United States Court of Appeals

for the Fifth Circuit ____________

No. 23-50001

Summary Calendar

____________

Kevin McBride, 

Plaintiff—Appellant, 

versus

Half Price Books, Records, Magazines, Incorporated, 

Defendant—Appellee. 

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 1:22-CV-703

______________________________

Before Willett, Duncan, and Douglas, Circuit Judges.

Per Curiam:*

Kevin McBride filed a pro se civil suit in which he alleged a claim of 

race-based discrimination under 42 U.S.C. § 1981. After the matter was 

removed from state court to the district court, the defendant moved to 

dismiss the suit for failure to state a claim under Federal Rule of Civil 

Procedure 12(b)(6). The district court granted the motion. McBride appeals 

that dismissal. We review the grant of a motion to dismiss under Rule 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

August 7, 2023

Lyle W. Cayce

Clerk

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No. 23-50001

2

12(b)(6) de novo. Romero v. City of Grapevine, Texas, 888 F.3d 170, 176 (5th 

Cir. 2018). 

To sustain a claim under § 1981, McBride must establish that: (1) he 

is a member of a racial minority; (2) the defendant intended to discriminate 

on the basis of race; and (3) the discrimination concerned one or more of the 

actions listed in the statute, e.g., the making and enforcing of a contract. See 

Morris v. Dillard Dep’s Stores, Inc., 277 F.3d 743, 751 (5th Cir. 2001). He must 

prove the loss of an actual contract interest and not one that is speculative or 

prospective. See id. at 751-52.

McBride failed to plead sufficient facts to support that the defendant 

thwarted a tangible attempt to contract. See Arguello v. Conoco, Inc., 330 F.3d 

355, 358-59 (5th Cir. 2003); Morris, 277 F.3d at 752. He conceded that he 

arrived at the store outside of its normal business hours, knew that the store 

was closed, and decided to try to enter the store anyway to purchase an item. 

A store employee told McBride what he knew or suspected, i.e., the store was 

closed and that he could return the following day when the store was open. 

Because the store was closed, no transaction was proposed or possible under 

the circumstances; therefore, no actual contractual relationship existed when 

McBride was denied entry, and the defendant did not interfere with a tangible 

attempt to buy a specific item. See Arguello, 330 F.3d at 358-59; Morris, 277 

F.3d at 752. While McBride alleged that a white woman was allowed to enter 

the store after he was denied entry and left with a bag in her hand, he did not 

present facts supporting that the store was open to the woman to initiate and 

complete a purchase but was not open to him for the same purpose. See Body 

by Cook, Inc. v. State Farm Mut. Auto. Ins., 869 F.3d 381, 386 (5th Cir. 2017)

(noting that an allegation that a similarly situated non-minority was provided 

better treatment could support a § 1981 claim).

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Thus, the judgment is AFFIRMED. McBride’s motion for 

appointment of appellate counsel is DENIED because he has not 

demonstrated that this case presents exceptional circumstances. See Cooper 

v. Sheriff, Lubbock Cty., 929 F.2d 1078, 1084 (5th Cir. 1991).

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