Thomas v. Wal-Mart Inc et al

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
NOEL VINCENT THOMAS 	PLAINTIFF
v. 	CIVIL NO. 5:25-05222-TLB
WALMART, INC., KEVIN BOLEN, LISSET CHAO,
JOHNATHAN BAKER, RUBENSTEIN LAW FIRM,
IRWIN AST LAW FIRM, AND NICHOLE GARCIA 	DEFENDANTS
REPORT AND RECOMMENDATION OF A MAGISTRATE JUDGE
On November 3, 2025, Plaintiff, Noel Vincent Thomas (“Plaintiff”), a resident of Tampa,
Florida, filed a complaint against Defendants Walmart, Inc., Walmart employees Kevin Bolen,
Johnathan Baker, and Liset Chao, and Miami, Florida, law firms Rubenstein and Irwin Ast along
with Nichole Garcia, a paralegal at Irwin Ast Law Firm. (ECF No. 2). Plaintiff also filed an
application to proceed pro se and in forma pauperis (IFP) and the undersigned previously granted
the motion and directed Plaintiff to file an Amended Complaint. (ECF Nos. 3, 6). Plaintiff’s
Amended Complaint was filed November 17, 2025. (ECF No. 7). Pursuant to the provisions of
28 U.S.C. § 636(b)(1) and (3), the Honorable Judge Timothy L. Brooks, Chief United States
District Judge, referred this case to the undersigned for preservice screening of Plaintiff’s
Amended Complaint and for Report and Recommendation. (ECF No. 4).
I. 	PLAINTIFF’S AMENDED COMPLAINT
Plaintiff’s Amended Complaint has its genesis in a slip and fall Plaintiff suffered at a
Walmart store located at 8220 N. Dale Mabry Highway in Tampa, Florida, on December 16, 2023,
wherein he allegedly injured his arm and shoulder. (ECF No. 7, pp. 5, 10). Plaintiff says that after
this fall and during 2024, he had some email communications with representatives of Walmart and
Case 5:25-cv-05222-TLB Document 9 Filed 01/06/26 Page 1 of 15 PageID #:
<pageID>

2
received letters but he refused to speak with anyone on the telephone about his claim, describing
that “he refused to communicate legal issues over the phone” because “phone calls were an
unreliable source of communication” which would not leave any “paper trail.” (ECF No. 7, ¶¶ 18,
20, 23). Emails were exchanged between Plaintiff and Separate Defendant Baker at Walmart about
the process of submitting medical bills for treatment sustained by Plaintiff, and Plaintiff provided
information about seeking medical care at the Veteran’s Administration (VA) and challenged
Baker about prior communications with Defendant Bolen who had allegedly “decided on the
matter.” (ECF No. 7, pp. 6-9).
While Plaintiff has not named the VA as a defendant, Plaintiff spends several pages of his
Amended Complaint complaining about the VA’s apparent lack of treatment and/or insufficient
treatment of his sustained and/or exacerbated injuries from December 16, 2023; the VA’s
intentional delay of Plaintiff’s ability to proceed with his Walmart claim; and the VA’s alleged
falsification of his medical records. Plaintiff also recounts complaints he made to the VA’s Patient
Advocate Office and Office of Inspector General. (ECF No. 7, ¶¶ 32-55).
Plaintiff then describes that he began working with Irwin Ast Law Firm (Irwin) in October
2024, and with Nichole Garcia at the firm, to obtain medical treatment for his injuries (without
any success) and to pursue litigation prior to the expiration of the statute of limitations but that the
relationship with the law firm deteriorated without a lawsuit or claim resolution with Walmart.
(ECF No. 7, ¶¶ 59-67). Plaintiff then began trying to obtain his case file from Irwin, who advised
Plaintiff on February 26, 2025, that they could no longer represent him or pursue his claim. (ECF
No. 7, ¶¶ 68-69). Plaintiff alleges Irwin was “conspiring” with, and aiding and abetting Walmart
in order for the statute of limitations to expire; Plaintiff also alleges the law firm(s) committed
“legal malpractice, racism and fraud.” (ECF No. 7, ¶¶ 66, 69, 71). Not until Paragraph 69 does
Case 5:25-cv-05222-TLB Document 9 Filed 01/06/26 Page 2 of 15 PageID #:
<pageID>

3
Plaintiff mention the Rubenstein Law Firm (Rubenstein), and although the firm is mentioned
thereafter, it is not entirely clear whether any attorney-client relationship was ever formed between
Plaintiff and Rubenstein; Plaintiff first describes that both law firms may have represented him but
Rubenstein “agreed to drop the case” which was a “conflict of interest.” (ECF No. 7, ¶¶ 69, 73).
Subsequently, Plaintiff alleges that Rubenstein was his “first point of contact” but “they told him
that his case did not meet their basic acceptable standard of requirements for them to litigate
Plaintiff’s concerns and rejected the case and referred it to Irwin Ast law firm.” (ECF No. 7, ¶
76).
Plaintiff then describes filing a complaint against his counsel with the Florida Bar
Association and shares many of his complaints, including undecipherable allegations regarding
Nichole Garcia’s representations and her role at the two law firms, and including allegations that
both law firms were actively conspiring with Walmart and against Plaintiff. (ECF No. 7, ¶¶ 79-
101). Plaintiff adds his complaints about the Florida judiciary with respect to multiple recusals,
his inability to get a JAWS (Job Access with Speech) hearing, abuses of the judicial process, and
numerous delays he experienced with respect to an action he filed in the Hillsborough County
Circuit Court on July 21, 2025. (ECF No. 7, ¶¶ 102-112). Plaintiff describes service of his
Complaint and requests for various proceedings during August and September 2025 in the
Hillsborough litigation; Plaintiff alleges threats, hostilities and perjury but it is not entirely clear
whether his Florida litigation was resolved, dismissed or remains pending. (ECF No. 7, ¶¶ 113-
129).
Plaintiff makes allegations of negligence (ECF No. 7, ¶¶ 130-148), civil conspiracy (¶¶
149-166), fraud (¶¶ 167-179), and race discrimination (¶¶ 180-191). Plaintiff seeks not less than
$4,000,000 in compensatory damages, punitive damages, costs and fees. (ECF No. 7, ¶¶ 192-196).
Case 5:25-cv-05222-TLB Document 9 Filed 01/06/26 Page 3 of 15 PageID #:
<pageID>

4
II. 	APPLICABLE STANDARD OF REVIEW
The federal IFP statute, 28 U.S.C. § 1915, is designed to ensure meaningful access to
federal courts for people unable to pay the costs of bringing an action. See Neitzke v. Williams,
490 U.S. 319, 324 (1989). When a party proceeds IFP, however, a Court must dismiss a complaint,
or any portion of it, if it contains claims that: (1) are frivolous or malicious; (2) fail to state a claim
upon which relief may be granted, or (3) seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. § 1915(e)(2)(B)(i-iii). Dismissals under section 1915 are often made
on the court’s own initiative “prior to the issuance of process, so as to spare prospective defendants
the inconvenience and expenses of answering” meritless complaints. Neitzke, 490 U.S. at 324.
A claim is frivolous if “it lacks an arguable basis either in law or fact.” Neitzke, 490 U.S.
at 325. An action is malicious when the allegations are known to be false, or it is undertaken for
the purpose of harassing or disparaging the named defendants rather than to vindicate a cognizable
right. 	Spencer v. Rhodes, 656 F. Supp 458, 464 (E.D.N.C. 1987); In re Tyler, 839 F.2d 1290,
1293-94 (8th Cir. 1988). A claim fails to state a claim upon which relief may be granted if it does
not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). 	“In evaluating whether a pro se plaintiff has asserted
sufficient facts to state a claim, we hold ‘a pro se complaint, however inartfully pleaded . . . to less
stringent standards than formal pleadings drafted by lawyers.’” Jackson v. Nixon, 747 F.3d 537,
541 (8th Cir. 2014) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). “[I]f the essence of an
allegation is discernible, even though it is not pleaded with legal nicety, then the district court
should construe the complaint in a way that permits the layperson’s claim to be considered within
the proper legal framework.” Stone v. Harry, 364 F.3d 912, 915 (8th Cir. 2004).
Case 5:25-cv-05222-TLB Document 9 Filed 01/06/26 Page 4 of 15 PageID #:
<pageID>

5
III. 	ANALYSIS
Cause of Action 1, Negligence Claim: 	Arkansas’ 	law 	of 	negligence 	requires 	as
essential elements that Plaintiff show that a duty was owed, and that the duty was breached. Marlar
v. Daniel, 368 Ark. 505, 247 S.W.3d 473 (2007). To make a prima facie cause of action based on
negligence, Plaintiff must show that he sustained damages, that the defendant was negligent, and
that such negligence was the proximate cause of the damages. Earnest v. Joe Works Chevrolet,
Inc., 295 Ark. 90, 92, 746 S.W.2d 554, 555 (1988). To prove negligence, a party must show that
the defendant has failed to use the care that a reasonably careful person would use under
circumstances like those shown by the evidence in the case. Id.
A negligence claim under Florida law similarly has four elements: (1) a duty by defendant
to conform to a certain standard of conduct; (2) a breach by defendant of that duty; (3) a causal
connection between the breach and injury to plaintiff; and (4) loss or damage to plaintiff. Bartsch
v. Costello, 170 So. 3d 83, 86 (Fla. Dist. Ct. App. 2015), citing Clay Elec. Coop., Inc. v. Johnson,
873 So.2d 1182, 1185 (Fla. 2003) (quoting Prosser & Keaton on the Law of Torts 164–65 (W.
Page Keeton ed., 5th ed. 1984)).
Whether Arkansas or Florida substantive law ultimately applies (as there appears, on first
glance, to be no conflict of law) to Plaintiff’s negligence claim is a determination which can be
made in the future. The undersigned finds that Plaintiff timely has stated a claim against Walmart,
Inc. for negligence related to his fall inside a Tampa, Florida, store at 8220 N. Dale Mabry
Highway on December 16, 2023. Plaintiff’s Complaint – filed herein on November 3, 2025, and
alleging all elements of a prima facie negligence claim – tolled both the Florida and Arkansas
statute of limitations. See Section 95.11(3)(a), Fla. Stat. (2004) (4 years from when last element
of negligence cause of action occurs); Ark. Code Ann. 16-56-105 (Repl. 2005) (3 years from
Case 5:25-cv-05222-TLB Document 9 Filed 01/06/26 Page 5 of 15 PageID #:
<pageID>

6
occurrence). 	The undersigned notes that, if properly and timely served with process under the
Federal Rules of Civil Procedure, this district court can arguably exercise subject matter
jurisdiction over Walmart, Inc., a citizen and resident of Arkansas. Plaintiff has pled a basis for
diversity jurisdiction under 28 U.S.C. § 1332 – Plaintiff’s citizenship (Florida) is diverse from
Walmart Inc.’s citizenship (Arkansas/Delaware), and Plaintiff’s Amended Complaint seeks more
than $75,000 in damages.
Plaintiff’s Amended Complaint does not, however, state a negligence claim against
Defendants Kevin Bolen or Johnathan Baker, who appear to have been acting in their role as
Walmart claims’ adjusters following Plaintiff’s 2023 slip and fall within the store. 	And while
identified as a Defendant, Plaintiff’s Amended Complaint makes no factual allegations of any kind
against Lisset Chao, who is described by Plaintiff as an Associate at the Walmart store where
Plaintiff fell.
For these reasons, the undersigned recommends that Plaintiff be permitted to proceed with
a claim of negligence against Walmart, Inc. related to Plaintiff’s slip and fall incident on December
16, 2023, but recommends that claims of negligence against Kevin Bolen, Johnathan Baker and
Lisset Chao be dismissed for failure to state a claim.
Cause of Action 2, Civil Conspiracy: To prove a civil conspiracy, Plaintiff must show
that two or more persons have combined to accomplish a purpose that is unlawful or oppressive
or to accomplish some purpose, not in itself unlawful, oppressive or immoral, but by unlawful,
oppressive or immoral means, to the injury of another. Faulkner v. Arkansas Children's Hosp.,
347 Ark. 941, 961–62 (2002), citing Chambers v. Stern, 347 Ark. 395, 64 S.W.3d 737, (2002);
Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866, (2001); Mason v. Funderburk, 247 Ark.
521, 446 S.W.2d 543 (1969). A civil conspiracy is not actionable in and of itself, but a recovery
Case 5:25-cv-05222-TLB Document 9 Filed 01/06/26 Page 6 of 15 PageID #:
<pageID>

7
may be had for damages caused by acts committed pursuant to the conspiracy. Chambers v. Stern,
supra; Dodson v. Allstate Ins. Co., supra. A civil conspiracy is an intentional tort which requires
a specific intent to accomplish the contemplated wrong. Id.
In Dodson v. Allstate Ins., supra, the Arkansas Supreme Court found that a corporation
cannot conspire with itself, since that defeats the requirement of a combination of two or more
persons acting to accomplish some unlawful or oppressive purpose. Thus, to sustain a claim for a
civil conspiracy where agents of a corporation are involved, it is necessary to show that one or
more of the agents acted outside of the scope of their employment, to render them a separate
“person” for purposes of the conspiracy. Dodson, 345 Ark. at 445, 47 S.W.3d at 876. Corporate
agents could “not be held liable for civil conspiracy in the absence of evidence showing that they
were acting for their own personal benefit rather than for the benefit of the corporation.” Dodson,
345 Ark. at 445, 47 S.W.3d at 876 (citations omitted).
The undersigned finds Plaintiff’s Amended Complaint with respect to civil conspiracy is
insufficient. 	Walmart cannot conspire with itself, and Plaintiff has not pled that either Kevin
Bolen or Johnathan Baker were acting for their own personal benefit and/or outside the scope of
their employment, and together with Walmart in an oppressive or unlawful manner toward
Plaintiff. 	The pleadings similarly do not allege any factual or legal basis for a civil conspiracy
between Walmart and the VA; Plaintiff’s Amended Complaint does not even plead contact
between Walmart and the VA much less that these entities conspired to accomplish an unlawful
or oppressive purpose. 	The undersigned recommends that Plaintiff’s conspiracy claims against
Walmart, Kevin Bolen and Johnathan Baker be dismissed as the allegations failed to state a claim.
Plaintiff’s Amended Complaint then pivots to allegations of “fraudulent conduct of
retained law firms,” and the “collaboration” between Walmart and these law firms to “share crucial
Case 5:25-cv-05222-TLB Document 9 Filed 01/06/26 Page 7 of 15 PageID #:
<pageID>

8
information,” “conceal information,” and “hinder any real progress in Plaintiff’s case.” (ECF No.
7, ¶¶ 156-156-166). 	Plaintiff suggests the Florida lawyers committed perjury. 	(ECF No. 7, ¶¶
123-129). These allegations are all insufficient because they are conclusory. The only cogent
allegations are that Nichole Garcia, the paralegal, was inquiring about the status of Plaintiff’s
medical treatment (knowing that he was not receiving treatment from the VA because the VA was
conspiring to deny him care), and that Ms. Garcia improperly sent a preservation letter to Walmart
in 2024. These are not allegations of conspiracy between the law firms and Walmart. Plaintiff’s
remaining conspiracy allegations relate to the law firms’ representation of him and descriptions of
his efforts to retrieve his file once the law firms had either withdrawn or been terminated by
Plaintiff. None of these allegations, read in the light most favorable to Plaintiff, state a cause of
action for civil conspiracy.
Not only are these allegations insufficient to plead a civil conspiracy between Walmart and
either of the Florida law firms and/or Ms. Garcia, but Plaintiff’s Amended Complaint importantly
fails to “plead sufficient facts to support a reasonable inference that the [Florida] defendants can
be subjected to jurisdiction with the state.” Creative Calling Sols., Inc., v. LF Beauty Ltd., 799
F.3d 975, 979 (8th Cir. 2015). 	Personal jurisdiction can be specific or general. Daimler AG v.
Bauman, 571 U.S. 117, 127 (2014). “Specific jurisdiction refers to jurisdiction over causes of
action arising from or related to a defendant's actions within the forum state, while general
jurisdiction refers to the power of a state to adjudicate any cause of action involving a particular
defendant, regardless of where the cause of action arose.” Viasystems, Inc. v. EBM–Papst St.
Georgen GmbH & Co., KG, 646 F.3d 589, 593 (8th Cir. 2011) (cleaned up). As the United States
Supreme Court recently affirmed, “[t]he primary focus of [the] personal jurisdiction inquiry is the
Case 5:25-cv-05222-TLB Document 9 Filed 01/06/26 Page 8 of 15 PageID #:
<pageID>

9
defendant's relationship to the forum State.” Bristol-Myers Squibb Co. v. Superior Ct. of Cal., San
Francisco Cty., 582 U.S. 255, 262 (2017) (citations omitted).
This Court discerns no basis for the exercise of general jurisdiction over any of the Florida
Defendants and turns to analyze whether Plaintiff can establish specific jurisdiction, requiring “a
relationship between the forum, the cause of action, and the defendant.” Myers v. Casino Queen,
Inc., 689 F.3d 904, 912 (8th Cir. 2012) (citation omitted); accord Bristol-Myers Squibb, 137 S. Ct.
at 1780 (for specific jurisdiction, “the suit must arise out of or relate to the defendant's contacts
with the forum”) (cleaned up). This relationship exists “when the defendant purposely directs its
activities in the forum state and the litigation results from injuries relating to the defendant's
activities in the forum state.” Myers, 689 F.3d at 912–13 (citation and internal quotation marks
omitted). The relationship between a defendant's contacts and the cause of action is not restricted
to a proximate cause standard but should consider the “totality of the circumstances.” Id. (quoting
K-V Pharm. Co. v. J Uriach & CIA, S.A., 648 F.3d 588, 592-93 (8th Cir. 2011)).
For the exercise of specific personal jurisdiction over an out-of-state defendant such as the
law firms or paralegal identified in Plaintiff’s Amended Complaint, due process requires the out-
of-state defendant have sufficient contacts with the forum state so that the exercise of jurisdiction
over the out-of-state defendant does not offend “traditional notions of fair play and substantial
justice.” Int'l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945) (citations omitted). Generally, “those
who live or operate primarily outside a State have a due process right not to be subjected to
judgment in its courts.” J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 881 (2011) (plurality
opinion). This “minimum contacts” or due process inquiry has been distilled to consider whether
an out-of-state defendant has “warning that his activities may result in his being haled into court
in a particular jurisdiction,” particularly through the defendant having “invoke[d] the benefits and
Case 5:25-cv-05222-TLB Document 9 Filed 01/06/26 Page 9 of 15 PageID #:
<pageID>

10
protections of that jurisdiction by purposefully availing himself of the privilege of conducting
those activities [in the forum state].” Porter v. Berall, 293 F.3d 1073, 1075 (8th Cir. 2002) (citation
omitted). In this way, the foundation for specific jurisdiction, consistent with due process, is “a
nexus between the forum state itself, the defendant, and the cause of action.” Lawhead v. Law
Offices of Joseph Martin Carasso, 482 F. Supp. 3d 867, 872 (D. Minn. 2020) (citing Walden v.
Fiore, 571 U.S. 277, 283-84 (2014)). The out-of-state defendants and the forum state must be
“substantial[ly] connect[ed]” for the exercise of the forum state's jurisdiction to satisfy due process.
Porter, 293 F.3d at 1075-76 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)).
A defendant's minimum contacts with the forum state “must exist either at the time the cause of
action arose, the time the suit was filed, or within a reasonable period of time immediately prior to
the filing of the lawsuit.” Johnson v. Woodcock, 444 F.3d 953, 955-56 (8th Cir. 2006) (quoting
Pecoraro v. Sky Ranch for Boys, Inc., 340 F.3d 558, 562 (8th Cir. 2003)).
To evaluate whether a defendant has sufficient minimum contacts with the forum state to
satisfy the Due Process Clause of the Fourteenth Amendment, the Eighth Circuit has established
the following five factors courts should consider: (1) the nature and quality of a defendant's
contacts with the forum state, (2) the quantity of a defendant's contacts with the forum state, (3)
the relation of the cause of action to the contacts with the forum state, (4) the interest of the forum
state in providing a forum for its residents, and (5) the convenience of the parties. Dever, 380 F.3d
at 1073-74. The first three factors bear significant weight in the jurisdictional analysis. Id. at 1074.
Plaintiff’s Amended Complaint pleads no facts supportive of this Court’s exercise of
personal jurisdiction over Defendants Rubenstein Law Firm, Irwin Ast Law Firm or Nichole
Garcia, each identified in Plaintiff’s pleadings as residents and citizens of the State of Florida, as
there are no contacts of any kind alleged between these Defendants and Arkansas. (ECF No. 7, ¶¶
Case 5:25-cv-05222-TLB Document 9 Filed 01/06/26 Page 10 of 15 PageID #:
<pageID>

11
10-12). 	Plaintiff has not set forth facts to show that any of these Florida Defendants “ha[ve]
purposefully directed [their] activities at [Arkansas] residents, and [that] the claim of this suit either
‘arises out of’ or ‘relates to’ these activities” in a manner that satisfies due process. Lakin v.
Prudential Sec., Inc., 348 F.3d 704, 707 (8th Cir. 2003) (cleaned up). 	To the contrary, all
allegations contained in the Plaintiff’s Amended Complaint (including those described as
conspiratorial) are premised upon conduct entirely occurring in Florida and between Florida
residents about a claim which occurred in Florida.
For these reasons, the undersigned recommends that Plaintiff’s conspiracy claims against
all Defendants be dismissed, for failing to state a claim (Walmart, Kevin Bolen and Johnathan
Baker) and for lack of jurisdiction (all Florida Defendants).
Cause of Action 3, Fraud: 	Plaintiff contends that Walmart “intentionally falsified and
fabricated the incident report,” engaged in the deceptive practice of trying to get Plaintiff to speak
with Kevin Bolen by telephone and sent “fabricated letters” to Plaintiff to “coerce” Plaintiff into
speaking by telephone about his claim, followed by “fabricated emails” from Johnathan Baker to
encourage Plaintiff to speak by telephone. (ECF No. 7, ¶¶ 167-170).
To establish fraud under Arkansas law, Plaintiff must establish: (1) a false representation
of a material fact; (2) knowledge that the representation is false or that there is insufficient evidence
upon which to make the representation; (3) intent to induce action or inaction in reliance upon the
misrepresentation; (4) justifiable reliance on the misrepresentation; and (5) damage suffered as a
result of the reliance. Bennett v. Ballow, 2022 Ark. App. 311 (2022), citing Worley v. City of
Jonesboro, 2011 Ark. App. 594 (2011).
Case 5:25-cv-05222-TLB Document 9 Filed 01/06/26 Page 11 of 15 PageID #:
<pageID>

12
While Plaintiff’s Amended Complaint includes conclusory allegations that emails and
letters and incident report were “fabricated,” Plaintiff does not identify what material facts were
falsely represented or that Plaintiff justifiably relied upon any of those false representations to his
detriment or that Plaintiff has been damaged because of reliance upon these allegedly “fabricated”
materials. To the contrary, Plaintiff seems to be suggesting that Walmart’s adjusters wanted to
speak with Plaintiff via telephone about his claim but Plaintiff – believing this form of
communication to be unreliable – refused to talk on the telephone about his claim despite their
“fabricated” letters and emails. With respect to the alleged “fabricated incident report,” Plaintiff
indicates that his primary complaint is that Walmart required him to complete the incident report
“knowing that he was injured and confused….” (ECF No. 7, ¶ 184). Importantly, Plaintiff has
not pled that he relied upon any alleged fabrication to his detriment. The undersigned recommends
that Plaintiff’s fraud claims against Walmart, Kevin Bolen and Johnathan Baker be dismissed as
failing to state a claim.
Plaintiff next alleges that when he retained the law firms of Irwin Ast and Rubenstein in
October 2024, they “fraudulently confiscated” and shared Plaintiff’s “personal and medical
documents” with Walmart and assigned paralegal Nichole Garcia to handle Plaintiff’s case which
was outside her scope; Plaintiff alleges that Ms. Garcia sent him misleading and fraudulent
communications and that the law firm sent him multiple false and fabricated letters before
unlawfully retaining his file. (ECF No. 7, ¶¶ 171-179). 	While wholly insufficient to establish a
prima facie case of fraud, Plaintiff’s conclusory allegations against the Florida law firms and Ms.
Garcia necessarily fail for lack of specific jurisdiction by this Court over these Defendants as
discussed above. And although not entirely clear, Plaintiff appears to have filed litigation against
these Defendants in Florida state court. (ECF No. 7, ¶ 114).
Case 5:25-cv-05222-TLB Document 9 Filed 01/06/26 Page 12 of 15 PageID #:
<pageID>

13
The undersigned thus recommends that Plaintiff’s fraud claims against the Florida
defendants be dismissed as this Court lacks jurisdiction over them.
Cause of Action 4, Race Discrimination: 	In this section of his Amended Complaint,
Plaintiff rehashes his prior allegations, characterizing them as violations of civil rights laws and as
racial crimes. (ECF No. 7, ¶¶ 180-191). Plaintiff ascribes the motivation for Walmart’s actions
in denying/delaying his negligence claims to “racial bias” and the motivation for the Florida law
firms’ treating him “completely different than that of a white client” because of “racism,”
“contempt for darker people,” “bias,” “racial bias,” “racial profiling,” and “disregard[ing] black
people[‘s] civil rights.” (ECF No. 7, ¶¶ 180-191).
Although Plaintiff does not identify any legal basis for his discrimination claims, the
undersigned presumes he seeks relief under 42 U.S.C. § 1981. “Section 1981 does not provide a
general cause of action for race discrimination if in fact it occurred.” Youngblood v. Hy–Vee Food
Stores, Inc., 266 F.3d 851, 855 (8th Cir. 2001), cert. denied, 535 U.S. 1017 (2002). Rather, the
plaintiff must point to violation of some specific right protected by § 1981. See Williams v.
Lindenwood Univ., 288 F.3d 349, 355 (8th Cir. 2002) (an element of the plaintiff's prima facie
case is a showing that “the discrimination concerned an area enumerated by the statute”);
Youngblood, 266 F.3d at 855 (the plaintiff was required to point to interference with some
contractual relationship to bring a claim under the right-to-contract provisions of § 1981).
Assuming Plaintiff could properly allege he was deprived of his right to contract1 with
Walmart via settlement of his claims, the undersigned notes that Plaintiff’s negligence claim has
1 In pertinent part, “[t]he purpose of 42 U.S.C. § 1981 is to prohibit discrimination in the
‘performance, modification and termination of contracts' and to protect ‘the enjoyment of all
benefits, privileges, terms and conditions of the contractual relationship.’” Williams v. Lindenwood
Univ., 288 F.3d 349, 355 (8th Cir. 2002); Youngblood, 266 F.3d at 854 (“Section 1981 provides
Case 5:25-cv-05222-TLB Document 9 Filed 01/06/26 Page 13 of 15 PageID #:
<pageID>

14
not been extinguished, and it is recommended herein that Plaintiff be permitted to proceed with
his negligence claim against Walmart in the Western District of Arkansas. 	Even if Plaintiff – who
describes himself as a resident of Tampa, Florida, who is a U.S. Military veteran living in HUD-
VASH housing – is also a member of a protected class, his Amended Complaint does not identify
as being part of a protected class and it does not describe how he has been damaged by Walmart
because of his race. And with respect to the Florida Defendants, this racial discrimination claim
suffers the same fatal flaw discussed herein – even if viable, this Court exercises no jurisdiction
over the Florida Defendants.
The undersigned recommends that Plaintiff’s claims for race discrimination claims be
dismissed for failing to state a claim (Walmart, Kevin Bolen and Johnathan Baker), and lack of
jurisdiction (Florida Defendants).
IV. 	CONCLUSION
For these reasons, it is recommended:
• 	That Plaintiff be permitted to proceed against Walmart, Inc. for his claim of negligence
arising from his slip and fall incident on December 16, 2023, at Walmart’s store located
at 8220 N. Dale Mabry Highway in Tampa, Florida; that Plaintiff be permitted to file a
Second Amended Complaint to concisely plead this claim; and that Plaintiff be
permitted to obtain a summons from the Clerk of Court for Walmart, Inc.
that all persons shall have the same right to ‘make and enforce contracts.’ See 42 U.S.C. § 1981(a)).
In 1991, Congress expanded the scope of Section 1981 to include the right to ‘the enjoyment of
all benefits, privileges, terms, and conditions of the contractual relationship.’ See 42 U.S.C. §
1981(b).”). A claim based on these provisions of § 1981 is a “right-to-contract” claim. See, e.g.,
See, e.g., Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004); Youngblood, 266 F.3d at
854 (describing such a claim as a “right to contract” claim).
Case 5:25-cv-05222-TLB Document 9 Filed 01/06/26 Page 14 of 15 PageID #:
<pageID>

15
• 	That Plaintiff’s claims of civil conspiracy, fraud and race discrimination against
Walmart, Inc. be dismissed without prejudice for failure to state a claim.
• 	That all of Plaintiff’s claims against Kevin Bolen, Johnathan Baker and Lisset Chao be
dismissed without prejudice for failure to state any claim.
• 	That all of Plaintiff’s claims against Rubenstein Law Firm, Irwin Ast Law Firm and
Nichole Garcia be dismissed without prejudice as this Court lacks jurisdiction over
these Defendants.
Status of Referral: 	Entry of this Report and Recommendation terminates the
referral.
The parties have fourteen (14) days from receipt of the Report and Recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. 	The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
RECOMMENDED this 6th day of January 2026.
________________________________
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
Case 5:25-cv-05222-TLB Document 9 Filed 01/06/26 Page 15 of 15 PageID #:
<pageID>