Jamison v. Costco Wholesale

FILED
United States Court of Appeals
Tenth Circuit
June 2, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
JANET JAMISON,
Plaintiff - Appellant, No. 07-4278
v. (D. Utah)
COSTCO WHOLESALE; JOHN (D.C. No. 2:07-CV-00629-TC)
MCKAY, Senior Vice President of
Operations, Northwest Region; DAVE
HARRUFF, Vice President of
Operations, Northwest Region;
KEVIN CAMPBELL, Warehouse
Manager #113,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.
Janet Jamison appeals the dismissal of her in forma pauperis civil-rights
complaint by the United States District Court for the District of Utah on the
ground that it was frivolous. See 28 U.S.C. § 1915(e)(2)(B)(I) (authorizing
*
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not binding precedent except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
dismissal of frivolous in forma pauperis complaints). We have jurisdiction under
28 U.S.C. § 1291 and affirm.
Ms. Jamison filed suit against Costco Wholesale and three of its employees
on September 24, 2007. Her pro se complaint alleged that the defendants had
violated 42 U.S.C. § 1985 and Title III of the Americans with Disabilities Act of
1990 (42 U.S.C. § 12181 et seq.). The 55-page complaint (not including
attachments) cannot easily be summarized. But its flavor can be conveyed by
reciting the following allegations that the complaint appears to make: In 1988
Ms. Jamison’s employer, Allstate Insurance Company, acting without her
permission, attached her to an “‘integrated’ communications system” that allowed
others to read her thoughts and control her thoughts, behavior, and bodily
functions. R. Vol. II, Doc. 6 at 5 (Civil Rights Complaint). Because she is being
held on the system, she is unable to obtain physical evidence proving its
existence. Costco used “the system” to monitor and stalk her, including in her
bathroom at home; it ensured that the persons she encountered at the store were
persons from her past or distant relatives of hers; it permitted members of the
general public (which it presumably controlled) to make humiliating sexual
comments and gestures in her presence; it contaminated her food with human
waste (including her own), animal waste, human DNA, and breast milk; it
revoked her membership without justification to humiliate her because she was
poor; and it permitted “The People” to control her so that she acted in a racially
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stereotyped manner when faced with discrimination and humiliation at Costco.
After her Costco membership was cancelled, other places she frequented,
including stores, a library, her apartment complex, the Social Security
Administration Field Office, and the Utah Transit Authority Paratransit service,
attempted to kick her out as well.
On October 1, 2007, Costco and the individual defendants entered a special
appearance and filed a motion to dismiss on the ground that the court lacked
subject-matter jurisdiction because the claim was “wholly insubstantial or
frivolous.” R. Vol. II, Doc. 13 at 2 (Special Appearance Defendants’
Memorandum in Support of Motion to Dismiss) (internal quotation marks
omitted). On October 12 Ms. Jamison filed a response which contended that (1)
she had physical evidence in the form of contaminated products, although she
could not obtain a laboratory analysis confirming that the products were
contaminated; (2) she had witnesses, namely, Costco employees, but could not
obtain their testimony; (3) the federal government is obligated to support her
constitutional rights and her rights as a disabled person; and (4) the federal
government is obligated to protect the general public’s health and welfare. The
magistrate judge assigned to the case issued a report and recommendation, which
recommended that the lawsuit be dismissed because it lacked basis in fact and
was frivolous. Ms. Jamison filed an objection to the report and recommendation;
among other things it stated that she could not obtain an analysis showing that the
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physical evidence in her possession was contaminated. On November 15, 2007,
the district court adopted the report and recommendation and dismissed
Ms. Jamison’s lawsuit.
On appeal Ms. Jamison contends that the district court wrongly dismissed
her cause of action even though it was allegedly aware of “the system” and its
pernicious effects on her. She asserts that she can support her claim with physical
evidence and witnesses; and she claims that the district court wrongly overlooked
her disability (which is caused by the system), her inability to obtain “physical
evidence” of the system while she is under its control, and her inability to shut
down the system herself.
We review for abuse of discretion a district court’s decision to dismiss an
in forma pauperis complaint filed under 28 U.S.C. § 1915(e) 1 on the ground that
it is frivolous. Fratus v. DeLand, 49 F.3d 673, 674 (10th Cir. 1995). “[A]
finding of factual frivolousness is appropriate when the facts alleged rise to the
level of the irrational or the wholly incredible, whether or not there are judicially
noticeable facts available to contradict them.” Denton v. Hernandez, 504 U.S. 25,
33 (1992).
1
Fratus discussed a dismissal under 28 U.S.C. § 1915(d), but the subsection
has since been redesignated as § 1915(e). See Pub. L. No. 104-134, § 804(a)(2),
(5), 110 Stat. 1321 (1996).
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Ms. Jamison’s allegations “rise to the level of the irrational or the wholly
incredible.” Denton, 504 U.S. at 33. Thus, the district court did not abuse its
discretion by dismissing the complaint.
We therefore AFFIRM the judgment below.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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