Draper v. Lewis et al

Filing 6

ORDER; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 10/12/16 ORDERING that plaintiff's 2 request to proceed in forma pauperis is GRANTED; and it is RECOMMENDED that this action be dismissed without prejudice. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN CLINT DRAPER,

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No. 2: 16-cv-1956 JAM KJN P

Plaintiff,

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v.

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J. LEWIS, et al.,

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ORDER AND FINDINGS AND
RECOMMENDATIONS
Defendants.

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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, and requests leave to proceed in forma pauperis pursuant to 28 U.S.C.

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§ 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.

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§ 636(b)(1).

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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. § 1915(a).

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However, the court will not assess a filing fee at this time. Instead, the undersigned recommends

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summary dismissal of 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.
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. Complaint
Plaintiff alleges that defendants California Correctional Health Care Services (“CCHCS”)

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and Deputy Director J. Lewis breached the confidentiality of his personal information and

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medical records when an unencrypted laptop was stolen from the vehicle of a CCHCS employee.

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Plaintiff alleges he is now exposed to potential identity theft as a result of defendants’ negligence.

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Attached to the complaint is a letter from CCHCS notifying plaintiff of this “potential breach.”

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

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that the laptop was password protected. Plaintiff asserts a violation of the Fourth, Fifth and

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Fourteenth Amendments. He seeks damages as relief.

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IV. Analysis

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A. Eleventh Amendment

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Defendant CCHCS is not a proper defendant. State agencies, such as CDCR and CCHCS,

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are immune from suit under the Eleventh Amendment. See Will v. Michigan Dep’t of State

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Police, 491 U.S. 58, 66 (1989); Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per

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

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

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

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agencies); see also Hafer v. Melo, 502 U.S. 21, 30 (1991) (clarifying that Eleventh Amendment

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does not bar suits against state officials sued in their individual capacities, nor does it bar suits for

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

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B. Standing—Fourth Amendment Claims

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For the reasons stated herein, plaintiff does not have standing to bring his Fourth

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Amendment claim against defendant Lewis.

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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[1] 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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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 based upon a notification which states that it is unknown

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whether any sensitive information is contained in the laptop and that even if there is sensitive

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information in the laptop, the scope of the information, including whether any of plaintiff’s

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information is contained therein, is unknown. In other words, whether plaintiff’s sensitive

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information has been compromised is unknown. Plaintiff cannot state a claim for relief based

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upon the speculative breach of his sensitive information. Thus, his claim for violation of his

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constitutional right to informational privacy should be dismissed without prejudice for lack of

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standing. See Fleck & Assoc., Inc. v. City of Phoenix, 471 F.3d 1100, 1106-07 (9th Cir. 2006)

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Health Insurance Portability and Accountability Act of 1996.
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(dismissal for lack of standing is without prejudice).

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C. Fifth and Fourteenth Amendment Claims

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Plaintiff alleges that defendants violated his Fifth Amendment rights by potentially taking

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his “property,” i.e., his personal information on the laptop. In a related claim, plaintiff alleges

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that he was deprived of due process, in violation of the Fourteenth Amendment, prior to the

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taking of the laptop.

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The undersigned does not understand plaintiff’s Fifth and Fourteenth Amendment claims.

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In any event, it does not appear that plaintiff can state potentially colorable Fifth and Fourteenth

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Amendment claims based on the facts alleged. Moreover, for the reasons discussed above, it

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seems unlikely that plaintiff has standing to raise these claims. For these reasons, the undersigned

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finds that plaintiff has not stated potentially colorable Fifth and Fourteenth Amendment claims.

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V. 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 Fourth

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Amendment claims and that amendment would be futile because the notification on which

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plaintiff’s allegations are based establishes only speculative injury that is neither real nor

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immediate. In addition, plaintiff cannot cure the pleading defects with respect to his Fifth and

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Fourteenth Amendment claims. Accordingly, the undersigned recommends that this action be

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dismissed without prejudice.
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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request to proceed in forma
pauperis is granted; and

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IT IS RECOMMENDED that this action be dismissed without prejudice.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that

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failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: October 12, 2016

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Dr1956.fr

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