Hudson v. Walmart et al

Filing 12

MEMORANDUM AND ORDER - Hudson will have 30 days to file a second amended complaint that clearly states a claim upon which relief may be granted against Defendants in accordance with this order. If Hudson fails to file an amended complaint, the Court will dismiss this action without further notice. To avoid confusion, any document Hudson sends to the clerk of the Court for filing in this case must clearly display the case number. The Clerk of the Court is directed to set a pro se case manag ement deadline in this case using the following text: November 30, 2015: check for second amended complaint. The Court reserves the right to conduct further review of Hudson's claims pursuant to 28 U.S.C. § 1915(e)(2) after she addresses the matters set forth in this order. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BEATRICE HUDSON,
Plaintiff,
v.
WALMART, WALMART
SUPERCENTER, and WALMART
STORES, INC.,
Defendants.

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8:15CV221

MEMORANDUM
AND ORDER

Plaintiff Beatrice Hudson filed her Complaint (Filing No. 1) on June 15, 2015.
Thereafter, Hudson filed an Amended Complaint (Filing No. 9) on August 3, 2015. This
court has given Hudson leave to proceed in forma pauperis in this case. The court now
conducts an initial review of Hudson’s Complaint and Amended Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C. § 1915(e).
I. SUMMARY OF COMPLAINT
Hudson, a black female, alleged in her Complaint that she routinely shopped at a
Walmart Supercenter located at 4700 North 27th Street in Lincoln, Nebraska. Hudson
alleged the store’s policy dictates that “no purchase [is] necessary” in order to shop there.
(Filing No. 1 at CM/ECF p. 2.) On February 17 or 18, 2015, she fell asleep inside the store
while waiting for a bus. Two “white Lincoln cops” and a “white female” employee of the
store awoke her and informed her that she was “banned and barred” from all Walmart
stores for sleeping and for “entering with or without a purchase.” (Filing No. 1 at CM/ECF
pp. 2, 4.)
Hudson raised substantially the same allegations in her later-filed Amended
Complaint. However, Hudson clarified that the incident at Walmart occurred on February

17, 2015. In addition, Hudson alleged that an asset manager “harassed” her while she
shopped at this same Walmart. The asset manager claimed to be suspicious of Hudson
because Hudson was carrying empty Walmart bags throughout the store. The asset
manager informed Hudson that she needed to make a purchase or leave the store. (Filing
No. 9 at CM/ECF pp. 6-8.) It is not clear from Hudson’s allegations when this incident with
the asset manager occurred.
II. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court reviews in forma pauperis complaints to determine whether summary
dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must dismiss a complaint
or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon
which relief may be granted, or that seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. § 1915(e)(2)(B).
Pro se plaintiffs must set forth enough factual allegations to “nudge[] their claims
across the line from conceivable to plausible,” or “their complaint must be dismissed.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (“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.”).
“The essential function of a complaint under the Federal Rules of Civil Procedure
is to give the opposing party ‘fair notice of the nature and basis or grounds for a claim, and
a general indication of the type of litigation involved.’” Topchian v. JPMorgan Chase Bank,
N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973

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(8th Cir. 1999)). However, “[a] pro se complaint must be liberally construed, and pro se
litigants are held to a lesser pleading standard than other parties.” Topchian, 760 F.3d at
849 (internal quotation marks and citations omitted).
III. DISCUSSION OF CLAIMS
Liberally construed, Hudson alleged Walmart discriminated against her on the basis
of race in violation of 42 U.S.C. §§ 2000a and 1981. Hudson has not stated a claim for
relief under either section because the court cannot reasonably conclude from Hudson’s
allegations that Walmart or its employees discriminated against her on the basis of race.
Section 2000a provides that “[a]ll persons shall be entitled to be free, at any
establishment or place, from discrimination or segregation of any kind on the ground of
race, color, religion, or national origin, if such discrimination or segregation is or purports
to be required by any law, statute, ordinance, regulation, rule, or order of a State or any
agency or political subdivision thereof.” 42 U.S.C. § 2000a-1.
In pertinent part, section 1981 provides that “[a]ll persons within the jurisdiction of
the United States shall have the same right in every State and Territory to make and
enforce contracts.” 42 U.S.C. § 1981(a) (emphasis added). The language, “make and
enforce contracts,” includes “the making, performance, modification, and termination of
contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the
contractual relationship.” 42 U.S.C. § 1981(b). Section 1981’s purpose is to “prohibit
discrimination in the ‘performance, modification and termination of contracts’ and to protect
‘the enjoyment of all benefits, privileges, terms and conditions of the contractual

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relationship.’” Williams v. Lindenwood Univ., 288 F.3d 349, 355 (8th Cir. 2002) (quoting
42 U.S.C. § 1981(b)).
Hudson’s assertions that she was harassed while shopping and later barred from
Walmart because of her race are insufficient to state a claim for relief under § 2000a or §
1981. There are simply no allegations of disparate treatment. Rather, Hudson alleged she
fell asleep at Walmart and was then banned “for sleeping and entering with or without a
purchase.” (Filing No. 1 at CM/ECF p. 3.) Hudson’s conclusory allegations of racial
animus are insufficient to state a claim that is plausible on its face. Similarly, for these
same reasons, any claims Hudson intended to raise under Nebraska’s laws prohibiting
discriminatory public accommodations also fail. See Neb. Rev. Stat. § 20-132 (“All persons
within this state shall be entitled to a full and equal enjoyment of any place of public
accommodation, as defined in sections 20-132 to 20-143, without discrimination or
segregation on the grounds of race, color, sex, religion, national origin, or ancestry.”).
On the Court’s own motion, Hudson will be given an opportunity to file a second
amended complaint that states a claim upon which relief may be granted. The Court will
dismiss this case without further notice if Hudson fails to file a second amended complaint
within the period of time specified below. Accordingly,
IT IS ORDERED:
1.

Hudson will have 30 days to file a second amended complaint that clearly
states a claim upon which relief may be granted against Defendants in
accordance with this order. If Hudson fails to file an amended complaint, the
Court will dismiss this action without further notice. To avoid confusion,

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any document Hudson sends to the clerk of the Court for filing in this
case must clearly display the case number.
2.

The Clerk of the Court is directed to set a pro se case management deadline
in this case using the following text: November 30, 2015: check for second
amended complaint.

3.

The Court reserves the right to conduct further review of Hudson’s claims
pursuant to 28 U.S.C. § 1915(e)(2) after she addresses the matters set forth
in this order.

DATED this 2nd day of November, 2015.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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