McBryde v. Publix Supermarket (MAG+)

Filing 11

ORDER OVERRULING plaintiff's 10 Objections; ADOPTING 9 REPORT AND RECOMMENDATION of the Mag Judge; plaintiff's federal law claims are DISMISSED without prejudice pursuant to 28 U.S.C. 1915(e)(2)(B)(ii)for failure to state a claim, and Plaintiff's state law claims are DISMISSED without prejudice pursuant to 28 U.S.C. 1367(c)(3), as they have no independent jurisdictional basis. Signed by Chief Judge William Keith Watkins on 8/28/13. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
RAYTORIA MCBRYDE,
Plaintiff,
v.
PUBLIX SUPERMARKET,
Defendant.

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CASE NO. 2:13-CV-445-WKW

ORDER
On August 12, 2013, the Magistrate Judge recommended (Doc. # 9) dismissal
of Plaintiff’s complaint prior to service of process because the action “fails to state a
claim on which relief may be granted.” See 28 U.S.C. § 1915(e)(2)(B)(ii) (requiring
dismissal of such claims). The Magistrate Judge liberally construed Plaintiff’s suit to
allege violations of rights guaranteed Plaintiff by the United States Constitution,
federal statutory law, and state law. Despite that liberal construction, Plaintiff’s
claims fail to satisfy the requirement of Rule 8 of a jurisdictional statement and a short
and plain statement of entitlement to relief. Fed. R. Civ. P. 8(a). Plaintiff’s objection
does not undermine the conclusion that she fails to state a claim upon which relief can
be granted, and de novo review of the record confirms it.
First, in her objection, Plaintiff argues the court has jurisdiction under 28 U.S.C.
§ 1331 because her claims against Defendant Publix Supermarket arise under the

United States Constitution and federal statutory law. As the Magistrate Judge
correctly observes, however, Plaintiff alleges no state action to support a claim under
42 U.S.C. § 1983. For the first time, Plaintiff alleges in her objection that a Publix
employee said to her, “I’m tired of yall Black People.” (Doc. # 10).1 But Plaintiff still
does not state a claim upon which relief can be granted under 42 U.S.C. § 1981
because she has alleged no facts that suggest any Publix employee deprived her of a
right protected by § 1981. To establish a deprivation of § 1981 rights “in the retail
context, the plaintiff must demonstrate the loss of an actual contractual interest.”
Lopez v. Target Corp., 676 F.3d 1230, 1234 (11th Cir. 2012) (internal quotations
omitted). Plaintiff has not alleged any Publix employee actually denied her “the
ability to make, perform, enforce, modify, or terminate a contract.” See id. (listing
means of alleging loss of an actual contractual interest) (internal alterations and
quotations omitted).
Second, Plaintiff’s assertion in her objection that the court has diversity
jurisdiction pursuant to 28 U.S.C. § 1332 fails. Though the amount sought by
Plaintiff satisfies § 1332’s amount in controversy requirement, there are no allegations

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The court will assume for the sake of argument that it may consider this new factual
allegation in reviewing the Magistrate Judge’s Recommendation. But see Dryer v. Roberts, No.
1:05-CV-161 (WLS), 2007 WL 2683744, at *1 (M.D. Ga. Sept. 7, 2007) (“[T]he filing of
additional or new evidence is not appropriate in an objection to a Magistrate Judge’s
recommendation.”).
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of any party’s citizenship to support the exercise of diversity jurisdiction.

Thus,

after a de novo review of the Magistrate Judge’s recommendation and Plaintiff’s
objection, it is ORDERED that Plaintiff’s objection (Doc. # 10) is OVERRULED and
the Recommendation of the Magistrate Judge is ADOPTED. Plaintiff’s federal law
claims are DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
for failure to state a claim, and Plaintiff’s state law claims are DISMISSED without
prejudice pursuant to 28 U.S.C. § 1367(c)(3), as they have no independent
jurisdictional basis.
DONE this 28th day of August, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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