courts “finding

that the legislature was acutely conscious of racial

21

consequences of its districting policies,” constituted

“direct evidence of the intent behind the maintenance

of the at-large plan.” The record shows Respondent

was acutely conscious of the racial consequence of

writing race on the Petitioners check (R1-81-58-line 14

Pg. 60-line 20), coupled with the overt aid from the

state attorney's office in the writing of race on the

Petitioner's check, with evidence that Respondent was

not writing race on white people checks (R1- Nancy

Silvia affidavit supra.), also, Margaret Haughton’s

deposition (R1-61-32-line 2-15) which has created

adverse differential treatment.

In Village of Arlington Heights _v. Metropolitan Housing

Dev., Corp., 429 US. at 265-66, 97 S. Ct At 564, it is

stated that: “ The historical background of the decision

is one evidentiary source...” The record shows that,

Respondent departed from the normal procedural

sequence of acceptance of customers checks, and the

adherence to the writing of race on check policy with

full knowledge of the predicable effects of violating |

the Petitioners Constitutional rights. (R1-$1-58-line 14-.

Pg. 60-line 20.) Also, Roberts_v. Wal-Mart Stores Inc.

769 F. Supp. 1086 (E.D. Mo. 1991), shows clearly the

history, the foreseeability, and knowledge of the

Respondent that the alleged policy would hurt black

customers. Furthermore, Respondent did not apologize,

was unresponsive to the Petitioners letter of complaint,

and was insensitive to the Petitioners needs to resolve

the situation forcing the Petitioners to take legal action.

See co-manager William Clark deposition (R1-72-93-line

11- Pg. 95-2.), also, (R1-81-65-line 14- Pg. 66-line 13.)

and also Respondent's assistant manager Michael

Murphy deposition testimony about, “ it is dumb” for

the Petitioner to sue for racial discrimination and _ that

“we are what we are.” (R1-71-43-line 18- Pg. 48-line

7.) In Roger v. Lodge at 102 S. Ct 3272, at 3280

22

* “i — - vai da al lean ws ate hie cilia, Mh . . 3 cae Cate, eet Vpn

Sys agit te an hg AIA eel eG Th Ate ag A PPG ATEN IN a Sth Ab LARS Oi Al) DERN RIES SE RTS aici abit

Shige ale:

:

(1982), where it was found that unresponsiveness of

public body in question to group claiming injury is

important element which could be consider in

determining discriminatory purpose.

The Petitioners believe that, even though intent

could be irrelevant in this case, the evidence in the

record shows “direct evidence” of intent and

purposeful racial discrimination by the Respondent,

which may invoke the strictest scrutiny test

The Petitioners should not be denied freedom from

racial discrimination under the Equal Protection Clause

of the Fourteenth Amendment of the United States

Constitution, solely because of the color of their skin.

Such denial would operate impermissibly to qualify the

guarantee implicit in the Constitution that no state

shall... deny to any person within its jurisdiction the

Equal Protection of the Law.

Any classification which serves to penalize the

exercise of freedom from racial discrimination, the

compelling state interest should be triggered.

Freedom from racial discrimination is a fundamental .

right to the very existence and survival of the

Petitioners’ race. Writing race on the Petitioners’ check,

and not on white people checks is a clear, pointed

unmistakable discrimination. Respondent check writing

policy was intentional racial discrimination, was racially

prejudiced in its effect, in its purpose, and even in its

avowed justification.

23

CONCLUSION

For the foregoing reasons, the petitioner respectfully

prays that its petition for a writ of certiorari be

granted.

Respectfully submitted,

A 7S

Ralston Haughton Pro se.

Te erke Qed! tee nite ee

a

UD, {4 4 Yl LL |

Margaret Haughton Pro“se

2150 Princeton St,

Sarasota, Fla. 34237,

Tel: 941-724-2912

Dated: October 21, 2002.

24

Pista taet eRe cer eee GR T-ATOe it 9S ee ae

APPENDIX

A. JUDGEMENT OF COURT OF APPEALS

United States Court of Appeals

For the Eleventh Circuit

No. 02-10385

District Court Docket No.

01-01131-CV-T-23

FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Jul 19, 2002

THOMAS K. KAHN

CLERK

RALSTON HAUGHTON, husband,

MARGARET HAUGHTON, wife,

Plaintiffs-Appellants,

versus

WAL-MART STORES, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of Florida

JUDGMENT

It is hereby ordered, adjudged, and decreed that the

attached opinion included herein by reference, is

entered as the judgment of this Court.

Entered: July 19, 2002

For the Court Thomas K. Kahn, Clerk

By: Meoli, Anthony

ISSUE AS MANDATE

OCT 02 2002

U.S. COURT OF APPEALS ATLANTA, GA.

25

B. OPINIONS BELOW

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 02-10385

Non-Argument Calendar

D. C. Docket No. 0 1-0 1 13 1 -CV-T-23

FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

July 19 2002

THOMAS K. KAHN

CLERK

RALSTON HAUGHTON, husband,

MARGARET HAUGHTON, wife, .

Plaintiffs-Appellants,

versus

WAL-MART STORES, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of Florida

(july 19, 2002)

Before ANDERSON, BARKETT and WILSON, Circuit

Judges.

PER CURIAM:

Appellants Ralston and Margaret Haughton appeal the

district court's entry

26

ll

of summary judgment in favor of defendant Wal-Mart

Stores, Inc. ("Wal-Mart") in their civil rights action

brought pursuant to 42 US.C. § 1983." At issue is

Wal-Mart's policy of writing customers' sex and race

on the face of their checks. The Haughtons contend

that Wal-Mart's policy constitutes discrimination,

alleging that Wal-Mart did not note white customers'

race and sex on the checks they presented. The district

court determined that the Haughtons failed to present

affirmative-native credible evidence to rebut Wal-Mart's

assertion that its policy was to document each

customer's race and sex,, regardless of their ethnicity.

Accordingly, there was no “genuine issue of material

fact" and the district court granted summary judgment.

The district court also found the state action element

of a § 1983 claim lacking.

We review the district court's summary judgment de

novo.

In order to prevail in an action brought under 42

US.C. § 1983, the plaintiffs must show that Wal-Mart

acted under color of state law, and that it acted

with discriminatory intent. The appellants argue that

state action is present because Wal-Mart instituted its

policy at the direction of the state attorney's

office. Whether an entity is a state actor for the

purposes of § 1983 is a mixed question of law and

fact that we review de novo. Duke v. Smith,

"Although the plaintiffs proceeded pro se, they were clear

in their complaint that they brought action under "42 USC. °

1983, for civil rights violations committed by Defendant’ under

color of state law". Complaint, Paragraph 1. Thus we need not

consider whether the allegations could have withstood summary

judgment under any competing theories. See Roberts v. Wal-Mart

Stores, Inc, 769 F. Supp. 1086 (E.D. Mo. 1991) (rejecting similar

allegations brought under ® 1981 and 1982).

27

3 F.3d 3883 392 (11th Cir. 1994).

There are three primary tests for state action: the

public function test, the state compulsion test, and the

nexus/joint action test._NBC_v. Communications

Workers of Am., AFL-CIO, 860 F.2d 1022, 1026 (11th

Cir. 988). The public function test would be met if

Wal-Mart performed actions that were "traditionally

the exclusive prerogative of the state". Id. The joint

action or nexus test would be met if Wal-Mart and

the state were so involved that they could be said to

have a symbiotic relationship. See, e.g. Murray _v.

Wal-Mart, Inc., 874 F.2d 555 (8th Cir. 1989) (finding

police practice of detaining shoplifters without

independent investigation to constitute "joint action").

And lastly, the state compulsion test would be met if

the attorney general compelled, coerced, or significantly

encouraged the action which was alleged to violate the

Constitution. Id.

After reviewing the record on appeal, it is clear

that none of the three state action tests is met.

Wal-Mart did not perform the state attorney's job in.

prosecuting check fraud, and the two entities were not

"intertwined" in a symbiotic relationship. Finally,

although the state attorney's office advised Wal-Mart of

the information that it would like to have to prosecute

check fraud, it did not compel or provide

encouragement significant enough for Wal-Mart to have

become a state actor under the state compulsion test.

Because summary judgment was properly granted on

this issue alone, we need not reach the question of

discriminatory intent.

The plaintiffs also argue that the district court erred

in granting summary judgment before they had

completed discovery. Appellants claim that the items

which they were kept from obtaining include: two

requests for admission, requests for production, two

28

a

interrogatories, an inspection, and an affidavit from

the Wal-Mart president.

A district court is not required to await completion

of discovery before ruling on summary judgment.

Reflectone, Inc. v. Farrand Optical Co., Inc., 862 F.2d

841, 843 -44 (11th Cir. 1989) (“appellant's argument

that it is per se improper to grant summary judgment

without providing the opponent an opportunity to

conduct discovery is without merit"). Under Federal

Rule of Civil Procedure 56(f), plaintiffs could have

moved the court to permit further discovery; it is up

to the plaintiffs to call any outstanding discovery to

the court's attention. Id. at 844. The plaintiffs did not

so meve the court, and have not been able to show

that any evidence that would have been obtained

would have presented a genuine issue of material fact.’

Because the plaintiffs did not request that the

district court await further discovery, pursuant to Fed.

R. Civ. P. 56(f), and could not create a genuine issue

Even at this juncture the plaintiffs cannot show how any

of these documents would assist them in showing that Wal-Mart

was a state actor. In plaintiffs’ motion for reconsideration, they

repeated the same arguments they have asserted on appeal: that

given more time the plaintiffs’ “would have present (sic] credible

evidence and points to material inconsistencies in Wal-Mart's

evidence to demonstrate that Wal-Mart implemented its check

identification policy in a

discriminatory manner". Doc. 103 at 4. Merely alleging after the

district court has already granted summary judgment that evidence

would have assisted the plaintiffs’ case is insufficient Nowhere in

the opposition to summary judgment did the plaintiffs state that

specific pieces of evidence were needed before the district court

granted sununary judgment. "Courts cannot read minds, thus it is

only proper that 'the party opposing the motion for summary

judgment bears the burden of calling to the district court's

attention any outstanding discovery.” Reflectone, 862 F.2d at 844.

Although plaintiffs proceeded pro se, they made no mention of

ongoing discovery in their motion in opposition; instead, they

filed exhibits and attachments

29

Sess

of material fact as to the state action element,

summary judgment was proper.

AFFIRMED.’

+ Appellant's request for oral argument DENIED. Because

we reject plaintiffs’ § 1983 claim, we need not address the state

law claims for mental anguish and loss of consortium.

30

C. ORDERS ON REHEARING —

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 02-10385-EE

FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEP 24 2002

THOMAS K. KAHN

CLERK

RALSTON HAUGHTON, husband,

MARGARET HAUGHTON, wife,

Plaintiffs-Appellants,

versus

WAL-MART STORES, INC,

Defendant-Appellee.

On Appeal from the United States District Court for

the Middle District of Florida

BEFORE: ANDERSON, BAKKETT and WILSON, Circuit

Judges.

PER CURIAM:

The petition(s) for rehearing filed by

appellant, Ralston and

Margaret Haughton is DENIED.

ENTERED FOR THE COURT:

_/s/ R. LANIER ANDERSON

UNITED STATES CIRCUIT JUDGE ORD-41

31

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

RALSTON HAUGHTON and MARGARET

HAUGHTON, husband and wife,

FILED JAN-9 PM 5:55

Pliantiffs, CLERK U.S. DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

v. TAMPA, FLORIDA

Case No. 8:01-cv-1131-T-23TBM

WAL-MART STORES,

INC.

Defendant.

/

ORDER

Before the Court are the plaintiffs' motions for

reconsideration (Doc. 103) and rehearing (Doc. 104) of

the Court's order dated December 31, 2001 (Doc. 99).

Upon consideration, the motions for reconsideration

(Doc. 103) and rehearing (Doc. 1 0 4) are DENIED.

ORDERED in Tampa, Florida, on January 9,

2002.

s/_ STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

i

Counsel of Record

Pro Se Parties

32

DR ahaha

D. DISTRICT COURT ORDER

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

RALSTON HAUGHTON and MARGARET _ FILED

HAUGHTON, husband and wife, 01 DEC 31 AM 11:30

CLERK U.S. DISTRICT COURT

Plaintiffs, MIDDLE DISTRICT OF FLORIDA

TAMPA, FLORIDA

v

Case No. 8:01-cv-1131-T-23TBM

WAL-MART STORES, INC.,

Defendant.

ORDER

On February 15, 2001, the plaintiffs, Ralston

Haughton and Margaret Haughton, purchased an ink

cartridge at Wal-Mart store number 2459 in Sarasota,

Florida ("Wal-Mart"). Mrs. Haughton paid for the

cartridge with a personal check, which Wal-Mart

accepted. To verify her identity, Mrs. Haughton

presented her Florida drivers license. The Wal-Mart

cashier wrote Mrs.Haughton's drivers license number

and date of birth on the top of the check. The cashier

also wrote “B/F" on the top of the check. The

parties agree that “B/F" means "black, female. "

Haughtons’ principal claim, pursuant to 42 U.S.C. §

1983 ("Section 1983"), alleges that the "B/F" notation on

the check constitutes "racial discrimination and racial

segregation" in violation of the Fourteenth Amendment

of the Constitution, for which violation the Haughtons

seek $100,000,000 in compensatory damages and

33

$100,000,000 in punitive damages. Wal-Mart now

moves for summary judgment Rules of Civil Procedure,

(Doc. 84). (Doc. 57) under Rule 56(c), Federal and the

Haughtons oppose the motion.

To maintain a Section 1983 action, a plaintiff must

prove a deprivation of a constitutional right, privilege,

or immunity committed under color of state law.

Bannum, Inc. v City of Fort Lauderdale, 901 F. 2d

989, 996-97 (Ith Cir. 1990).

With respect to the constitutional right at issue, the

gravamen of the Haughtons' claim is unlawful racial

discrimination, which requires proof that Wal-Mart

discriminated intentionally on the basis of race.

429 U.S. 252, Arlington Heights v. Metro. Hous. Dev.

Corp., 264-65 (1977); Washington v. Davis, 426 U.S.

229, 246-48 (1976); Koch v. Rugg, 221 F.3d 1283,

1297 (Ith Cir. 2000). "Discrimination" means "unfair

treatment or denial of normal privileges to persons

because of their race, age, sex, nationality or religion."

BLACK's LAW DICTIONARY 467 (6th ed. 1990).

Discrimination is "intentional" when consciously

premised on race or racial stereotypes regardless of the

presence or absence of invidious hostility or racial

animus. EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263,

2000). 1284 (ith Cir. 2000).

The parties agree that Wal-Mart sold the

Haughtons the item they intended to purchase and

accepted Mrs. Haughton's personal check without

hesitation. The Haughtons allege, however, the cashier's

notation of B/F" on the check constitutes discrimination

‘The Haughtons' amended complaint (Doc. 98) contains

threecounts. Count one alleges racial discrimination in violation of

the Fourteenth Amendment and 42 US.C. § 1983. Counts two and

three allege claims for emotional distress and loss of

consortium, which claims are wholly dependent on and derivative

of the racial discrimination claim alleged in count one.

34

because Wal-Mart cashiers did not make an analogous

notation of race and sex on checks presented by white

customers. In support of its motion, Wal-Mart

presents credible, consistent evidence that Wal-Mart

store number 2459 maintained a policy requiring its

cashiers to note identifying information (e.g., drivers

license number, date of birth, and sex) of each

customer presenting a personal check to purchase

merchandise, regardless of the customer's race. Wal-

Mart implemented the policy in order to combat check

fraud.

The Haughtons fail to present any affirmative,

credible evidence to rebut Wal-Mart's position or to

establish a material factual dispute. See Anderson v.

Liberty Lobby, Inc., 447 U.S. 242, 257 (1986).

Specifically, the Haughtons fail to present any credible

evidence or point to any material inconsistencies in

Wal-Mart's evidence to demonstrate that Wal-Mart

implements its check identification policy in a

discriminatory manner.> The evidence shows the

opposite—that Wal-Mart employs the check identification

policy without regard to race (or any other

distinguishing characteristic, Suspect or otherwise).

In short, the Haughtons fail to present any credible

evidence that Wal-Mart discriminated against them,

intentionally or otherwise, on the basis of race.

Because no genuine material,issue of fact exists

with respect to whether Wal-Mart intentionally

* The Haughtons' reliance on the affidavit of Nancy Silvia

is unavailing. Ms. Silvia's single-sentence affidavit, which

States that she is white and has presented checks at Wal-Mart on

which a cashier did not note her race and sex, so lacks temporal

and geographic specificity that it carries no persuasive force

and fails to establish any issue of fact material to the

disposition of this action.

35

i ai

discriminated against the Haughtons, the Haughtons'

Section 1983 claim, and the Haughtons' remaining

derivative claims, must fail.° Accordingly, Wal-Mart's

motion for summary judgment (Doc. 57) is GRANTED.

The Clerk is directed to (1) enter a judgment in favor

of the defendant and against the plaintiffs, (2)

terminate any pending motions, and (3) close the file.

ORDERED in Tampa, Florida, on December 31th, 2001.

s/ STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

cc:

U.S. Magistrate Judge

Courtroom Deputy

Counsel of Record

Pro Se Parties

° As discussed above, to prevail on their discrimination

claim, the Haughtons would need to demonstrate not only

intentional discrimination but also that Wal-Mart, a private

corporation, acted under color of state law. The record evidence

demonstrates neither that the constitutional deprivation <aimed

by the Haughtons "resulted from the exercise of a right or

privilege having its source in state authority" nor that Wal-Mart

"could be described in all fairness as a state actor[,]" both of

which must be present for a finding of action under color of state

law._Edmonson_v. Leesville Concrete Co, 500 US. 614, 620

(1991) (citations omitted).

E. CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, RULE, AND REGULATIONS

CONSTITUTIONAL LAW, page 486, (Fifth

Edition) by John E. Nowak, Ronald D. Rotunda,

stated:

“When state legislation commands a

certain activity, or officially recognizes its

legitimacy, there is no question but that state

action is present whenever someone follows the

guidelines of statute. In such a situation the

challenged activity must be taken to exist

because the state legislature has commanded its

occurrence and continuation. For example, if a

state legislature commands that restaurants serve

food on a racially segregated basis it is clear

that the action of restaurant owners who

discriminate between their patrons on the basis

of race will constitute state action. Also, see

Peterson v. City of Greenville 83. S.Ct.

1119(1963)....

CONSTITUTIONAL LAW, page 486, (Fifth Edition)

by John E. Nowak, Ronald D. Rotunds, that stated:

“ Similarly state legislation may encourage an

activity so as to give rise to state action in the

activities of private persons. For example, state

action will be found in a restaurant’ racially

restrictive practices where state legislation

requires that restaurants serving members of

minority races have separate toilet facilities for

those persons. ( See Robinson v. Florida, 378

U.S. 153, 84 S.Ct. 1119, 10 L.Ed. 2d 323-22.)

The restaurant owner who refuses to serve

members of a minority is restricted by

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constitutional provision because that decision

must be held to be the result of the state

legislation. To hold otherwise would allow the

state to have helped establish or continue a

practice without any effective remedy.”

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F. MISCELLANEOUS

AFFIDAVIT IN SUPPORT OF PEITIONERS’

WRIT FOR CERTIORARI

I, Ralston Haughton and Margaret Haughton in pro se,

the Petitioners in this case duly sworn on oath, affirm

that the statement we have made in the Writ for

Certiorari are true to the best of our

knowledge,information and_ belief.

State of Florida

County of Sarasota ,

Ralston Haughton ai

e

Margaret “Haughton

SWORN TO AND SUBSCRIBED before me on 21,

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

RALSTON HAUGHTON and MARGARET

HAUGHTON,

FILED

Plaintiffs, 01 DEC 31 PM 1:39

CLERK U.S. DISTRICT COURT

v. MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

Case No. 8:01-ev-1131-T-23TBM

WAL-MART STORES, INC,

Defendant.

JUDGMENT IN A CIVIL CASE

Decision by Court. This action carne to trial or

hearing before the Court. The issues have been tried .

or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that

judgment is entered in favor of the defendant and

against the plaintiffs and this case is closed.

Date: December 31, 2001

SHERYL L. LOESCH, CLERK

By: s/ J. BOWERMAN, Deputy Cle'rk