Unpublished Disposition, 877 F.2d 64 (9th Cir. 1989)

MEMORANDUM^** 

Henry Anderson appealed pro se from the district court's order dismissing his 42 U.S.C. §§ 1983 and 1985 action against John L. Sullivan, et al. (collectively "appellees") with prejudice, for failure to state a claim. We affirm the district court.

* Henry Anderson brought a state action against General Motors Corporation ("GM") and Caddel Chevrolet ("Caddel") arising out of the sale of an allegedly defective truck. In the course of this state action, Caddel's attorney, Suzanne Trimble, served Anderson with interrogatories. Anderson then filed a complaint in federal district court pursuant to 42 U.S.C. §§ 1983, 1985 against GM, Caddel, Trimble, and others.

Specifically, Anderson contended that the attorneys representing GM and Caddel conspired to serve him with "unconstitutional interrogatories." Anderson further contended that Cal.Code Civ.P. Secs. 2016 and 2030 (relating to discovery and interrogatories) are unconstitutional on their face and as applied. The appellees filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b) (6) on the ground that no justiciable federal case or controversy existed. On July 20, 1987, the court granted the motion and dismissed the action with prejudice.

II

This court reviews de novo a district court's dismissal of an action for failure to state a claim under Fed. R. Civ. P. 12(b) (6). Mir v. Little Company of Mary Hospital, 844 F.2d 646, 649 (9th Cir. 1988).

III

We affirm the district court's judgment.

First, Anderson cannot maintain a section 1983 claim unless he alleges state action under color of law. A private corporation's actions in defense of a civil lawsuit are not state action, nor are the actions of the corporation's privately retained defense counsel state action. See Flagg Bros. v. Brooks, 436 U.S. 149, 164-65 (1978) (mere use of state sanctioned procedure does not rise to the level of state action).

Second, to raise a claim under 42 U.S.C. § 1985, Anderson must be a member of a suspect class. See, e.g., Watkins v. United States Army, No. 85-4006, slip op. at 4600, 4600 n. 25, 4603-07 (9th Cir. May 3, 1989) (Norris, J., concurring) (analysis and explanation of "suspect class"). Anderson's amended complaint fails to allege that he is a member of such a class. Furthermore, pro se litigants are not members of such a class. Eitel v. Holland, 787 F.2d 995, 1000, aff'd on reh'g, 798 F.2d 815, reh'g denied, 801 F.2d 398 (5th Cir. 1986) (en banc).

Third, no claim may be stated under 42 U.S.C. § 1985(2) for interfering with a state court witness. The statute applies to federal trials only. Rutledge v. Arizona Bd. of Regents, 859 F.2d 732, 735 (9th Cir. 1988). The district court cannot address the constitutionality of state court rules because it does not have jurisdiction over such general challenges to procedural rules when, as here, such claims require scrutiny not only of the challenged rule itself, but the state court's application of the rule. Worldwide Church of God v. McNair, 805 F.2d 888, 892 (9th Cir. 1986). Anderson thus failed to state a claim under 42 U.S.C. § 1985(2).

IV

Appellees' request for attorney fees and costs on appeal pursuant to 42 U.S.C. § 1988 and Fed. R. App. P. 38 and 39 is denied.

Because Anderson failed to state a claim upon which relief could be granted, the district court's dismissal is

AFFIRMED.