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 2023-08

McBride v. Half Price Books ( 2023 )


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  • Case: 23-50001        Document: 00516848250             Page: 1      Date Filed: 08/07/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-50001
Summary Calendar                                  FILED
____________                                 August 7, 2023
Lyle W. Cayce
Kevin McBride,                                                                     Clerk
Plaintiff—Appellant,
versus
Half Price Books, Records, Magazines, Incorporated,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:22-CV-703
______________________________
Before Willett, Duncan, and Douglas, Circuit Judges.
Per Curiam: *
Kevin McBride filed a pro se civil suit in which he alleged a claim of
race-based discrimination under
    42 U.S.C. § 1981
    . After the matter was
removed from state court to the district court, the defendant moved to
dismiss the suit for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). The district court granted the motion. McBride appeals
that dismissal. We review the grant of a motion to dismiss under Rule
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-50001      Document: 00516848250           Page: 2   Date Filed: 08/07/2023
No. 23-50001
12(b)(6) de novo. Romero v. City of Grapevine, Texas,
    888 F.3d 170
    , 176 (5th
Cir. 2018).
To sustain a claim under § 1981, McBride must establish that: (1) he
is a member of a racial minority; (2) the defendant intended to discriminate
on the basis of race; and (3) the discrimination concerned one or more of the
actions listed in the statute, e.g., the making and enforcing of a contract. See
Morris v. Dillard Dep’s Stores, Inc.,
    277 F.3d 743
    , 751 (5th Cir. 2001). He must
prove the loss of an actual contract interest and not one that is speculative or
prospective. See
    id. at 751-52
    .
McBride failed to plead sufficient facts to support that the defendant
thwarted a tangible attempt to contract. See Arguello v. Conoco, Inc.,
    330 F.3d 355
    , 358-59 (5th Cir. 2003); Morris,
    277 F.3d at 752
    . He conceded that he
arrived at the store outside of its normal business hours, knew that the store
was closed, and decided to try to enter the store anyway to purchase an item.
A store employee told McBride what he knew or suspected, i.e., the store was
closed and that he could return the following day when the store was open.
Because the store was closed, no transaction was proposed or possible under
the circumstances; therefore, no actual contractual relationship existed when
McBride was denied entry, and the defendant did not interfere with a tangible
attempt to buy a specific item. See Arguello,
    330 F.3d at 358-59
    ; Morris,
    277 F.3d at 752
    . While McBride alleged that a white woman was allowed to enter
the store after he was denied entry and left with a bag in her hand, he did not
present facts supporting that the store was open to the woman to initiate and
complete a purchase but was not open to him for the same purpose. See Body
by Cook, Inc. v. State Farm Mut. Auto. Ins.,
    869 F.3d 381
    , 386 (5th Cir. 2017)
(noting that an allegation that a similarly situated non-minority was provided
better treatment could support a § 1981 claim).
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No. 23-50001
Thus, the judgment is AFFIRMED.               McBride’s motion for
appointment of appellate counsel is DENIED because he has not
demonstrated that this case presents exceptional circumstances. See Cooper
v. Sheriff, Lubbock Cty.,
    929 F.2d 1078
    , 1084 (5th Cir. 1991).
3