Valdez v. Matolon

Filing 6

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 4/3/2017 GRANTING plaintiff's 2 request to proceed IFP. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order. IT IS RECOMMENDED that this action be dismissed without prejudice. Referred to Judge William B. Shubb; Objections to F&R due within 14 days. (Yin, K)

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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 JOSE LUIS VALDEZ, 12 13 14 15 No. 2:16-cv-2164 WBS DB P Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS MATOLON, Defendant. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. § 18 1983. Plaintiff alleges his private medical information may have been on an unencrypted laptop 19 computer that was stolen from an employee of defendants. Before the court are plaintiff’s motion 20 to proceed in forma pauperis and plaintiff’s complaint for screening. For the reasons set forth 21 below, the court grants plaintiff’s motion to proceed in forma pauperis and recommends dismissal 22 of the complaint without prejudice. 23 24 25 26 IN FORMA PAUPERIS Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 27 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 28 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 1 1 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 2 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 3 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 4 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 5 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 6 1915(b)(2). 7 SCREENING 8 I. 9 The court is required to screen complaints brought by prisoners seeking relief against a Legal Standards 10 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 11 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 12 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 13 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 14 U.S.C. § 1915A(b)(1) & (2). 15 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 16 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 17 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 18 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 19 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 20 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. 21 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 22 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 23 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 24 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 25 However, in order to survive dismissal for failure to state a claim a complaint must contain more 26 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 27 allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 28 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 2 1 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 2 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 3 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 4 The Civil Rights Act under which this action was filed provides as follows: 5 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 6 7 8 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 9 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 10 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 11 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 12 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 13 omits to perform an act which he is legally required to do that causes the deprivation of which 14 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 15 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 16 their employees under a theory of respondeat superior and, therefore, when a named defendant 17 holds a supervisorial position, the causal link between him and the claimed constitutional 18 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 19 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 20 concerning the involvement of official personnel in civil rights violations are not sufficient. See 21 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 22 II. 23 Plaintiff is incarcerated at the California Medical Facility. Plaintiff identifies Dr. Matolon, a Allegations of the Complaint 24 Mental Health Specialist with California Correctional Health Care Services (“CCHCS”) and 25 “John Does” as defendants. In his first claim, plaintiff alleges that Dr. Matolon and her 26 employers conspired to violate plaintiff’s and other prisoners’ civil rights by failing to keep their 27 //// 28 //// 3 1 medical records confidential. Plaintiff contends this failure amounts to a violation of numerous 2 constitutional rights. 1 3 In his second claim, plaintiff contends his Fourth Amendment right to be free of unreasonable 4 searches and seizures was violated by Dr. Matolon’s placement of his electronic medical records, 5 representing his care for eighteen years, in an unencrypted laptop computer which was stolen 6 from her car. In his third claim, plaintiff alleges the defendants deprived him of his personal 7 information/property without due process. 8 Attached to plaintiff’s complaint are notices and letters showing that inmates were advised 9 that a laptop computer that may have had personal information about inmates was stolen from an 10 employee’s car. These documents explain that CCHCS “cannot be certain of whether or not 11 information was breached or even located on the laptop.” (Ex. to Comp. (ECF No. 1 at 11).) 12 Plaintiff seeks compensatory and punitive damages. He also requests a permanent injunction 13 requiring defendants to adhere to California laws and regulations regarding the storage of 14 prisoner’s private information. 15 III. 16 Plaintiff fails to state a cognizable claim because he fails to show he has suffered an injury in 17 fact. Article III of the Constitution limits the jurisdiction of federal courts to actual “Cases” and 18 “Controversies.” U.S. Const. art. III, § 2. “‘One element of the case-or-controversy requirement’ 19 is that plaintiff [ ] ‘must establish that [he has] standing to sue.’” Clapper v. Amnesty Int'l USA, 20 133 S. Ct. 1138, 1146 (2013) (quoting Raines v. Byrd, 521 U.S. 811, 818(1997)). To satisfy 21 Article III standing, plaintiff must have suffered an injury in fact—an invasion of a legally 22 protected interest which is (a) concrete and particularized, and (b) actual or imminent, not 23 conjectural or hypothetical. Second, there must be a causal connection between the injury and the 24 conduct complained of—the injury has to be fairly traceable to the challenged action of the 25 defendant, and not the result of the independent action of some third party not before the Does Plaintiff State a Cognizable Federal Claim? 26 27 28 1 Plaintiff also cites California rules and regulations regarding information privacy. 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. 4 1 court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations omitted) (internal 2 quotation marks, brackets and ellipses omitted). 3 The fact that medical records are entitled to privacy protections, under state law or under 4 federal law, does not, itself, provide for a private right of action under § 1983. Webb v. Smart 5 Document Solutions, LLC, 499 F.3d 1078, 1082 (9th Cir. 2007) (citing Standards for Privacy of 6 Individually Identifiable Health Information, 65 Fed. Reg. 82462-01, 82601 (Dec. 28, 2000) (to 7 be codified at 45 C.F.R. pt. 160 and 164) (“Under HIPAA, individuals do not have a right to court 8 action.”)). 9 While potential future harm can in some instances confer standing, plaintiff must face “a 10 credible threat of harm” that is “both real and immediate, not conjectural or 11 hypothetical.” Krottner v. Starbucks Corp., 628 F.3d 1139, 1143 (9th Cir. 2010) (citations and 12 internal quotation marks omitted) (holding that threat of potential identity theft created by theft of 13 a laptop known to contain plaintiffs' unencrypted names, addresses, and social security numbers 14 was sufficient to confer standing, but that “more conjectural or hypothetical” allegations would 15 make threat “far less credible”); Clapper, 133 S. Ct. at 1147 (“[A]n injury must be concrete, 16 particularized, and actual or imminent.” (Citation and internal quotation marks omitted.)). 17 In the body of his complaint, plaintiff appears to contend that his medical information was, in 18 fact, on the stolen laptop. However, the exhibits supporting the complaint do not support that 19 contention. Plaintiff's allegations are based upon a notification which states that it is unknown 20 whether any sensitive information is contained in the laptop and that even if there is sensitive 21 information in the laptop, the scope of the information, including whether any of plaintiff's 22 information is contained therein, is unknown. In other words, whether plaintiff's sensitive 23 information has been compromised is unknown. Plaintiff cannot state a claim for relief based 24 upon the speculative breach of his sensitive information. Thus, his claim for violation of his 25 constitutional right to informational privacy should be dismissed without prejudice for lack of 26 //// 27 //// 28 //// 5 1 standing. 2 See Fleck & Assoc., Inc. v. City of Phoenix, 471 F.3d 1100, 1106-07 (9th Cir. 2006) 2 (dismissal for lack of standing is without prejudice). 3 IV. 4 Plaintiff asserts that under the California Code of Regulations, all laptops are to be encrypted. 5 However, any violation of state tort law, state regulations, rules and policies of the department of 6 corrections, or other state law is not sufficient to state a claim for relief under § 1983. To state a 7 claim under § 1983, there must be a deprivation of federal Constitutional or statutory 8 rights. See Paul v. Davis, 424 U.S. 693 (1976); Galen v. County of Los Angeles, 477 F.3d 652, 9 662 (9th Cir. 2007) (“Section 1983 requires [plaintiff] to demonstrate a violation of federal law, Potential State Law Claims 10 not state law.”). Although the court may exercise supplemental jurisdiction over state law claims, 11 plaintiff must first have a cognizable claim for relief under federal law. See 28 U.S.C. § 1367. 12 Because plaintiff lacks standing to pursue his federal claims, this court should decline to 13 exercise supplemental jurisdiction over plaintiff's putative state law claims. 3 Carnegie-Mellon 14 Univ. v. Cohill, 484 U.S. 343, 350 (1988) (when federal claims are eliminated before trial, district 15 courts should usually decline to exercise supplemental jurisdiction). 16 V. 17 If the court finds that a complaint should be dismissed for failure to state a claim, the court No Leave to Amend 18 has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126- 19 30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that the 20 defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see 21 2 22 23 24 25 26 27 28 A number of prisoners have filed suits similar to plaintiff’s based on the same notices from CCHCS. All appear to have been dismissed, without leave to amend, for lack of standing. See, e.g., Rosel v. Cal. Corr. Health Care Servs., No. 2:17-cv-0053 JAM AC P, 2017 WL 1105937 (E.D. Cal. Mar. 24, 2017) Chubbuck v. Cal. Corr. Health Care Servs., No. 2:16-cv-1325 JAM KJN P, 2016 WL 7104236 (E.D. Cal. Dec. 5, 2016); Miles v. Cal. Corr. Health Care Servs., No. 2:16-cv-1323 KJN P, 2016 WL 7104235 (E.D. Cal. Dec. 5, 2016); Wingfield v. Cal. Corr. Health Care Servs., No. 2:16-cv-2407 CKD P, 2016 WL 6493939 (E.D. Cal. Nov. 1, 2016); Fletcher v. Cal. Corr. Health Care Servs., No. 16-cv-4187-YGR (PR), 2016 WL 5394125 (N.D. Cal. Sept. 27, 2016). 3 The court takes no position on whether plaintiff would be able to successfully pursue his claims in state court. 6 1 also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given 2 leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely 3 clear that the deficiencies of the complaint could not be cured by amendment.”) (citing Noll v. 4 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). However, if, after careful consideration, it is clear 5 that a complaint cannot be cured by amendment, the court may dismiss without leave to 6 amend. Cato, 70 F.3d at 1005-06. 7 The undersigned finds that, as set forth above, plaintiff lacks standing to bring his federal 8 claims, and amendment would be futile because the notification on which plaintiff's allegations 9 are based establishes only speculative injury that is not real or immediate. Because plaintiff lacks 10 standing to pursue his federal claims, the court should decline to exercise supplemental 11 jurisdiction over plaintiff's state law claims, and should dismiss the complaint without prejudice. 12 VI. 13 Conclusion The complaint will be dismissed without prejudice because the facts show only that 14 plaintiff's sensitive information might have been stolen, and the letters he relies on establish that 15 he will not be able to show that his information was actually stolen because it is not known what 16 was on the laptop. Plaintiff's injury is therefore too speculative to support a claim. Plaintiff's 17 attempt to show injury fails because the injury occurred before the laptop was stolen. 18 19 Accordingly, IT IS HEREBY ORDERED that plaintiff's request to proceed in forma pauperis is granted; and 20 IT IS RECOMMENDED that this action be dismissed without prejudice. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, plaintiff may file written objections 24 with the court and serve a copy on all parties. Such a document should be captioned “Objections 25 to Magistrate Judge's Findings and Recommendations.” Plaintiff is advised that failure to file 26 //// 27 //// 28 //// 7 1 objections within the specified time may waive the right to appeal the District Court's order. 2 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: April 3, 2017 4 5 6 7 8 9 10 11 12 13 14 15 16 17 DLB:9 DLB1/prisoner-civil rights/vald2164.scrn 18 19 20 21 22 23 24 25 26 27 28 8

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