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not binding precedent except under the doctrines of law of the case, res judicata,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

-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-