IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

CHRISTOPHER GRANGER, )

 )

Plaintiff, )

 )

v. ) NO. 1:15-CV-135

 )

24/30 SURPLUS, LLC, )

 )

Defendant. )

OPINION AND ORDER

This matter is before the Court on the First Amended Complaint

(DE #8) and the Petition to Proceed Without Pre-Payment of Fees and

Costs (DE #9), both filed by Plaintiff, Christopher Granger, on

July 16, 2015. For the reasons set forth below, the Court:

(1) DISMISSES the complaint (DE #8); 

(2) DENIES the motion for leave to proceed in forma pauperis

(DE #9);

(3) DIRECTS the clerk to close this case. 

BACKGROUND

Plaintiff, Christopher Granger (“Granger”), through his

counsel, initiated this case by filing a complaint (DE #1) and

petition to proceed in forma pauperis (“IFP”) (DE #2) on May 29,
2015. In his original complaint, Granger listed two defendants, 

24/30 Surplus, LLC (“24/30 Surplus”) and the City of New Haven (the

“City”). (DE #1.) Although not broken into separate sections,

Granger appeared to allege causes of action based on: (1) false

arrest/false imprisonment under Indiana law against both

defendants; (2) “false arrest and false imprisonment, and excessive

force (by needlessly pointing firearms at him), in violation of his

federally protected right to be free from unreasonable seizure”

against the City; (3) “false arrest/false imprisonment, in

violation of his federally [sic] right to be free from unreasonable

seizure and his Fourteenth Amendment right to equal protection

under the law against 24/30 Surplus; and (4) a conspiracy claim

pursuant to 42 U.S.C. section 1983 and 42 U.S.C. section 1985

against both defendants. (Id. at 1-3.) 

On June 23, 2015, pursuant to 28 U.S.C. section 1915, this

Court determined that Granger had failed to state a claim and, as

such, denied the motion for leave to proceed in forma pauperis,

dismissed the complaint, and granted Granger to and including July

20, 2015, to file an amended complaint and either pay the filing

fee or re-file his in forma pauperis petition. (See DE #6.) On

July 16, 2015, Granger filed the instant amended complaint and new

in forma pauperis petition. (DE #8; DE #9.) In his amended

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complaint, he lists only 24/30 Surplus as a defendant,1 and he

clarifies that he is bringing state law claims of false arrest and

false imprisonment as well as a claim premised on a violation of 42

U.S.C. section 1981. 

Granger, who is African-American, alleges that he and two

friends entered 24/30 Surplus on August 31, 2013, to purchase

groceries and household goods. (DE #8, p. 1.) He states that they

selected items, purchased them, and left the store, all without

incident.2

 (Id. at 2.) After they drove away, Granger alleges

that it was determined that one of the men may have left a cell

phone in the store, so they began to drive back to retrieve it. 

(Id.) However, according to Granger, they were stopped by officers

from the New Haven Police Department in the parking lot before they

were able to re-enter the store. (Id.) Said police officers had

allegedly received a call from a staff member of 24/30 Surplus

accusing Granger and his friends of “possessing firearms and/or

committing a crime at the store and/or intending to commit a crime

at the store.” (Id.) Granger denies all of these allegations. 

Granger alleges that the officers pointed their weapons at he and

his friends and “threatened to fire upon the men, threatened to sic

1

 Granger also filed a separate motion to dismiss the City, which this

Court denied as moot because the City was not listed in the amended complaint

and the original complaint had been previously dismissed. (See DE #7; DE #8.)

 

2

 Granger states that he and his friends “committed no crime and took

no action that would lead staff of . . . 24/30 Surplus to reasonably believe

they committed a crime” nor did they possess any firearms. (DE #8, p. 3.)

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police canines on the men, swore and shouted at the men, and

accused them of possessing firearms and intending to commit crimes”

at 24/30 Surplus. (Id.) According to Granger, he contends that:

[t]he wrongful accusations against [him] by .

. . 24/30 Surplus staff impaired [his] rights

to enjoy the same benefits, privileges, terms,

and/or conditions of the contractual

relationship with . . . 24/30 Surplus as

white/Caucasian citizens. [He] alleges that .

. . 24/30 Surplus failed to afford him the

same benefits to contract as enjoyed by white

citizens in violation of [his] rights under 42

U.S.C. [section] 1981 through the practice of

racial profiling and interfering with his

engagement of contractual relations with the

store.

(Id. at 3.) 

ANALYSIS

The IFP statute, 28 U.S.C. section 1915, allows an indigent

plaintiff to commence a civil action without prepaying the

administrative costs (e.g. filing fee) of the lawsuit. See 28

U.S.C. § 1915(a)(1); see also Denton v. Hernandez, 504 U.S. 25, 27

(1992). When presented with an IFP application, the district court

makes two determinations: (1) whether the suit has sufficient

merit; and (2) whether the plaintiff’s poverty level justifies IFP

status. See Denton, 504 U.S. at 27; Smith-Bey v. Hosp. Adm’r, 841

F.2d 751, 757 (7th Cir. 1988). The screening court must dismiss

the complaint if (a) the allegation of poverty is untrue, (b) the

action is frivolous or malicious, (c) the action fails to state a

claim upon which can be granted, or (d) the action seeks monetary

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relief against a defendant who is immune from such relief. 28

U.S.C. § 1915(e)(2).

To determine whether the suit states a claim upon which relief

can be granted under 28 U.S.C. section 1915(e)(2)(B)(ii), a court

applies the same standard as it would to a motion to dismiss filed

pursuant to Federal Rule of Civil Procedure 12(b)(6). DeWalt v.

Carter, 224 F.3d 607, 611 (7th Cir. 2000). In deciding a motion to

dismiss under Rule 12(b)(6), a court must accept all well-pleaded

factual allegations as true and view them in the light most

favorable to the plaintiff. Luevano v. WalMart Stores, Inc., 722

F.3d 1014, 1027 (7th Cir. 2013). To survive dismissal, a

“complaint must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation

marks and citation omitted). A plaintiff “must plead some facts

that suggest a right to relief that is beyond the ‘speculative

level.’” Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir.

2011). “This means that the complaint must contain allegations

plausibly suggesting (not merely consistent with) an entitlement to

relief.” Lavalais v. Village of Melrose Park, 734 F.3d 629, 632-33

(7th Cir. 2013) (internal quotation marks and citation omitted). 

Sufficient Merit 

42 U.S.C. section 1981 is derived from the Civil Rights Act of

1866 and provides, in relevant part, that: 

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[a]ll persons within the jurisdiction of the

United States shall have the same right in

every State and Territory to make and enforce

contracts, to sue, be parties, give evidence,

and to the full and equal benefit of all laws

and proceedings for the security of persons

and property as is enjoyed by white citizens,

and shall be subject to like punishment,

pains, penalties, taxes, licenses, and

exactions of every kind, and to no other.

42 U.S.C. § 1981; see also Humphries v. CBOCS W., Inc., 474 F.3d

387, 392-93 (7th Cir. 2007). Section 1981 provides a “broad-based

prohibition (and federal remedy) against racial discrimination in

the making and enforcing of contracts.” Humphries, 474 F.3d at

393. Making and enforcing contracts is defined as “the making,

performance, modification, and termination of contracts, and the

enjoyment of all benefits, privileges, terms, and conditions of the

contractual relationship.” 42 U.S.C. § 1981. Normally, section

1981 is evoked in the context of employment contracts, but courts

have occasionally evaluated claims arising from allegedly

discriminatory conduct in retail locations. Pourghoraishi v.

Flying J Inc., 449 F.3d 751, 756 (7th Cir. 2006); see also Morris

v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996) (“Claims

involving retail transactions have been infrequent.”). To

establish a prima facie claim of discrimination under section 1981

in such an instance, a plaintiff must show that (1) he is a member

of a racial minority; (2) the defendant had the intent to

discriminate on the basis of race; and (3) the discrimination

concerned one of the rights listed in the statute such as the

making or enforcing of a contract. See Morris, 89 F.3d at 413. 

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The plaintiffs in the Morris case, two African-American men,

entered an Office Max store to purchase office supplies. Id. at

411-12. Within minutes of entering the store, the assistant

manager called the local police department to report “two male

blacks acting suspiciously.” Id. at 412. Police officers were

dispatched, but before they arrived, one of the plaintiffs had

selected items for purchase (telephone message pads) and paid for

them. Id. He then rejoined the other plaintiff, who was examining

time-stamp machines in another area of the store. Id. At that

point, the police officers arrived, and they approached the

plaintiffs. Id. The plaintiffs were questioned and asked to

provide their drivers’ licenses before the officers ultimately

determined that they posed no threat, apologized to the men, and

left the store. Id. As they were leaving, one of the officers

told the assistant manager that “there two are okay.” Id. The

plaintiffs complained to the assistant manager and accused her of

calling the police for the sole reason that they were black; she

responded that she had done so because the store had been

experiencing recent thefts. Id. The men then left the store

without purchasing anything further. Id. at 414.

The Seventh Circuit held that the plaintiffs had failed to

establish that Office Max deprived them of any of the rights

described in section 1981, including the right to make and enforce

a contract because the men were not denied service, admittance, nor

were they asked to leave the store. Id. at 414. In so

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determining, the Seventh Circuit focused on the fact that one of

the plaintiffs had actually completed his transaction and had

purchased several telephone message pads; the plaintiffs’ argument

that they were “discouraged and dissuaded” from making a potential

additional purchase (i.e. the time-stamp machine) was unavailing. 

Id. The court acknowledged that the incident was “unfortunate and

undoubtedly disconcerting and humiliating” but held that it did not

violate the statute because plaintiffs: 

never sought to enter into a contractual

relationship with Office Max. Their

allegation that Office Max interfered with

with ‘prospective contractual relations’ is

speculative and insufficient to state a claim

under § 1981. A claim for interference with

the right to make and enforce a contract must

allege the actual loss of a contract interest,

not merely the possible loss of future

contract opportunities.

Id. at 414-15 (citing Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262

(10th Cir. 1989)). 

In his complaint, Granger specifically states that he and his

friends selected items for sale from 24/30 Surplus, purchased them,

and then left the store. Granger does not allege that he intended

to return to the store later that day to purchase additional items;

rather, he indicates that he intended to return solely to retrieve

the misplaced cell phone. As in Morris, Granger has not alleged an

actual loss of a contract interest, and, therefore, he has failed

to state a claim upon which relief may be granted. 

Because the Court has determined that the complaint does not

contain sufficient factual matter to state a federal claim for

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relief that is plausible on its face, Granger’s state law claims

need not be addressed. 

CONCLUSION

For the reasons set forth above, the Court:

(1) DISMISSES the complaint (DE #8); 

(2) DENIES the motion for leave to proceed in forma pauperis

(DE #9);

(3) DIRECTS the clerk to close this case. 

DATED: January 19, 2016 /s/RUDY LOZANO, Judge

United States District Court

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