Sharp, et al. v. Kelso

Filing 14

ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 8/28/17 ORDERING that Plaintiff Sharp's request to proceed in forma pauperis 2 is GRANTED; Plaintiffs' MOTIONS for the appointment of counsel 12 an d 13 are DENIED without prejudice; This case is ASSIGNED to District Judge Garland E. Burrell, Jr. and Magistrate Judge Kendall J. Newman for all further proceedings. The New Case Number is 2:17-cv-01528 GEB KJN P. IT IS FURTHER RECOMMENDED that Plaintiff's Request that this action proceed as a class action be denied. This Findings and Recommendations are submitted to Judge Garland E. Burrell, Jr. Objections to these F&Rs due within twenty-one days. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY SHARP, et al.,

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Plaintiffs,

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No. 2:17-cv-1528 KJN P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

CLARK KELSO, et al.,

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Defendants.

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Plaintiffs, four state prisoners proceeding pro se, seek relief pursuant to 42 U.S.C. § 1983,

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and request that this action proceed as a class action. Plaintiff Sharp requested leave to proceed

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in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by

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Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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I.

Application to Proceed In Forma Pauperis
Plaintiff Sharp 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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recommends summary dismissal of the complaint.

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II.

Statutory Screening of Prisoner Complaints
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.

Complaint

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Plaintiffs allege that defendant Kelso refuses to disclose the name of the state employee

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who left his state laptop in his car, where the laptop was stolen, and allegedly placed plaintiffs’

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private information at risk. Plaintiffs allege that the laptop was password protected but object that

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the laptop should have been encrypted. Further, plaintiffs’ contend that John Doe defendants, the

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California Correctional Health Care Services (“CCHCS”), and other unidentified state employees

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waited two months before notifying the victims of the breach of information, in which they

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identified a “potential breach of data.” (ECF No. 1 at 12.) Plaintiffs also allege a violation of

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HIPAA.1 Plaintiffs contend that the laptop contained confidential information “which may have

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included medical, mental health and custodial information.” (ECF No. 1 at 9.) Plaintiffs seek

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monetary damages.

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IV.

Standing
“[F]ederal courts are required sua sponte to examine jurisdictional issues such as standing

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[and ripeness].” B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 1999). The

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Article III case or controversy requirement limits federal courts’ subject matter jurisdiction by

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requiring that plaintiffs have standing. Valley Forge Christian Coll. v. Ams. United for

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Separation of Church and State, Inc., 454 U.S. 464, 471 (1982). To have Article III standing, a

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plaintiff must plead and prove that he has suffered sufficient injury to satisfy the “case or

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controversy” requirement of Article III of the United States Constitution. Clapper v. Amnesty

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Int’l USA, 133 S. Ct. 1138, 1146 (2013) (“‘One element of the case-or-controversy requirement’

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is that plaintiffs ‘must establish that they have standing to sue.’” (quoting Raines v. Byrd, 521

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U.S. 811, 818 (1997))). To satisfy Article III standing, a plaintiff must therefore allege: (1)

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injury-in-fact that is concrete and particularized, as well as actual or imminent; (2) that the injury

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is fairly traceable to the challenged action of the defendant; and (3) that the injury is redressable

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Health Insurance Portability and Accountability Act of 1996.
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by a favorable ruling. Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010) (citation

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omitted); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). “The party invoking

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federal jurisdiction bears the burden of establishing these elements . . . with the manner and

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degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561

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(citations omitted).

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Although “HIPAA itself does not provide for a private right of action,” Webb v. Smart

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

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Individually Identifiable Health Information, 65 Fed. Reg. 82462-01, 82601 (Dec. 28, 2000) (to

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be codified at 45 C.F.R. pt. 160 and 164) (“Under HIPAA, individuals do not have a right to court

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action.”)), the Ninth Circuit has held that the constitutional right to informational privacy extends

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to medical information, Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1269 (9th

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Cir. 1998) (“The constitutionally protected privacy interest in avoiding disclosure of personal

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matters clearly encompasses medical information and its confidentiality.”) (citing Doe v.

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Attorney Gen. of the United States, 941 F.2d 780, 795 (9th Cir. 1991)). However, the disclosure

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of plaintiffs’ medical information, and therefore any injury, is entirely speculative here.

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While potential future harm can in some instances confer standing, plaintiffs 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 v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (“[A]n injury must

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be concrete, particularized, and actual or imminent.”) (citation and internal quotation marks

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omitted). Plaintiff’s allegations are based upon a notification which states that there was a

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“potential breach of data,” and “which may have included medical, mental health and custodial

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information.” (ECF No. 1 at 9, 12.) It appears it is even uncertain whether any of these four

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plaintiffs’ information was contained in the stolen laptop. In other words, whether plaintiffs’

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sensitive information has even been compromised is unknown. Plaintiffs cannot state a claim for
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relief based upon the speculative breach of sensitive information. Plaintiffs’ claim for violation

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

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

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2006) (dismissal for lack of standing is without prejudice).

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V.

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No Leave to Amend
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, plaintiffs lack standing and amendment

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would be futile because the allegations establish only speculative injury that is not real or

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immediate. Because plaintiffs lack standing to pursue their federal claims, the court should

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dismiss the complaint in its entirety.

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VI.

Class Action
In light of the above findings, the undersigned declines to recommend that this action

proceed as a class action.
VII.

Requests for Counsel

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Plaintiffs have filed two requests for the appointment of counsel. (ECF Nos. 12, 13.)

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District courts lack authority to require counsel to represent indigent prisoners in section

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1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional

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circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28

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U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.
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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional

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circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as

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well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the

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legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not

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abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional

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circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of

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legal education and limited law library access, do not establish exceptional circumstances that

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warrant a request for voluntary assistance of counsel.

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Having considered the factors under Palmer, the court finds that plaintiffs failed to meet

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their burden of demonstrating exceptional circumstances warranting the appointment of counsel

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at this time.

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VIII.

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Summary

The undersigned recommends that the complaint be dismissed without prejudice because

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the facts show only that plaintiffs’ sensitive information might have been stolen and it does not

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look like they can show that their information was actually stolen. Plaintiffs’ injuries are

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therefore too speculative to support a claim.

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In accordance with the above, IT IS HEREBY ORDERED that

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

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2. Plaintiffs’ motions for the appointment of counsel (ECF Nos. 12, 13) are denied

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without prejudice; and

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3. The Clerk of the Court shall randomly assign a United States District Judge to this
action.2
IT IS FURTHER RECOMMENDED that plaintiffs’ request that this action proceed as a

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class action be denied, and this action be dismissed without prejudice.

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These findings and recommendations are submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days
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Although the remaining defendants subsequently consented to Magistrate Judge jurisdiction
(ECF Nos. 4, 6, 7, 11), plaintiff Piccione did not (ECF No. 1 at 3.)
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after being served with these findings and recommendations, plaintiff may file written objections

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with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.” Plaintiffs are advised that failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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Dated: August 28, 2017

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