HARRISON v. WHOLE FOODS MARKET (2021)

MEMORANDUM **

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 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 argued in appellant's opening brief.”); Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1992) (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.