Johnson v. Autozone, Inc.

          ORDER OF DISMISSAL

          NATHANAEL M. COUSINS United States Magistrate Judge.

         Plaintiff, a state prisoner proceeding pro se, has filed an amended civil rights complaint, pursuant to 42 U.S.C. § 1983.^[1] Plaintiff has been granted leave to proceed in forma pauperis in a separate order. For the reasons that follow, the court dismisses the amended complaint for failing to state a claim.

         BACKGROUND

         I. Standard of Review

         A federal court must engage in a preliminary screening of any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

         To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

         II. Plaintiff’s Claims

         According to the amended complaint, in December 2009, plaintiff was hired by Autozone, Inc., in Oakland, California, as a part-time driver. As part of his employment, plaintiff was required to sign a non-disclosure agreement acknowledging that Autozone, Inc., employees were prohibited from disclosing or providing confidential personal or business information to anyone outside of Autozone, Inc., who “does not have a business need, authorization, or a court order.” Plaintiff’s amended complaint names as defendants, Kathryn White and Venus Ochoa, both of whom are employees of Autozone, Inc. Plaintiff asserts that both White and Ochoa conspired with state actors to violate his constitutional rights.^[2]

         As an initial matter, although it’s unclear, to the extent plaintiff intends to allege a violation of 42 U.S.C. § 1985(3), he fails to do so. 42 U.S.C. § 1985(3) provides a cause of action against state or private conspiracies. See Griffin v. Breckenridge, 403 U.S. 88, 101-02 (1971). The first clause of Section 1985(3) pertains to conspiracy to deny equal protection of the laws on the highway or on the premises of another; the second clause pertains to conspiracy to prevent or hinder state officers from providing equal protection to all persons within the state; and the third clause pertains to conspiracy to interfere with federal elections. See 42 U.S.C. § 1985(3). A cause of action under Section 1985(3) requires a showing of some racial or class-based discrimination. See Kush v. Rutledge, 460 U.S. 719, 724-26 (1983). Other than race-based classes, it is unclear what classes are protected; the class must be something more than a group of individuals who all want to engage in conduct that the defendant disfavors, and federal courts should exercise restraint in extending Section 1985(3) beyond racial prejudice. See Butler v. Elle, 281 F.3d 1014, 1028 (9th Cir. 2002). Here, even with liberal construction, plaintiff does not set forth any facts leading to a reasonable inference of discrimination, much less a racial or class-based discrimination. Accordingly, to the extent plaintiff alleges that defendants violated Section 1985(3), that claim is dismissed for failure to state a cognizable claim for relief.

         A. Ground 1

         In Ground 1, plaintiff claims that White and Ochoa conspired with state actors to breach Autozone, Inc.’s non-disclosure agreement. Specifically, plaintiff states that Tracy Police Department detectives requested and received from White and Ochoa surveillance photos of plaintiff from his work site, copies of plaintiff’s work schedule, a list of employee names, driver’s license numbers of employees, plaintiff’s phone number, and plaintiff’s emergency contacts’ names and phone numbers.

         However, conspiracy is not itself a constitutional tort under 42 U.S.C. § 1983. See Lacey v. Maricopa County, 693 F.3d 896, 935 (9th Cir. 2012) (en banc). That is, it does not enlarge the nature of the claims asserted by the plaintiff, as there must always be an underlying constitutional violation. See Id . Here, plaintiff does not allege a constitutional violation in Ground 1. According, Ground 1 is dismissed for failure to state a cognizable claim for relief. Because plaintiff cannot prove a set of facts in support of his claim which would entitle him to relief, the dismissal is without leave to amend. See Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007).

         B. Ground 2

         In Ground 2, plaintiff claims that White conspired with state actors to violate the Fourteenth Amendment and the Fourth Amendment. Specifically, plaintiff states that White checked plaintiff’s work schedule and updated detectives as to that schedule; White gave detectives plaintiff’s phone number, alternate phone number, and emergency contact wrote down plaintiff’s license plate number; obtained surveillance footage of ...