BONDS v. HOLLYWOOD CASINO AND HOTEL

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

TODD BONDS, )

)

Plaintiff, )

)

v. ) No. 1:22-cv-02279-JPH-TAB

)

HOLLYWOOD CASINO AND HOTEL, )

BARSTOOL SPORTSBOOK, )

LORA Unidentified Bar Server, )

)

Defendants. )

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Plaintiff Todd Bonds alleges that Laura Gatman,1 a bartender at the

Hollywood Casino and Hotel, discriminated against him on the basis of his race

when she treated white patrons more favorably. Mr. Bonds and Defendants

have filed motions for summary judgment. Dkt. [71]; dkt. [76]. For the

reasons below, Defendants' motion is GRANTED, and Mr. Bonds's motion is

DENIED.

I.

Facts and Background

The parties have filed cross-motions for summary judgment, so the Court

takes the motions "one at a time." American Family Mut. Ins. v. Williams, 832

F.3d 645, 648 (7th Cir. 2016). For each motion, the Court views and recites

the evidence and draws all reasonable inferences "in favor of the non-moving

party." Id. That's not necessary here, however, because even when all

1 The Complaint refers to Ms. Gatman as "Lora," see dkt. 1; the Clerk is directed to

update the caption to reflect "Laura Gatman."

evidence is interpreted in Mr. Bonds's favor, Defendants are entitled to

summary judgment.

A. Mr. Bonds's November 27, 2022 Casino Visit

Mr. Bonds's allegations are based on his November 27, 2022, visit to the

Barstool Sportsbook at the Hollywood Casino Hotel. See dkt. 1 at 2–3; dkt. 5 at

2. That visit is captured on video (there is no audio), which both parties have

designated as evidence. See dkt. 74. That video shows Mr. Bonds walk over to

and stand at the bar. Dkt. 74 at 00:14–1:15. For several minutes, Mr. Bonds

stands at the bar while looking at his phone and occasionally glancing up, until

he starts talking with Ms. Gatman, the bartender. Id. at 1:15–6:30. The

conversation lasts about 20 seconds, until someone else walks up and asks

Ms. Gatman for a drink. Id. at 6:50. Ms. Gatman serves the other patron and

stands nearby while Mr. Bonds continues to look at his phone. Id. at 8:10–

8:18. Another employee then comes and speaks with Ms. Gatman, who points

in Mr. Bonds's direction. Id. at 9:00–9:22. For the next 7 minutes, Mr. Bonds

continues to look at his phone, glancing up and turning away from the bar at

times, while Ms. Gatman serves other patrons. Id. at 9:00–16:25. Finally, a

third employee, Justin Dilts, taps Mr. Bonds and begins speaking with him.

Id. at 16:26. Mr. Bonds then grabs his bag and walks away from the bar. Id.

at 16:29.

Defendants have designated as evidence Mr. Bonds's deposition

testimony that during these events Ms. Gatman was "rude," and asked him,

"do you need anything?", to which Mr. Bonds responded, "no, not with that

attitude." Dkt. 72 at 8 (citing dkt. 71-1 at 78:19–22; 79:5–7 (Bonds Dep.)). Ms.

Gatman then "went off" on him and "called the people," so he "just walked out

as soon as they came down." Id. at 79:13–16 (Bonds Dep.). Mr. Bonds testified

that when Mr. Dilts approached him, Mr. Bonds "let [Mr. Dilts] finish his

sentence and then walked off." Id. at 81:23–25 (Bonds Dep.).

B. Mr. Bonds's Designated Evidence

At summary judgment, Mr. Bonds "must support" his factual assertions

with the evidence that he contends shows a dispute about material facts. Fed.

R. Civ. P. 56(c)(1)(A) (requiring citations "to particular parts of [evidentiary]

materials in the record"); S.D. Ind. L.R. 56-1 (requiring a "Statement of Material

Facts" and citations to "admissible evidence" that "specify where the relevant

information can be found in the supporting evidence"). Instead, Mr. Bonds

makes factual assertions, unsupported by citation to evidence in the record, in

his summary judgment filings. Dkt. 76; dkt. 77. He alleges, for example, that

he "was pleasantly and quietly watching the result of a sporting event" when he

was told "that he had to leave the premises for the day," but cites no evidence

in support. Dkt. 76 at 3. He also alleges that Ms. Gatman "berated" him and

that a security officer told him "that he was being barred from the property for

24 hours," again with no designated evidence in support. Id. at 8–9. And he

alleges, with only a general reference to his deposition, that at a different time

Casino security did nothing in response to a white man named John who was

"often slamming things, banging tables and loudly cursing and yelling." Id. at

18–19.

Mr. Bonds therefore has not supported his allegations with designated

evidence as Rule 56 and the Local Rules require. See Hinterberger v. City of

Indianapolis, 966 F.3d 523, 528 (7th Cir. 2020); Johnson v. Cambridge Indus.,

Inc., 325 F.3d 892, 898 (7th Cir. 2003) ("We have repeatedly assured the

district courts that they are not required to scour every inch of the record for

evidence that is potentially relevant to the summary judgment motion before

them.").

And Mr. Bonds' attempt to use his briefs as evidence does not succeed,

because his filing that purports to be an "affidavit" is insufficient. In that filing,

Mr. Bonds purports to "assert that all information presented in both the Motion

for Summary Judgment and Reply to the Defense's Motion for Summary

Judgment are true to the best of [his] knowledge." Dkt. 78. It does not,

however, qualify as an evidentiary summary-judgment affidavit because it gives

no indication that Mr. Bonds "[swore] to the content in the presence of

someone authorized to administer oaths." Owens v. Hinsley, 635 F.3d 950,

955 (7th Cir. 2011). It also is not an admissible declaration under 28 U.S.C. §

1746 because it is not sworn under penalty of perjury. See id.

Mr. Bonds's factual allegations are therefore unsupported and will not be

considered in addressing the parties' cross-motions for summary judgment.

C. Procedural History

Mr. Bonds brought this case against Hollywood Casino and Hotel,

Barstool Sportsbook, Ms. Gatman, and two unnamed security employees,

alleging racial discrimination. Dkt. 1 at 2–3, 7. The Court screened Mr.

Bonds's complaint and allowed a race discrimination claim to proceed under 42

U.S.C. § 1981 against Hollywood Casino and Hotel, Barstool Sportsbook, and

Ms. Gatman. Dkt. 5 at 4. Mr. Bonds and Defendants have separately moved

for summary judgment. Dkt. 71; dkt. 76.

II.

Summary Judgment Standard

Summary judgment shall be granted "if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party must

inform the court "of the basis for its motion" and specify evidence

demonstrating "the absence of a genuine issue of material fact." Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets this

burden, the nonmoving party must "go beyond the pleadings" and identify

"specific facts showing that there is a genuine issue for trial." Id. at 324.

III.

Analysis

Under 42 U.S.C. § 1981, "All persons within the jurisdiction of the United

States shall have the same right . . . to make and enforce contracts . . . as is

enjoyed by white citizens." 42 U.S.C. § 1981. Section 1981 thus "provid[es] a

broad-based prohibition (and federal remedy) against racial discrimination in

the making and enforcing of contracts." Humphries v. CBOCS West, Inc., 474

F.3d 387, 393 (7th Cir. 2007). "Most commonly, litigants invoke § 1981 to

assert their rights to be free from discrimination while making and enforcing

employment contracts," but it can also be invoked "by plaintiffs who allege they

faced illegal discrimination in retail establishments." Pourghoraishi v. Flying J,

Inc., 449 F.3d 751, 756 (7th Cir. 2006). "To establish a prima facie claim of

such discrimination, [a plaintiff] must show that (1) he is a member of a racial

minority; (2) the defendants had the intent to discriminate on the basis of race;

and (3) the discrimination concerned the making or enforcing of a contract."

Id.2

Here, Defendants argue that they're entitled to summary judgment

because Mr. Bonds cannot establish the third element—the making or

enforcing of a contract—since Mr. Bonds left the Casino on his own accord.

Dkt. 72 at 21. Mr. Bonds contends, without elaboration, that he "was clearly

trying to enforce retail and employment contracts when he was removed." Dkt.

76 at 17–18.

To survive summary judgment on the third element, Mr. Bonds must

designate evidence that he was "deprived . . . [of] the right to make and enforce

a contract," such as a retail purchase. Morris v. Office Max, Inc., 89 F.3d 411,

414 (7th Cir. 1996). The designated video evidence, however, shows Mr. Bonds

at the Casino bar for sixteen minutes, so no reasonable jury could find that the

Casino denied him admittance. See id. (affirming summary judgment when

2 Defendants also argue that they're entitled to summary judgment on any § 1981

retaliation claim. Dkt. 72 at 29–33. Mr. Bonds's complaint, however, does not allege

retaliation but only "racial discrimination." See dkt. 1 at 2. And the Court's screening

order, which Mr. Bonds did not object to, identified a § 1981 "race discrimination

claim" as "the only viable claim." Dkt. 5 at 4. Even if that weren't the case, Mr. Bonds

would have "abandoned the claim" by not addressing it in his response in opposition

to summary judgment. Maclin v. SBC Ameritech, 520 F.3d 781, 788 (7th Cir. 2008);

see dkt. 77. The Court therefore does not address § 1981 retaliation.

plaintiffs "were denied neither admittance nor service"). Indeed, Mr. Bonds

admits that the Casino served him when he "got food" in another area of the

Casino. Dkt. 71-1 at 86:1–34 (Bonds Dep.). Mr. Bonds also has not

designated evidence that Ms. Gatman refused to take his order, but admits

that she asked if he "needed anything." Id. at 79:6. While Mr. Bonds took

issue with Ms. Gatman's "rude" tone, he did not treat her offer as a refusal of

service, but responded, "no, not with that attitude." Id. at 78:19–22, 79:6–7.

Mr. Bonds therefore "concede[s] that [the Casino] did not refuse [him]

admittance or service." Morris, 89 F.3d at 414.

Nor has Mr. Bonds designated evidence that he was denied "the right to

make and enforce a contract" by being "asked to leave" the Casino. Id.3

Instead, Mr. Bonds testified that he "let [Mr. Dilts] finish his sentence and then

walked off," dkt. 71-1 at 81:23–25 (Bonds Dep.), and the video evidence shows

Mr. Bonds walking away on his own, dkt. 74, Ex. 47 at 16:29; see dkt. 71-14 ¶

5. So, as in Morris, because Mr. Bonds "did not attempt to make any further

purchases, [he] never sought to enter into a contractual relationship" with the

Casino. 89 F.3d at 414.

The Seventh Circuit affirmed summary judgment for a defendant on a

similar § 1981 claim in Bagley v. Ameritech Corp. 220 F.3d 518 (7th Cir.

3 The Casino has designated evidence that it permanently banned Mr. Bonds on

January 13, 2023 after investigating reports that Mr. Bonds had made "sexual-

harassment based comments" toward employees. See dkt. 72 at 11. Because that

ban occurred after Mr. Bonds filed his complaint, see dkt. 1, and because Mr. Bonds's

summary-judgment filings focus solely on November 27, 2022, see dkt. 76; dkt. 77,

the Court does not address those subsequent events.

2000). There, Mr. Bagley entered an Ameritech store to buy a phone. Id. at

519. When an employee asked the manager if the phone was in stock, the

manager said that she "will not serve" Mr. Bagley, gave Mr. Bagley "the finger,"

handed the employee a brochure about the phone, and walked away. Id. at

520. Offended, Mr. Bagley "promptly left the store." Id. The district court

granted summary judgment and the Seventh Circuit affirmed because the

manager's "actions cannot be construed as anything more than a refusal to

personally wait on Mr. Bagley." Id. at 521. It was Mr. Bagley who "cut off his

exchange—and thus the opportunity to buy the phone—by leaving the store."

Id.

Here, like in Bagley, Mr. Bonds "opted not to contract" with Defendants.

Id. The Casino let him in and served him food, and Ms. Gatman offered to

serve him at the Bar. Mr. Bonds then left the Bar on his own. Mr. Bonds

therefore has not established a prima facie § 1981 claim. See Bagley, 220 F.3d

at 521; Morris, 89 F.3d at 414.

Mr. Bonds nevertheless argues that he has "direct evidence" of racial

discrimination because Defendants' prior counsel "withdrew from the case

without explanation." Dkt. 76 at 5; see dkt. 77 at 3 ("[T]here is no bigger

'Direct Evidence' than the fact that these Defendants had an attorney withdraw

without explanation."). Mr. Bonds alleges that the only potential reason for the

withdrawal was "that the Hollywood Casino and Hotel and its employees were

participating in behavior that was reasonably criminal or fraudulent" and that

Defendants "were about to lie under oath." Dkt. 76 at 7. Mr. Bonds provides

no evidence for these speculative allegations, which are altogether

unsupported. See id.

Mr. Bonds also argues that some of the questions he was asked at his

deposition provide "direct evidence" of the Casino's "clandestine plot" to

discriminate against him based on his race. Dkt. 76 at 10–14. He alleges that

counsel asked him if he found "[white girls] attractive enough to engage in

sexual activity," arguing that "[t]his particular questioning by Defense Counsel

is the crux of the discrimination of 'Lora' and her co-defendants including the

Hollywood Casino and Hotel." Id. at 12; dkt. 83 at 7 ("[T]he question clearly

shows there was a sexual tension at play here, and banning Plaintiff [is] the

type of stuff that has historically caused a lynch mob to kill folks."). The

designated deposition excerpts, however, squarely contradict Mr. Bonds's

characterization. Dkt. 71-1 at 109–16 (questioning of Mr. Bonds regarding a

Casino employee's allegation of sexual harassment against Mr. Bonds); see dkt.

71-10. These arguments therefore do not affect Defendants' entitlement to

summary judgment.

Finally, Mr. Bonds argues that Defendants' summary judgment motion

should be denied because he was not allowed to amend his complaint. Dkt. 77

at 5. Mr. Bonds sought leave to amend his complaint on May 1, 2023, dkt. 24,

which the Magistrate Judge denied because the motion was unclear and

unsupported, dkt. 33. That order gave Mr. Bonds through June 5, 2023, to file

a renewed motion, id., but Mr. Bonds did not seek leave again until June 22,

2023, dkt. 41. The Magistrate Judge denied that renewed motion as untimely

under both the previous order and the Case Management Plan. Dkt. 49.

Mr. Bonds argues that his renewed motion was late because he did not

receive the Court's order setting the June 5, 2023 deadline to renew his

motion. Dkt. 77 at 6. Even if that's true, however, his renewed motion was

late under the Case Management Plan's June 1, 2023 deadline for "[a]ll

motions for leave to amend the pleadings." Dkt. 21 at 2; dkt. 49. Moreover,

Mr. Bonds did not object to the Magistrate Judge's order denying him leave to

amend. See Fed. R. Civ. P. 72(a) (allowing objections "within 14 days after

being served with a copy"). And he "may not assign as error a defect in the

order not timely objected to." Id. This argument therefore does not undermine

summary judgment for Defendants.

IV.

Conclusion

Defendants' motion for summary judgment is GRANTED.4 Dkt. [71]. At

the end of their summary-judgment motion and brief, Defendants request "an

award of reasonable attorney fees and costs." Dkt. 72 at 33. If Defendants

intend to seek fees and costs, they may file a motion seeking that relief within

fourteen days after entry of judgment. Fed. R. Civ. P. 54(d).

Because Defendants are entitled to summary judgment even when the

designated evidence is viewed in Mr. Bonds's favor, Mr. Bonds's motion for

4 Because Mr. Bonds has not designated evidence showing a triable issue of fact on his

prima facie case that any Defendant refused to contract with him, the Court does not

address Defendants' other arguments in support of summary judgment.

summary judgment is DENIED. Dkt. [76]. Final judgment will enter by

separate entry.

SO ORDERED.

Date: 8/29/2024 .

James Patrick Hanlon

United States District Judge

Southern District of Indiana

Distribution:

TODD BONDS

P.O. Box 11442

Cincinnati, OH 45211

All electronically registered counsel

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