John Doe v. Jeffrey A Beard et al

Filing 41

ORDER GRANTING IN PART AND DENYING IN PART THE MOTION TO DISMISS 36 by Judge Dean D. Pregerson: The Court GRANTS the Motion to Dismiss as to the claims against Defendant Logan and DENIES the motion as to all other Defendants. (lc). Modified on 11/18/2014. (lc).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOHN DOE, (a pseudonym), 12 Plaintiff, 13 14 15 v. JEFFREY A. BEARD, Secretary, The California Department of Corrections and Rehabilitation; et al., 16 Defendants. 17 ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 13-02262 DDP (Spx) ORDER GRANTING IN PART AND DENYING IN PART THE MOTION TO DISMISS [DOCKET NUMBER 36] 18 19 Before the Court is Defendants’ Motion to Dismiss Plaintiff’s 20 Third Amended Complaint (“TAC”). 21 submissions, the Court adopts the following order and denies the 22 motion. 23 I. 24 Having considered the parties’ BACKGROUND Plaintiff was a prisoner at California Institute for Men 25 (“CIM”), which is administered by the California Department of 26 Corrections and Rehabilitation (“CDCR”). 27 positive. 28 prison) misplaced his medical file, which resulted in the file He was and is HIV- In 2012, Defendant Young (a medical technician at the 1 being delivered to another prisoner. (TAC ¶¶ 37-42.) 2 prisoner kept the file and shared its contents, including 3 Plaintiff’s status as seropositive for Human Immunodeficiency Virus 4 (“HIV”) with other prisoners. 5 Plaintiff was made aware that his file had been delivered to 6 another prisoner when other prisoners began taunting him about it. 7 (Id. at ¶ 44.) 8 that people know what you’ve got,” which Plaintiff alleges was a 9 “thinly veiled threat.” (Id. at ¶ 41.) The other The following day One said to him, “I wouldn’t want to be you now (Id.) Plaintiff also alleges that other 10 inmates “taunted and threatened” him. 11 alleges that he immediately sought assistance from corrections 12 officers (Defendants Valenzuela and Nash) in retrieving the file, 13 but the officers declined to intervene; Defendant Valenzuela 14 allegedly told him, “I want nothing to do with that.” 15 47, 51.) 16 prison psychiatrist, who contacted a corrections officer, Defendant 17 Botello, and explained that Plaintiff’s file was in the hands of 18 another prisoner and that Plaintiff was being taunted and 19 threatened by other prisoners. 20 allegedly declined to find and collect Plaintiff’s records unless 21 Plaintiff could tell him which prisoner had the records. 22 54.) 23 assistance, but that she refused to speak with him. 24 Nineteen days after Plaintiff alleges he initially contacted 25 Defendant Valenzuela for help, the records were returned, 26 apparently by the “officer of the day.” 27 Several months later, Plaintiff was able to obtain a meeting with 28 Defendant Logan, who was Defendant Young’s supervisor. (Id. at ¶ 45.) Plaintiff (Id. at ¶¶ Plaintiff also alleges he sought assistance from the (Id. at ¶ 53.) Defendant Botello (Id. at ¶ Plaintiff also alleges he returned to Defendant Young for 2 (Id. at ¶ 56.) (Id. at ¶¶ 60-61.) Defendant 1 Logan allegedly apologized for the disclosure of Plaintiff’s 2 records and stated that “it should never have happened.” 3 59.) 4 (Id. at ¶ Plaintiff’s claim under 42 U.S.C. § 1983 in his First Amended 5 Complaint (“FAC”) argued that releasing and then failing to 6 retrieve the medical file was a cognizable constitutional harm 7 under the Fourteenth Amendment. 8 Defendants’ first motion to dismiss, the Court found that 9 disclosure of medical records was a cognizable constitutional harm, (FAC ¶ 1-2.) Ruling on 10 but not if the Defendants were simply negligent. 11 11.) 12 acted with “deliberate indifference,” a mental state normally 13 associated with Eighth Amendment violations.1 14 that Plaintiff had not pled facts showing that the Defendants knew 15 of and disregarded a substantial risk of serious harm, as required 16 to meet the “deliberate indifference” standard. 17 (Dkt. No. 31 at Plaintiff argued in his opposition that the Defendants had But the Court found (Id. at 14.) Because Plaintiff had not sufficiently pled a constitutional 18 violation, the Court dismissed his First Amended Complaint without 19 addressing whether the right in play was “clearly established,” so 20 as to defeat qualified immunity. 21 state claim under the California Constitution’s right to privacy. 22 Plaintiff has now filed a Third Amended Complaint (“TAC”) alleging 23 causes of action against Defendants Young, Logan, Valenzuela, Nash, 24 and Botello under 42 U.S.C. § 1983 and against CDCR, Cate, Beard, 25 Young, Logan, Valenzuela, Nash, and Botello under the California 26 Constitution. The Court also did not reach his (Dkt. No. 35.) 27 1 28 See Estelle v. Gamble, 429 U.S. 97 (1976); Farmer v. Brennan, 511 U.S. 825 (1994). 3 1 II. 2 LEGAL STANDARD In order to survive a motion to dismiss for failure to state a 3 claim, a complaint need only include “a short and plain statement 4 of the claim showing that the pleader is entitled to relief.” 5 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. 6 Gibson, 355 U.S. 41, 47 (1957)). 7 “sufficient factual matter, accepted as true, to state a claim to 8 relief that is plausible on its face.” 9 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, Bell A complaint must include Ashcroft v. Iqbal, 556 U.S. 10 570 (2007)). 11 “accept as true all allegations of material fact and must construe 12 those facts in the light most favorable to the plaintiff.” 13 v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). 14 III. DISCUSSION 15 A. 16 When considering a Rule 12(b)(6) motion, a court must Resnick Section 1983 Claim “To establish [42 U.S.C.] § 1983 liability, a plaintiff must 17 show both (1) deprivation of a right secured by the Constitution 18 and laws of the United States, and (2) that the deprivation was 19 committed by a person acting under color of state law.” 20 v. Univ. Med. Ctr. of S. Nevada, 649 F.3d 1143, 1149 (9th Cir. 21 2011). 22 officials, acted “under color of state law.” 23 dispute that Plaintiff has alleged facts showing he was deprived of 24 a “right secured by the Constitution and laws of the United 25 States.” 26 a constitutional violation, Defendants argue that they are entitled 27 to qualified immunity from suit because the right was not clearly 28 established. Chudacoff It is not in dispute here that Defendants, as prison (Mot. Dismiss at 5-12.) Rather, Defendants In the alternative, if there was (Id. at 14.) 4 1 1. 2 Constitutional Violations Plaintiff’s TAC makes a claim under 42 U.S.C. § 1983, alleging 3 that his constitutional right to privacy has been violated. The 4 Court has already found that such a right exists, but that some 5 mental state greater than mere negligence is required to make a 6 constitutional violation cognizable under § 1983. 7 11.) 8 to act with the intent of violating his medical privacy. 9 the previous order, the Court found that there was case law (Dkt. No. 31 at Plaintiff does not allege that the Defendants acted or failed But in 10 supporting the idea that a mental state of “deliberate 11 indifference” to “a substantial risk of serious harm” was enough to 12 state a claim for a Fourteenth Amendment Due Process Clause 13 violation. 14 Cir. 1989)). 15 sufficient facts showing that Defendants actually knew of such a 16 risk, the Court left the door open for Plaintiff to argue that they 17 did in an amended complaint. 18 (Id. at 13 (citing Wood v. Ostrander, 879 F.2d 583 (9th Although Plaintiff had not, at that time, alleged The right to medical privacy, though recognized by the Ninth 19 Circuit as a constitutionally protected right,2 does not always 20 implicate the risk of “serious harm.” 21 involved will be embarrassment and annoyance. 22 some cases the unauthorized disclosure of medical information might 23 affect a person’s insurance rates or their employment prospects. Often, the chief harm More seriously, in 24 2 25 26 27 28 Doe v. Attorney Gen. of U.S., 941 F.2d 780, 795 (9th Cir. 1991) disapproved of as to other matters by Lane v. Pena, 518 U.S. 187 (1996) (holding that there is a constitutional right to privacy in medical information, including HIV status); Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir. 1998) (“The constitutionally protected privacy interest in avoiding disclosure of personal matters clearly encompasses medical information and its confidentiality.”). 5 1 In some extreme cases, the revelation that a person has certain 2 diseases might result in partial or even total social ostracism. 3 But such catastrophic consequences are likely to be rare in 4 civilian life. 5 to be any medical privacy cases decided on the deliberate 6 indifference standard in the non-prison context. 7 Thus, it is not surprising that there do not seem In the unique context of the disclosure of a prisoner’s HIV 8 status, however, the constitutional violation may subject the 9 prisoner to direct acts of violence, which would obviously qualify 10 as “serious harm.” As CDCR itself has argued in a slightly 11 different context, knowledge of a prisoner’s HIV-positive status 12 can be dangerous for the prisoner, because his fellow prisoners may 13 harbor irrational fears about transmission, however unlikely, and 14 because prisoners cannot simply avoid each other as civilians can. 15 Gates v. Rowland, 39 F.3d 1439, 1447-48 (9th Cir. 1994). 16 Powell v. Schriver, 175 F.3d 107, 115 (2d Cir. 1999) (“[I]t was . . 17 . obvious . . . that under certain circumstances the disclosure of 18 an inmate's HIV-positive status . . . could place that inmate in 19 harm's way.”). 20 positive inmates lurks in the background even of cases where courts 21 have found that disclosure of HIV status was not a constitutional 22 violation. 23 Cir. 1991) (“[T]he presence of an intervening defendant class of 24 inmates in this case who oppose the release of HIV-positive 25 prisoners into the general prison population is an indicator of 26 significant opposition that could likely degenerate into active 27 violence within the Alabama system should reintegration occur.”); 28 Muhammad v. Carlson, 845 F.2d 175, 178 (8th Cir. 1988) (segregation See also The potential danger of violence toward HIV- See, e.g., Harris v. Thigpen, 941 F.2d 1495, 1518 (11th 6 1 of HIV-positive prisoners served legitimate security purpose); 2 Moore v. Mabus, 976 F.2d 268, 270-72 (5th Cir. 1992) (claim that 3 “guards failed to protect HIV-positive prisoners” survived even 4 where medical privacy claim was deemed “frivolous”); Anderson v. 5 Romero, 72 F.3d 518, 523 (7th Cir. 1995) (suggesting that, 6 irrespective of the medical privacy issue, it would be an Eighth 7 Amendment violation “if employees of the prison, knowing that an 8 inmate identified as HIV positive was a likely target of violence 9 by other inmates yet indifferent to his fate, gratuitously revealed 10 his HIV status to other inmates”). 11 and Moore, the right to privacy was breached precisely in order to 12 protect HIV-positive patients by isolating them from the general 13 population. 14 allegations here, which suggest that Plaintiff was in danger 15 because word of his HIV status was going around in the general 16 population, of which he remained a part. 17 Indeed, in Harris, Muhammad, That is obviously a very different situation from the Interpersonal violence, in other words, is “serious harm,” and 18 disclosure of HIV–positive status has the unique potential, in the 19 prison context, to result in violence. 20 that prison officials’ deliberate indifference to the risk of such 21 violence is a sufficient mental state to establish a claim under § 22 1983 for violation of medical privacy in these circumstances.3 The Court therefore finds 23 3 24 25 26 27 28 The Court here follows the logic of Wood and its progeny, which firmly establish that state officers have an affirmative duty to protect people from danger when state action has placed them in peril in the first place. See also Maxwell v. Cnty. of San Diego, 708 F.3d 1075, 1082 (9th Cir. 2013); Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006) Munger v. City of Glasgow Police Dep't, 227 F.3d 1082, 1086 (9th Cir. 2000). Although Plaintiff has framed the issue slightly differently, as a matter of medical privacy, the logic of the “danger creation” cases would (continued...) 7 1 Plaintiff alleges that prison officials acted with deliberate 2 indifference to a substantial risk of serious harm when they failed 3 to retrieve (or even attempt to retrieve) the itinerant medical 4 file even after Plaintiff explained that it had fallen into the 5 hands of other prisoners and that he was receiving threats based on 6 his HIV status. 7 allegedly knew of the risk because Plaintiff told each of them, 8 individually, that he was the target of “repeated” “threats.” 9 at ¶¶ 47, 51, 53, 56.) Defendants Valenzuela, Nash, Botello, and Young (Id. Defendants argue that the allegations are 10 not sufficient to establish that Valenzuela, Nash, and Young 11 subjectively knew of the danger, despite having being told of it. 12 (Mot. Dismiss at 9-10.) 13 Valenzuela dismissed Plaintiff’s concerns by saying that “it’s a 14 legal matter” does not negate the fact that she was personally told 15 of a risk of violence to Plaintiff. 16 personally told of the risk. 17 Valenzuela, Nash, and Young is ultimately a question for a jury, 18 Plaintiff’s allegations raise a plausible inference that Defendants 19 knew of the risk. 20 pleading stage. The Court disagrees. The allegation that Nash and Young were also While the actual state of mind of Plausibility is all that is required at the Iqbal, 556 U.S. at 678. 21 Defendants also contend that Defendant Botello could not have 22 had the requisite deliberate indifference because the records were 23 returned two days after Plaintiff met with Botello about his 24 records, and because the TAC states that Botello was the only 25 officer who “attempted to retrieve the records.” (Mot. Dismiss at 26 3 27 28 (...continued) seem to apply equally well to this particular kind of privacy violation: state officers simply may not act with deliberate indifference to the risks of serious harm created by state action. 8 1 10.) But the TAC specifically says that the records were initially 2 acquired by “the ‘officer of the day’ in Joshua Hall,” not by 3 Botello. 4 Botello took any affirmative steps to secure the records prior to 5 that point. 6 response was a refusal to help Plaintiff unless Plaintiff first 7 undertook an investigation in a part of the prison he had no access 8 to. 9 inference of deliberate indifference on Botello’s part. (TAC, ¶ 60.) There is no indication that Defendant Indeed, Plaintiff alleges that Botello’s initial (Id. at ¶¶ 54, 62.) The TAC therefore raises a plausible 10 As to Defendant Logan, however, the Court agrees with 11 Defendants that the allegations in the TAC do not show that she 12 violated Plaintiff’s constitutional rights. 13 complaint with regard to Defendant Logan is that she did not meet 14 with him right away. 15 would have been useful in retrieving Plaintiff’s records and 16 reducing the risk of violence, it is not clear that Defendant Logan 17 understood before their meeting that Plaintiff had been threatened 18 with harm. 19 generally, not that he had communicated the threats to Logan in his 20 attempts to schedule a meeting with her. 21 although Defendant Logan may have been somewhat negligent in 22 waiting four months to respond to Plaintiff’s request for a 23 meeting, it cannot be said on these allegations that she acted with 24 deliberate indifference. 25 Plaintiff’s primary Assuming that an earlier meeting with Logan Plaintiff alleges only that he “had reported” threats (Id. at 59.) Therefore, Plaintiff has alleged sufficient facts to state a § 1983 claim 26 for a constitutional violation as to Defendants Valenzuela, Nash, 27 Young, and Botello. 28 Defendant Logan. The claim is dismissed, however, as to 9 1 2 2. Qualified Immunity Defendants assert qualified immunity as a defense. “The 3 doctrine of qualified immunity protects government officials from 4 liability for civil damages insofar as their conduct does not 5 violate clearly established statutory or constitutional rights of 6 which a reasonable person would have known.” 7 555 U.S. 223, 231 (2009). 8 Defendants violated a clearly established constitutional right. 9 Pearson v. Callahan, Thus, the question here is whether Defendants urge the Court to find that, even if Plaintiff had 10 a right to privacy in his medical information (and especially his 11 HIV-positive status), the right against disclosure under these 12 circumstances was not “clearly established” at the time his file 13 was left in the hands of other inmates. 14 argument. 15 Although that right is heavily circumscribed in prison,5 it is also The Court rejects that The right to medical privacy is clearly established.4 16 4 17 18 19 20 21 22 23 24 25 26 27 28 Nelson v. Nat'l Aeronautics & Space Admin., 530 F.3d 865, 877 (9th Cir. 2008) rev'd as to other matters, 562 U.S. 134 (2011) (“We have repeatedly acknowledged that the Constitution protects an individual interest in avoiding disclosure of personal matters. This interest covers a wide range of personal matters, including . . . medical information . . . .”); Tucson Woman's Clinic v. Eden, 379 F.3d 531, 551 (9th Cir. 2004) (“Individuals have a constitutionally protected interest in avoiding ‘disclosure of personal matters,’ including medical information.); Doe v. Attorney Gen. of U.S., 941 F.2d 780, 795 (9th Cir. 1991) disapproved of as to other matters by Lane v. Pena, 518 U.S. 187 (1996) (holding that there is a constitutional right to privacy in medical information, including HIV status). See also Doe v. City of New York, 15 F.3d 264, 267 (2d Cir. 1994) (“Individuals who are infected with the HIV virus clearly possess a constitutional right to privacy regarding their condition.”); Doe v. Delie, 257 F.3d 309, 331 (3d Cir. 2001) (“[W]e have recognized the right to confidentiality in medical records since 1980.”). 5 See, e.g., Seaton v. Mayberg, 610 F.3d 530, 534 (9th Cir. 2010) (“To the extent that his constitutional claim attacks disclosure while he was in prison serving his sentence and for a penological purpose relating to his imprisonment, Seaton's claim (continued...) 10 1 clearly established that “a prison inmate retains those 2 [constitutional] rights that are not inconsistent with his status 3 as a prisoner or with the legitimate penological objectives of the 4 corrections system.” 5 reasonable prison official thus would have been on notice that he 6 or she could not violate Plaintiff’s right to medical privacy 7 absent some legitimate penological objective. 8 even attempted to show that their refusal to try to retrieve the 9 record (or otherwise mitigate the potentially dangerous effects of Turner v. Safley, 482 U.S. 78, 95 (1987). A Defendants have not 10 the disclosure) was related to such an objective. 11 discussed in note 3, supra, it is clearly established that state 12 officials may not act or fail to act with deliberate indifference 13 to dangers created by state action. 14 correct that there does not appear to be a Ninth Circuit case with 15 facts identical to this one, the Court finds that the above 16 principles all apply to this situation and were clearly 17 established. 18 Finally, as Thus, although Defendants are The Court finds that the Defendants do not have a defense of 19 qualified immunity in this case. 20 B. 21 California Constitutional Right To Privacy Claim Plaintiff alleges that the Defendants violated his 22 constitutional right to privacy. 23 Plaintiff had not pled sufficient facts to establish his § 1983 24 claim in the FAC, the Court did not consider his California Cal. Const. art. I, § 1. Because 25 26 5 27 28 (...continued) falls within the body of law regarding privacy for prisoners, the general principle being that whatever privacy right he has may be overridden for legitimate penological reasons.”) (emphases added). 11 1 constitutional claim in the previous order and addresses it here 2 for the first time. 3 1. 4 Government Claims Act Immunity Defendants, as a threshold matter, assert governmental 5 immunity “afforded to public entities and employees through the 6 Government Claims Act (Cal. Gov’t Code § 810 et seq.).” 7 Dismiss at 17:12-13.) 8 constitutional provisions, Defendants cite to two cases for the 9 proposition that statutory immunity does trump the constitutional 10 11 (Mot. Although statutes generally do not trump right to privacy under California law. In Jacob B. v. Cnty. of Shasta, the California Supreme Court 12 held that the litigation privilege embodied in Cal. Civil Code § 13 47(b) protected parties against causes of action rooted in the 14 state constitutional right to privacy with regard to publications 15 made in connection with a judicial proceeding. 16 (2007). 17 was subject to interest-balancing, id. at 961, and that the 18 interests safeguarded by the litigation privilege were important 19 enough to outweigh the right “not on a case-by-case basis but in 20 all cases.” 21 40 Cal. 4th 948 The court noted that the constitutional right to privacy Id. at 962. The Jacob B. court observed that the litigation privilege had 22 existed for “well over a century,” and had been applied as a nearly 23 absolute privilege at least since 1956. 24 “not aware of[] anything in the ballot materials or history of the 25 1972 initiative that added the constitutional right to privacy that 26 suggested any intent to limit the scope of this preexisting 27 privilege.” 28 adopted California Constitution, article I, section 1, they did so Id. Id. at 961. The court was Thus, the court declared that “[w]hen the voters 12 1 mindful of the preexisting litigation privilege.” 2 concluding that courts did not need to conduct interest-balancing 3 on a case-by-case basis when it came to the litigation privilege, 4 the court held that “[i]n adopting the litigation privilege, the 5 Legislature has already done the balancing.” 6 Id. And in Id. These conclusions suffer from some logical shortcomings. If 7 the ballot materials did not mention the litigation privilege, it 8 seems more reasonable to assume that California voters were not 9 mindful of it. And it is particularly hard to see how the 10 Legislature, in statutorily codifying the litigation privilege in 11 1872, could have adequately considered a constitutional privacy 12 interest not created until a century later. 13 court’s opinion is clear, and California law is settled as to the 14 effect of Cal. Civil Code § 47 on the constitutional privacy. 15 Nonetheless, the But one California Court of Appeals has gone further, relying 16 on Jacob B. and holding broadly that “[t]he constitutional right to 17 privacy does not limit the scope of a preexisting statutory 18 immunity,” including immunity under the provisions of the 19 Government Claims Act (“GCA”). 20 Program for Employees (SIPE), 157 Cal. App. 4th 1056, 1066 (2007). 21 The court there noted that “[t]he voter information materials for 22 the 1972 initiative demonstrate the intent to restrain 23 ‘governmental snooping’ and compilation of ‘cradle to grave’ 24 ‘dossiers of American citizens.’ The restraint on governmental 25 snooping is accomplished by the availability of injunctive relief 26 for invasion of privacy.” 27 28 Richardson-Tunnell v. Sch. Ins. Id. (citation omitted). With due respect for the Court of Appeals as an expositor of California law, this Court disagrees. 13 First, the Richardson- 1 Tunnell court does not explain how injunctive relief alone is 2 supposed to restrain governmental misuse of private information, 3 given that in many cases, this one included, an injunction would be 4 moot by the time the case was fully litigated. 5 cursory citation to a few words in the voter information pamphlet 6 does not explain how providing government agencies or employees a 7 blanket immunity to constitutional tort liability would further 8 article I, § 1's broader policy goals. 9 California Constitution was not intended solely to prevent Second, the court’s The amendment to the 10 “government snooping” or the creation of “dossiers.” As proponents 11 of the amendment explained, the ability to “control circulation of 12 personal information” is “essential to social relationships and 13 personal freedom.” 14 26, 27 (November 1972), available at 15 16 ontext=ca_ballot_props. 17 “private businesses” as well as the government shows that the scope 18 of concerns motivating the amendment was broader than mere 19 government monitoring. 20 757, 775 (1975) (finding in the legislative history at least four 21 “mischiefs” the amendment was intended to address, including “the 22 improper use of information properly obtained for a specific 23 purpose, for example . . . the disclosure of it to some third 24 party”) (emphasis added). 25 that the right embodied in the amendment was not absolute, they saw 26 its reach as being limited by “compelling public necessity.” 27 Ballot Pamphlet at 28. 28 important policy considerations surrounding the litigation California Secretary of State, Ballot Pamphlet That the amendment was designed to reach Id. See also White v. Davis, 13 Cal. 3d Moreover, while proponents acknowledged The Jacob B. court explained the unusually 14 1 privilege, which probably supported an implicit finding of 2 compelling necessity in that narrow context.6 3 Richardson-Tunnell court nor Defendants have explained what 4 compelling public necessity is served by giving government actors 5 broad immunity from constitutional claims for damages.7 6 But neither the While the Court is bound by the California Supreme Court’s 7 holding in Jacob B., it is not bound by Richardson-Tunnell, and it 8 comes to a different conclusion as to the statutory immunities 9 provided by the GCA. 10 statutory immunity.8 Defendants are not entitled to a defense of 11 6 12 13 14 15 “The litigation privilege furthers the vital public policy of affording free access to the courts and facilitating the crucial functions of the finder of fact. This policy exists even if a privacy cause of action invokes the Constitution . . . The same compelling need to afford free access to the courts exists whatever label is given to a privacy cause of action.” Jacob B., 40 Cal. 4th at 962 (citations and internal quotation marks omitted). 7 16 17 18 19 20 At least one California appellate court, albeit pre-Jacob B., has explicitly recognized that the constitutional tort is not necessarily subject to the same limitations as other privacy torts: “The [ballot pamhplet] indicates that the interests traditionally embraced by the tort of invasion of privacy now come within the protection of article 1, section 1, although the limits of the tort cause of action do not necessarily represent limits to an action taken for violation of the constitutional right.” Urbaniak v. Newton, 226 Cal. App. 3d 1128, 1137 (1991) (emphasis added). 8 21 22 23 24 25 26 27 28 Even if there were statutory immunity, it is doubtful that it would protect the individual Defendants here. Defendants assert immunity under Cal. Gov’t Code § 820.8, which provides public employees immunity from liability for the acts of others. Defendants’ theory is that § 820.8 protects Cate and Beard from liability under respondeat superior and protects the other Defendants from liability for the actions of Plaintiff’s fellow inmates. But Cate and Beard are not being sued under a respondeat superior theory; they are being sued for allegedly failing to create adequate procedures and failing to properly train prison staff. As to the other Defendants, by its plain language § 820.8 does not “exonerate[] a public employee from liability for injury proximately caused by his own negligent or wrongful act or omission.” This is true even where other persons are the direct cause of the injury, if their actions are a clearly foreseeable (continued...) 15 1 2. Elements of a Constitutional Right to Privacy Claim 2 To establish a claim for violation of the right to privacy 3 under article I, § 1, a plaintiff must establish “(1) a legally 4 protected privacy interest; (2) a reasonable expectation of privacy 5 in the circumstances; and (3) conduct by defendant constituting a 6 serious invasion of privacy.” 7 Assn., 7 Cal. 4th 1, 39-40 (1994). 8 9 Hill v. Nat'l Collegiate Athletic The parties apparently agree, and so does the Court, that this case turns on the third prong–whether Defendants’ conduct 10 constituted a serious invasion of privacy. 11 Opp’n at 10; Reply at 7.) 12 constitute an “egregious breach of the social norms underlying the 13 privacy right.” 14 than an intrusion upon reasonable privacy expectations. 15 “Actionable invasions of privacy also must be ‘highly offensive’ to 16 a reasonable person . . . .” 17 4th 272, 295 (2009). 18 (Mot. Dismiss at 15; To be “serious,” the invasion must Hill, 7 Cal. 4th at 37. Plaintiffs must show more Hernandez v. Hillsides, Inc., 47 Cal. Because the intrusion on privacy must be egregious and highly 19 offensive, an accidental disclosure (of the kind that is inevitable 20 when human beings process large amounts of information) is not 21 necessarily sufficient to sustain a claim under article I, § 1. 22 The Northern District of California has stated, for example, that 23 “[e]ven negligent conduct that leads to theft of highly personal 24 information, including social security numbers, does not approach 25 8 26 27 28 (...continued) consequence of the public employee’s act or omission. See Roberts v. California Dep't of Corr., No. 2:13-CV-07461-ODW JC, 2014 WL 1308506, at *3 (C.D. Cal. Apr. 1, 2014) (section 820.8 does not shield a corrections officer who gives hostile prisoners access to another prisoner’s cell knowing that they are likely to stab him). 16 1 the standard of actionable conduct under the California 2 Constitution . . . .” 3 Supp. 2d 1040, 1063 (N.D. Cal. 2012). 4 In re iPhone Application Litig., 844 F. On the other hand, public policy concerns may counsel setting 5 a lower threshold for “egregious violations of social norms” when 6 it comes to certain types of information. 7 I, § 1 prohibits disclosure of medical information, including HIV 8 status, because disclosure can “subvert a public interest favoring 9 communication of confidential information” to medical personnel, So, for example, article 10 both for treatment purposes and for their own safety. 11 Newton, 226 Cal. App. 3d 1128, 1140 (1991). 12 sometimes embodied in statutes, Lloyd v. Cnty. of Los Angeles, 172 13 Cal. App. 4th 320, 329 (2009), and there is a California statute on 14 point here. 15 criminal penalties on anyone negligently disclosing the results of 16 an HIV test if the disclosure “results in economic, bodily, or 17 psychological harm to the subject of the test”. 18 privacy serious enough to support criminal charges is, almost by 19 definition, an egregious violation of social norms. 20 negligent disclosure of HIV-positive status can be an egregious 21 violation of social norms if it causes harm–including psychological 22 harm–to the patient. 23 “humiliation, fear, embarrassment . . . mental anguish, and 24 suffering,” as well as the threat of bodily harm from other 25 prisoners. 26 plausibly describe an egregious breach of social norms. 27 28 Urbaniak v. Public policy is California Health & Safety Code § 120980(c) imposes A breach of Thus, even Here, Plaintiff alleges that he experienced (TAC ¶ 84.) Plaintiff’s allegations are sufficient to Because even the allegation of a negligent disclosure can sustain an article I, § 1 claim for breach of privacy under these 17 1 circumstances, allegations of a deliberately indifferent failure to 2 attempt to retrieve the missing records must, a fortiori, sustain a 3 claim as well. 4 Plaintiff has stated a claim for breach of privacy in 5 violation of the California Constitution, and the Motion to Dismiss 6 is denied as to this claim. 7 C. 8 9 Punitive Damages Defendants argue that Plaintiff’s request for punitive damages should be stricken because Plaintiff has not alleged either “evil 10 motive” or a “reckless and callous indifference to federally 11 protected rights.” 12 argues that a finding of deliberate indifference to a substantial 13 risk of serious harm is the same thing as a finding of callous 14 indifference to a constitutional right. 15 Defendants do not take the matter up further in their Reply. 16 (Mot. Dismiss at 19.) Plaintiff, however, (Opp’n. at 13.) Plaintiff’s equivalence is not self-evidently correct. One 17 can be indifferent to a risk of harm without necessarily being 18 indifferent to a constitutional right. 19 Wade, the Supreme Court affirmed a punitive damages award in a case 20 where the district court instructed the jury that such damages 21 could only be awarded on a finding of “reckless or callous 22 disregard of, or indifference to, the rights or safety of others.” 23 461 U.S. 30, 33 (1983) (emphasis added). 24 district court’s “safety” language in its own opinion, explaining 25 why a recklessness standard for punitive damages does not undermine 26 the qualified immunity of corrections officers: “The very fact that 27 the privilege is qualified reflects a recognition there is no 28 societal interest in protecting those uses of a prison guard's 18 Nonetheless, in Smith v. The Court repeated the 1 discretion that amount to reckless or callous indifference to the 2 rights and safety of the prisoners in his charge.” 3 (emphasis added). 4 indifference to safety also supports an award of punitive damages. 5 “Before a motion to strike is granted the court must be 6 convinced that there are no questions of fact, that any questions 7 of law are clear and not in dispute, and that under no set of 8 circumstances could the claim or defense succeed.” 9 v. Fox Broad. Co., 372 F. Supp. 2d 556, 561 (C.D. Cal. 2005). Id. at 55 Thus, Smith seems to suggest that reckless RDF Media Ltd. 10 Plaintiff alleges that Defendants acted with deliberate 11 indifference to a substantial risk to his safety, and his 12 allegations could also give rise to an inference of indifference to 13 his rights. 14 that it will be shown that Defendants acted with reckless disregard 15 for Plaintiff’s rights or safety or both, the Court cannot say at 16 this point that there is no set of circumstances under which 17 Plaintiff’s claim to punitive damages could succeed. 18 strike is denied. 19 D. 20 Given the Court’s reading of Smith and the possibility The motion to Declaratory Judgment Defendants also move to strike Plaintiff’s request for “an 21 order Declaring Defendants conduct unconstitutional.” 22 “Request for Relief,” ¶ 2.) 23 unconstitutionality is “an element of Plaintiff’s first cause of 24 action,” (Opp’n at 15:7-8), and the Court therefore interprets the 25 request as, essentially, an elaboration of the prayer for judgment. 26 /// 27 /// 28 /// (TAC, Plaintiff notes that a finding of 19 1 2 IV. CONCLUSION For the above reasons, the Court GRANTS the Motion to Dismiss 3 as to the claims against Defendant Logan and DENIES the motion as 4 to all other Defendants. 5 6 IT IS SO ORDERED. 7 8 9 Dated: November 18, 2014 10 DEAN D. PREGERSON 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20

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