(PC) Chubbuck v. California Correctional Health Care Services et al, No. 2:2016cv01325 - Document 8 (E.D. Cal. 2016)
Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 12/5/2016 GRANTING plaintiff's 2 request to proceed IFP; AND RECOMMEDING this action be dismissed without prejudice. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Yin, K)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID T. CHUBBUCK, 12 13 14 15 No. 2:16-cv-1325 JAM KJN P Plaintiff, v. FINDINGS AND RECOMMENDATIONS CALIFORNIA CORRECTIONAL HEALTH CARE SERVICES, et al., Defendants. 16 17 18 Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to 19 42 U.S.C. § 1983, and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. 20 § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. 21 § 636(b)(1). 22 I. Application to Proceed in Forma Pauperis 23 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. 24 § 1915(a). However, the court will not assess a filing fee at this time. Instead, the undersigned 25 recommends summary dismissal of the complaint. 26 II. Screening 27 28 The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 1 1 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 2 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 3 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 4 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 5 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 6 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 7 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 8 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 9 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 10 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 11 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 12 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 13 1227. Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 14 15 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 16 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 17 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 18 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 19 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 20 sufficient “to raise a right to relief above the speculative level.” Id. at 555. However, “[s]pecific 21 facts are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what 22 the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 23 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks omitted). 24 In reviewing a complaint under this standard, the court must accept as true the allegations of the 25 complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most 26 favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other 27 grounds, Davis v. Scherer, 468 U.S. 183 (1984). 28 //// 2 1 III. Complaint Plaintiff alleges that the California Correctional Health Care Services (“CCHCS”) and the 2 3 California Department of Corrections and Rehabilitation (“CDCR”) violated plaintiff’s equal 4 protection rights and discriminated against him, and also violated California laws and 5 regulations,1 by conspiring to violate the confidentiality and integrity of electronic medical, 6 mental health, and custodial records by the use of unencrypted laptops. Plaintiff alleges that his 7 action goes beyond negligence “because it shows a deliberate willingness to break the law” and to 8 violate his constitutional rights. (ECF No. 6 at 3.) Plaintiff claims he was injured when the 9 unencrypted laptop was stolen from a personal vehicle, causing an illegal disclosure and a loss of 10 integrity of his confidential information. Attached to his pleading is a letter from CCHCS 11 notifying plaintiff of this “potential breach.” (EC F No. 4 at 7.) The letter states that it is 12 unknown if “any sensitive information was contained in the laptop” and that the laptop was 13 password protected. Plaintiff asserts violation of his Fourteenth Amendment right to equal 14 protection and due process, and his Fourth Amendment right of the people to be secure in their 15 person, papers, and information. He seeks money damages as relief. 16 On October 14, 2016, plaintiff filed a declaration with attached exhibits in support of his 17 pleading. (ECF No. 7.) Plaintiff claims that he is suing Dr. Matolon and other, yet to be 18 discovered individuals, based on their conspiracy to interfere with plaintiff’s civil rights. Plaintiff 19 argues that he has standing because the stolen laptop was not supposed to have confidential 20 information because the information was to be expunged before Dr. Matolon received the laptop. 21 (ECF No. 7 at 2, 3.) Plaintiff argues that under California regulations all laptops are to be 22 encrypted. (ECF No. 7 at 2.) 23 IV. Named Defendants 24 Plaintiff failed to name a proper defendant. State agencies, such as CDCR and CCHCS, 25 are immune from suit under the Eleventh Amendment. See Will v. Michigan Dep’t of State 26 Police, 491 U.S. 58, 66 (1989); Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 27 28 1 Plaintiff does not plead state law claims as a separate cause of action, but rather relies on state laws and regulations within his claims alleging constitutional violations. 3 1 curiam) (holding that prisoner’s Eighth Amendment claims against CDCR for damages and 2 injunctive relief were barred by Eleventh Amendment immunity); Pennhurst State Sch. & Hosp. 3 v. Halderman, 465 U.S. 89, 100 (1984) (Eleventh Amendment immunity extends to state 4 agencies); see also Hafer v. Melo, 502 U.S. 21, 30 (1991) (clarifying that Eleventh Amendment 5 does not bar suits against state officials sued in their individual capacities, nor does it bar suits for 6 prospective injunctive relief against state officials sued in their official capacities). However, assuming that plaintiff could substitute appropriate individuals as defendants,2 7 8 the speculative allegations of the complaint still fail to establish that plaintiff has standing 9 because he cannot show an injury-in-fact. 10 V. Standing Article III of the Constitution limits the jurisdiction of federal courts to actual “Cases” and 11 12 “Controversies.” U.S. Const. art. III, § 2. “‘One element of the case-or-controversy requirement’ 13 is that plaintiff [ ] ‘must establish that [he has] standing to sue.’” Clapper v. Amnesty Int’l USA, 14 133 S. Ct. 1138, 1146 (2013) (quoting Raines v. Byrd, 521 U.S. 811, 818(1997)). To satisfy 15 Article III standing, plaintiff must have suffered an injury in fact -- an invasion of a legally 16 protected interest which is (a) concrete and particularized, and (b) actual or imminent, not 17 conjectural or hypothetical. Second, there must be a causal connection between the injury and the 18 conduct complained of -- the injury has to be fairly traceable to the challenged action of the 19 defendant, and not the result of the independent action of some third party not before the court. 20 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations omitted) (internal quotation 21 marks, brackets and ellipses omitted). 22 “HIPAA[3] itself does not provide for a private right of action.” Webb v. Smart Document 23 Solutions, LLC, 499 F.3d 1078, 1082 (9th Cir. 2007) (citing Standards for Privacy of Individually 24 Identifiable Health Information, 65 Fed. Reg. 82462-01, 82601 (Dec. 28, 2000) (to be codified at 25 45 C.F.R. pt. 160 and 164) (“Under HIPAA, individuals do not have a right to court action.”)). 26 2 27 28 Plaintiff included Dr. Matolon as a defendant in the caption of plaintiff’s declaration. However, Dr. Matolon is not named as a defendant in plaintiff’s complaint. 3 Health Insurance Portability and Accountability Act of 1996. 4 While potential future harm can in some instances confer standing, plaintiff must face “a 1 2 credible threat of harm” that is “both real and immediate, not conjectural or hypothetical.” 3 Krottner v. Starbucks Corp., 628 F.3d 1139, 1143 (9th Cir. 2010) (citations and internal quotation 4 marks omitted) (holding that threat of potential identity theft created by theft of a laptop known to 5 contain plaintiffs’ unencrypted names, addresses, and social security numbers was sufficient to 6 confer standing, but that “more conjectural or hypothetical” allegations would make threat “far 7 less credible”); Clapper, 133 S. Ct. at 1147 (“[A]n injury must be concrete, particularized, and 8 actual or imminent.”) (citation and internal quotation marks omitted). Plaintiff’s allegations are 9 based upon a notification which states that it is unknown whether any sensitive information is 10 contained in the laptop and that even if there is sensitive information in the laptop, the scope of 11 the information, including whether any of plaintiff’s information is contained therein, is 12 unknown. In other words, whether plaintiff’s sensitive information has been compromised is 13 unknown. Plaintiff cannot state a claim for relief based upon the speculative breach of his 14 sensitive information. Thus, his claim for violation of his constitutional right to informational 15 privacy should be dismissed without prejudice for lack of standing. See Fleck & Assoc., Inc. v. 16 City of Phoenix, 471 F.3d 1100, 1106-07 (9th Cir. 2006) (dismissal for lack of standing is without 17 prejudice). 18 VI. Potential State Law Claims 19 Plaintiff asserts that under California Code of Regulations, Title 11, Section 999.129, all 20 laptops are to be encrypted. However, any violation of state tort law, state regulations, rules and 21 policies of the department of corrections, or other state law is not sufficient to state a claim for 22 relief under § 1983. To state a claim under § 1983, there must be a deprivation of federal 23 Constitutional or statutory rights. See Paul v. Davis, 424 U.S. 693 (1976); Galen v. County of 24 Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007) (“Section 1983 requires [plaintiff] to demonstrate 25 a violation of federal law, not state law.”). Although the court may exercise supplemental 26 jurisdiction over state law claims, plaintiff must first have a cognizable claim for relief under 27 federal law. See 28 U.S.C. § 1367. 28 //// 5 1 Because plaintiff lacks standing to pursue his federal claims, this court should decline to 2 exercise supplemental jurisdiction over plaintiff’s putative state law claims.4 Carnegie-Mellon 3 Univ. v. Cohill, 484 U.S. 343, 350 (1988) (when federal claims are eliminated before trial, district 4 courts should usually decline to exercise supplemental jurisdiction). 5 VII. No Leave to Amend 6 If the court finds that a complaint should be dismissed for failure to state a claim, the court 7 has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126- 8 30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that the 9 defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see 10 also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given 11 leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely 12 clear that the deficiencies of the complaint could not be cured by amendment.”) (citing Noll v. 13 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). However, if, after careful consideration, it is clear 14 that a complaint cannot be cured by amendment, the Court may dismiss without leave to amend. 15 Cato, 70 F.3d at 1005-06. 16 The undersigned finds that, as set forth above, plaintiff lacks standing to bring his federal 17 claims, and amendment would be futile because the notification on which plaintiff’s allegations 18 are based establishes only speculative injury that is not real or immediate. Because plaintiff lacks 19 standing to pursue his federal claims, the court should decline to exercise supplemental 20 jurisdiction over plaintiff’s state law claims, and should dismiss the complaint without prejudice. 21 VIII. Conclusion Accordingly, IT IS HEREBY ORDERED that plaintiff’s request to proceed in forma 22 23 pauperis is granted; and 24 IT IS RECOMMENDED that this action be dismissed without prejudice. 25 These findings and recommendations are submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 27 28 4 The court takes no position on whether plaintiff would be able to successfully pursue his claims in state court. 6 1 after being served with these findings and recommendations, plaintiff may file written objections 2 with the court and serve a copy on all parties. Such a document should be captioned 3 “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 4 failure to file objections within the specified time may waive the right to appeal the District 5 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 Dated: December 5, 2016 7 8 /chub1325.56 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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