United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
case is before the court on Defendant's Motion to
Dismiss. (Doc. # 11). The parties have fully briefed the
motion and it is under submission. (Docs. # 16, 17). For the
reasons explained below, the court concludes that the motion
to dismiss is due to be denied.
Procedural History and Background
December 2016, Plaintiff, who is appearing pro se,
filed her initial complaint against Defendant. (Doc. # 1).
She complained that one of Defendant's employees at a
store in Alabaster, Alabama refused to cut her hair on
December 29, 2014 because the salon at that store did not
“do African American hair.” (Id. at 2).
Following an initial review, the court found some
deficiencies in Plaintiff's complaint and directed her to
file an amended complaint. (Doc. # 4). Plaintiff filed an
amended complaint in January 2017. (Doc. # 5). After
reviewing the amended complaint, the court directed Plaintiff
to file a second amended complaint to remedy additional
deficiencies. (Doc. # 6).
submitted her second amended complaint in February
2017. (Doc. # 7). This complaint alleges that
Plaintiff made an appointment at a beauty salon in
Defendant's Alabaster store. (Id. at ¶ 4).
When she arrived at the salon on December 29, 2014, a salon
employee told her that the salon did not cut
“African-American hair” because it was too hard.
(Id. at ¶¶ 4, 6). Plaintiff alleges that
the remark “prevented her from getting services at the
salon” and that she “left the salon before she
was able to receive the services” she desired.
(Id. at ¶¶ 7-8). Plaintiff asserts that
Defendant violated 42 U.S.C. § 1981 by acting with
discriminatory intent towards her. (Id. at ¶ 11).
She complains that she suffered emotional and mental anguish
from Defendant's conduct. (Id. at ¶ 12).
Standard of Review
Federal Rules of Civil Procedure require that a complaint
provide “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). However, the complaint must include
enough facts “to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Pleadings that
contain nothing more than “a formulaic recitation of
the elements of a cause of action” do not meet Rule 8
standards, nor do pleadings suffice that are based merely
upon “labels and conclusions” or “naked
assertion[s]” without supporting factual allegations.
Id. at 555, 557. In deciding a Rule 12(b)(6) motion
to dismiss, courts view the allegations in the complaint in
the light most favorable to the non-moving party. Watts
v. Fla. International Univ., 495 F.3d 1289, 1295 (11th
Cir. 2007). Moreover, the court must liberally construe
Plaintiff's second amended complaint because she
submitted the complaint pro se. Erickson v.
Pardus, 551 U.S. 89, 94 (2007).
survive a motion to dismiss, a complaint must “state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although “[t]he plausibility standard is not akin to a
‘probability requirement, '” the complaint
must demonstrate “more than a sheer possibility that a
defendant has acted unlawfully.” Id. A
plausible claim for relief requires “enough fact[s] to
raise a reasonable expectation that discovery will reveal
evidence” to support the claim. Twombly, 550
U.S. at 556.
considering a motion to dismiss, a court should “1)
eliminate any allegations in the complaint that are merely
legal conclusions; and 2) where there are well-pleaded
factual allegations, ‘assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.'” Kivisto v. Miller, Canfield,
Paddock & Stone, PLC, 413 F.App'x 136, 138 (11th
Cir. 2011) (unpublished) (quoting Am. Dental Ass'n v.
Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)). That
task is context specific and, to survive the motion, the
allegations must permit the court based on its
“judicial experience and common sense . . . to infer
more than the mere possibility of misconduct.”
Iqbal, 556 U.S. at 679. If the court determines that
well-pleaded facts, accepted as true, do not state a claim
that is plausible, the claims are due to be dismissed.
Twombly, 550 U.S. at 570.
contends that Plaintiff's Section 1981 claim is due to be
dismissed because she has not plausibly pled that Defendant
intended to discriminate against her. (Doc. # 11 at 7).
Moreover, Defendant insists that Plaintiff has not alleged a
denial of an opportunity to enter a contract. (Id.).
The court disagrees.
plaintiff must establish three elements for a claim under
Section 1981: (1) he or she is a member of a racial minority;
(2) a defendant intended to discriminate against him or her
on the basis of race; and (3) “the discrimination
concerned one or more of the activities enumerated in the
statute.” Lopez v. Target Corp., 676 F.3d
1230, 1233 (11th Cir. 2012) (quoting Kinnon v. Arcoub,
Gopman & Assocs., Inc., 490 F.3d 886, 891 (11th Cir.
2007)). The Eleventh Circuit has adopted the Fifth's
Circuit standard for determining whether an incident in a
retail establishment concerns contractual activity protected
under Section 1981. See Id. at 1233-34
(affirmatively citing and discussing Arguello v. Conoco,
Inc., 330 F.3d 355 (5th Cir. 2003)). Under that
standard, a complaint “must allege that the plaintiff
was actually prevented, and not merely deterred, from making
a purchase.” Id. at 1234 (quoting
Arguello, 330 F.3d at 358-59).
court's research has uncovered two published opinions
from the Eleventh Circuit analyzing Section 1981 claims based
on conduct in retail establishments, both of which were
decided in the defendant's favor. In Lopez, a
cashier claimed that her register was closed when the
plaintiff, a Hispanic customer, attempted to complete a
purchase. Id. at 1231. The cashier then proceeded to
serve the next customer. Id. A supervisor sent the
plaintiff back to the same register, and the cashier
reiterated that the register was closed for plaintiff.
Id. at 1231-32. The plaintiff moved to another
register and completed his purchase. Id. at 1232.
The Eleventh Circuit held that the plaintiff in
Lopez failed to state a claim under Section 1981
because he was “able to complete his transaction at the
same Target store, buying his desired goods at the same price
and using the same payment method as any other
customer.” Id. at 1234.
Kinnon, the plaintiff ordered pizza for a staff
meeting, but told an employee to refuse the pizza when it was
delivered two hours after her order. 490 F.3d at 888. An
employee at the pizzeria left the plaintiff numerous messages
to try and collect payment. Id. at 889. In one
message, the employee used numerous racial epithets in
reference to the plaintiff. Id. The Eleventh Circuit
held that the plaintiff could not maintain a claim under
Section 1981 premised on the phone messages because the
conduct at issue was ...