Jamison v. Costco Wholesale , 280 F. App'x 738 ( 2008 )


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  •                                                                          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    not binding precedent except under the doctrines of law of the case, res judicata,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
    -2-
    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
    -3-
    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).
    -4-
    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
    -5-
    

Document Info

Docket Number: 07-4278

Citation Numbers: 280 F. App'x 738

Judges: Briscoe, Hartz, Murphy

Filed Date: 6/2/2008

Precedential Status: Non-Precedential

Modified Date: 8/3/2023