Johnson Ex Rel. E.M. v. Dillard's, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 13, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
B ARBA RA D . JO H N SO N ,
individually, and as Parent, Guardian,
and Next Friend of E.M ., a M inor,
No. 05-6343
Plaintiff-Appellant, (D.C. No. CIV-05-29-F)
(W .D. Okla.)
v.
DILLARD’S, IN C.,
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Judge, O’BRIEN, and M cCO NNELL, Circuit Judges.
Plaintiff Barbara D. Johnson, appearing pro se, appeals from the district
court’s orders that dismissed her claims of discrimination against defendant
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Dillard’s, Inc. under 42 U.S.C. §§ 1983 and 2000a, and granted summary
judgment in favor of defendant on her claims of discrimination under 42 U.S.C.
§§ 1981 and 1982, and her claims for false imprisonment, defamation, and
negligent hiring and retention. W e have jurisdiction under 28 U.S.C. § 1291, and
affirm.
Plaintiff, who is African-American, alleged that she and her daughter were
shopping in the “Juniors” department at a Dillard’s store on January 7, 2004,
when they had a confrontation with a sales clerk over an allegation of shoplifting.
She and her daughter initially admitted in their deposition testimony that they
were not prevented from either making a purchase or leaving the store, but they
later filed affidavits asserting otherwise. The district court decided that the
affidavits conflicted with prior sworn testimony, and presented sham issues of
fact. The district court decided that plaintiff’s allegations asserting claims under
42 U.S.C. §§ 1983 and 2000a were insufficient as a matter of law, and decided
based on the deposition testimony that there was no genuine issue of material fact
with respect to any of the other claims. Plaintiff attempted to add claims against
defendant (in an untimely motion to amend the complaint), but did not attempt to
cure the defects in her §§ 1983 and 2000a claims.
W e review de novo a dismissal for failure to state a claim. M artinez v.
Garden, 430 F.3d 1302, 1304 (10th Cir. 2005). W e also review de novo a grant of
summary judgment. Camuglia v. City of Albuquerque, 448 F.3d 1214, 1218
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(10th Cir. 2006). W e have considered the parties’ materials in light of the record
on appeal and the applicable law. W e find no error, and affirm for substantially
the same reasons as those set forth in the district court’s thorough and
well-written orders dated February 24, 2005, and September 27, 2005.
The judgment of the district court is AFFIRMED.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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