Khan v. California Correctional Health Care Services et al

Filing 7

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 09/14/16 recommending that this action be dismissed without leave to amend for failure to state a cognizable federal claim. No fee be imposed pursuant to plaintiff's application to proceed in forma pauperis; and the clerk of court be directed to close this case. MOTION to PROCEED IN FORMA PAUPERIS 2 referred to Judge John A. Mendez. Objections due within 21 days. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ABDUL WAHAB KHAN, 12 Plaintiff, 13 14 15 16 v. No. 2:16-cv-1479 JAM AC P FINDINGS AND RECOMMENDATIONS CALIFORNIA CORRECTIONAL HEALTH CARE SERVICES, and CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, 17 Defendants. 18 19 Plaintiff is a state prisoner incarcerated at the California Medical Facility (CMF), who 20 proceeds pro se with this civil rights action filed pursuant to 42 U.S.C. § 1983. This action is 21 referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) 22 and Local Rule 302(c). For the reasons that follow, this court recommends that this action be 23 dismissed for failure to state a cognizable federal claim. REQUEST TO PROCEED IN FORMA PAUPERIS 24 25 Plaintiff requests leave to proceed in forma pauperis. See ECF No. 2. However, because 26 the undersigned recommends summary dismissal of this action, it does not consider the merits of 27 plaintiff’s request and therefore imposes no fee. 28 //// 1 1 LEGAL STANDARDS FOR SCREENING PLAINTIFF’S COMPLAINT 2 The court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” fail to state a claim upon which relief may be granted, or seek monetary 6 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 7 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 8 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 9 Cir. 1984). The court may dismiss a claim as frivolous when it is based on an indisputably 10 meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 11 327. The critical inquiry is whether a constitutional claim, however inartfully pled, has an 12 arguable legal and factual basis. 13 A district court must construe a pro se pleading liberally to determine if it states a 14 potentially cognizable claim. The court must explain to the plaintiff any deficiencies in his 15 complaint and accord plaintiff an opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 16 1130-31 (9th Cir. 2000). While detailed factual allegations are not required, “[t]hreadbare recitals 17 of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” 18 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corporation v. Twombly, 550 19 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to 20 ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 21 550 U.S. at 570). “While legal conclusions can provide the framework of a complaint, they must 22 be supported by factual allegations.” Id. at 679. Rule 8 of the Federal Rules of Civil Procedure 23 “requires only a short and plain statement of the claim showing that the pleader is entitled to 24 relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it 25 rests.” Twombly, 550 U.S. at 555 (citation and internal quotation and punctuation marks 26 omitted). 27 //// 28 //// 2 1 A pro se litigant is entitled to notice of the deficiencies in the complaint and an 2 opportunity to amend, unless the complaint’s deficiencies cannot be cured by amendment. See 3 Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). 4 5 PLAINTIFF’S ALLEGATIONS Plaintiff seeks to challenge the suspected disclosure of his confidential medical 6 information, together with his “SSI number, full name, driver’s license number [and] home 7 address” due to the alleged negligence of the California Department of Corrections and 8 Rehabilitation (CDCR) and California Correctional Health Care Services (CCHCS). ECF No. 1 9 at 3. CCHCS informed prisoners of this possible disclosure by individual letters dated May 16, 10 2016. The letters informed each prisoner that, on April 25, 2016, CCHCS identified a “potential 11 breach” of inmates’ “Personally Identifiable Information and Protected Health Information” due 12 to the February 25, 2016 theft of “[a]n unencrypted laptop . . . from a CCHCS workforce 13 member’s personal vehicle,” although “[t]he laptop was password protected in accordance with 14 state protocol.” ECF No. 6 at 2. The letter further provides that CCHCS does not know whether 15 any sensitive information was contained in the laptop and, even if it was, does not know whose 16 information may have been included. Id. 17 Plaintiff alleges that this potential breach and delayed notification violated his rights under 18 California’s Confidentiality of Medical Information Act (CMIA), Cal. Civ. Code §§ 56 et seq., 19 and California Health and Safety Code § 1280.15, and constituted a violation of his Fourth 20 Amendment privacy rights. ECF No. 1 at 4, 6. Plaintiff seeks $24,999 in damages plus court 21 fees, and a $25,000 administrative fine. Id. at 6. Plaintiff avers that no prison administrative 22 remedy was “available” to him to grieve this matter because it occurred outside the prison. Id. at 23 3-4; see 42 U.S.C. § 1997e(a) (prisoners must exhaust all available administrative remedies 24 before commencing a civil suit). 25 26 SCREENING OF PLAINTIFF’S COMPLAINT Significantly, it is not clear that plaintiff’s confidential information was inappropriately 27 disclosed to a third party. Plaintiff’s allegations are therefore speculative and fail to establish that 28 he has standing to pursue this matter in federal court, which requires demonstration of an “injury 3 1 in fact.” See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).1 Plaintiff’s 2 speculative allegations also fail to meet the “plausibility” requirement for stating a cognizable 3 federal claim for relief. To survive dismissal for failure to state a claim, “a complaint must 4 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 5 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 6 550 U.S. 544, 570 (2007)). 7 Additionally, plaintiff has failed to name a proper defendant. Both CDCR and CCHCS 8 are state agencies and therefore not “persons” who may be sued under Section 1983. See Will v. 9 Mich. Dept. of State Police, 491 U.S. 58, 71 (1989) (“[N]either a State nor its officials acting in 10 their official capacities are ‘persons’ under § 1983.”). 11 Nor do plaintiff’s state law claims confer federal subject matter jurisdiction. See Galen v. 12 County of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007) (“Section 1983 requires [plaintiff ] to 13 demonstrate a violation of federal law, not state law.”). In the absence of a cognizable federal 14 claim, and because violations of state law are not cognizable under Section 1983, this court 15 cannot exercise supplement jurisdiction over plaintiff’s putative state law claims.2 Cf. Ove v. 16 Gwinn, 264 F.3d 817, 826 (9th Cir. 2001) (district court has discretion to decline to exercise 17 supplemental jurisdiction over state law claims upon dismissal of all claims over which it has 18 original jurisdiction). 19 //// 20 //// 21 1 22 23 24 25 26 27 28 While potential future harm can in some instances confer standing, the plaintiff must face “a credible threat of harm” that is “both real and immediate, not conjectural or hypothetical,” as it is in the instant case. Krottner v. Starbucks Corp., 628 F.3d 1139, 1143 (9th Cir. 2010) (citations and internal quotation marks omitted) (holding that threat of potential identity theft created by theft of a laptop known to contain plaintiffs’ unencrypted names, addresses, and social security numbers was sufficient to confer standing, but that “more conjectural or hypothetical” allegations would make threat “far less credible”); Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (“[A]n injury must be concrete, particularized, and actual or imminent.”) (citation and internal quotation marks omitted). 2 Moreover, it appears that even if plaintiff chooses to pursue these matters in state court, he will be required to demonstrate more than speculative harm. CMIA authorizes a suit for money damages by “an individual . . . [only] against a person or entity who has negligently released confidential information or records concerning him or her. . . .” Cal. Civ. Code § 56.36(b). 4 1 NO LEAVE TO AMEND 2 For these several reasons, this court finds that the allegations of plaintiff’s complaint fail 3 to establish federal subject matter jurisdiction or state a federal claim, and that these deficiencies 4 cannot be cured by amendment. “A district court may deny leave to amend when amendment 5 would be futile.” Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013). 6 CONCLUSION 7 Accordingly, IT IS HEREBY RECOMMENDED that: 8 1. This action be dismissed without leave to amend for failure to state a cognizable 9 federal claim; 10 2. No fee be imposed pursuant to plaintiff’s application to proceed in forma pauperis; and 11 3. The Clerk of Court be directed to close this case. 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty one days 14 after being served with these findings and recommendations, plaintiff may file written objections 15 with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 16 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 17 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 18 (9th Cir. 1991). 19 DATED: September 14, 2016 20 21 22 23 24 25 26 27 28 5

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