IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

DR. JEFFREY STANDIFER §

PLAINTIFF, §

 §

V. § CASE NO. 3:22-CV-2088-M-BK 

 §

TOM THUMB STORE, §

DEFENDANT. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and Special Order 3, Defendant’s Motion for Summary 

Judgment, Doc. 65, is before the Court for the issuance of findings and a recommended 

disposition. For the reasons that follow, the motion should be GRANTED.

I. BACKGROUND

The following facts are established by the parties’ competent summary judgment 

evidence as noted.

In February 2022, Plaintiff Esmeralda Gonzalez, a Hispanic woman, tried to buy alcohol

at a Tom Thumb Store in Dallas, Texas. Doc. 67 at 27 (Gasca Decl.). At that time, Tom 

Thumb’s “Alcohol & Tobacco Sales Policy” stated, “[i]f you are fortunate enough to look under 

the age of 40, please be prepared to present your state or government issued identification.” 

Doc. 67 at 3 (Fosnaugh Decl.), Doc. 67 at 8 (Tom Thumb’s “Alcohol & Tobacco Sales Policy”). 

Relying on this policy, the cashier asked Gonzalez for her ID, but Gonzalez replied that she did 

not have it with her, adding that she was over 21 years old. Doc. 67 at 27 (Gasca Decl.). The 

cashier and manager then explained to Gonzalez that Tom Thumb’s policy was to refuse to sell 

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alcohol to anyone who appeared to be 40 years old or younger, unless the customer presented an 

acceptable photo ID. Doc. 67 at 27 (Gasca Decl.); Doc. 67 at 31 (Johnson Decl.). 

At the same time, Plaintiff Jeffrey Standifer, an African-American male, was also in line 

to check out at the same register. Doc. 67 at 27 (Gasca Decl.), Doc. 67 at 31 (Johnson Decl.). 

He interjected that Gonzalez was one of his patients and vouched for her being over 21 years old. 

Doc. 67 at 27 (Gasca Decl.). The manager then repeated Tom Thumb’s policy to Standifer. 

Doc. 67 at 31 (Johnson Decl.). Standifer replied that he was over 21 years old and offered to buy

the alcohol for Gonzalez. Doc. 67 at 31-32 (Johnson Decl.). But store policy prevented that sale 

as well, as the manager told Standifer, in light of Standifer’s stated intention to give the alcohol

to Gonzalez. Doc. 67 at 4 (Fosnaugh Decl.), Doc. 67 at 31-32 (Johnson Decl.). 

In turn, Standifer directed a vulgar tirade, that included profanity and racist/sexist slurs, at 

the manager, an African-American woman, and a store security officer. Doc. 67 at 20-24

(certified transcription of video footage); Doc. 67 at 28, 32. Nevertheless, the manager sold 

Standifer all of the non-alcoholic items that he brought to the register. Doc. 67 at 32-33

(Johnson Decl.). When the store security officer returned after briefly leaving the register area, 

Standifer reached across the register, moving his hand upward near the manager’s face. Doc. 67 

at 16 (Parker Decl.), Doc. 67 at 32 (Johnson Decl.). The manager contends that in so doing, 

Standifer struck her nose with his finger—contact which Standifer staunchly denies. Doc. 67 at 

32 (Johnson Decl.); Doc. 70 at 11 (Standifer Decl.).

Standifer and Gonzalez, both proceeding pro se, sued Defendant Tom Thumb Store

(“Tom Thumb”), alleging racial discrimination in violation of both 42 U.S.C. § 1981 and 15 

U.S.C. § 13, and seeking monetary and non-monetary relief. Doc. 17, passim. Gonzalez’s 

claims have since been dismissed with prejudice on agreed motion, Doc. 62. Doc. 85. Tom 

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Thumb now moves for summary judgment on Standifer’s claims. Doc. 65. Standifer has filed a

response, Doc. 69, and Tom Thumb has filed a reply, Doc. 71. Thus, the motion is ripe for 

determination.

II. APPLICABLE LAW

Summary judgment is appropriate “if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that the moving party is entitled to a judgment as a 

matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A party moving for 

summary judgment has the initial burden of “informing the district court of the basis for its 

motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, 

and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the 

absence of a genuine issue of material fact.” Id. at 323 (citation omitted).

Once the moving party has properly supported its motion for summary judgment, the 

burden shifts to the nonmoving party to “come forward with specific facts showing that there is a 

genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 

(1986) (internal quotes omitted). “Where the record taken as a whole could not lead a rational 

trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Id. (citation 

omitted). The Court “must view the evidence introduced and all factual inferences from the 

evidence in the light most favorable to the party opposing summary judgment, but a party 

opposing summary judgment may not rest on mere conclusory allegations or denials in its 

pleadings.” Smith v. Reg’l Transit Auth., 827 F.3d 412, 417 (5th Cir. 2016) (internal alterations 

omitted) (quoting Hightower v. Tex. Hosp. Ass’n, 65 F.3d 443, 447 (5th Cir. 1995)).

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III. ANALYSIS

A. Standifer has abandoned his 15 U.S.C. § 13 claim.

In his response to Tom Thumb’s motion for summary judgment, Standifer does not 

address his claim under 15 U.S.C. § 13.

1

 See Doc. 69. If no response is filed to a motion for 

summary judgment, the court cannot enter a “‘default’ summary judgment.” Boyd v. Fam. 

Dollar Stores of Texas, LLC, No. 3:22-CV-1368-D, 2023 WL 4141052, at *1 (N.D. Tex. June 

22, 2023) (Fitzwater, J.) (citation omitted). But when a response is filed that does not address 

particular claims upon which summary judgment is sought, those claims can be treated as 

abandoned. See Harris v. City of Schertz, 27 F.4th 1120, 1123 (5th Cir. 2022) (“On appeal, the 

City argues that Harris’s failure to respond in district court to its summary judgment motion’s 

argument about age discrimination means that the claim was abandoned. It has authority on its 

side.”) (citing Vela v. City of Houston, 276 F.3d 659, 679 (5th Cir. 2001)). 

Because Standifer has abandoned his 15 U.S.C. § 13 claim, Tom Thumb is entitled to 

summary judgment in its favor as to the same.

B. Standifer fails to show a genuine issue of material fact as to whether Tom Thumb

discriminated against him based on his race.

As to Standifer’s section 1981 claim, Tom Thumb argues that no evidence—direct or 

otherwise—shows that it intended to discriminate against Standifer based on his race. Doc. 66 at 

6-7 (citations omitted). Standifer responds that Tom Thumb’s reason for denying the sale of the 

1

15 U.S.C. § 13 makes it “unlawful for any person engaged in commerce, in the course of such 

commerce . . . to discriminate in price between different purchasers of commodities of like grade 

and quality, . . . where such commodities are sold for use, consumption, or resale within the 

United States . . . and where the effect of such discrimination may be substantially to lessen 

competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or 

prevent competition . . . .” Based on the facts alleged by Plaintiff, the statute appears to have no 

applicability here.

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alcohol based on store policy was “pretextual.” Doc. 69 at 7. In support of his response, he cites 

various unverified allegations from the operative complaint. Doc. 69, passim. Tom Thumb

replies that Standifer’s allegations are not evidence at the summary judgment stage. Doc. 71 at 

6-7 (citations omitted). Tom Thumb’s arguments have merit.

Section 1981 prohibits private parties from engaging in racial discrimination in the 

making, enforcing, performance, modification, and termination of contracts. 42 U.S.C. § 1981. 

To succeed on a section 1981 claim in the retail context, a plaintiff must establish “(1) that [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.” Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743, 751 (5th Cir. 2001). The first and 

third elements are undisputed—Standifer is African-American and his attempt to buy retail 

goods constituted a protected activity. See id. at 752 (“[W]here a customer has engaged in an 

actual attempt to contract that was thwarted by the merchant, courts have been willing to 

recognize a [section] 1981 claim.”) (citations omitted). 

Standifer’s section 1981 claim thus turns on the second element—whether Tom Thumb

intended to discriminate against Standifer “on the basis of” his race. Accordingly, “[he] bears 

the burden of showing that race was a but-for cause of [his] injury.” Comcast Corp. v. Nat’l 

Ass’n of Af, Am.-Owned Media, 140 S. Ct. 1009, 1014 (2020). Put differently, “[he] must 

initially plead and ultimately prove that, but for race, [he] would not have suffered the loss of a 

legally protected right.” Id. at 1019. At the summary judgment stage, the non-movant “will not 

avoid summary judgment by presenting speculation, improbable inferences, or unsubstantiated 

assertions.” Jones v. United States, 936 F.3d 318, 321 (5th Cir. 2019) (footnote and internal 

quotation marks omitted). 

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Here, no reasonable jury could find that Tom Thumb would have sold Standifer the 

alcohol that he sought to buy “but for” his race. See Comcast Corp., 140 S. Ct. at 1014. His 

response cites no evidence that Tom Thumb prevented him from purchasing alcohol because he 

is African-American, offering instead only his unsupported allegations. See Jones, 936 F.3d at 

321. Conversely, Tom Thumb produced an affidavit from the store director attesting to the store 

policy on the subject occasion. Doc. 67 at 4 (Fosnaugh Decl.). Tom Thumb also produced an 

affidavit from the manager who refused the sale, citing the policy as the only basis for doing so

and expressly denying that her refusal was because of Standifer’s race. Doc. 67 at 32-33. 

Further, Standifer’s deemed admissions confirm Tom Thumb’s race-neutral basis for refusing to 

sell him alcohol. Doc. 67 at 36-41. Tom Thumb is thus entitled to summary judgment on this

claim. 

Although the Court need not scour the summary judgment record for controverting 

evidence, a review of the materials provided in Standifer’s appendix, Doc. 70, reveals that none, 

singly or in combination, creates a genuine issue of material fact as to this claim. Included is a 

pre-suit letter from an attorney who merely opines that it is “hard to believe that [Standifer,] a 

doctor who has been in practice for over 23 years would risk his license by striking one of [Tom 

Thumb’s] employees in the face.” Doc. 70 at 2-3. Also included is a police incident report from 

which, although obviously not considered as evidence here, actually tracks Tom Thumb’s 

version of the salient events. Doc. 70 at 4-10. And lastly, Standifer includes a declaration in 

which he denies “hit[ting], strik[ing], or otherwise assault[ing]” any of Tom Thumb’s

employees. Doc. 70 at 11. Again, none of this, even if considered true, creates a genuine issue 

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of material fact as to whether Tom Thumb discriminated against Standifer “on the basis of” his 

race, as required to establish a section 1981 claim.

2

 

IV. CONCLUSION

For the foregoing reasons, Defendant’s Motion for Summary Judgment, Doc. 65, should 

be GRANTED, Standifer’s claims should be DISMISSED WITH PREJUDICE, and, as no 

claims will remain, this case should be closed.

SO RECOMMENDED on February 1, 2024.

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the manner

provided by law. Any party who objects to any part of this report and recommendation must file 

specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 

636(b)(1); FED. R. CIV. P. 72(b). An objection must identify the finding or recommendation to 

which objection is made, state the basis for the objection, and indicate where in the magistrate 

judge’s report and recommendation the disputed determination is found. An objection that merely 

incorporates by reference or refers to the briefing before the magistrate judge is not specific. 

Failure to file specific written objections will bar the aggrieved party from appealing the factual 

findings and legal conclusions of the magistrate judge that are accepted or adopted by the district 

court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 

1415, 1417 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending 

the time to file objections to 14 days).

2 Because summary judgment is appropriate on this basis alone, the Court does not reach

Defendant’s remaining arguments. 

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