Thompson v. Vidurria et al

Filing 53

ORDER denying 35 Motion for contempt of court and sanctions signed by Magistrate Judge Stanley A. Boone on 12/14/2015. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TYRONE THOMPSON,

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Plaintiff,
v.
VIDURRIA, et al.,

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Defendants.

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Case No.: 1:14-cv-01896-LJO-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR CONTEMPT OF COURT AND
SANCTIONS
[ECF No. 35]

Plaintiff Tyrone Thompson is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.

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On October 15, 2015, Plaintiff filed a motion for contempt of court and sanctions. (ECF No.

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35.) Defendants filed an opposition on November 13, 2015, and Plaintiff filed a reply on December

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10, 2015. (ECF Nos. 45, 52.)

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I.

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DISCUSSION

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A.

Complaint Allegations

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This action is proceeding against Defendants Martinez and Vidaurri for deliberate indifference

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to a serious medical need in violation of the Eighth Amendment. Plaintiff alleges that on May 2,

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2014, he was scheduled to attend an out-of-prison medical appointment related to a “black spot” on his

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lung. Prior to the appointment, Defendant Vidaurri asked Plaintiff “can you go up and down the stairs
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to the van?” Plaintiff responded “no” and Vidaurri responded, “If you cannot go up and down the

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stairs to the van, I’m not taking you to your appointment…” As a result, Plaintiff did not go to his

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scheduled medical appointment on May 2, 2014. Later in the month of May, Plaintiff began having

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breathing problems and was taken to the main hospital for emergency breathing treatment. Dr.

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Alphonso told Plaintiff that if he had not refused his prior outside medical appointment, he would not

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be experiencing the breathing problems.
On that same day, May 2, 2014, Plaintiff filed an inmate appeal. On May 12, 2014, Sergeant

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Martinez called Plaintiff to the program office for an interview regarding the inmate appeal relating to

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the actions of officer Vidaurri. Martinez told Plaintiff he was not going to do anything to officer

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Vidaurri and asked Plaintiff to drop the inmate appeal. Plaintiff told him he was not going to drop the

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inmate appeal against Vidaurri.
On May 22, 2014, Plaintiff was transferred to the California Medical Facility (“CMF”) in

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Vacaville. When Plaintiff arrived at CMF, he put in medical forms because he was having difficulty

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breathing. Plaintiff was examined by Dr. Bick and was placed on breathing treatments three times a

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day and requires the use of three different inhalers. Plaintiff was also sent to an outside facility to

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examine the black spot on his lung and was prescribed pain medication. Dr. Bick informed Plaintiff

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that he would be experiencing the problems if he had previously been sent to an outside medical

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examination.

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B.

Federal Rule of Civil Procedure 11 Sanctions

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Defense counsel submits that approximately six months after the complaint was filed, he

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obtained Plaintiff’s medical records related to the allegations set forth in the complaint. (See ECF No.

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35 at 22.) Plaintiff opposes such action by way of filing a motion for contempt of court and sanctions.

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Attached to Plaintiff’s motion is a receipt for copy of health records issued by the California

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Correctional Health Care Services. (Id.) The receipt is dated April 17, 2015, and indicates that the

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Office of the Attorney General is to receive Plaintiff’s unit health record, including “All Medical,” but

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not records related to HIV/Aids tests, Alcohol/drug abuse, dental care, or any mental health services.”

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(Id.)

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Federal Rule of Civil Procedure 11 sanctions are justified if a party or their attorney submits a

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pleading to the court which is submitted for an improper purpose, is frivolous, has no evidentiary

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support or not warranted by the evidence. A party moving for Rule 11 sanctions bear the burden to

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show why sanctions are justified. See Tom Growney Equip., v. Shelley Irr. Dev., Inc., 834 F.2d 833,

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837 (9th Cir. 1987). The Ninth Circuit has stated that Rule 11 sanctions are “an extraordinary remedy,

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one to be exercised with extreme caution.” Operating Eng’rs Pension Trust v. A-C Co., 859 F.2d

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1336, 1345 (9th Cir. 1988).

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Before filing a motion for sanctions with the court, however, the party must first serve it on the
opposing party and allow the opposing party a “safe harbor” of 21 days in which to withdraw or

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correct the challenged filing. Fed. R. Civ. P. 11(c)(2); see also Retail Flooring Dealers of Am., Inc. v.

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Beaulieu of Am., LLC, 339 F.3d 1146, 1150 (9th Cir. 2003). The safe harbor provision is mandatory.

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Truesdell v. S. Cal. Permanente Med. Grp., 293 F.3d 1146, 1152 (9th Cir. 2002). A party that fails to

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comply with the safe harbor provision, e.g., by filing a motion for sanctions fewer than 21 days after

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serving it on the opposing party, is not entitled to sanctions. Holgate v. Baldwin, 425 F.3d 671, 678-

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679 (9th Cir. 2005).

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In this instance, Rule 11 sanctions are not warranted. Defendants have not filed any pleadings

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which are “baseless.” Furthermore, Plaintiff did not comply with the safe harbor provision of Rule

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11. The certificate of service accompanying his motion for sanctions is dated October 10, 2015. (ECF

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No. 35, at 31.) The motion was filed on October 15, 2015. (ECF No. 35). Accordingly, Plaintiff’s

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motion for Rule 11 sanctions must be DENIED, both as procedurally defective and for lack of merit.

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C.

Contempt of Court

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Federal Rule of Civil Procedure 37 provides for civil contempt instead of, or in additional to,

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other sanctions. Fed. R. Civ. P. 37(b)(2)(D). The sanction of civil contempt is characterized by the

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court’s desire to compel “a party’s [] obedience to a specific and definite court order [after the party

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has] fail[ed] to take all reasonable steps within the party’s power to comply.” Go-Video, Inc. v.

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Motion Picture Ass’n of America, 10 F.3d 693, 695 (9th Cir. 1993); Gifford v. Heckler, 741 F.2d 263,

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265 (9th Cir. 1984). Thus, “[c]ivil contempt sanctions … are employed for two purposes: to coerce

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the defendant into compliance with the court’s order, and to compensate the complainant for losses

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sustained.” Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 517 (1992).

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In this instance, a civil contempt finding is not warranted because no “specific or definite”

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order of the Court has been violated. Here, the California Attorney General’s office has obtained a

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copy of Plaintiff’s relevant medical documents to defend against the claims raised by Plaintiff in his

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complaint, and as defense counsel submits, Plaintiff’s medical records have not been disclosed to any

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third party. The California Attorney General is the “chief law officer of the state.” Cal. Const., Art.

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5, § 13. “The Attorney General has charge, as attorney, of all legal matters in which the state is

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interested…” Cal. Gov’t. Code § 12511. The State owes a mandatory duty of indemnity for public

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employees. Cal. Gov’t. Code § 825. Disclosure of Plaintiff’s medical records was provided to the

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Office of the Attorney General, which is entirely proper to defend against Plaintiff’s medical claim.

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Accordingly, there is simply no basis for a civil contempt finding and Plaintiff’s motion must be

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DENIED.

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D.

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Plaintiff seeks to an order imposing sanctions on counsel for Defendant because of his, in

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Plaintiff’s view, unauthorized access to his prison medical file. Plaintiff contends that Defendant’s use

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of his prison medical record violates his Fourth Amendment expectation of privacy and the Health

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Insurance Portability and Accountability Act, 42 U.S.C. § 1320d, et. seq. (HIPAA). By filing a

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complaint for monetary damages, Plaintiff has put his medical condition at issue.

Constitutional and Civil Rights Violations

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Regarding Plaintiff’s HIPAA argument, Plaintiff is advised that federal courts have found that

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HIPAA created no private right of action. U.S. v. Streich, 560 F.3d 926 (9th Cir. 2009) (“HIPAA does

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not provide any private right of action.”); Webb v. Smart Document Solutions, LLC, 499 F.3d 1078,

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1081 (9th Cir. 2007)(“HIPAA itself provides no right of action.”); University of Colorado Hosp. v.

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Denver Publ’g Co., 350 F.Supp.2d 1142, 1145 (D. Colo. 2004) (holding that HIPAA statutory text and

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structure display no intent to create a private right of action, and noting that Act expressly provides a

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method for enforcing prohibitions, i.e., punitive fines and/or imprisonment, which indicates Congress

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did not intend to allow an additional private remedy). Put another way, only the government can bring

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a claim against a medical provider for violation of HIPAA.
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Regarding Plaintiff’s Fourth Amendment claim, the Ninth Circuit has held that prisoners do

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not have a constitutionally protected expectation of privacy in prison treatment records when the state

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has a legitimate penological interest in access to them. Seaton v. Mayberg, 610 F.3d 530, 534-35 (9th

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Cir. 2010). Because Defendants have been sued for money damages for medical indifference toward

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Plaintiff, the penological interest in access to Plaintiff’s prison medical records is substantial. Plaintiff

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does not, therefore, have an expectation of privacy in his prison medical records.

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II.

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CONCLUSION AND ORDER
Because Plaintiff voluntarily filed this lawsuit and placed his medical condition at issue, he

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parted with the typical privacy entitlement he may otherwise maintain. Because it was reasonable for

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Defendants to obtain Plaintiff’s relevant medical records, Plaintiff’s motion for contempt of court and

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sanctions is DENIED.

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IT IS SO ORDERED.

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Dated:

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December 14, 2015
UNITED STATES MAGISTRATE JUDGE

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