(PC) Hernandez v. Potts et al, No. 2:2020cv01912 - Document 11 (E.D. Cal. 2020)

Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 12/16/2020 ORDERING the Clerk to assign a district court judge to this case and RECOMMENDING plaintiff's 10 amended complaint be dismissed, and this case be closed. Assigned and referred to Judge William B. Shubb; Objections to F&R due within 14 days. (Yin, K)

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(PC) Hernandez v. Potts et al Doc. 11 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY CESAR HERNANDEZ, 12 Plaintiff, 13 v. 14 T. POTTS, et al., 15 No. 2:20-cv-1912 CKD P ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 16 17 Plaintiff is a California prisoner proceeding pro se and seeking relief pursuant to 42 18 U.S.C. § 1983. On October 13, 2020, the court screened plaintiff’s complaint as the court is 19 required to do under 28 U.S.C. § 1915A(a). Plaintiff’s complaint was dismissed with leave to file 20 an amended complaint. Plaintiff has filed an amended complaint. 21 As plaintiff now knows, the court is required to screen complaints brought by prisoners 22 seeking relief against a governmental entity or officer or employee of a governmental entity. 28 23 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has 24 raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief 25 may be granted, or that seek monetary relief from a defendant who is immune from such relief. 26 28 U.S.C. § 1915A(b)(1), (2). 27 In his amended complaint, plaintiff asserts that he has a general right rising under federal 28 law to communicate with medical providers outside of plaintiff’s prison without correspondence 1 Dockets.Justia.com 1 or medical records being reviewed by prison officials. To the extent such a right is created under 2 the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), 42 U.S.C. § 1320d, 3 et seq., federal courts have found that there is no private right of action, e.g. United States v. 4 Streich, 560 F.3d 926, 935 (9th Cir. 2009). Plaintiff fails to point to any other laws suggesting he 5 has a right not to have mail either to or from medical providers reviewed by prison staff. 6 Plaintiff also complains about the processing of prisoner grievances. However, prisoners 7 do not have “a separate constitutional entitlement to a specific prison grievance procedure.” 8 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 9 (9th Cir. 1988)). Accordingly, the prison grievance procedure does not confer any substantive 10 constitutional rights upon inmates and actions in reviewing and denying inmate appeals generally 11 do not serve as a basis for liability under section 1983. Id. 12 13 14 In all other respects, the allegations in plaintiff’s amended complaint are too vague to state a claim arising under federal law. In light of the foregoing, plaintiff’s amended complaint must be dismissed. Upon 15 dismissal of plaintiff’s original complaint, the court provided plaintiff with instructions and 16 guidance as to how plaintiff might state a claim upon which relief could be granted. Considering 17 the instructions given, and the contents of the amended complaint, it appears granting leave to 18 amend a second time would be futile. Accordingly, the court will not grant leave to amend and 19 recommend that this case be closed. 20 21 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court assign a district court judge to this case. 22 IT IS HEREBY RECOMMENDED that: 23 1. Plaintiff’s amended complaint be dismissed; and 24 2. This case be closed. 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 after being served with these findings and recommendations, plaintiff may file written objections 28 with the court. The document should be captioned “Objections to Magistrate Judge’s Findings and 2 1 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 2 waives the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 3 1991). 4 Dated: December 16, 2020 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 1 hern1912.14(2) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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