Adickes v. S. H. Kress & Co.,
398 U.S. 144 (1970)

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U.S. Supreme Court

Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970)

Adickes v. S. H. Kress & Co.

No. 79

Argued November 12, 1969

Decided June 1, 1970

398 U.S. 144


Petitioner is a white school teacher who was refused service in respondent's lunchroom when she was accompanied by six Negro students, and who was arrested for vagrancy by the Hattiesburg, Mississippi, police when she left respondent's premises. She filed a complaint in the Federal District Court to recover damages alleging deprivation of her right under the Equal Protection Clause not to be discriminated against on the basis of race. The complaint had two counts, each based on 42 U.S.C. § 1983: (1) that she had been refused service because she was a "Caucasian in the company of Negroes" (under which she sought to prove that the refusal to serve her was pursuant to a "custom of the community to segregate races in public eating places") and (2) that the refusal of service and the arrest were the product of a conspiracy between respondent and the police (under which she alleged that the policeman who arrested her was in the store at the time of the refusal of service). The District Court ruled that, to recover under the first count, petitioner would have to prove a specific "custom of refusing service to whites who were in the company of Negroes" that was "enforced by the State" under its criminal trespass statute. The court directed a verdict for respondent on this count because petitioner failed to prove other instances of whites having been refused service while in company of Negroes in Hattiesburg. The Court of Appeals affirmed, holding that § 1983 requires the discriminatory custom be proved to exist in the locale where the discrimination took place and in the State generally, and that petitioner's proof was deficient on both points. The second count was dismissed before trial by the District Court on a motion for summary judgment, since petitioner "failed to allege any facts from which a conspiracy might be inferred." The Court of Appeals affirmed this determination.


1. The District Court, on the basis of this record, erred in granting summary judgment on the conspiracy count. Pp. 398 U. S. 149-161.

Page 398 U. S. 145

(a) The involvement of a policeman, a state official, whether or not his actions were lawful or authorized, in the alleged conspiracy would plainly provide the state action needed to show a direct violation of petitioner's Fourteenth Amendment rights entitling her to relief under § 1983, and private persons involved in such a conspiracy are acting "under color" of law, and can be liable under § 1983. Pp. 398 U. S. 150-152.

(b) Respondent did not carry out its burden, as the party moving for summary judgment of showing the absence of a genuine issue as to any material fact, as it did not foreclose the possibility that there was a policeman in the store while the petitioner was awaiting service (from which the jury could infer an understanding between the officer and an employee of respondent that petitioner not be served), and its failure to meet that burden requires reversal. Pp. 398 U. S. 153-159.

(c) Because respondent failed to meet its initial burden as the party moving for summary judgment, petitioner was not required to come forward with suitable opposing affidavits under Fed.Rule Civ.Proc. 56(e). Pp. 398 U. S. 159-161.

2. Petitioner will have established a claim under § 1983 for violation of her equal protection rights if she proves that she was refused service by respondent because of a state-enforced custom requiring racial segregation in Hattiesburg restaurants. Pp. 398 U. S. 161-174.

(a) Based upon the language of the statute legislative history, and judicial decisions, the words "under color of a . . . custom or usage, of [a] State," in § 1983, mean that the "custom or usage" must have the force of law by virtue of the persistent practices of state officials. Pp. 398 U. S. 162-169.

(b) Petitioner would have shown an abridgment of her constitutional right of equal protection if she proved that respondent refused her service because of a state-enforced custom of racial segregation in public restaurants. Pp. 398 U. S. 169-171.

(c) The District Court erred in its implicit assumption that a custom can have the force of law only if it is enforced by a state statute. Pp. 398 U. S. 171-172.

(d) The District Court's ruling that proving a "custom" in this case required demonstrating a specific practice of not serving white persons in the company of Negroes in public restaurants was too narrow as the relevant inquiry is whether there was a longstanding and still prevailing state-enforced custom of segregating the races in public eating places. P. 398 U. S. 173.

Page 398 U. S. 146

(e) The courts below erred in suggesting that the custom must exist throughout the State, as a custom with the force of law in a political subdivision can offend the Fourteenth Amendment even though it lacks state-wide application. P. 398 U. S. 173.

409 F.2d 121, reversed and remanded.

Primary Holding

The party seeking summary judgment has the burden of proving that there is no genuine dispute of material fact, even if the opposing party does not produce evidence in favor of denying the motion.


Adickes had worked in a Mississippi Freedom School during the civil rights movement of the 1960s. She sued Kress, a department stores, for civil rights violations and also alleged that the department store had conspired with the police to infringe her rights. While Adickes was white, she had taken six of her African-American students to eat at the food counter in the department store. After a policeman saw them enter, a waitress agreed to serve the students but refused to serve Adickes because she was in the company of African-Americans. The officer who saw her enter the store then arrested her for vagrancy after she left it.

In support of its motion for summary judgment on this count, Kress claimed that the policeman had not communicated with the store manager and that its only reason for refusing to serve Adickes was that it was concerned that other customers would be angered. The local police signed affidavits to support this version of events. Adickes pointed out that Kress did not deny that the police officer was present in the department store when it refused to serve her. However, she could not produce any evidence of communications between the police officer and a Kress employee. The trial court thus granted summary judgment on this count to Kress.



  • John Marshall Harlan II (Author)
  • Potter Stewart
  • Byron Raymond White
  • Thurgood Marshall
  • Harry Andrew Blackmun
  • Warren Earl Burger

It is important to draw all inferences in the light most favorable to the non-moving party when reviewing a motion for summary judgment. In order to receive summary judgment on this count, the defendant needed to prove that there was no police officer in the store at the time of the events. It could have done so by providing an affidavit from the police officer at issue denying his presence in the store, but it did not produce such an affidavit. Without proof of his absence, a genuine issue of fact remains about whether the police officer and the server acted together in denying service to the plaintiff, and a jury is entitled to hear arguments on this issue. The plaintiff would have needed to produce opposing affidavits only if the defendant had produced an affidavit from the police officer denying his presence.


  • Hugo Lafayette Black (Author)


  • William Orville Douglas (Author)


  • William Joseph Brennan, Jr. (Author)

Case Commentary

This decision was overruled by the decision in Celotex v. Catrett, so its relevance now lies largely in illustrating the history of civil procedure jurisprudence in considering summary judgment.

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