Blount V Whole Foods Market Downtown Nashville
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ALIVIA BLOUNT,
Plaintiff, Case No. 3:23-cv-00343
v. Judge Waverly D. Crenshaw, Jr.
Magistrate Judge Alistair E. Newbern
WHOLE FOODS MARKET DOWNTOWN
NASHVILLE,
Defendant.
MEMORANDUM ORDER
There are sixteen motions pending in this action (Doc. Nos. 63, 71, 73, 74, 79, 80, 84, 89,
93, 95–97, 101, 113–15), many of which stem from the parties’ apparent confusion about orders
the Court issued in screening pro se Plaintiff Alivia Blount’s amended complaint (Doc. Nos. 7, 9,
11). Specifically, the parties have spilled a great deal of ink debating whether the claim Blount
asserts against Defendant Whole Foods Market Downtown Nashville arises under 42 U.S.C.
§ 2000a or 42 U.S.C. § 1981. Because the Court found in its final screening order “that Blount has
stated a non-frivolous Section 1981 claim for discrimination by a retail establishment” and
dismissed “[a]ll other claims” (Doc. No. 11, PageID# 49), the pending motions raise issues that
are not in dispute and do little to move this action forward.
Accordingly, and for the reasons that follow, the Court will direct the Clerk of Court to
administratively terminate the parties’ summary judgment motions and other motions rooted in a
dispute over the operative cause of action. The Court will separately address Blount’s motion for
sanctions (Doc. No. 93), motion to appoint counsel (Doc. No. 113), request for electronic service
of documents (Doc. No. 115), and request for a PACER fee exemption (Doc. No. 114).
I. Relevant Background
Blount initiated this action on April 13, 2023, by filing a complaint against Whole Foods
for racial discrimination. (Doc. No. 1.) The Court granted Blount’s application for leave to appear
in forma pauperis (Doc. Nos. 5, 7), consolidated this action with another action Blount filed
against Whole Foods (Doc. No. 9), and ordered Blount to file “one Amended Complaint that
identifies all of [her] legal claims and includes factual allegations sufficient to demonstrate a
plausible right to relief” within thirty days of the Court’s order (id. at PageID# 36). Three days
later, Blount filed a motion requesting access to the Court’s CM/ECF electronic filing system
(Doc. No. 10) and attached an “updated complaint” against Whole Foods (id. at PageID# 41). The
Court treated Blount’s updated complaint (Doc. No. 10) as the ordered amended pleading and, on
November 2, 2023, screened Blount’s amended complaint under 28 U.S.C. § 1915(e)(2)(B). (Doc.
No. 11.) The Court found “that Blount has stated a non-frivolous Section 1981 claim for
discrimination by a retail establishment.” (Id. at PageID# 49.)
The Court then referred the action to the Magistrate Judge to dispose or recommend
disposition of any pretrial motions under 28 U.S.C. § 636(b)(1)(A) and (B). (Doc. No. 11.) On
November 3, 2023, the Magistrate Judge granted Blount’s motion for CM/ECF access (Doc.
No. 10) and directed the Clerk of Court to file Blount’s screened amended complaint as a separate
docket entry. (Doc. No. 12.) The Clerk of Court did so on the same day. (Doc. No. 13.)
Whole Foods filed an answer to Blount’s amended complaint. (Doc. No. 23.) The Court
entered a scheduling order setting September 30, 2024, as the deadline to file motions to amend
the pleadings; January 30, 2025, as the deadline to complete discovery; and March 31, 2025, as
the deadline to file dispositive motions. (Doc. No. 49.) This case is set for a jury trial on December
2, 2025. (Doc. No. 50.)
II. Analysis
In its final screening order, the Court found that “Blount claims that Whole Foods engaged
in ‘racial profiling’ in connection with false allegations of retail theft.” (Doc. No. 11, PageID# 48.)
The Court “liberally construe[d] this as a claim under 42 U.S.C. § 1981, which prohibits
discrimination in the making and enforcement of contracts and has been applied in the context of
alleged discrimination by a retail establishment.” (Id. (collecting authority).) The Court then found
that Blount had “plausibly alleged” the elements of a § 1981 claim against Whole Foods,
including:
that she is a member of a protected class; she sought to purchase goods ordinarily
provided by Whole Foods; and she was deprived of her right to purchase those
goods in a hostile manner that a reasonable person could find discriminatory.
(Id. at PageID# 49.)
The Court thus “conclude[d] that Blount has stated a non-frivolous Section 1981 claim for
discrimination by a retail establishment” and dismissed “[a]ll other claims . . . .” (Id.)
No party challenged the Court’s construction of Blount’s claim. Accordingly, the screening
order’s direction that all parties construe Blount’s amended complaint (Doc. No. 13) as asserting
a claim under § 1981 is the law of the case. See Arizona v. California, 460 U.S. 605, 618 (1983)
(holding that, under law-of-the-case doctrine, “when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages in the same case”);
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988) (noting that law-of-the-
case doctrine “promotes the finality and efficiency of the judicial process by ‘protecting against
the agitation of settled issues’” (citation omitted)).
A. The Parties’ Summary Judgment Motions, Related Filings, and Other
Motions That Do Not Reflect the Law of the Case
On February 21, 2025, Blount filed a motion for summary judgment (Doc. No. 63) to which
Whole Foods filed a response (Doc. No. 68). Blount argues in her motion that Whole Foods’
actions constitute “racial discrimination and profiling under Title II of the Civil Rights Act of
1964, places of public accommodation [42 U.S.C. § 2000a]” and does not cite § 1981. (Doc.
No. 63, PageID# 225.) Whole Foods responds in opposition that, “although this Court ordered
Plaintiff to amend her Original Complaint . . . to bring her claims under 42 U.S.C. § 1981, Plaintiff
did not do so.” (Doc. No. 68, PageID# 239.) Both parties’ filings misrepresent the Court’s prior
orders. First, Blount cites “Title II of the Civil Rights Act of 1964” as the statutory basis for her
claim instead of § 1981, the statute under which the Court found she had plausibly alleged a cause
of action. Blount thus misstates the Court’s construction of her claim. Second, Whole Foods argues
that the Court ordered Blount to amend her complaint to bring her claims under § 1981 and that
Blount did not do so. But the Court’s screening order addressed Blount’s amended complaint and
construed it as asserting a claim under § 1981. The Court did not order Blount to file a second
amended pleading.1 (Doc. No. 11.)
Whole Foods then filed its own motion for summary judgment. (Doc. No. 74.) Whole
Foods’ only argument in support of summary judgment is that Blount cannot show that she is
entitled to monetary relief because she “brings her claims solely under . . . § 2000a” which “only
1 Whole Foods’ confusion in this regard may arise from the fact that Blount filed the
amended complaint as an attachment to her motion for PACER access (Doc. No. 10). After the
Court entered its screening order (Doc. No. 11), it ordered the Clerk’s Office to docket the
amended complaint as a separate docket entry (Doc. No. 12). What the Clerk’s Office docketed
(Doc. No. 13) is the same pleading (Doc. No. 10) addressed by the Court’s screening order (Doc.
No. 11) construing Blount’s claim as arising under § 1981.
authorizes injunctive relief as a remedy.” (Doc. No. 74-1, PageID# 297.) This argument, of course,
does not reflect the law of the case.
In response to Whole Foods’ assertion that she has only brought a § 2000a claim, Blount
filed several motions and pleadings asking the Court for leave to amend her summary judgment
motion and complaint to clarify that she is seeking relief under § 1981. (Doc. Nos. 79, 83–85, 101.)
Whole Foods has moved to strike several of these motions and pleadings (Doc. Nos. 89, 95–97),
and Whole Foods opposes Blount’s efforts to “amend” her cause of action from a § 2000a claim
to a § 1981 claim at this stage of the proceedings (Doc. Nos. 90, 92).
As explained above, however, Blount’s operative cause of action has been a § 1981 claim
since the Court entered its screening order on November 2, 2023 (Doc. No. 11).2 Whole Foods’
assertion that Blount “made the conscious choice to ignore the Court’s construction of her claims
and proceed solely under 42 U.S.C. § 2000a” by filing a “Second Amended Complaint [Doc. 13]”
after the Court screened “her First Amended Complaint [Doc. 10]” (Doc. No. 86, PageID# 393
(brackets in original)) is incorrect. As the Court recognized in its November 6, 2024 order, “[t]he
amended complaint (Doc. No. 13), as screened by the Court (Doc. No. 11), is [ ] the operative
pleading in this action.” (Doc. No. 56, PageID# 182.)
The docket is cluttered with motions and briefing dedicated to the parties’ back-and-forth
over what claim Blount asserts, none of which is relevant to resolving Blount’s § 1981 claim and
all of which are rendered moot by the Court’s final screening order. To move this case forward,
2 The Court made its own misstatement in this regard. The Court’s February 23, 2024 order
addressing Whole Foods’ motion to strike Blount’s reply to Whole Foods’ answer incorrectly
stated that “Blount’s amended complaint in this action asserts a claim . . . under 42 U.S.C. § 2000a
for discrimination in a place of public accommodation.” (Doc. No. 28, PageID# 110.) However,
in a subsequent order, the Court explained the procedural history of Blount’s § 1981 claim in detail
and confirmed that “[t]he amended complaint (Doc. No. 13), as screened by the Court (Doc.
No. 11), is [ ] the operative pleading in this action.” (Doc. No. 56, PageID# 182.)
the Court will administratively terminate the parties’ summary judgment motions, related motions,
and other motions rooted in the mistaken assertion that Blount is pursuing a claim under § 2000a
(Doc. Nos. 63, 71, 73, 74, 79, 80, 84, 89, 95–97, 101) and will allow the parties an opportunity to
refile dispositive motions addressing the operative § 1981 claim.
B. Blount’s Remaining Motions
Blount’s motion for sanctions (Doc. No. 93), motion to appoint counsel (Doc. No. 113),
request for electronic service of documents (Doc. No. 115), and request to be exempt from PACER
fees (Doc. No. 114) are ripe for resolution.
1. Motion for Sanctions
Blount asks the Court to sanction Whole Foods for “litigation abuse and discovery
violations[.]” (Doc. No. 93, PageID# 481.) Specifically, Blount argues that the Court should
impose sanctions on Whole Foods for its “insistence that [she] initiate an entirely new legal action
to assert claims under 42 U.S.C. § 1981” in opposing her motions to amend and for summary
judgment and for “fail[ing] to respond to [her] interrogatories in a complete and good faith
manner.” (Id. at PageID# 481–82.)
The Court has already addressed Whole Foods’ incorrect understanding of Blount’s
operative § 1981 claim and ordered the termination of pending motions reflecting that unsupported
position. Sanctions are not warranted on this ground.
Blount’s motion also fails in its request for discovery sanctions. Blount previously moved
for an order compelling Whole Foods to respond to her discovery requests and for discovery
sanctions. (Doc. Nos. 57, 58.) In its order denying Blount’s motion without prejudice, the Court
instructed Blount that, before she files a discovery-related motion, she must try to resolve the
dispute independently with Whole Foods’ counsel. (Doc. No. 67.) If that effort proves
unsuccessful, the Court instructed, Blount must request a discovery dispute resolution conference
with the Court. (Id.) Blount’s motion does not reflect that she conferred with Whole Foods’
counsel, and she has not requested a discovery dispute resolution conference with the Court.
Further, Blount filed this motion more than two months after the scheduling order deadline for
filing discovery motions. (Doc. No. 49.) For these reasons, the motion for sanctions will be denied.
The Court notes, however, that Blount cites as a ground for sanctions that Whole Foods
“[r]efused to work in good faith to resolve discovery disputes or streamline legal issues.” (Doc.
No. 93, PageID# 485.) Blount also states that Whole Foods “[s]imultaneously refused discovery
and filed dispositive motions claiming the facts were insufficient or unsupported.” (Id. at
PageID# 484.) As this action moves forward, Blount may choose to follow the Court’s discovery
dispute resolution procedures or seek remedies provided in the Federal Rules of Civil Procedure
to bring these or other issues to the Court’s attention. The denial of Blount’s motion for sanctions
is without prejudice to doing so.
2. Motion to Appoint Counsel
Blount asks the Court to appoint counsel to represent her in this action pursuant to 28
U.S.C. § 1915(e)(1). (Doc. No. 113.) Blount states that she “is unable to afford retained counsel”
and argues that appointment of counsel is warranted because “[t]his case involves complex legal
issues,” she “has limited legal training and, despite best efforts, [she] is not able to adequately
represent her interests at trial.” (Id. at PageID# 551.)
In civil actions, unlike criminal proceedings, there is no constitutional right to counsel.
Lavado v. Keohane, 992 F.2d 601, 605–06 (6th Cir. 1993) (“‘Appointment of counsel in a civil
case is not a constitutional right.’” (quoting Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir.
1985))); Hollis v. Perry, No. 3:17-cv-00626, 2018 WL 3572391, at *2 (M.D. Tenn. July 24, 2018)
(citing Willett v. Wells, 469 F. Supp. 748, 751 (E.D. Tenn. 1977), for the proposition that “there is
no constitutional right to an appointed counsel in a civil action”). District courts have discretion to
appoint counsel for indigent civil litigants under 28 U.S.C. § 1915(e)(1), but there must be
exceptional circumstances justifying such an appointment. See Lavado, 992 F.2d at 606 (quoting
Wahl, 773 F.2d at 1174); Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987) (interpreting
then § 1915(d)). To determine “whether exceptional circumstances exist, a district court considers
the type of case, the ability of the pro se litigant to represent himself or herself, and the nature of
the factual and legal issues involved.” Hollis, 2018 WL 3572391, at *2.
At this stage of the proceedings, the Court finds no exceptional circumstances to warrant
appointment of counsel. Blount’s lack of legal training and inability to afford counsel are common
to many pro se civil rights plaintiffs, most of whom will not be appointed counsel. The factual and
legal issues in this case are not unusually complex. And Blount has shown in her pleadings and
motions filed to date that she can communicate with the Court effectively. (Doc. Nos. 1, 2, 5, 6, 8,
10, 15–17, 19, 20, 24, 29–31, 39, 40, 43–47, 52, 53, 57–59, 63–65, 70–73, 75, 77–80, 82–85, 91,
93, 94, 98–101, 107–09, 111, 113–16.) If circumstances of this case change—for example, if
Blount’s claim proceeds past summary judgment—Blount may raise the issue of appointed counsel
again.
3. Request for Electronic Service of Documents
Blount filed a request for “permission to receive all filings and orders in this matter via
electronic service.” (Doc. No. 115, PageID# 554.) Two days later, Blount filed a completed and
signed copy of the Court’s consent to electronic service form for pro se litigants. (Doc. No. 116.)
Because Blount signed and filed the consent to electronic service form, she “will receive a
notice of electronic filing by e-mail when the court enters an order, or when a party files a
document through CM/ECF.” (Id.) Blount “will be permitted one ‘free look’ at the filed document
by clicking on the hyperlinked document number” in the email and can “download the document
to [her] own files to access it again without charge.” (Id.)
Blount’s request for electronic service of documents (Doc. No. 115) is therefore moot.
4. Request for PACER Fee Exemption
Blount also “requests an exemption from PACER access fees under the Electronic Public
Access Fee schedule.” (Doc. No. 114.) Blount states that she “has been granted in forma pauperis
status in this matter and lacks the financial resources to pay for PACER access.” (Id.)
“PACER, an acronym for Public Access to Electronic Records, is the service that provides
electronic access via the Internet to case and docket information from the federal courts.” Martin
v. Cole, Case No. 24-cv-11256, 2024 WL 3448456, at *2 n.1 (E.D. Mich. July 16, 2024). “The
Judicial Conference of the United States has established fees for access to information in PACER.”
Stinson v. Fowlkes, No. 2:22-cv-02694, 2023 WL 3938880, at *8 (W.D. Tenn. June 9, 2023); see
also 28 U.S.C. § 1914 note (Judicial Conference Schedule of Fees, Electronic Public Access Fee
Schedule); U.S. Courts, Electronic Public Access Fee Schedule, https://www.uscourts.gov/court-
programs/fees/electronic-public-access-fee-schedule (last visited July 21, 2025). PACER users
pay ten cents per page to download documents, with a maximum charge of three dollars per
document. 28 U.S.C. § 1914 note (Judicial Conference Schedule of Fees, Electronic Public Access
Fee Schedule). There are no fees for accessing judicial opinions or for viewing case information
or documents at courthouse public access terminals. Id. Parties in a case, including pro se litigants
and attorneys of record, receive one free electronic copy of most electronically filed documents.
Id.
The Judicial Conference has authorized courts to “exempt certain persons or classes of
persons from payment of the use access fee[,]” including “indigents,” if those “seeking an
exemption [ ] demonstrate[ ] that an exemption is necessary in order to avoid unreasonable burdens
and to promote public access to information[.]” Id. at ¶ 9. “To be eligible for an exemption from
PACER user fees, the requesting party must show that an exemption is necessary to: (1) avoid
unreasonable burden; and (2) promote public access to information.” Martin, 2024 WL 3448456,
at *2; see also PACER, Options to Access Records if you Cannot Afford PACER Fees,
https://pacer.uscourts.gov/my-account-billing/billing/options-access-records-if-you-cannot-
afford-pacer-fees (last visited July 21, 2025) (“A court will grant an exemption upon finding that
the requesting party has demonstrated that an exemption is necessary to avoid unreasonable
burdens and to promote public access to information.”).
Blount has not shown that a PACER fee exemption is necessary to avoid unreasonable
burdens here. The Court granted Blount in forma pauperis status because it found that Blount
“adequately demonstrate[d] that she cannot pay the full civil filing fee in advance without ‘undue
hardship.’” (Doc. No. 7, PageID# 26 (quoting Foster v. Cuyahoga Dep’t of Health & Hum. Servs.,
21 F. App’x 239, 240 (6th Cir. 2001); and citing 28 U.S.C. § 1915(a)).) But Blount’s in forma
pauperis status does not automatically entitle her to exemption from PACER fees. See, e.g., Malouf
v. Detroit Med. Ctr., No. 10-cv-14763, 2011 WL 1465787, at *1 (E.D. Mich. Apr. 18, 2011)
(“While Plaintiff may be unable to afford the filing fees associated with this lawsuit, the Court
finds that he is financially capable of affording the minimal costs of the PACER system.”). Further,
because Blount has consented to electronic service of documents in this case, she will receive a
free electronic copy of most documents filed in this case. The Court finds it likely that Blount has
effectively received the relief she sought through this motion.
Blount’s request for a PACER fee exemption (Doc. No. 114) will therefore be denied
without prejudice.
III. Conclusion
For these reasons, and in the interests of moving this case toward just and efficient
resolution, the Clerk of Court is DIRECTED TO ADMINISTRATIVELY TERMINATE the
following motions:
• Blount’s motion for summary judgment (Doc. No. 63);
• Blount’s proposed order granting her motion for summary judgment (Doc. No. 71);
• Blount’s request for a timely ruling on her motion for summary judgment (Doc.
No. 73);
• Whole Foods’ motion for summary judgment (Doc. No. 74);
• Blount’s supplemental motion for summary judgment (Doc. No. 79);
• Blount’s motion to request a summary judgment ruling and to preclude further
unauthorized filings by Whole Foods (Doc. No. 80);
• Blount’s motion for leave to file an amended complaint (Doc. No. 84);
• Whole Foods’ motion to strike Blount’s supplemental motion for summary
judgment and summary judgment declaration (Doc. No. 89);
• Whole Foods’ twice-filed motion to strike Blount’s supplement to her motion for
summary judgment (Doc. Nos. 95, 96);
• Whole Foods’ motion to strike Blount’s proposed amended complaint (Doc.
No. 97); and
• Blount’s motion for leave to supplement or amend her motion for summary
judgment (Doc. No. 101).
Blount’s amended complaint (Doc. No. 13) as screened by the Court (Doc. No. 11) remains
the operative pleading in this action. Blount and Whole Foods may refile dispositive motions
addressing Blount’s § 1981 claim by August 6, 2025. Responses in opposition must be filed by
August 27, 2025, and optional replies may be filed by September 3, 2025.
Blount’s motion for sanctions (Doc. No. 93) is DENIED.
Blount’s motion to appoint counsel (Doc. No. 113) is DENIED WITHOUT PREJUDICE.
Blount’s request for an exemption from PACER fees (Doc. No. 114) is DENIED
WITHOUT PREJUDICE.
Blount’s request for electronic service of documents (Doc. No. 115) is FOUND MOOT.
By separate order, the Court will appoint a pro bono mediator and require the parties to
mediate this action by no later than September 30, 2025.
It is so ORDERED.
Abistow nolborr
ALIST E. NEWBERN
United States Magistrate Judge
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