(PC) Washington v. California Correctional Health Services et al., No. 2:2016cv01489 - Document 8 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 11/10/16 recommending that this action be dismissed without prejudice. Referred to Judge John A. Mendez. Objections due within 21 days. (Plummer, M)
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(PC) Washington v. California Correctional Health Services et al. Doc. 8 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BILLY A. WASHINGTON, 12 Plaintiff, 13 14 15 No. 2:16-cv-1489 JAM AC P v. FINDINGS AND RECOMMENDATIONS CALIFORNIA CORRECTIONAL HEALTH CARE SERVICES, et al., Defendants. 16 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 17 18 state law and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 19 This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). I. 20 Application to Proceed In Forma Pauperis Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 21 22 1915(a). ECF No. 4. However, the court will not assess a filing fee at this time. Instead, the 23 undersigned will recommend summary dismissal of the amended complaint. II. 24 Statutory Screening of Prisoner Complaints The court is required to screen complaints brought by prisoners seeking relief against a 25 26 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 27 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 28 //// 1 Dockets.Justia.com 1 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 2 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 3 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 4 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 5 Cir. 1984). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 6 meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona, 7 885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute 8 on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490 9 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, 10 11 has an arguable legal and factual basis. Id. “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 12 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 13 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 14 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 15 However, in order to survive dismissal for failure to state a claim, a complaint must contain more 16 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 17 allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations 18 omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that 19 merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original) 20 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure ' 1216 (3d 21 ed. 2004)). 22 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 23 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell 24 Atl. Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 25 content that allows the court to draw the reasonable inference that the defendant is liable for the 26 misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint 27 under this standard, the court must accept as true the allegations of the complaint in question, 28 Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading 2 1 in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. 2 McKeithen, 395 U.S. 411, 421 (1969). 3 III. Amended Complaint 4 Based upon the contents of a letter dated May 16, 2016,1 plaintiff alleges that his privacy 5 and due process rights have been violated by the storage of his personal information and medical 6 records on an unencrypted, password-protected laptop which was stolen from the vehicle of 7 defendant Dr. Matolon, a California Correctional Health Care Services (CCHCS) employee, on 8 February 25, 2016. ECF No. 1 at 9-10; ECF No. 3 at 3-5; ECF No. 7 at 2-4. The notification 9 stated as follows: We do not know if any sensitive information was contained in the laptop. To the extent any sensitive information may have been contained in the laptop, we do not know if the information included any of your information. If your information was included, the nature of the information may have included confidential medical, mental health, and custodial information. To the extent any sensitive information may have been contained in the laptop, we estimate that it would have been limited to information related to your custody and care, if any, between 1996 and 2014. 10 11 12 13 14 15 16 ECF No. 1 at 10. Plaintiff asserts that this potential breach and delayed notification violated his rights under 17 18 California law and constituted a violation of his Fourth Amendment privacy rights as well as his 19 right to due process. ECF No. 3 at 3-5; ECF No. 7 at 2-4. Plaintiff seeks compensatory and 20 punitive damages. ECF No. 3 at 6. Plaintiff avers that no prison administrative remedy was 21 available to him to grieve this matter. Id. at 3-5; ECF No. 7 at 4; see 42 U.S.C. § 1997e(a) (the 22 Prison Litigation Reform Act (PLRA) requires that prisoners exhaust all available administrative 23 remedies before commencing a civil suit). IV. 24 Standing—Fourth Amendment Claim The speculative allegations of the amended complaint fail to establish that plaintiff has 25 26 1 27 28 The exhibits that were attached to the original complaint, including the letter which was attached as Exhibit A, were not attached to the amended complaint, even though they were referenced in the amended complaint. In light of plaintiff’s pro se status, the court will consider the amended complaint as if those exhibits were attached. 3 1 standing to bring his Fourth Amendment claim because he cannot show an injury-in-fact. 2 “[F]ederal courts are required sua sponte to examine jurisdictional issues such as 3 standing.” B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir.1999). The Article 4 III case or controversy requirement limits federal courts’ subject matter jurisdiction by requiring 5 that plaintiffs have standing. Valley Forge Christian Coll. v. Ams. United for Separation of 6 Church and State, Inc., 454 U.S. 464, 471 (1982). To have Article III standing, a plaintiff must 7 plead and prove that he has suffered sufficient injury to satisfy the “case or controversy” 8 requirement of Article III of the United States Constitution. Clapper v. Amnesty Int’l USA, 133 9 S. Ct. 1138, 1146 (2013) (“‘One element of the case-or-controversy requirement’ is that plaintiffs 10 ‘must establish that they have standing to sue.’” (quoting Raines v. Byrd, 521 U.S. 811, 818 11 (1997))). To satisfy Article III standing, a plaintiff must therefore allege: (1) injury-in-fact that is 12 concrete and particularized, as well as actual or imminent; (2) that the injury is fairly traceable to 13 the challenged action of the defendant; and (3) that the injury is redressable by a favorable ruling. 14 Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010) (citation omitted); Lujan v. 15 Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). “The party invoking federal jurisdiction 16 bears the burden of establishing these elements . . . with the manner and degree of evidence 17 required at the successive stages of the litigation.” Lujan, 504 U.S. at 561 (citations omitted). 18 To the extent plaintiff may be attempting to bring a claim pursuant to the Health Insurance 19 Portability and Accountability Act of 1996 (HIPAA),2 which requires the confidentiality of 20 medical records, “HIPAA itself does not provide for a private right of action.” Webb v. Smart 21 Document Solutions, LLC, 499 F.3d 1078, 1082 (9th Cir. 2007) (citing Standards for Privacy of 22 Individually Identifiable Health Information, 65 Fed. Reg. 82462-01, 82601 (Dec. 28, 2000) (to 23 be codified at 45 C.F.R. pt. 160 and 164) (“Under HIPAA, individuals do not have a right to court 24 action.”)). However, the Ninth Circuit has held that the constitutional right to informational 25 privacy extends to medical information. Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 26 27 28 2 The attachments to the original complaint indicate that plaintiff may also be attempting to bring a claim under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). ECF No. 1 at 22-26. 4 1 1260, 1269 (9th Cir. 1998) (“The constitutionally protected privacy interest in avoiding disclosure 2 of personal matters clearly encompasses medical information and its confidentiality.”) (citing Doe 3 v. Attorney Gen. of the United States, 941 F.2d 780, 795 (9th Cir. 1991)). In this case, however, 4 the disclosure of plaintiff’s medical information, and therefore any injury, is entirely speculative. 5 While potential future harm can in some instances confer standing, plaintiff must face “a 6 credible threat of harm” that is “both real and immediate, not conjectural or hypothetical.” 7 Krottner v. Starbucks Corp., 628 F.3d 1139, 1143 (9th Cir. 2010) (citations and internal quotation 8 marks omitted) (holding that threat of potential identity theft created by theft of a laptop known to 9 contain plaintiffs’ unencrypted names, addresses, and social security numbers was sufficient to 10 confer standing, but that “more conjectural or hypothetical” allegations would make threat “far 11 less credible”); Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (“[A]n injury must 12 be concrete, particularized, and actual or imminent.”) (citation and internal quotation marks 13 omitted). Plaintiff’s allegations are based upon a notification which states that it is unknown 14 whether any sensitive information is contained in the laptop and that even if there is sensitive 15 information in the laptop, the scope of the information, including whether any of plaintiff’s 16 information is contained therein, is unknown. ECF No. 1 at 10. In other words, whether 17 plaintiff’s sensitive information has even been compromised is unknown. Plaintiff cannot state a 18 claim for relief based upon the speculative breach of his sensitive information and his claim for 19 violation of his constitutional right to informational privacy should be dismissed without 20 prejudice for lack of standing. See Fleck & Assoc., Inc. v. City of Phoenix, 471 F.3d 1100, 1106- 21 07 (9th Cir. 2006) (dismissal for lack of standing is without prejudice). 22 23 V. Due Process Claim Plaintiff alleges that CHHCS and the California Department of Corrections and 24 Rehabilitation (CDCR) violated his right to due process by allowing his “property,” i.e., his 25 personal information stored on the laptop, to be stolen. The undersigned does not understand 26 plaintiff’s due process claim. In any event, it does not appear that plaintiff can state a potentially 27 colorable due process claim based on the facts alleged. Moreover, for the reasons discussed 28 5 1 above, it seems unlikely that plaintiff has standing to raise these claims. For these reasons, the 2 undersigned finds that plaintiff has not stated a potentially colorable due process claim. 3 VI. State Law Claims 4 The amended complaint also alleges violations of California law and regulations. To the 5 extent his state law claims are based on California’s Confidentiality of Medical Information Act 6 (CMIA), Cal. Civ. Code §§ 56 et seq., and California Health and Safety Code § 1280.15, 7 plaintiff’s claims fail. The CMIA authorizes a suit for money damages by “an individual . . . 8 against a person or entity who has negligently released confidential information or records 9 concerning him or her . . . .” Cal. Civ. Code § 56.36(b). California Health and Safety Code § 10 1280.15, on the other hand, does not appear to authorize a private action, but requires notification 11 of any unlawful or unauthorized access of a patient’s medical information and authorizes the 12 State Department of Health Services to issue administrative penalties for failing to prevent such 13 access. However, the CMIA and § 1280.15 are state laws and do not provide a basis for federal 14 jurisdiction. Galen v. County of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007) (“Section 1983 15 requires [plaintiff ] to demonstrate a violation of federal law, not state law.”). Because plaintiff 16 has failed to state a cognizable claim for relief under federal law, this court should decline to 17 exercise supplemental jurisdiction over plaintiff’s putative state law claims.3 Carnegie-Mellon 18 Univ. v. Cohill, 484 U.S. 343, 350 (1988) (when federal claims are eliminated before trial, district 19 courts should usually decline to exercise supplemental jurisdiction). 20 VII. 21 No Leave to Amend If the court finds that a complaint should be dismissed for failure to state a claim, the court 22 has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126- 23 30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that the 24 defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see 25 also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given 26 leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely 27 28 3 The court takes no position on whether plaintiff would be able to successfully pursue his claims in state court. 6 1 clear that the deficiencies of the complaint could not be cured by amendment.”) (citing Noll v. 2 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). However, if, after careful consideration, it is clear 3 that a complaint cannot be cured by amendment, the Court may dismiss without leave to amend. 4 Cato, 70 F.3d at 1005-06. 5 The undersigned finds that, as set forth above, plaintiff lacks standing and that amendment 6 would be futile because the notification plaintiff bases his allegations on establishes only 7 speculative injury that is neither real nor immediate. Because plaintiff lacks standing to pursue 8 his federal claims, the court should decline to exercise supplemental jurisdiction over plaintiff’s 9 state law claims and dismiss the complaint in its entirety. 10 VIII. 11 Summary The undersigned recommends that the amended complaint be dismissed without prejudice 12 because the facts show only that plaintiff’s sensitive information might have been contained in 13 the laptop and might have been stolen, and the letter he relies on establishes that he will not be 14 able to show that his information was actually stolen because it is not known what was on the 15 laptop. Plaintiff’s injury is therefore too speculative to support a claim. If plaintiff’s federal 16 claims are dismissed, the court should also decline jurisdiction of the state law claims and dismiss 17 them. 18 IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. 19 These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 21 after being served with these findings and recommendations, plaintiff may file written objections 22 with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 23 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 24 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 25 (9th Cir. 1991). 26 DATED: November 10, 2016 27 28 7
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