Atlas v. Fox et al.

Filing 5

ORDER signed by Magistrate Judge Allison Claire on 6/19/2017 GRANTING 2 Motion to Proceed IFP and DISMISSING 1 Complaint with leave to amend within 30 days of service of this order. Plaintiff to pay statutory filing fee of $350. All payments to be collected in accordance with the notice to the CDCR filed concurrently herewith. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALBERT ATLAS,

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Plaintiff,

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No. 2:17-cv-00286 AC P

v.

ORDER

ROBERT FOX, et. al.,

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. In addition to filing a complaint (ECF No. 1), plaintiff has filed an application to

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proceed in forma pauperis under 28 U.S.C. § 1915. ECF No. 2.

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I.

Application to Proceed In Forma Pauperis
The court has reviewed plaintiff’s application and finds that it makes the showing required

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by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency

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having custody of plaintiff to collect and forward the appropriate monthly payments for the filing

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fee as set forth in 28 U.S.C. § 1915(b)(1) and (2).

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II.

Screening Requirements
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 where 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). “[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.” Jackson v. Arizona,

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885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute

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on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490

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

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has an arguable legal and factual basis. Id.
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

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

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what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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However, in order to survive dismissal for failure to state a claim, a complaint must contain more

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

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allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations

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omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that

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merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original)

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(quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d

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ed. 2004)).

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

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relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

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Atl. Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint

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under this standard, the court must accept as true the allegations of the complaint in question,

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Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading
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in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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III.

Screening Order
Plaintiff alleges that, on April 25, 2016, California Correctional Health Care Services

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(CCHCS) informed him about a potential breach of his personal information. ECF No. 1 at 3.

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An unencrypted laptop with some of his personal records and medical files was stolen from the

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personal vehicle of a CCHCS employee on February 25, 2016. Id. Plaintiff states that a third

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party is now maliciously using his personal information. Id. He argues that, as a result of this

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breach of personal information, the named defendants have directly violated his rights under the

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“Confidentiality Act of Code § 56.” Id. Plaintiff also contends that the named defendants failed

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to properly train their employees to safeguard inmate personal data. Id. at 4. These claims will

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be dismissed with leave to amend.

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First, plaintiff has failed to allege that he has been injured or that he is under threat of

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injury as a result of defendants’ actions. To establish standing to sue, plaintiff must demonstrate

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that “he is under threat of suffering ‘injury in fact’ that is concrete and particularized; the threat

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must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to

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challenged conduct of the defendant; and it must be likely that a favorable judicial decision will

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prevent or redress the injury.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). Here,

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plaintiff alleges that he believes that his information is “being pass[ed] around.” ECF No. 1 at 3.

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He offers no substantive allegations to support this conjecture. One exhibit attached to the

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complaint indicates that plaintiff may have been a victim of past identity theft, but the letter in

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question is dated October 16, 2014. Id. at 21. It is impossible to conclude that this past identity

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theft is relevant to the immediate allegations given that plaintiff alleges that the breach in this

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case occurred in February of 2016.

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Second, plaintiff has failed to explain how each of the defendants violated his rights. He

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has not, for instance, described how each of the defendants was personally involved in the failure

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to safeguard his data. Nor can plaintiff proceed simply by offering the conclusory allegation that

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the defendants failed to train CCHCS employees in data protection. The complaint fails to
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indicate whether each of the named defendants had any actual responsibility for such training.

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More importantly, there is no indication that any of the defendants had any role in training the

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employee whose laptop was stolen in February of 2016. Finally, there is no respondeat superior

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liability under section 1983. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

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IV.

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Plaintiff’s complaint is dismissed with leave to amend. If plaintiff chooses to file an
amended complaint it should observe the following:

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Leave to Amend

Any amended complaint must identify as a defendant only persons who personally
participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation).

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It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a).

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Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See

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George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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Finally, the court notes that any amended complaint should be as concise as possible in

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fulfilling the above requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of

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procedural or factual background which has no bearing on his legal claims. He should also take

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pains to ensure that his amended complaint is as legible as possible. This refers not only to

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penmanship, but also spacing and organization. Lengthy, unbroken paragraphs can be difficult to

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read when handwritten and plaintiff would do well to avoid them wherever possible.
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V.

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Summary of the Order
You have been granted in forma pauperis status and will not have to pay the entire filing

fee immediately.

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The court has found that your claims, as stated, are not suitable to proceed. You have not

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shown that you have been injured or are under threat of injury as a result of your data being

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disclosed. You have also failed to show that each of the three defendants was personally involved

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in either the loss of your information or in training the employee whose laptop was stolen.

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You are being given a chance to submit an amended complaint which fixes the problems
with your claims.
VI.

Conclusion
Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is granted.

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2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected

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in accordance with the notice to the California Department of Corrections and

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Rehabilitation filed concurrently herewith.

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3. Plaintiff’s complaint is dismissed with leave to amend within 30 days of service of
this order.
4. Failure to comply with this order may result in dismissal of this action.
DATED: June 19, 2017

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