Summary
holding that plaintiff did not have a valid Section 1981 claim where plaintiff alleged that his employer's failure to verify his lost wages unconstitutionally interfered with his ability to obtain personal injury benefits pursuant to an insurance contract because "[the Fifth Circuit] ha suggested that a plaintiff does not have a cause of action under section 1981 against a third party for interference with the plaintiff's right to make and enforce contracts."
Summary of this case from Obey v. Frisco Med. Ctr.Opinion
No. 10-10982 Summary Calendar.
April 12, 2011.
Terry James, Dallas, TX, pro se.
Michael V. Abcarian, Esq., Paul M. Lanagan, Esq., Fisher Phillips, L.L.P., Dallas, TX, for Defendant-Appellee.
Appeal from the United States District Court for the Northern District of Texas, USDC No. 3:09-CV-1437.
Before JOLLY, GARZA, and STEWART, Circuit Judges.
Terry James appeals the district court's summary judgment in favor of Wanda Parish, dismissing his 42 U.S.C. § 1981 action with prejudice. James has filed a motion for leave to proceed in forma pauperis (IFP) on appeal, challenging the district court's denial of IFP and certification that his appeal was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(2); FED. R.APP. P. 24(a)(3). James argues that Parish refused to provide verification of his lost wages at Fiesta Food Mart, which prevented him from obtaining personal injury protection benefits under his insurance contract and that Parish's interference with the enforcement of his insurance contract was retaliatory and racially motivated.
James has not shown that the district court erred in granting Parish's summary judgment motion. We have suggested that a plaintiff does not have a cause of action under § 1981 against a third party for interference with the plaintiffs right to make and enforce contracts. see Felton v. Polks, 315 F.3d 470, 480 (5th Cir. 2002), abrogated on other grounds, Burlington Northern, Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006); see also Green v. State Bar of Tex., 27 F.3d 1083, 1086 (5th Cir. 1994). Further, James has not shown that Parish acted with intent to discriminate against him on the basis of his race. James did not allege any facts that would indicate that Parish failed to provide the verification of lost wages because of James's race. See Green, 27 F.3d at 1086. James is not entitled to relief based on his conclusional allegations. see Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007).
This appeal is without arguable merit and is thus frivolous. see Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir. 2001). Accordingly, James's IFP motion is DENIED and the appeal is DISMISSED. see Baugh, 117 F.3d at 202 n. 24; 5th Cir. R. 42.2.