                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                              December 29, 2006
                         FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                             No. 06-40026


KEVIN MARZELL WILLIAMS


                Plaintiff - Appellant

     v.

DILLARD’S DEPARTMENT STORES INC; ET AL

                Defendants

DILLARD’S DEPARTMENT STORES INC; DILLARD’S INC

                Defendants - Appellees



          Appeal from the United States District Court
           for the Eastern District of Texas, Beaumont
                         No. 1:04-CV-702


Before KING, GARZA, and OWEN, Circuit Judges.

PER CURIAM:*

     Plaintiff-appellant Kevin Marzell Williams appeals the

district court’s order granting summary judgment to defendants-

appellees Dillard’s Department Stores, Inc. and Dillard’s Inc.

(collectively referred to as “Dillard’s”).       Williams contends


     *
      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this opinion should not be published and is not precedent except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.


                                  -1-
that (1) the district court should have applied the burden-

shifting analysis found in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973); and (2) the district court improperly granted

summary judgment because genuine issues of material fact exist as

to Williams’s claims under 28 U.S.C. §§ 1981, 1982, and 1983 and

certain state law claims.   For the following reasons, we AFFIRM.

                   I. Grant of Summary Judgment

A.   Standard of Review

     Summary judgment is reviewed de novo, under the same

standards used by the district court to determine whether summary

judgment is appropriate in the first instance.    Riverwood Int’l

Corp. v. Employers Ins. of Wausau, 420 F.3d 378, 382 (5th Cir.

2005).   Summary judgment is proper when, viewing the evidence in

the light most favorable to the nonmovant, “there is no genuine

issue of any material fact” and the moving party is “entitled to

judgment as a matter of law.”   Brooks, Tarlton, Gilbert, Douglas

& Kressler v. United States Fire Ins. Co., 832 F.2d 1358, 1364

(5th Cir. 1987); FED. R. CIV. P. 56(c).

     Once the moving party establishes that there is no genuine

issue, the burden shifts to the nonmoving party to produce

evidence of the existence of a genuine issue for trial.     Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986).   The nonmoving party

cannot satisfy his summary judgment burden with conclusory

statements, speculation, and unsubstantiated assertions.


                                -2-
Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1429 (5th

Cir. 1996) (en banc).

B.   McDonnell Douglas Framework

     We do not reach Williams’s McDonnell Douglas argument.

Williams failed to raise the argument properly in the district

court.   Further, when questioned by the district court about the

point, he effectively waived it.   “We will not consider an issue

that a party fails to raise in the district court, absent

extraordinary circumstances.”   N. Alamo Water Supply Corp. v.

City of San Juan, Tex., 90 F.3d 910, 916 (5th Cir. 1996).

Extraordinary circumstances do not exist here.

C.   Sections 1981 and 1982 Claims

     Despite Williams’s argument that issues of material fact

exist regarding whether Dillard’s intentionally discriminated

against him and whether he was browsing or actually attempting to

purchase a watch from Dillard’s, the district court properly

granted summary judgment on Williams’s § 1981 claim.   To

establish a § 1981 claim against a retail merchant, the plaintiff

must prove that: “(1) []he 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” (i.e., the making and

enforcing of a contract).   Morris v. Dillard Dep’t Stores, Inc.,

277 F.3d 743, 751 (5th Cir. 2001).    In the retail context, “the


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plaintiff must demonstrate ‘the loss of an actual, not

speculative or prospective, contract interest.’” Arguello v.

Conoco, Inc., 330 F.3d 355, 358 (5th Cir. 2003) (quoting Morris,

277 F.3d at 751-52).    The plaintiff must offer evidence that the

defendant thwarted a “tangible attempt to contract.”     Id.   On

this record, Williams did not make a tangible attempt to

contract.   Although Williams’s brief states that he attempted to

purchase a watch multiple times and Dillard’s employees refused

to make the sale, the deposition testimony indicates instead that

Williams asked only to look at the watch, not to purchase it.

This behavior is mere browsing and not a tangible attempt to

contract.   See Morris, 277 F.3d at 752-53.   Because no material

issue of fact exists, the district court properly granted summary

judgment on the § 1981 claim.

     Section 1981 and section 1982 claims are “generally

construed in tandem.”    Morris v. Office Max, Inc., 89 F.3d 411,

413 (7th Cir. 1996) (citing Tillman v. Wheaton-Haven Recreation

Ass’n, Inc., 410 U.S. 431, 440 (1973)0.   When the merchant does

not infringe on a contractual right under § 1981, courts have

reasoned that no right to purchase personal property is impacted

under § 1982.   See Office Max, 89 F.3d at 414-15.   Accordingly,

Williams’s § 1982 claim that he was prevented from purchasing the

watch fails for reasons similar to his § 1981 claim, i.e., no




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attempted property transaction was thwarted.1     See id.

D.   Section 1983 Claim

     The district court properly granted summary judgment on

Williams’s § 1983 claim against Dillard’s; because Officer Riley

conducted an independent investigation, Dillard’s was not a state

actor, a requirement of § 1983 claims.      See Morris, 277 F.3d at

748-49.   A merchant will not be subjected to § 1983 liability

“unless an officer has failed to perform [an] independent

investigation.”     Id. at 750.   Here, Officer Riley interviewed

employees and customers as to the alleged shoplifting, personally

questioned Williams, and submitted her own report of the

incident, all of which are indicators of an independent

investigation.    See id.   Accordingly, Dillard’s is not subject to

§ 1983 liability.

E.   State Law Claims

     Because Officer Riley acted in her public capacity,

Dillard’s is not vicariously liable for her actions, and the




     1
        Williams also contends that because his watch was
confiscated from him, Dillard’s infringed his right to hold
personal property in violation of § 1982. The summary judgment
record indicates Officer Riley took the watch from Williams and
gave it to Dillard’s employees who quickly determined it was not
Dillard’s merchandise. Williams has not identified any evidence
that after Dillard’s was given the watch by Officer Riley, it
held the watch because of Williams’s race. Therefore, the
district court properly granted summary judgment on Williams’s
claim that Dillard’s violated § 1981 by preventing him from
holding personal property.
                               -5-
district court properly granted summary judgment.2   An off-duty

police officer’s employer is not vicariously liable for the acts

of the officer if the officer was acting in her public capacity

at the time she “committed the acts for which the complaint [was]

made.”   Mansfield v. C.F. Bent Tree Apartment Ltd. P’ship, 37

S.W.3d 145, 150 (Tex. App.-Austin 2001, no pet.) (quoting

Blackwell v. Harris County, 909 S.W.2d 135, 139 (Tex.

App.–Houston [14th Dist] 1995, writ denied)).   This is true “even

though the employer may have directed the activities.”   Id.

     Williams argues that the facts are in dispute regarding

whether Officer Riley observed him committing the crime of

disorderly conduct, and that if Officer Riley did not observe him

committing a crime and the arrest for disorderly conduct was

invalid, she cannot have been acting in her public capacity.

However, there are multiple bases for concluding that Officer

Riley was acting in her public capacity as a Beaumont police

officer that do not involve the question of whether Williams was


     2
        Williams’s brief also contends that Dillard’s should be
vicariously liable for the improper detention of Williams by
Dillard’s assistant manager and salesperson. Williams does not
make clear the legal basis for this claim. Although Williams
cites Fourth Amendment precedent, Dillard’s, a private actor, is
not subject to the Fourth Amendment. See United States v. Bazan,
807 F.2d 1200, 1202 (5th Cir. 1986). If Williams is alleging he
was falsely imprisoned, his claim fails because he points to no
evidence supporting his contention that he was improperly
detained by Dillard’s employees before Officer Riley arrived.
Indeed, his own deposition testimony indicates he voluntarily
waited for Officer Riley to arrive. Accordingly, the district
court properly granted summary judgment on Williams’s state law
claims.
                               -6-
committing disorderly conduct.   First, Williams knew Officer

Riley was a police officer because when Riley arrested him, she

was wearing a uniform and badge.       See id. at 149-50 (holding that

an officer’s public capacity is triggered if she is identified as

a police officer).   Second, Riley was investigating allegations

that Williams was shoplifting.     See Harris County v. Gibbons, 150

S.W.3d 877, 882 (Tex. App.–Houston [14th Dist.] 2004, no pet.)

(holding that when a police officer undertakes a criminal

investigation of a crime, her public capacity is triggered).

Third, Officer Riley arrested Williams after learning that he had

an outstanding warrant.    See Mansfield, 37 S.W.3d at 151 (holding

that a police officer effectuating an arrest is acting within her

public capacity).    These factors establish that Officer Riley was

acting in her public capacity and that Dillard’s is not

vicariously liable for her actions.

                           II. Conclusion

     For the reasons discussed above, we AFFIRM the district

court’s grant of summary judgment.




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