Patrina Harrison v. Whole Foods Market

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 22, 2021
• Docket: 20-17446
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PATRINA HARRISON, No. 20-17446

Plaintiff-Appellant, D.C. No. 4:20-cv-04867-JSW

v. MEMORANDUM* WHOLE FOODS MARKET,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Submitted July 19, 2021**

Before: SCHROEDER, SILVERMAN, and MURGUIA, Circuit Judges.

Patrina Harrison appeals pro se from the district court’s judgment dismissing

with prejudice her action alleging various federal and state law claims arising from

various incidents while shopping. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo a district court’s dismissal under Federal Rule of Civil

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Harrison’s request for oral argument, set forth in the opening brief, is denied. Procedure 12(b)(6). L.A. Lakers, Inc. v. Fed. Ins. Co., 869 F.3d 795, 800 (9th Cir.

2017). We affirm in part, vacate in part, and remand.

The district court dismissed Harrison’s 42 U.S.C. § 1981 claim for failure to

state a claim without explanation. However, Harrison alleged that she was denied

the opportunity to contract because she is African American, in contrast to

similarly situated white customers. These allegations are sufficient to state a claim

under 42 U.S.C. § 1981 for intentional discrimination. See Lindsey v. SLT L.A.,

LLC, 447 F.3d 1138, 1145 (9th Cir. 2006) (setting forth elements of a 42 U.S.C. §

1981 claim in a non-employment context). We vacate the judgment and remand

for further proceedings on this claim.

The district court declined to exercise supplemental jurisdiction over

Harrison’s state law claims after dismissing her federal claims. See 28 U.S.C.

§ 1367(c)(3). Because we vacate the dismissal on one of Harrison’s federal claims,

we remand for the district court to reconsider whether it will exercise supplemental

jurisdiction over Harrison’s state law claims. See Fang v. United States, 140 F.3d

1238, 1243-44 (9th Cir. 1998).

In her opening brief, Harrison fails to address the dismissal of her remaining

claims and has therefore waived her challenge to the district court’s order

regarding those claims. See Indep. Towers of Wash. v. Washington, 350 F.3d 925,

929 (9th Cir. 2003) (“[W]e will not consider any claims that were not actually

2 20-17446 argued in appellant’s opening brief.”); Acosta-Huerta v. Estelle, 7 F.3d 139, 144

(9th Cir. 1993) (issues not supported by argument in pro se appellant’s opening

brief are waived.

The parties shall bear their own costs on appeal.

AFFIRMED in part, VACATED in part, and REMANDED.

3 20-17446