Antoinette Lampkin v. Melinda McAlister , 644 F. App'x 366 ( 2016 )

Case: 14-20775 Document: 00513454704 Page: 1 Date Filed: 04/06/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-20775 FILED
Summary Calendar April 6, 2016
Lyle W. Cayce
Clerk
ANTOINETTE RENEE LAMPKIN,
Plaintiff-Appellant
v.
BANK OF AMERICA, N.A.,
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CV-517
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
Antoinette Renee Lampkin, proceeding pro se and in forma pauperis,
appeals the district court’s grant of summary judgment and dismissal of her
civil suit against Bank of America, N.A. (BANA) for alleged violations of the
Fair Housing Act (FHA), 42 U.S.C. § 3601 et seq., the Fair Credit Reporting
Act (FCRA), 15 U.S.C. § 1681 et seq., and the Equal Credit Opportunity Act
(ECOA), 15 U.S.C. § 1691 et seq. She argues that summary judgment was
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-20775
inappropriate because: (1) she presented sufficient, direct evidence to show
that BANA intentionally denied her equal and fair access to FHA loan
information and credit because of her race; (2) the evidence showed that BANA
willfully, knowingly, and negligently accessed her credit report without her
consent, without a permissible purpose, and under false pretenses; and (3) the
evidence showed that BANA intentionally failed to provide her with a
statement of reasons for its adverse decisions.
Generally, we review “the grant of summary judgment de novo, applying
the same standards as the district court.” Dillon v. Rogers, 596 F.3d 260, 266
(5th Cir. 2010) (italics omitted). However, we apply the plain error standard
when the complaining party fails to object to a report and recommendation of
the magistrate judge under 28 U.S.C. § 636(b)(1)(B) after having been “served
with notice that such consequences will result from a failure to object.”
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996)
(en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1). Here,
Lampkin was warned that the failure to file written objections within 14 days
from her receipt of the magistrate judge’s report and recommendation would
bar her form attacking the factual findings and legal conclusions on appeal.
She did not file timely objections to the magistrate judge’s report and
recommendation and the district court did not conduct a de novo review of the
record. As a result, the factual findings and legal conclusions adopted by the
district court are reviewed for plain error. See id.
Lampkin’s conclusory allegations that BANA intentionally denied her
equal and fair access to FHA loan information and credit because of her race
are insufficient to create a genuine issue of material fact. See Jones v. Lowndes
Cty., Miss., 678 F.3d 344, 348 (5th Cir. 2012). She cites no authority supporting
her contention that the term “minority” is a racial epithet or that BANA loan
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officer Scott G. Brown’s use of the term in response to charges of racial
discrimination was evidence of his racial animus. Further, BANA’s knowledge
that she was a member of a protected class is alone insufficient to prove
intentional discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-03 (1972); Artisan/Am. Corp. v. City of Alvin, Tex., 588 F.3d 291, 295
(5th Cir. 2009). Moreover, aside from conclusory allegations, Lampkin does
not challenge the district court’s determination that she failed to establish a
fact issue regarding her qualification for a home loan or Harris County’s
Downpayment Assistance Program. Therefore, Lampkin has failed to show
that the district court plainly erred in granting BANA a summary judgment
on her FHA claim.
Lampkin has also failed to show that the district court plainly erred in
granting BANA a summary judgment on her FCRA claims. The evidence
established that Lampkin sought to enter into credit transactions with BANA
and that the loan officers accessed her credit report for purposes of determining
whether to extend credit to Lampkin. Because the FCRA permits users to
obtain a credit report in such cases, Lampkin’s consent was not required. See
15 U.S.C. § 1681b(a)(3)(A); Dixon v. Shamrock Fin. Corp., 522 F.3d 76, 77 (1st
Cir. 2008).
Aside from conclusory allegations that BANA intentionally violated the
ECOA and the FCRA by failing to provide her with statements of reasons
sufficient to satisfy the requirements of § 1691(d)(3) and 15 U.S.C. § 1681m(a),
Lampkin does not address the district court’s finding that the loan officers
provided her with written notice of the reasons for their adverse actions, nor
does she allege why the notices were deficient. Lampkin has therefore
abandoned these issues by failing to adequately brief them on appeal. See
Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999).
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Finally, Lampkin did not file an amended or separate notice of appeal
following the district court’s denial of her Federal Rule of Civil Procedure
60(b)(6) motion, and her appellate brief was not filed within the time specified
by Federal Rule of Civil Procedure 4. Thus, to the extent Lampkin challenges
the district court’s denial of her Rule 60(b)(6) motion, we lack jurisdiction to
review that order. See FED. R. APP. P. 4(a)(4)(B)(ii); Bowles v. Russell, 551 U.S.
205, 214 (2007).
Accordingly, the district court’s judgment is AFFIRMED.
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