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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

LATRICE SALVADOR and

TENIOLA SALVADOR,

 Plaintiffs,

v.

TARGET CORPORATION, et al.,

 Defendants.

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Civil Action No. 4:23-cv-585-SDJ-KPJ

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Pending before the Court is Defendant Target Corporation’s (“Target”) 12(b)(6) Motion to 

Dismiss (the “Second Motion to Dismiss”) (Dkt. 18). Plaintiffs did not file a response. For the 

reasons that follow, the Court recommends that the Second Motion to Dismiss (Dkt. 18) be

GRANTED.

I. BACKGROUND

On May 19, 2023, Plaintiff Latrice Salvador (“Plaintiff”), proceeding pro se, filed the 

Original Petition (Dkt. 4) in the 16th Judicial District Court, Denton County, Texas. See Dkts. 1 

at 1; 4. In the Original Petition (Dkt. 4), Plaintiff alleged that she entered into a Target storefront 

and asked an employee to unlock a display case containing headphones. See Dkt. 4 at 1–2. 

However, that employee “refused” to unlock the display case. Id. at 2. When Plaintiff inquired 

why she could not “see the box outside of its casing,” she received no response from the Target 

employee. Id. Thereafter, Plaintiff alleges that she “requested a manager to assist with the matter,” 

who ultimately gave her a discount on the headphones “due to the incident.” Id. Based on these 

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factual allegations, Plaintiff asserted a claim of “discrimination” and sought $100,000.00 in 

damages, but she made no reference to the law entitling her to such relief. See id. at 1–2.

On June 22, 2023, Target removed this action to federal court on the basis of diversity 

jurisdiction. Dkt. 1 at 1. That same day, Target filed the Motion for a More Definite Statement (the 

“First Motion for a More Definite Statement”) (Dkt. 2) requesting that Plaintiff be required to

“clearly plead the date of the occurrence, the elements of her claim[,] and the plausible factual 

basis for [it].” Dkt. 2 at 2. On July 7, 2023, the Court ordered Plaintiff to file a response, if any, to 

the First Motion for a More Definite Statement (Dkt. 2). Dkt. 5. The Court also warned Plaintiff 

that, under the Local Rules, “A party’s failure to oppose a motion in the manner prescribed . . . 

creates a presumption that the party does not controvert the facts set out by movant and has no 

evidence to offer in opposition to the motion.” Id. (internal quotation marks omitted) (omission in 

original).

On July 21, 2023, Plaintiff, still proceeding pro se, filed the Amended Petition (Dkt. 6), 

wherein she joined Plaintiff Teniola Salvador (together with Plaintiff, “Plaintiffs”), her husband, 

as well as Defendants “John Doe #1” and “John Doe #2” (the “Unknown Defendants” and, 

together with Target, “Defendants”), employees of target. See Dkt. 6 at 1. According to Plaintiffs, 

the Unknown Defendants are both Texas residents. Id. In the Amended Petition (Dkt. 6), Plaintiffs

allege the following facts in support of their discrimination claim against Defendants:

On or about December 24, 2022, Latrice Salvador and Teniola Salvador (Husband 

& Wife) entered the Target location located at 3201 Preston Rd 75034. Teniola 

Salvador & Latrice Salvador entered as both business invitees. Their intention was 

to complete their Christmas shopping for their 4 children. Latrice Salvador located 

one of the items that her son had requested, which were headphones (Beats by Dre). 

Latrice Salvador requested assistance from the sales associate and was advised that 

she was only able to view the merchandise from the glass cabinet. Latrice Salvador 

explained that she would need to compare prices of the other headphones also listed 

in the cabinet, the request was denied. Latrice Salvador requested to have a manager 

immediately. The manager came to the electronics department and after the 

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situation was explained, the products were taken from the glass cabinet for review, 

a discount was taken from the listed price, and the purchase was completed.

Discrimination and violation of civil rights were established by Target Corporation, 

John Doe #1, and John Doe #2 for racially profiling Latrice and Teniola Salvador 

for being African American.

Id. at 2 (cleaned up). Furthermore, unlike the Original Petition (Dkt. 4), Plaintiffs assert that their 

discrimination claim arises under “the Civil Rights Act of 1964.” Id. at 3. Based on the alleged 

discrimination, Plaintiffs seek $100,000.00 in damages. Id.

The same day Plaintiffs filed the Amended Petition (Dkt. 6), they also filed the Motion to 

Remand (Dkt. 7) on the basis that the Unknown Defendants, just like Plaintiffs, are citizens of 

Texas—thereby destroying diversity jurisdiction. See Dkt. 7 at 1. On August 2, 2023, Target filed 

the Motion to Dismiss Plaintiffs’ Amended Petition (the “First Motion to Dismiss”) (Dkt. 9), 

wherein Target argued that the Amended Petition (Dkt. 6) was impermissibly filed without the 

Court’s leave. See Dkt. 9 at 1–2. Target also filed the Second Motion for a More Definite Statement 

(Dkt. 11) and, once again, requested that Plaintiffs be required to file a more definite statement 

because the Amended Petition (Dkt. 6) “is so vague that [Target] is unable to prepare a response.” 

Dkt. 11 at 2.

On November 6, 2023, the Court recommended that the Motion to Remand (Dkt. 7) be 

denied because, even with the addition of the Unnamed Defendants, the Court clearly has federal 

question jurisdiction over this matter. See Dkt. 13 at 4–5. The Court further recommended that the 

First Motion to Dismiss (Dkt. 9) be denied because the Amended Petition (Dkt. 6) was filed 

pursuant to an order extending the deadline to file an amended pleading. See id. at 3–4. On 

January 31, 2024, the District Judge adopted the Court’s recommendation and denied the Motion 

to Remand (Dkt. 7) and the First Motion to Dismiss (Dkt. 9). Dkt. 15 at 1. On February 2, 2024, 

the Court denied the First Motion for a More Definite Statement (Dkt. 2) as moot. Dkt. 16 at 4. 

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Furthermore, the Court denied the Second Motion for a More Definite Statement (Dkt. 11) because 

the factual allegations contained in the Amended Petition (Dkt. 6) “are neither ambiguous nor 

unintelligible.” Id. On February 28, 2024, Target filed the Second Motion to Dismiss (Dkt. 18) 

presently pending before the Court. See Dkt. 18. Plaintiffs did not file a response despite the 

Court’s prior warning that the failure to do so “creates a presumption that the party does not 

controvert the facts set out by movant and has no evidence to offer in opposition to the motion.” 

See Dkt. 5.

II. LEGAL STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move for 

dismissal of an action if the plaintiff fails to state a claim upon which relief can be granted. See

FED. R. CIV. P. 12(b)(6). “In evaluating motions to dismiss filed under Rule 12(b)(6), the court 

‘must accept all well-pleaded facts as true, and . . . view them in the light most favorable to the 

plaintiff.’” Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 899 (5th Cir. 2019) 

(quoting Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th. Cir. 1986)). “Further, ‘[a]ll 

questions of fact and any ambiguities in the controlling substantive law must be resolved in the 

plaintiff’s favor.’” Id. (quoting Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001)). However, 

courts are “not bound to accept as true ‘a legal conclusion couched as a factual allegation.’” In re 

Ondova Ltd., 914 F.3d 990, 993 (5th Cir. 2019) (quoting Papasan v. Allain, 478 U.S. 265, 286 

(1986)).

“The well-pleaded facts must permit the court ‘to infer more than the mere possibility of 

misconduct.’” Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009)). That is, the complaint “must allege enough facts to move the claim ‘across the 

line from conceivable to plausible.’” Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011), as 

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revised (Dec. 16, 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 

“Determining whether the plausibility standard has been met is a ‘context-specific task that 

requires the reviewing court to draw on its judicial experience and common sense.’” Id. (quoting 

Iqbal, 556 U.S. at 663–64).

At the motion to dismiss stage, “[t]he court’s review is limited to the complaint, any 

documents attached to the complaint, and any documents attached to the motion to dismiss that 

are central to the claim and referenced by the complaint.” Allen v. Vertafore, Inc., 28 F.4th 613, 

616 (5th Cir. 2022) (quoting Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 

387 (5th Cir. 2010)).

III. ANALYSIS

In the Second Motion to Dismiss (Dkt. 18), Target construes Plaintiffs’ discrimination 

claim as arising under 42 U.S.C. § 1981 (“§ 1981”) and makes three distinct arguments for 

dismissal. See Dkt. 18 at 2–4. Specifically, Target argues: (1) Plaintiffs fail to allege that they are 

members of a racial minority group; (2) Plaintiffs fail to allege that Target intended to discriminate 

against them based on their race; and (3) Plaintiffs fail to allege that any discrimination related to 

an enumerated activity. See id. The Court agrees with Target’s construal of Plaintiffs’ claim,

1

and 

agrees in part with its grounds for dismissal.

1 The only other possible construal is that Plaintiffs’ discrimination claim arises under Title II of the Civil Rights Act 

of 1964 (“Title II”). However, it would be impossible for Plaintiffs to succeed on such a claim. Title II provides:

All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, 

privileges, advantages, and accommodations of any place of public accommodation, as defined in 

this section, without discrimination or segregation on the ground of race, color, religion, or national 

origin.

42 U.S.C. § 2000a(a). Retail establishments, like Target, are plainly not places of public accommodation. See, e.g., 

Hoang v. Best Buy Stores, L.P., No. 20-86, 2021 WL 1967513, at *3 (E.D. La. May 14, 2021) (citing Brackens v. Big 

Lots, Inc., No. 06-ca-532, 2007 WL 208750, at *2 (W.D. Tex. Jan. 24, 2007)). In any event, Plaintiffs seek monetary 

damages of 100,000.00, and Title II “allows only for prospective relief and does not authorize damage awards.” Bass 

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To successfully state a claim under § 1981, a plaintiff must allege that “(1) he or she is a 

member of a racial minority; (2) the defendant had an intent to discriminate on the basis of race; 

and (3) the discrimination concerned one or more of the activities enumerated in the statute.” See 

Pullins v. Hancock Whitney Bank, 512 F. Supp. 3d 647, 657 (M.D. La. 2021) (quoting Bellows v. 

Amoco Oil Co., 118 F.3d 268, 274 (5th Cir. 1997)).

A. Member of Racial Minority

Target argues that Plaintiffs fail to “establish in the pleading that they are members of a 

minority race.” Dkt. 18 at 2. The Court disagrees. Plaintiffs allege that Target discriminated 

against them “for being African American,” and that they were “treated unfairly due to their race 

and the color of their skin.” Dkt. 6 at 2. Accepting this factual assertion as true—as the Court must 

at this juncture—Plaintiffs have plausibly alleged that they, as African Americans, are members 

of a racial minority group. See, e.g., Body by Cook, Inc. v. State Farm Mut. Auto. Ins., 869 F.3d 

381, 386 (5th Cir. 2017).

B. Discriminatory Intent

Target argues that “[t]here are no facts pled that indicate there was any intent by Target to 

discriminate against Plaintiffs.” Dkt. 18 at 2. The Court agrees.

“To allege intentional discrimination, the plaintiff must allege facts that could show the 

defendant’s interference with the plaintiff’s rights was racially motivated.” Maldonado v. 

FirstService Residential, Inc., No. 20-1484, 2021 WL 2517542, at *5 (S.D. Tex. June 18, 2021). 

“Although ‘naked allegations’ of discriminatory intent are too conclusory to survive a motion to 

v. Parkwood Hosp., 180 F.3d 234, 244 (5th Cir. 1999) (first citing 42 U.S.C. § 2000a-3; and then citing Newman v. 

Piggie Park Enters., Inc., 390 U.S. 400 (1968)).

The Court also notes that, whether Plaintiffs’ discrimination claim is construed under § 1981 or § 1982 is immaterial 

because these statutes are “generally construed in tandem.” See, e.g., Williams v. Dillard’s Dep’t Stores, Inc., 211 F. 

App’x 327, 329 (5th Cir. 2006) (internal quotation marks omitted) (citation omitted).

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dismiss, discriminatory motive may be—and commonly is—demonstrated by circumstantial 

evidence.” Body by Cook, Inc., 869 F.3d at 386 (cleaned up); cf. Cadle Co. v. Schultz, 779 F. Supp. 

392, 396 (N.D. Tex. 1991) (“[I]f the information surrounding the allegations is peculiarly within 

the knowledge of the defendant, less detail is required in the complaint.” (citations omitted)). 

Usually, the plaintiff alleges discriminatory intent by pointing to “similarly situated nonminorities” who “received better treatment,” Body by Cook, Inc., 869 F.3d at 386 (citing Crosby 

v. Kilgore, No. 93-7354, 1993 WL 481800, at *1 (5th Cir. Nov. 12, 1993)), but discriminatory 

intent may also be demonstrated by allegations of “overt acts coupled with racial remarks.” 

Maldonado, 2021 WL 2517542, at *6 (citation omitted).

In the present case, Plaintiffs allege that they were “only able to view the merchandise from 

the glass cabinet.” Dkt. 6 at 2. Plaintiffs then conclude, without any factual enhancement, that they 

were racially profiled and discriminated against “for being African American.” Id. Such a naked 

assertion is definitionally deficient. Body by Cook, Inc., 869 F.3d at 386. Furthermore, Plaintiffs 

do not even attempt to allege circumstantial evidence demonstrating Target’s discriminatory 

intent. Even if Plaintiffs were to allege such facts, those facts cannot be conclusory or subjective. 

See Spann v. JPMorgan Chase Bank, N.A., No. 21-1643, 2022 WL 2177438, at *7 (E.D. La. 

June 16, 2022). For these reasons, Plaintiffs’ discrimination claim should be dismissed.

C. Enumerated Activity

Target argues that § 1981 only “prohibits intentional race discrimination with respect to 

certain enumerated activities,” including “the making and enforcement of contracts.” Dkt. 18 at 4. 

Because the contractual agreement at issue here (the purchase of headphones) culminated in a sale 

of those headphones to Plaintiffs, Target concludes that Plaintiffs fail to state a claim of 

discrimination. Id. The Court agrees with Target.

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As Target correctly asserts, § 1981 “does not provide a general cause of action for race 

discrimination” and, instead, “prohibits intentional race discrimination with respect to certain 

enumerated activities.” Arguello v. Conoco, Inc., 330 F.3d 355, 358 (5th Cir. 2003) (citations 

omitted). Specifically, § 1981 provides, inter alia, that all persons have the right “to make and 

enforce contracts,” which “includes 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(a)–(b). In the “retail context,” the plaintiff “‘must offer evidence 

of some tangible attempt to contract’ that in some way was ‘thwarted’ by the defendant.” Arguello, 

330 F.3d at 358 (quoting Morris, 277 F.3d at 752). In other words, “the plaintiff must be actually 

prevented, not merely deterred, from making a purchase.” Singleton v. St. Charles Par. Sheriff’s 

Dep’t, 306 F. App’x 195, 198 (5th Cir. 2009) (citing Morris, 277 F.3d at 752).

In the present case, Plaintiffs allege that they entered Target “to complete their Christmas 

shopping,” which included the purchase of “headphones” for their son. Dkt. 6 at 2. However, a 

Target employee only permitted them “to view the merchandise from the glass cabinet.” Id.

Thereafter, a manager arrived, discounted the headphones, “and the purchase was completed.” Id.

In other words, Plaintiffs were not prevented from making the purchase of the headphones and, 

thus, fail to state a discrimination claim. See, e.g., Singleton, 306 F. App’x at 198 (holding that 

“the plaintiff must be actually prevented, not merely deterred, from making a purchase” (citing 

Morris, 277 F.3d at 752)); McNulty v. J.C. Penney Co., 305 F. App’x 212, 218 (5th Cir. 2008) 

(“[The plaintiff] claims that the actions of [the defendant] and its employees—specifically their 

stop and search of her—were racially motivated and violated § 1981. However, her claim fails, 

because she successfully completed the purchase transaction.” (citing Arguello, 330 F.3d at 359)); 

Lowe v. Wal-Mart Stores, Inc., No. 16-cv-2017, 2017 WL 1102806, at *3 (N.D. Tex. Feb. 21, 

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2017) (“[The] [p]laintiffs completed their purchase, which is the basis of the contract in question, 

so their [§] 1981 claim should be dismissed.” (citing Arguello, 330 F.3d at 359)), R. & R. adopted, 

2017 WL 1091652 (N.D. Tex. Mar. 23, 2017). Therefore, Plaintiffs’ discrimination claim should 

be dismissed.

D. Leave to Amend

A “plaintiff’s failure to meet the specific pleading requirements should not automatically 

or inflexib[ly] result in dismissal of the complaint with prejudice to re-filing.” Hart v. Bayer Corp., 

199 F.3d 239, 247 n.6 (5th Cir. 2000) (citation omitted). Further, a pro se litigant should generally 

be offered an opportunity to amend her complaint before it is dismissed. Brewster v. Dretke, 

587 F.3d 764, 767–68 (5th Cir. 2009) (per curiam) (citing Bazrowx v. Scott, 136 F.3d 1053, 1054 

(5th Cir. 1998) (per curiam)). “Granting leave to amend is not required, however, if the plaintiff 

has already pleaded [her] ‘best case.’” Id. at 768 (quoting Bazrowx, 136 F.3d at 1054). The Court 

can deny leave to amend where such an amendment would be futile. See, e.g., Isom v. U.S. Dep’t 

of Homeland Sec., No. 20-cv-948, 2021 WL 2232052, at *3 (E.D. Tex. Apr. 28, 2021), R. & R. 

adopted, 2021 WL 2224345 (E.D. Tex. June 2, 2021).

In the present case, the Court finds that permitting Plaintiffs leave to amend is not 

warranted. Plaintiff has already amended the pleading in response to the First Motion for a More 

Definite Statement (Dkt. 2). Furthermore, despite the Court previously warning Plaintiff of the 

consequences for failing to respond to a motion, see Dkt. 5, Plaintiffs did not file a response to the 

Second Motion to Dismiss (Dkt. 18). Nor did Plaintiffs request leave to amend to cure the 

deficiencies identified by Target. Based on these failures, the Court concludes that Plaintiffs have 

already pleaded their best case and, thus, leave to amend is unnecessary. See Willis v. Villa Piana 

Corp., No. 22-cv-2468, 2023 WL 6219401, at *6 (N.D. Tex. Aug. 28, 2023) (“And when a 

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plaintiff does not file a response to a Rule 12(b)(6) motion or request leave to amend, the court 

may deny the plaintiff leave to amend because the plaintiff has already pleaded his or her best 

case.” (citing Lee v. BONY, No. 13-cv-1033, 2013 WL 4603584, at *4 (N.D. Tex. Aug. 9, 2013), 

R. & R. adopted, 2013 WL 4623608 (N.D. Tex. Aug. 29, 2013). “If Plaintiffs had potentially 

meritorious arguments, they presumably would have raised them under one of these avenues.” 

Crucci v. Seterus, Inc., No. 13-cv-317, 2013 WL 6146040, at *8 (W.D. Tex. Nov. 21, 2013); see 

LOC. R. CV-7(d) (“A party’s failure to oppose a motion in the manner prescribed herein creates a 

presumption that the party does not controvert the facts set out by movant and has no evidence to 

offer in opposition to the motion.”). Thus, Plaintiffs should not be given leave to file another

amended pleading.

IV. RECOMMENDATION

For the foregoing reasons, the Court recommends that the Second Motion to Dismiss 

(Dkt. 18) be GRANTED, and Plaintiffs’ discrimination claim against Target be DISMISSED 

WITH PREJUDICE.

Plaintiffs discrimination claim against the Unknown Defendants remains pending.

Within fourteen (14) days after service of the magistrate judge’s report, any party must 

serve and file specific written objections to the findings and recommendations of the magistrate 

judge. 28 U.S.C. § 636(b)(1)(C).

A party is entitled to a de novo review by the district court of the findings and conclusions 

contained in this report only if specific objections are made, and failure to timely file written 

objections to any proposed findings, conclusions, and recommendations contained in this report 

shall bar an aggrieved party from appellate review of those factual findings and legal conclusions 

accepted by the district court, except on grounds of plain error, provided that the party has been 

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served with notice that such consequences will result from a failure to object. Id.; Thomas v. Arn, 

474 U.S. 140 (1985); Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) 

(en banc), superseded by statute on other grounds, 29 U.S.C. § 636(b)(1) (extending the time to 

file objections from ten (10) to fourteen (14) days).

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