Johnson v. Auto Zone Inc. et al

Filing 5

ORDER OF DISMISSAL. Signed by Judge Nathanael Cousins on 6/20/2016. (lmh, COURT STAFF) (Filed on 6/20/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DION LAROY JOHNSON,
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Case No. 16-cv-01060 NC (PR)

Plaintiff,

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ORDER OF DISMISSAL

v.

United States District Court
Northern District of California

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AUTOZONE, INC., et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed an amended civil rights

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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

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amended complaint for failing to state a claim.
BACKGROUND

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I.

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Standard of Review
A federal court must engage in a preliminary screening of any case in which a

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Petitioner has consented to magistrate judge jurisdiction. (Dkt. No. 1 at 4.)

Case No. 16-cv-01060 NC (PR)
ORDER OF DISMISSAL

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prisoner seeks redress from a governmental entity or officer or employee of a

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governmental entity. 28 U.S.C. § 1915A(a). In its review the court must identify any

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cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a

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claim upon which relief may be granted, or seek monetary relief from a defendant who is

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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).

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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)

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United States District Court
Northern District of California

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that the violation was committed by a person acting under the color of state law. See West

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v. Atkins, 487 U.S. 42, 48 (1988).

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II.

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Plaintiff’s Claims
According to the amended complaint, in December 2009, plaintiff was hired by

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Autozone, Inc., in Oakland, California, as a part-time driver. As part of his employment,

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plaintiff was required to sign a non-disclosure agreement acknowledging that Autozone,

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Inc., employees were prohibited from disclosing or providing confidential personal or

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business information to anyone outside of Autozone, Inc., who “does not have a business

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need, authorization, or a court order.” Plaintiff’s amended complaint names as defendants,

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Kathryn White and Venus Ochoa, both of whom are employees of Autozone, Inc. Plaintiff

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asserts that both White and Ochoa conspired with state actors to violate his constitutional

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Case No. 16-cv-01060 NC (PR)
ORDER OF DISMISSAL

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rights. 2

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As an initial matter, although it’s unclear, to the extent plaintiff intends to allege a

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violation of 42 U.S.C. § 1985(3), he fails to do so. 42 U.S.C. § 1985(3) provides a cause

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of action against state or private conspiracies. See Griffin v. Breckenridge, 403 U.S. 88,

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101-02 (1971). The first clause of Section 1985(3) pertains to conspiracy to deny equal

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protection of the laws on the highway or on the premises of another; the second clause

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pertains to conspiracy to prevent or hinder state officers from providing equal protection to

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all persons within the state; and the third clause pertains to conspiracy to interfere with

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United States District Court
Northern District of California

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federal elections. See 42 U.S.C. § 1985(3). A cause of action under Section 1985(3)

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requires a showing of some racial or class-based discrimination. See Kush v. Rutledge,

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460 U.S. 719, 724-26 (1983). Other than race-based classes, it is unclear what classes are

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protected; the class must be something more than a group of individuals who all want to

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engage in conduct that the defendant disfavors, and federal courts should exercise restraint

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in extending Section 1985(3) beyond racial prejudice. See Butler v. Elle, 281 F.3d 1014,

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1028 (9th Cir. 2002). Here, even with liberal construction, plaintiff does not set forth any

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facts leading to a reasonable inference of discrimination, much less a racial or class-based

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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.

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It can be inferred from plaintiff’s amended complaint that plaintiff was criminally
charged with an unspecified offense. It is unclear, however, whether he was ultimately
convicted of anything.

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Case No. 16-cv-01060 NC (PR)
ORDER OF DISMISSAL

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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

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photos of plaintiff from his work site, copies of plaintiff’s work schedule, a list of

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employee names, driver’s license numbers of employees, plaintiff’s phone number, and

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plaintiff’s emergency contacts’ names and phone numbers.

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However, conspiracy is not itself a constitutional tort under 42 U.S.C. § 1983. See

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United States District Court
Northern District of California

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Lacey v. Maricopa County, 693 F.3d 896, 935 (9th Cir. 2012) (en banc). That is, it does

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not enlarge the nature of the claims asserted by the plaintiff, as there must always be an

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underlying constitutional violation. See id. Here, plaintiff does not allege a constitutional

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violation in Ground 1. According, Ground 1 is dismissed for failure to state a cognizable

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claim for relief. Because plaintiff cannot prove a set of facts in support of his claim which

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would entitle him to relief, the dismissal is without leave to amend. See Weilburg v.

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Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007).

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B. Ground 2

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In Ground 2, plaintiff claims that White conspired with state actors to violate the

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Fourteenth Amendment and the Fourth Amendment. Specifically, plaintiff states that

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White checked plaintiff’s work schedule and updated detectives as to that schedule; White

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gave detectives plaintiff’s phone number, alternate phone number, and emergency contact

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Case No. 16-cv-01060 NC (PR)
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information; wrote down plaintiff’s license plate number; obtained surveillance footage of

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plaintiff arriving at work; and forwarded photographs of plaintiff’s vehicle and license

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plate number to detectives.

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As an initial matter, to state a claim arising under federal law, it must be clear from

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the face of the complaint that there is a federal question. See Easton v. Crossland

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Mortgage Corp., 114 F.3d 979, 982 (9th Cir. 1997). Merely referencing a federal statute

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in a pleading will not necessarily suffice. See id. (state law claims which include

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incidental references to federal statute and U.S. Constitution and seek remedies founded

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United States District Court
Northern District of California

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exclusively on state law improperly removed to federal court). Plaintiff’s conclusory

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assertions that White’s production of plaintiff’s personal information violated his right to

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due process are insufficient to state a cognizable federal civil rights claim.

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However, the Fourteenth Amendment does encompass a right of privacy. See Roe

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v. Wade, 410 U.S. 113, 153 (1973). But the Supreme Court has expressly declined to

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recognize whether there exists a constitutional right to informational privacy. See National

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Aeronautics and Space Admin. v. Nelson, 562 U.S. 134, 138 (2011) (assuming without

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deciding that there is a “constitutional privacy interest in avoiding disclosure of personal

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matters,” but not squarely addressing the contours of such a right); see also id. at 162

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(“there is no constitutional right to informational privacy”) (Scalia, J., concurring).

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Making matters more difficult, the Ninth Circuit appears to have conflicting case law as to

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the proper confines of the right to informational privacy, assuming there is such a right.

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Case No. 16-cv-01060 NC (PR)
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For example, Seaton v. Mayberg, 610 F.3d 530, 538 (9th Cir. 2010), states that “[i]t is not

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entirely clear yet whether the constitutional right [to informational privacy extends only to]

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matters relating to marriage, procreation, contraception, family relationships, and child

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rearing and education.” On the other hand, Nelson v. National Aeronautics and Space

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Admin., 530 F.3d 865, 877 (9th Cir. 2008), appears to recognize that the right to

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information privacy extends beyond “fundamental matters,” and covers such issues as

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sexual activity, medical information, and financial matters.

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Plaintiff has failed to state why he believes his work schedule, phone numbers,

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United States District Court
Northern District of California

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emergency contact information, license plate number; visible footage of plaintiff arriving

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at work, and photographs of plaintiff’s vehicle, all of which are public information, were

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confidential. See generally Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 494-95 (1975)

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(privacy interest fades when information is in the public record).

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While the Ninth Circuit has recognized a “constitutionally protected interest in

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avoiding disclosure of personal matters including medical information,” that interest is

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conditional, not absolute. Seaton v. Mayberg, 610 F.3d 530, 538 (9th Cir. 2010); see In re

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Crawford, 194 F.3d 954, 958-59 (9th Cir. 1999) (recognizing informational privacy as a

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constitutionally protected interest but one that is not absolute); Norman-Bloodsaw v.

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Lawrence Berkely Lab., 135 F.3d 1260, 1269 (9th Cir. 1998) (stating that “[t]he

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constitutionally protected privacy interest in avoiding disclosure of personal matters

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clearly encompasses medical information and its confidentiality,” and holding that blood

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Case No. 16-cv-01060 NC (PR)
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and urine tests administered to collect medical information implicated such a right under

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the Fifth or Fourteenth Amendments). In comparison to Seaton and Norman-Bloodsaw,

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plaintiff’s allegation that his right to informational privacy was violated when non-

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confidential information was provided to the police is not included even within the outer

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confines of a federal right to informational privacy.

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To the extent plaintiff is raising a Fourth Amendment violation, it is equally

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unpersuasive. Because plaintiff’s allegations do not suggest that White or any state actor

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“physically occupied private property for the purpose of obtaining information,” the

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United States District Court
Northern District of California

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appropriate test to determine whether White violated plaintiff’s Fourth Amendment right

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to privacy is whether plaintiff had a reasonable expectation of privacy in the challenged

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information. Lyall v. City of Los Angeles, 807 F.3d 1178, 1185-86 (9th Cir. 2015) (citing

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Katz v. United States, 389 U.S. 347 (1967)).

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In Ground 2, plaintiff argues that White’s production of plaintiff’s work schedule,

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phone numbers, emergency contact information, license plate number; visible footage of

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plaintiff arriving at work, and photographs of plaintiff’s vehicle to police violated his

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Fourth Amendment right to privacy. However, the Supreme Court has held, “a person has

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no legitimate expectation of privacy in information he voluntarily turns over to third

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parties.” Smith v. Maryland, 442 U.S. 735, 743-44 (1979) (rejecting notion that there is no

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reasonable expectation of privacy to phone numbers dialed by petitioner); see, e.g., United

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States v. Miller, 425 U.S. 435, 442-44 (1976) (“This Court has held repeatedly that the

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Case No. 16-cv-01060 NC (PR)
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Fourth Amendment does not prohibit the obtaining of information revealed to a third party

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and conveyed by him to Government authorities, even if the information is revealed on the

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assumption that it will be used only for a limited purpose and the confidence placed in the

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third party will not be betrayed.”). In addition, plaintiff’s license plate number,

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observations of plaintiff arriving at work, and photographs of plaintiff’s vehicle are such

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that they are in plain view and thus, they cannot involve any invasion of privacy. Cf.

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Illinois v. Andreas, 463 U.S 865, 771 (1983) (“The plain view doctrine is grounded on the

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proposition that once police are lawfully in a position to observe an item first-hand, its

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United States District Court
Northern District of California

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owner's privacy interest in that item is lost; the owner may retain the incidents of title and
possession but not privacy.”).
Ground 2 is dismissed for failure to state a claim. Because plaintiff cannot prove a
set of facts in support of his claim which would entitle him to relief, the dismissal is

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without leave to amend. See Weilburg, 488 F.3d at 1205.

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C. Ground 3

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In Ground 3, plaintiff claims that White conspired with state actors to violate a

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court order, and to violate his Fourteenth Amendment right to due process. Specifically,

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plaintiff states that White contacted Detective Tim Bauer about an unspecified “court

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order,” to ask his opinion on “how to proceed.” Plaintiff appears to allege that his private

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investigator issued a subpoena to Kathy Pope, another employee of Autozone, Inc.,

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requesting surveillance photographs of plaintiff at work on specific days, as well as

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Case No. 16-cv-01060 NC (PR)
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Autozone, Inc.’s policy on privacy. For reasons unknown, White asked Detective Bauer to

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look into this subpoena or court order. Prior to plaintiff’s court date, the private

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investigator still had not received the items requested. Because of this, plaintiff asserts that

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White conspired to violate a court order, and to violate plaintiff’s Fourteenth Amendment

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right to due process.
As previously stated, 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). A
violation of a court order does not run afoul of the federal constitution. Therefore,

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United States District Court
Northern District of California

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conspiracy to violate a court order does not state a cognizable claim for relief.
With respect to plaintiff’s allegation that White conspired to violate plaintiff’s
Fourteenth Amendment right to due process, as previously stated, to state a claim arising
under federal law, it must be clear from the face of the complaint that there is a federal

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question. See Easton, 114 F.3d at 982. Merely referencing a federal statute in a pleading

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will not necessarily suffice. See id. (state law claims which include incidental references

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to federal statute and U.S. Constitution and seek remedies founded exclusively on state law

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improperly removed to federal court). Plaintiff’s conclusory assertion that White’s inquiry

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to Detective Bauer violated his right to due process is insufficient to state a cognizable
federal civil rights claim.
Ground 3 is dismissed for failure to state a claim. Because plaintiff cannot prove a
set of facts in support of his claim which would entitle him to relief, the dismissal is

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Case No. 16-cv-01060 NC (PR)
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without leave to amend. See Weilburg, 488 F.3d at 1205.

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D. Ground 4

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In Ground 4, plaintiff claims that White obstructed an investigation and violated

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corporate policy. Specifically, plaintiff alleges that White intentionally disregarded a court

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order, which obstructed plaintiff’s ability to present an adequate defense. Even liberally

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construed, plaintiff does not set forth a federal constitutional violation in Ground 4. In

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addition, because plaintiff does not allege that White acted in conspiracy with any state

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actor in Ground 4, White cannot be liable as a private actor. See Gomez v. Toledo, 446

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United States District Court
Northern District of California

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U.S. 635, 640 (1980) (stating that a private individual does not act under color of state law,

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an essential element of a § 1983 action). Accordingly, Ground 4 is dismissed for failure to

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state a cognizable claim for relief.

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For the above stated reasons, plaintiff’s amended complaint is DISMISSED with

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prejudice for failure to state a claim.
CONCLUSION

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The amended complaint is DISMISSED with prejudice. The Clerk shall close the
file, terminate all pending motions, and enter judgment.

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IT IS SO ORDERED.

DATED: June 20, 2016

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NATHANAEL M. COUSINS
United States Magistrate Judge

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Case No. 16-cv-01060 NC (PR)
ORDER OF DISMISSAL

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