(PC) Biggins v. Kernan, No. 2:2017cv00526 - Document 7 (E.D. Cal. 2018)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 05/16/18 RECOMMENDING that plaintiffs complaint bedismissed, without leave to amend, for failure to allege standing and failure to state a claim. Referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)
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(PC) Biggins v. Kernan Doc. 7 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY BIGGINS, 12 Plaintiff, 13 vs. 14 No. 2:17-cv-0526-TLN-CMK-P SCOT KERNAN, 15 FINDINGS AND RECOMMENDATION Defendant. / 16 17 18 19 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1). The court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 24 the Federal Rules of Civil Procedure require that complaints contain a “short and plain statement 25 of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means 26 that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1 Dockets.Justia.com 1 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 2 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 3 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege 4 with at least some degree of particularity overt acts by specific defendants which support the 5 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 6 impossible for the court to conduct the screening required by law when the allegations are vague 7 and conclusory. 8 9 I. PLAINTIFF’S ALLEGATIONS Plaintiff’s allegations are somewhat unclear. He states he was informed about a 10 data breach, wherein his confidential information may have been compromised. Attached to the 11 complaint, and referred to by plaintiff, is a letter from California Correctional Health Care 12 Service (CCHCS) notifying plaintiff of the “potential breach.” The letter states that an 13 unencrypted laptop was stolen from a CCHCS workforce member’s personal vehicle, but that it 14 is unknown if “any sensitive information was contained in the laptop” and that the laptop was 15 password protected. Plaintiff states his claims are negligence, and indicates possible claims of 16 violation of the First, Eighth and Fourteenth Amendments. 17 II. DISCUSSION 18 There are several defects in plaintiff’s complaint. First, plaintiff has failed to 19 name a proper defendant. Section 1983 imposes liability upon any person who, acting under 20 color of state law, deprives another of a federally protected right. 42 U.S.C. § 1983 (1982). “To 21 make out a cause of action under section 1983, plaintiffs must plead that (1) the defendants 22 acting under color of state law (2) deprived plaintiffs of rights secured by the Constitution or 23 federal statutes.” Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir.1986). 24 In his complaint, the only defendant plaintiff has named is the Secretary of the 25 California Department of Corrections and Rehabilitation (CDCR), Scott Kernan. Plaintiff 26 alleges defendant Kernan is liable and responsible for all CDCR employees. To state a claim 2 1 under 42 U.S.C. § 1983, the plaintiff must allege an actual connection or link between the actions 2 of the named defendants and the alleged deprivations. See Monell v. Dep’t of Social Servs., 436 3 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A person ‘subjects’ another to the 4 deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, 5 participates in another’s affirmative acts, or omits to perform an act which he is legally required 6 to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 7 743 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official 8 personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 9 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth specific facts as to each individual 10 defendant’s causal role in the alleged constitutional deprivation. See Leer v. Murphy, 844 F.2d 11 628, 634 (9th Cir. 1988). 12 Here, plaintiff fails to allege any actual facts alleging defendant Kernan was 13 personally involved in any way in the possible data breach. Rather, it appears plaintiff is 14 attempting to hold defendant Kernan liable for the actions of others based on his supervisorial 15 position. However, supervisory personnel are generally not liable under § 1983 for the actions of 16 their employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no 17 respondeat superior liability under § 1983). A supervisor is only liable for the constitutional 18 violations of subordinates if the supervisor participated in or directed the violations. See id. The 19 Supreme Court has rejected the notion that a supervisory defendant can be liable based on 20 knowledge and acquiescence in a subordinate’s unconstitutional conduct because government 21 officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct 22 and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Supervisory 23 personnel who implement a policy so deficient that the policy itself is a repudiation of 24 constitutional rights and the moving force behind a constitutional violation may, however, be 25 liable even where such personnel do not overtly participate in the offensive act. See Redman v. 26 Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc). 3 1 When a defendant holds a supervisory position, the causal link between such 2 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 3 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 4 1978). Vague and conclusory allegations concerning the involvement of supervisory personnel 5 in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th 6 Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the 7 official’s own individual actions, has violated the constitution.” Iqbal, 662 U.S. at 676. Plaintiff 8 fails to allege any connection between defendant Kernan and the alleged possible data breach. 9 The only other defendants named in the complaint are DOE defendants. Doe 10 defendants are not favored in the Ninth Circuit as a general policy. See Gillespie v. Civiletti, 629 11 F.2d 637, 642 (9th Cir.1980). However, in situations where the identity a defendant is not 12 known prior to the filing of a complaint, “the plaintiff should be given an opportunity through 13 discovery to identify the unknown defendants, unless it is clear that discovery would not uncover 14 the identities, or that the complaint would be dismissed on other grounds.” Id. (citing Gordon v. 15 Leeke, 574 F.2d 1147, 1152 (4th Cir.1978); see also Wakefield v. Thompson, 177 F.3d 1160, 16 1163 (9th Cir. 1999). 17 The DOE defendants plaintiff has included in his complaint are identified as 18 CCHCS employees who caused the breach of plaintiff’s personal information. Again, plaintiff 19 fails to allege facts specific to these defendants, except conclusory allegations that they “caused 20 the breach.” While this defect may be subject to cure, other defects in the complaint are not as 21 set forth below. Therefore, whether or not plaintiff could amend his complaint to set forth 22 sufficient factual allegations as to these defendants, and whether or not use of discovery would 23 uncover the identities of these defendants, is immaterial. 24 Next, plaintiff’s only actual claim set forth in the complaint is for negligence. As 25 set forth above, § 1983 only imposes liability for deprivation of one’s rights secured by the 26 Constitution or federal statutes. See Gibson, 781 F.2d at 1338. Negligence is the only 4 1 specifically identified claim in the complaint, which is a state law claim and is insufficient basis 2 for an action under 42 U.S.C.§ 1983. To the extent plaintiff attempts to state a claim for 3 violation of First, Eight or Fourteenth Amendment rights, he fails to allege any facts for any such 4 violation. It would appear that plaintiff may be attempting to state a claim under Due Process 5 Clause. However, the complaint fails to do so. The Due Process Clause protects prisoners from 6 being deprived of property without due process of law. See Wolff v. McDonnell, 418 U.S. 539, 7 556 (1974). Negligence is insufficient to support a claim of denial of due process. See Davidson 8 v. Cannon, 747 U.S. 344, 347 (1986) (“[T]he Due Process Clause of the Fourteenth Amendment 9 is not implicated by the lack of due care of an official causing unintended injury to life, liberty or 10 property. In other words, where a government official is merely negligent in causing the injury, 11 no procedure for compensation is constitutionally required.”). Any other potential claim is 12 unclear. 13 Finally, plaintiff is required to establish standing for any claim he attempts to 14 assert. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). If a plaintiff has no 15 standing, the court has no subject matter jurisdiction. See Nat’l Wildlife Fed’n v. Adams, 629 16 F.2d 587, 593 n. 11 (9th Cir. 1980) (“[B]efore reaching a decision on the merits, we [are required 17 to] address the standing issue to determine if we have jurisdiction.”). There are three 18 requirements that must be met for a plaintiff to have standing: (1) the plaintiff must have suffered 19 an “injury in fact”—an invasion of a legally protected interest which is both concrete and 20 particularized and actual or imminent; (2) there must be a causal connection between the injury 21 and the conduct complained of; and (3) it must be likely that the injury will be redressed by a 22 favorable decision. See Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010) 23 (citation omitted); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). In this case, 24 although plaintiff may have constitutional right to privacy of his medical information, whether or 25 not his right to privacy was breached is unknown. See Norman-Bloodsaw v. Lawrence Berkeley 26 Lab., 135 F.3d 1260, 1269 (9th Cir. 1998) (“The constitutionally protected privacy interest in 5 1 avoiding disclosure of personal matters clearly encompasses medical information and its 2 confidentiality.”) (citing Doe v. Attorney Gen. of the United States, 941 F.2d 780, 795 (9th Cir. 3 1991)). 4 The possible disclosure of plaintiff’s personal information, and therefore any 5 injury, is entirely speculative. It is clear from the complaint and attachments thereto that it is 6 unknown if his information was on the laptop. While potential future harm can in some instances 7 confer standing, plaintiff must face “a credible threat of harm” that is “both real and immediate, 8 not conjectural or hypothetical.” Krottner v. Starbucks Corp., 628 F.3d 1139, 1143 (9th Cir. 9 2010) (citations and internal quotation marks omitted) (holding that threat of potential identity 10 theft created by theft of a laptop known to contain plaintiffs’ unencrypted names, addresses, and 11 social security numbers was sufficient to confer standing, but that “more conjectural or 12 hypothetical” allegations would make threat “far less credible”). The speculative injury plaintiff 13 alleges, where it is unknown whether plaintiff’s information was on the potentially compromised 14 laptop, is simply insufficient to provide plaintiff standing. Plaintiff cannot state a claim for relief 15 based upon the speculative breach of his sensitive information, and his claim for violation of his 16 constitutional right to informational privacy must be dismissed without prejudice for lack of 17 standing. See Fleck & Assoc., Inc. v. City of Phoenix, 471 F.3d 1100, 1106-07 (9th Cir. 2006) 18 (dismissal for lack of standing is without prejudice). 19 If the court finds that a complaint should be dismissed for failure to state a claim, 20 the court has discretion to dismiss with or without leave to amend. See Lopez v. Smith, 203 F.3d 21 1122, 1126-30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible 22 that the defects in the complaint could be corrected, especially if a plaintiff is pro se. See id. at 23 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant 24 must be given leave to amend his or her complaint, and some notice of its deficiencies, unless it 25 is absolutely clear that the deficiencies of the complaint could not be cured by amendment.”) 26 (citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). However, if, after careful 6 1 consideration, it is clear that a complaint cannot be cured by amendment, the Court may dismiss 2 without leave to amend. See Cato, 70 F.3d at 1005-06. As set forth above, given plaintiff’s lack 3 of standing, any amendment to his complaint would be futile, and no leave to amend should be 4 granted. 5 6 III. CONCLUSION Plaintiff’s complaint fails to show he has standing to bring this action as his injury 7 is too speculative to support a claim. In addition, the complaint fails to state a claim. Such 8 defects are not subject to cure, and no leave to amend should be granted. 9 10 Based on the foregoing, the undersigned recommends that plaintiff’s complaint be dismissed, without leave to amend, for failure to allege standing and failure to state a claim. 11 These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 13 after being served with these findings and recommendations, any party may file written 14 objections with the court. Responses to objections shall be filed within 14 days after service of 15 objections. Failure to file objections within the specified time may waive the right to appeal. 16 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 18 19 20 DATED: May 16, 2018 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 7
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