# Petition for Writ of Certiorari — Haughton v. Wal-Mart Stores, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0656%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2003 - **Citation:** 538 U.S. 917 ## Text > 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- | : : (iii LE Dupe DLN ol he PN BEALE 9h, HOE, 3 2 } : Le ats oF rx dates y es (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