Miles v. California Correctional Health Care Services

Filing 8

ORDER signed by Magistrate Judge Kendall J. Newman on 12/5/2016 GRANTING plaintiff's 5 request to proceed IFP; and DISMISSING this action without prejudice. CASE CLOSED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT F. MILES,

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Plaintiff,

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No. 2:16-cv-1323 KJN P

v.

ORDER

CALIFORNIA CORRECTIONAL
HEALTH CARE SERVICES,
Defendant.

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Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to

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42 U.S.C. § 1983. Plaintiff was directed to pay the court’s filing fee or request leave to proceed

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in forma pauperis pursuant to 28 U.S.C. § 1915. Subsequently, plaintiff filed an application to

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proceed in forma pauperis, an amended complaint, and a declaration with exhibits. This

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proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c).

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I. Application to Proceed in Forma Pauperis

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Plaintiff submitted a declaration that makes the showing required by 28 U.S.C.

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§ 1915(a). However, the court will not assess a filing fee at this time. Instead, the undersigned

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summarily dismisses the complaint.

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II. Screening

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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

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2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

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meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

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1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

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statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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In order to survive dismissal for failure to state a claim, a complaint must contain more than “a

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formulaic recitation of the elements of a cause of action;” it must contain factual allegations

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sufficient “to raise a right to relief above the speculative level.” Id. at 555. However, “[s]pecific

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facts are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what

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the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93

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(2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks omitted).

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In reviewing a complaint under this standard, the court must accept as true the allegations of the

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complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most
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favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other

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grounds, Davis v. Scherer, 468 U.S. 183 (1984).

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III. Amended Complaint
Plaintiff alleges that the California Correctional Health Care Services (“CCHCS”)

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violated plaintiff’s equal protection rights and discriminated against him, and also violated

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California laws and regulations,1 by conspiring to violate the confidentiality and integrity of

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electronic medical, mental health, and custodial records by the use of unencrypted laptops.

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Plaintiff alleges that his action goes beyond negligence “because it shows a deliberate willingness

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to break the law” and to violate his constitutional rights. (ECF No. 6 at 3.) Plaintiff claims he

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was injured when the unencrypted laptop was stolen from a personal vehicle, causing an illegal

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disclosure and a loss of integrity of his confidential information. Attached to his pleading is a

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letter from CCHCS notifying plaintiff of this “potential breach.” (EC F No. 6 at 7.) The letter

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states that it is unknown if “any sensitive information was contained in the laptop” and that the

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laptop was password protected. Plaintiff asserts violation of his Fourteenth Amendment right to

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equal protection and due process, and his Fourth Amendment right of the people to be secure in

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their person, papers, and information. He seeks money damages as relief.

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On November 28, 2016, plaintiff filed a declaration with attached exhibits in support of

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his pleading. (ECF No. 7.) Plaintiff claims that he is suing Dr. Matolon and other, yet to be

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discovered individuals, based on their conspiracy to interfere with plaintiff’s civil rights. Plaintiff

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argues that he has standing because the stolen laptop was not supposed to have confidential

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information because the information was to be expunged before Dr. Matolon received the laptop.

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(ECF No. 7 at 3, citing ECF No. 7 at 10-12.) Plaintiff argues that under California regulations all

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laptops are to be encrypted. (ECF No. 7 at 3.)

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IV. Named Defendant

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Plaintiff failed to name a proper defendant. State agencies, such as the CCHCS, are
immune from suit under the Eleventh Amendment. See Will v. Michigan Dep’t of State Police,
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Plaintiff does not plead state law claims as a separate cause of action, but rather relies on state
laws and regulations within his claims alleging constitutional violations.
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491 U.S. 58, 66 (1989); Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam)

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(holding that prisoner’s Eighth Amendment claims against CDCR for damages and injunctive

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relief were barred by Eleventh Amendment immunity); Pennhurst State Sch. & Hosp. v.

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Halderman, 465 U.S. 89, 100 (1984) (Eleventh Amendment immunity extends to state agencies);

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see also Hafer v. Melo, 502 U.S. 21, 30 (1991) (clarifying that Eleventh Amendment does not bar

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suits against state officials sued in their individual capacities, nor does it bar suits for prospective

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injunctive relief against state officials sued in their official capacities).

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However, assuming that plaintiff could substitute appropriate individuals as defendants,2

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the speculative allegations of the pleading still fail to establish that plaintiff has standing because

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he cannot show an injury-in-fact.

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V. Standing
Article III of the Constitution limits the jurisdiction of federal courts to actual “Cases” and

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“Controversies.” U.S. Const. art. III, § 2. “‘One element of the case-or-controversy requirement’

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is that plaintiff [ ] ‘must establish that [he has] standing to sue.’” Clapper v. Amnesty Int’l USA,

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133 S. Ct. 1138, 1146 (2013) (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). To satisfy

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Article III standing, plaintiff must have suffered an injury in fact -- an invasion of a legally

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protected interest which is (a) concrete and particularized, and (b) actual or imminent, not

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conjectural or hypothetical. Second, there must be a causal connection between the injury and the

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conduct complained of -- the injury has to be fairly traceable to the challenged action of the

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defendant, and not the result of the independent action of some third party not before the court.

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Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations omitted) (internal quotation

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marks, brackets and ellipses omitted).

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“HIPAA[3] itself does not provide for a private right of action.” Webb v. Smart Document

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Solutions, LLC, 499 F.3d 1078, 1082 (9th Cir. 2007) (citing Standards for Privacy of Individually

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Plaintiff included Dr. Matolon as a defendant in the caption of plaintiff’s declaration. However,
Dr. Matolon is not named as a defendant in the amended complaint.
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Health Insurance Portability and Accountability Act of 1996.
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Identifiable Health Information, 65 Fed. Reg. 82462-01, 82601 (Dec. 28, 2000) (to be codified at

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45 C.F.R. pt. 160 and 164) (“Under HIPAA, individuals do not have a right to court action.”)).
While potential future harm can in some instances confer standing, plaintiff must face “a

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credible threat of harm” that is “both real and immediate, not conjectural or hypothetical.”

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Krottner v. Starbucks Corp., 628 F.3d 1139, 1143 (9th Cir. 2010) (citations and internal quotation

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marks omitted) (holding that threat of potential identity theft created by theft of a laptop known to

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contain plaintiffs’ unencrypted names, addresses, and social security numbers was sufficient to

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confer standing, but that “more conjectural or hypothetical” allegations would make threat “far

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less credible”); Clapper, 133 S. Ct. at 1147 (“[A]n injury must be concrete, particularized, and

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actual or imminent.”) (citation and internal quotation marks omitted). Plaintiff’s allegations are

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based upon a notification which states that it is unknown whether any sensitive information is

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contained in the laptop and that even if there is sensitive information in the laptop, the scope of

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the information, including whether any of plaintiff’s information is contained therein, is

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unknown. (ECF No. 6 at 7.) In other words, whether plaintiff’s sensitive information has been

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compromised is unknown. Plaintiff cannot state a claim for relief based upon the speculative

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breach of his sensitive information.4 Thus, his claim for violation of his constitutional right to

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informational privacy is dismissed without prejudice for lack of standing. See Fleck & Assoc.,

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Inc. v. City of Phoenix, 471 F.3d 1100, 1106-07 (9th Cir. 2006) (dismissal for lack of standing is

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without prejudice).

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VI. Potential State Law Claims

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Plaintiff asserts that under California Code of Regulations, Title 11, Section 999.129, all

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laptops are to be encrypted. However, any violation of state tort law, state regulations, rules and

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policies of the department of corrections, or other state law is not sufficient to state a claim for

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relief under § 1983. To state a claim under § 1983, there must be a deprivation of federal

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Constitutional or statutory rights. See Paul v. Davis, 424 U.S. 693 (1976); Galen v. County of

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Plaintiff also speculates that the stolen laptop contained visitor information that included
names, addresses, and social security numbers of his visitors. (ECF No. 6 at 4.) However,
plaintiff does not have standing to raise claims on behalf of third parties.
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Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007) (“Section 1983 requires [plaintiff] to demonstrate

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a violation of federal law, not state law.”). Although the court may exercise supplemental

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jurisdiction over state law claims, plaintiff must first have a cognizable claim for relief under

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federal law. See 28 U.S.C. § 1367.

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Here, because plaintiff lacks standing to pursue his federal claims, this court declines to

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exercise supplemental jurisdiction over any putative state law claim.5 Carnegie-Mellon Univ. v.

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Cohill, 484 U.S. 343, 350 (1988) (when federal claims are eliminated before trial, district courts

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should usually decline to exercise supplemental jurisdiction).

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VII. No Leave to Amend

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If the court finds that a complaint should be dismissed for failure to state a claim, the court

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has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-

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30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that the

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defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see

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also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given

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leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely

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clear that the deficiencies of the complaint could not be cured by amendment.”) (citing Noll v.

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Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). However, if, after careful consideration, it is clear

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that a complaint cannot be cured by amendment, the Court may dismiss without leave to amend.

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Cato, 70 F.3d at 1005-06.

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The undersigned finds that, as set forth above, plaintiff lacks standing to bring his federal

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claims, and that amendment would be futile because the notification on which plaintiff’s

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allegations are based establishes only speculative injury that is not real or immediate. Because

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plaintiff lacks standing to pursue his federal claims, the court should decline to exercise

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supplemental jurisdiction over plaintiff’s state law claims, and should dismiss the complaint

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without prejudice. Therefore, the court dismisses the complaint without prejudice.

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The court takes no position on whether plaintiff would be able to successfully pursue his claims
in state court.
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VII. Conclusion

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis is granted; and

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2. This action is dismissed without prejudice.

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Dated: December 5, 2016

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mile1323.dis

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