Opinion
CASE NO. C07-0715-JCC.
July 13, 2007
ORDER
This matter comes before the Court on the Report and Recommendation ("R R") of United States Magistrate Judge Mary Alice Theiler (Dkt. No. 6) and the Plaintiff's Amended Complaint and Objections (Dkt. No. 9). Having reviewed the relevant materials, the Court ADOPTS the R R and DISMISSES this action without prejudice, for the following reasons.
On May 8, 2007, Plaintiff filed a civil rights claim under 42 U.S.C. § 1983, alleging that Defendants subjected him to racial profiling, defamation, and other discriminatory treatment. In her R R, Judge Theiler properly addressed Plaintiffs § 1983 claim, explaining that Defendants are private parties not acting under color of state law. The R R, however, instructed Plaintiff to file additional materials showing a conspiracy, if any, that would bring the private parties under the umbrella of § 1983. See DeGrassi v. City of Glendora, 207 F.3d 636, 647 (9th Cir. 2000).
In his Objections and Amended Complaint, Plaintiff raises new issues for the Court to consider. First, he claims Defendants and police entered a conspiracy in 2005, when Defendants permitted police to perform a narcotics sting on the 7-11 premises. Specifically, Plaintiff alleges that Defendants consented to have a confidential informant operate on the site, while police monitored the store for illegal drug sales. Second, Plaintiff invokes 18 U.S.C. § 242.
A. 42 U.S.C. § 1983
In order to bring private-party Defendants within the ambit of § 1983, Plaintiff must establish a conspiracy between Defendants and state officials. The requisite conspiracy, as envisioned by § 1983, includes a meeting of the minds between parties to deprive Plaintiff of his Constitutionally protected rights. United Steelworkers v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir. 1989) (en banc).
Plaintiff asserts that the 2005 drug bust established a conspiracy permitting the enforcement of § 1983 against Defendants in the present racial discrimination action. The Court cannot agree. Plaintiff's allegations as to the 2005 drug sting do nothing to resurrect his claim of racial discrimination in 2007 by Defendants. The Court can find no plausible relationship between the 2005 drug sting and the alleged discriminatory treatment by private parties two years later. Plaintiff, in his own filings, admits that the police officers participating in these distinct encounters were not the same. Accordingly, the 2005 narcotics sting evidences no conspiracy between state officials and Defendants that bears on a § 1983 claim arising out of the 2007 incident.
Because federal courts construe pro se plaintiffs' claims liberally, however "inartful," Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam), the Court will interpret the allegations of conspiracy between Defendants and police officers in 2005 as a separate § 1983 claim.
Nevertheless, Plaintiff's description of the 2005 drug bust itself also fails to rise to the level of conspiracy outlined in United Steelworkers, 865 F.2d at 1540-41. A § 1983 conspiracy requires that police and private-party Defendants form an agreement to violate protected rights. Plaintiff's description of the narcotics sting describes only the normal function of law enforcement. Accordingly, Plaintiff fails to allege a conspiracy violative of his Constitutional rights, even if he does allege some level of cooperation. Therefore, any separate § 1983 claim stemming from the 2005 narcotics sting fails as well.
B. 42 U.S.C. § 1985
Again construing Plaintiff's pleading liberally, the Court notes that Plaintiff's conspiracy allegations may also present a cause of action under 42 U.S.C. § 1985. Unlike § 1983, § 1985 does reach purely private conduct. Griffin v. Breckenridge, 403 U.S. 88, 101 (1971). Thus, no nexus between Defendants and any state actors would be required. Subsection (1) involves interfering with officers' performance of duties, and subsection (2) involves obstruction of justice. Plaintiff's Amended Complaint is insufficient to allege a cause of action under either of these subsections. Accordingly, the Court looks to subsection (3) as a possible source of a valid § 1985 claim. To state a claim under § 1985(3),
the plaintiff must allege and prove four elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.United Bhd. of Carpenters and Joiners of Am. v. Scott, 463 U.S. 825, 828-29 (1983) (citing Griffin, 403 U.S. at 102-03). The second element of a § 1985(3) claim, as defined above, requires that there be "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin, 403 U.S. at 102.
As to the 2005 drug bust, Plaintiff does not plead, and has introduced no scintilla of evidence to prove, that Defendants' actions were motivated by racial or other qualifying class-based animus. As to the 2007 incident, while Plaintiff has alleged racial animus, he nevertheless has failed to identify any specific facts indicating a conspiracy between the Defendants. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 626 (9th Cir. 1988) (holding that a § 1985 claim "must allege facts to support the allegation that defendants conspired together"). Accordingly, Plaintiff's conspiracy allegations fail as § 1985(3) causes of action.
C. 18 U.S.C. § 242
Finally, as a new argument in his Objections and Amended Complaint, Plaintiff mistakenly relies on 18 U.S.C. § 242. As a criminal statute, § 242 does not provide a civil cause of action. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Moreover, because a § 242 prosecution is the criminal counterpart to a § 1983 civil action, any claim thereunder would be redundant in any event. See Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 929 nn. 9 (citing Monroe v. Pape, 365 U.S. 167, 185 (1961)) 13 (1982).
For the foregoing reasons, the Court ADOPTS the R R, DENIES the application to proceed in forma pauperis, and DISMISSES this action without prejudice. The Clerk is directed to send copies of this Order to Plaintiff and Judge Theiler, and to CLOSE this case.
SO ORDERED.