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).
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
http://repository.uchastings.edu/cgi/viewcontent.cgi?article=1761&c
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?