CLD-326                                                   NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                                 No. 13-2005
                                 ___________

                      WALIYYUDDIN S. ABDULLAH,
                                      Appellant

                                       v.

THE SMALL BUSINESS BANKING DEPARTMENT OF BANK OF AMERICA; THE
     SMALL BUSINESS BANKING DEPARTMENT WELLS FARGO BANK
                ____________________________________

                On Appeal from the United States District Court
                   for the Eastern District of Pennsylvania
                        (D.C. Civil No. 2:13-cv-00305)
                  District Judge: Honorable J. Curtis Joyner
                 ____________________________________

                    Submitted for Possible Summary Action
               Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  July 11, 2013
          Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges

                         (Opinion filed: July 29, 2013)
                                  _________

                                  OPINION
                                  _________

PER CURIAM
       Waliyyuddin Abdullah, proceeding in forma pauperis, appeals pro se the dismissal

of an amended complaint brought pursuant to 42 U.S.C. § 2000d and 42 U.S.C. § 1981. 1

For the reasons that follow, we will summarily affirm. See LAR 27.4; I.O.P. 10.6.

       Abdullah alleged two different sets of misconduct by the defendants. He alleged

that Wells Fargo did not respond to a single request for information about a small

business loan, and that Bank of America 1) sent him information about a line of credit

instead of a loan, and 2) that it did not respond to his application for a line of credit. His

amended complaint alleged that branch employees at both banks misinformed him about

the minimum amount of revenue required to be eligible for a small business loan.

Abdullah alleged that these actions were the equivalent of being denied the opportunity to

apply for a loan program for which he was otherwise qualified. He also alleged that

absent another explanation from the defendants, he “can only conclude one purpose for

this misinformation and denial, discrimination.” Acting prior to service under 28 U.S.C.

§ 1915(e)(2)(B)(ii), the District Court dismissed the amended complaint for failure to

state a claim. It also denied leave to further amend as futile.

       We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over

the District Court’s dismissal for failure to state a claim. See Lazaridis v. Wehmer, 591

F.3d 666, 670 (3d Cir. 2010) (per curiam). Dismissal is appropriate where the pleader

has not alleged “sufficient factual matter, accepted as true, to state a claim that is

1
  The District Court liberally construed appellant’s amended complaint as including
claims under both statutes. The complaint actually only cited to 42 U.S.C. § 2000d.
                                               2
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The standard

requires a two-part analysis, first separating the complaint’s factual allegations from its

legal conclusions, and second, taking only the factual allegations as true, deciding

whether the plaintiff has alleged a plausible claim for relief. See Fowler v. UPMC

Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).

       To state a claim for violation of § 1981, a plaintiff must allege that 1) he is a

member of a racial minority; 2) the defendant intentionally discriminated against the

plaintiff on the basis of race; and 3) the discrimination negatively affected his ability to

engage in one of the protected activities, including formation of a contract. Brown v.

Philip Morris, Inc., 250 F.3d 789, 797 (3d Cir. 2001). 2 To state a claim for violation of

§ 2000d, a plaintiff must allege 1) intentional discrimination on the basis of race or

national origin 2) by a program receiving federal funds. 3 In either context, the standard

for alleging intentional discrimination is the same. See Pryor v. National Collegiate

Athletic Ass’n, 288 F.3d 548, 569 (3d Cir. 2002).

       Here, appellant alleged that the only explanation for the appellees’ conduct was

racial discrimination, but that is a legal conclusion not entitled to be assumed true. See

2
  Because it does not change our analysis, we do not analyze whether the test for a claim
of racially discriminatory lending applies, as in either case the complaint’s deficiency in
alleging racial discrimination would be fatal. See Anderson v. Wachovia Mortg. Corp.,
621 F.3d 261, 275 (3d Cir. 2010).
3
  We note that the District Court did not analyze, nor do we, whether the federally
guaranteed loan program at issue here brings the defendants within the ambit of 42
U.S.C. § 2000d. See 42 U.S.C. § 2000d-4a.

                                              3
Iqbal, 556 U.S. at 681 (holding that allegation in complaint that conduct was motivated

“solely on account of religion, race, and/or national origin” was conclusory and “not

entitled to be assumed true.”) (citation omitted). Appellant failed to allege any facts

supporting this conclusion. See Sarullo v. U.S. Postal Service, 352 F.3d 789, 798 (3d

Cir. 2003) (per curiam) (holding plaintiff in racial discrimination claim must “establish

some causal nexus between his membership in a protected class and” the adverse action).

In his argument in support of this appeal, Abdullah alleged for the first time that he is

African-American, that the relevant actors from the banks are Caucasian, and that the

banks are aware of his race. Even if these facts had been contained in his complaint, they

would be the only facts from which to draw an inference of racial animus. That the

plaintiff and defendant are different races is not sufficient to plausibly state a claim of

racial discrimination. See Santiago v. Warminster Twp., 629 F.3d 121, 133 (3d Cir.

2010) (“Allegations that are merely consistent with a defendant’s liability or show the

mere possibility of misconduct are not enough.”) (quotation omitted).

       The District Court dismissed Abdullah’s original complaint for substantially the

same reasons we have identified and gave appellant an opportunity to amend. See

Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). His amended

complaint did not correct the deficiencies identified by the District Court. In these

circumstances, we conclude that the District Court need not have extended further leave

to amend. See Hill v. City of Scranton, 411 F.3d 118, 134 (3d Cir. 2005).

                                               4
         For the reasons given, we will summarily affirm the judgment of the District

Court.




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