           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         January 16, 2009

                                     No. 08-30471                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk




GLENN SINGLETON

                                                  Plaintiff - Appellant
v.

ST CHARLES PARISH SHERIFF’S DEPARTMENT; WAL-MART
LOUISIANA LLP; CURTIS HOWARD; CPL MIGUEZ; CHRISTOPHER
OLIVIER, Deputy; DEPUTY ROTH

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                                 No. 2:06-CV-4743


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Appellant Glenn Singleton appeals the district court’s orders granting the
defendants’ motions for summary judgment on his civil rights claims. For the
reasons stated below, we affirm.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 08-30471


            I. FACTUAL AND PROCEDURAL BACKGROUND
        On September 12, 2005, shortly after Hurricane Katrina, Singleton
attempted to visit the Wal-Mart store located in Boutte, Louisiana. For security
reasons, the store limited the number of customers allowed inside at a given
time, resulting in lengthy lines waiting to enter. Singleton dropped off his wife
and granddaughter at the store’s entrance while he searched for a parking space.
By the time he approached the entrance, his wife and granddaughter were
already inside. Singleton was prevented from entering by Curtis Howard, a
security guard employed by Wal-Mart who told Singleton that he would have to
wait in the line with everyone else. Howard continued to bar Singleton’s entry
into the store after Singleton attempted to explain that he was there to buy
prescription medications and that his family was waiting for him just inside the
door.    There was a store policy at the time allowing persons buying only
prescriptions to enter the store without waiting in line. Several minutes later,
Singleton approached Howard while he was conversing with Richard Miguez, a
Sheriff’s deputy. Singleton alleges that Miguez began shouting at him to back
away from the store entrance. He further alleges that William Roth, also a
Sheriff’s deputy, approached him from behind; forcibly pushed his arms behind
his back; walked him back to his car; and pushed him chest first onto the hood
of his car, which aggravated a prior shoulder surgery. Singleton was not
arrested at this time, but he was instructed not to return to that Wal-Mart
location.
        On September 20, 2005, Singleton returned to the same Wal-Mart location
to speak with the store’s manager regarding the prior incident. As Singleton left
the store that day, he was arrested by Christopher Olivier, also a Sheriff’s
deputy, for remaining after being forbidden. Singleton also alleges that




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employees of Wal-Mart and the officers used racial slurs to refer to him on both
September 12 and 20, 2005.
       On August 25, 2006, Singleton filed suit under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 1981, 1983, and 1985, and several state law causes of
action. The district court granted summary judgment to Howard and Wal-Mart
on all three federal claims. The district court dismissed the § 1981 claim
because Singleton failed to show interference with a contract interest, it
dismissed the § 1983 claim because Singleton could not show state action, and
it dismissed the § 1985 claim because Singleton presented no evidence of a
conspiracy to deprive him of a protected federal right. Thereafter, the district
court granted summary judgment in favor of the officers, finding that they did
not violate any of Singleton’s constitutional rights on September 12, 2005, and
that there was probable cause for the arrest on September 20, 2005.1
                                    II. DISCUSSION
       We review a grant of summary judgment de novo, applying the same
standards as the district court. Kirschbaum v. Reliant Energy, Inc., 526 F.3d
243, 248 (5th Cir. 2008). “Summary judgment is proper when the movant can
demonstrate that there is no genuine issue of material fact and that he is
entitled to judgment as a matter of law.” Id.; see also FED. R. CIV. P. 56(c). We
view all evidence in the light most favorable to the party opposing the motion
and draw all reasonable inferences in that party’s favor. Kirschbaum, 536 F.3d
at 248.
            A. Singleton’s claims against Wal-Mart and Howard
                              i. Singleton’s § 1981 claim



       1
         In this same order, the district court dismissed Singleton’s remaining state law claims
for lack of subject matter jurisdiction after all federal claims had been dismissed. Singleton
has not challenged this portion of the order on appeal.

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                                       No. 08-30471


       In order to sustain a § 1981 claim, a plaintiff must show: “(1) that she is
a member of a racial minority; (2) that [the defendant] had intent to discriminate
on the basis of race; and (3) that the discrimination concerned one or more of the
activities enumerated in the statute, in this instance, the making and enforcing
of a contract.”2 Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743, 751 (5th Cir.
2001). The contract interest must be actual and not merely speculative. Id. The
district court concluded that Singleton had not been denied access to the store;
he had merely been instructed to wait in line with the other customers, which
he refused to do. Therefore, Wal-Mart did not prohibit him from entering into
a contract with the store—it only delayed his ability to do so.
       We agree. In Morris, we held that banning a person from entering a store
is insufficient to constitute the loss of an actual contract interest for purposes of
§ 1981. Id. at 752. However, Singleton argues that his loss of contract interest
was not the prospective ban from the store, but his immediate inability to
purchase prescriptions and other supplies on September 12, 2005. Initially,
Singleton was given the option to stand in the line with the other people wanting
to enter the store. Thus, he was not deprived of the right to make purchases on
that day because he was simply asked to wait in line with the other patrons. See
id. at 752 (noting that the plaintiff must be actually prevented, not merely
deterred, from making a purchase). It was his refusal to wait in line and his
continued demand for immediate entry that led to his removal from the premises
and permanent ban from the store. And since he had not even entered the store,
his purported contract interest is much more speculative than the plaintiff in
Christian v. Wal-Mart Stores, Inc., who “had selected merchandise to purchase,

       2
          Singleton satisfies the first element because he is African American. We assume
without deciding that his allegations that racial slurs were used against him are sufficient to
satisfy the second element. This leaves only the third element—whether he was prohibited
from entering into a contract with Wal-Mart—to be considered, which is the only element that
the district court discussed.

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had the means to complete the transaction, and would, in fact, have completed
her purchase had she not been asked to leave the store.” 252 F.3d 862, 874 (6th
Cir. 2001). Moreover, Singleton admits that when he returned to the store on
September 20, 2005, his intention was not to purchase any items, but only to
seek redress from the store manager regarding the events of September 12,
2005. Thus, he cannot argue that he was prevented from entering into a
contract on September 20, 2005, due to being banned from the store. We
conclude that the district court correctly held that Singleton has not proven a
lost contract interest for purposes of §1981.
                        ii. Singleton’s § 1983 claim
      “[F]or a plaintiff to state a viable claim under § 1983 against any private
defendant . . . the conduct of the private defendant that forms the basis of the
claimed constitutional deprivation must constitute state action under color of
law.” Morris, 277 F.3d at 747. A private actor, here Wal-Mart and Howard, is
subject to constitutional liability when “such a close nexus between the State
and the challenged action exists that seemingly private behavior may be fairly
treated as that of the State itself.” Id. at 747–48. This inquiry is “highly
circumstantial and far from precise.” Id. at 748 (citing Brentwood Acad. v. Tenn.
Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295–96 (2001)). The district court
found that none of the state actors involved here had a contract with Wal-Mart
and that Miguez and Roth made an independent investigation on September 12,
2005; therefore, Singleton had not established the state action requirement.
      In the retail context, “a merchant is not a state actor unless the conduct
on the part of a guard or officer giving rise to the claimed deprivation occurred
based solely on designation of suspicion by the merchant and was not
accompanied by any independent investigation by the officer.” Id. at 749. This
test is designed to determine if “the police pursuant to a preconceived plan,
would arrest any person merely because he was designated for arrest by the

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store.” Id. (internal quotation marks omitted). An officer is allowed to rely on
the report of suspicion by a store employee if he also conducts an independent
investigation. Id.
       Singleton presented no evidence that there was a “preconceived plan”
between Wal-Mart and the Sheriff’s department or its officers to arrest any
person designated by the store. Singleton alleges that he approached Miguez in
the parking lot and that it was Miguez, not Howard or any Wal-Mart employee,
that instructed Roth to escort Singleton to his car. This interaction occurred
independent of any direction from Wal-Mart and was based upon the officers’
first-hand observations. Singleton also alleges that Olivier did not conduct an
independent investigation before arresting him on September 20, 2005. Olivier,
who had already been notified by Wal-Mart that Singleton had been banned
from the store, requested Singleton to leave the premises. Olivier observed
Singleton’s refusal to leave first-hand and decided to arrest him based on this
independent observation. Thus, the district court was correct in concluding that
Singleton has not shown sufficient facts to satisfy the state action requirement
of § 1983 in connection with either incident.
                          iii. Singleton’s § 1985 claim
       Singleton’s brief on appeal makes only one vague reference to a § 1985
claim, stating that “it is clear that Wal-Mart’s employee, Howard, and the
defendant deputies conspired together to violate appellant’s rights, falsely arrest
him, abuse and injure him based on race.” We find that he has waived this issue
by failing to brief it on appeal. See The Proctor & Gamble Co. v. Amway Corp.,
376 F.3d 496, 499 n.1 (5th Cir. 2004) (citing FED. R. APP. P. 29(a)(9)(A)).3

       3
         We note that, even if he had not failed to brief this issue, Singleton could not prove a
conspiracy claim under § 1985 because it requires a predicate showing of a deprivation of equal
protection. See Wong v. Stripling, 881 F.2d 200, 202 (5th Cir. 1989). Since his §§ 1981 and
1983 claims failed, there is no underlying action to which a conspiracy could have been
directed.

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                B. Claims against Miguez, Roth, and Olivier
       After the district court granted the motion for summary judgment of Wal-
Mart and Howard, Miguez, Roth, and Olivier filed a separate motion for
summary judgment based on the defense of qualified immunity.4 The district
court granted the motion, concluding that Singleton had not established that
Miguez or Roth violated any of his constitutional rights during the incident on
September 12, 2005, and that Olivier had probable cause to arrest Singleton on
September 20, 2005, after he refused to leave the premises.
       We agree that Miguez and Roth’s actions on September 12, 2005, were
protected by qualified immunity. Qualified immunity protects government
officials performing discretionary functions from civil liability if their conduct
does not violate clearly established statutory or constitutional rights that a
reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). The first step of a qualified immunity analysis is to determine whether,
viewing the alleged facts in the light most favorable to the plaintiff, the officers’
conduct violated a constitutional right. Aucoin v. Haney, 306 F.3d 268, 272 (5th
Cir. 2002).    “If no constitutional right would have been violated were the
allegations established, the inquiry ends.” Gates v. Tex. Dep’t of Protective &
Regulatory Servs., 537 F.3d 404, 418 (5th Cir. 2008). Here, we need only reach
the first step of the qualified immunity inquiry because, as the foregoing
analysis makes clear, the district court correctly concluded that Singleton has
not shown a violation of his constitutional rights.5



       4
        The other named defendant, the St. Charles Parish Sheriff’s Department, was
dismissed with Singleton’s consent on January 9, 2007.
       5
         The district court made no explicit finding regarding excessive force. However,
Singleton alleges only that his arm was placed behind his back and he was pushed towards his
car. The fact that he had a pre-existing shoulder injury does not change whether the force
used was reasonable.

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                                  No. 08-30471


      Olivier is entitled to qualified immunity for Singleton’s arrest on
September 20, 2005, “if a reasonable officer in his position could have believed
that, in light of the totality of the facts and circumstances of which [he] was
aware, there was a fair probability that [Singleton] had committed or was
committing an offense.” Haggerty v. Tex. S. Univ., 391 F.3d 653, 656 (5th Cir.
2001). An official may mistakenly conclude that probable cause was present as
long as that belief was reasonable. Id. “An officer’s entitlement to qualified
immunity based on probable cause is difficult for a plaintiff to disturb.” Morris,
277 F.3d at 753.
      Singleton was arrested for remaining after being forbidden. See LA. REV.
STAT. § 14:63.3(A) (“No person shall without authority . . . remain in or upon any
structure . . . which belongs to another . . . after having been forbidden to do so,
either orally or in writing . . . by any owner . . . of the property or by any other
authorized person.”). On September 20, 2005, Howard informed Olivier that
Singleton had previously been banned from the store premises on September 12,
2005, and that Singleton had returned. Additionally, Olivier asked Singleton to
leave the store and observed his failure to do so. The district court was correct
in concluding that this information gave Olivier probable cause to believe that
Singleton was remaining after being forbidden. See State v. Ceaser, 859 So. 2d
639, 644–45 (La. 2003) (finding probable cause for a violation of § 14:63.3 when
a mother told officers that she wanted her son out of her house and the son
refused to comply). Thus, Olivier is entitled to qualified immunity for his actions
on September 20, 2005.
                              III. CONCLUSION
      For the reason stated above, we AFFIRM the district court’s orders
granting the defendants’ motions for summary judgment.




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