Anderson v. Kernan et al

Filing 16

ORDER REMANDING ACTION TO STATE COURT. Signed by Judge Jon S. Tigar on June 29, 2017. (Attachments: # 1 Certificate/Proof of Service) (wsn, COURT STAFF) (Filed on 6/30/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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VERNON ANDERSON,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 17-cv-01371-JST (PR)
ORDER REMANDING ACTION TO
STATE COURT

v.
SCOTT KERNAN, et al.,
Defendants.

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This pro se prisoner’s civil action was originally filed in Monterey County Superior Court.

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Plaintiff complains of a potential breach regarding his personal health information. The action

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concerns a February 25, 2016 theft of a California Correctional Health Care Services (“CCHCS”)

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laptop in the possession of a CCHCS employee and a notification to California Department of

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Corrections and Rehabilitation (“CDCR”) inmates of the theft in May 2016 (collectively, the

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“Laptop Theft”). Plaintiff appears to allege that CCHCS and its agents, officials, and employees

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violated California’s Confidentiality of Medical Information Act, Cal. Civ. Code § 56 et. seq. in

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conjunction with the Laptop Theft. Plaintiff believes the stolen laptop may have contained his

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confidential medical, mental health, and custodial information. Plaintiff named as defendants J.

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Clark Kelso, Receiver for the California prison medical healthcare system, and Deputy Receiver

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Richard Kirkland, along with various CDCR officials and staff.

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On March 14, 2017, defendant J. Clark Kelso removed the complaint from the Monterey

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County Superior Court to this court. ECF No. 1. Defendant Kelso, who was appointed by the

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United States District Court for the Northern District of California as the Receiver for the

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California prison medical healthcare system, removed the case pursuant to 28 U.S.C. § 1442(a)(1)

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and (3). Id.; Plata v. Schwarzenegger (Plata), 3:01-cv-01351 TEH, ECF No. 1063 (N.D. Cal. Jan.

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23, 2008). As Receiver, Kelso is an officer and agent of the Plata court, giving this court original

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jurisdiction over claims against him in his capacity as Receiver. Med. Dev. Intern. v. California

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Dept. of Corrections and Rehab., 585 F.3d 1211, 1216 (9th Cir. 2009).
Plaintiff has filed a first amended complaint (“FAC”), ECF No. 14 at 32-55, which is now

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before the Court for initial review of the pleadings pursuant to 28 U.S.C. § 1915A. Defendants

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Kelso and Kirkland have filed a statement of non-opposition to the FAC.
The FAC no longer names defendant Kelso, the party who initially removed the action to

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this court.1 The basis for removal was Kelso’s role as Receiver in the Plata action. Now that
Kelso is no longer a party to the action, there appears to be no federal jurisdiction. Plaintiff

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United States District Court
Northern District of California

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appears to only claim violation of California statues, and plaintiff makes clear that he filed his

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FAC in Monterey County Superior Court. See ECF No. 14. To the extent plaintiff is asserting a

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violation of his health privacy; he is not entitled to federal relief. The Health Insurance Portability

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and Accountability Act of 1996 (“HIPAA”), Pub. L. 104-191, 110 Stat. 1936 (codified as

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amended in scattered sections of 42 U.S.C.) “provides for no private right of action.” Webb v.

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Smart Document Solutions, 499 F.3d 1078, 1080 (9th Cir. 2007); see, e.g., Seaton v. Mayberg,

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610 F.3d 530, 533 (9th Cir. 2010) (citing Webb and dismissing prisoner’s claim under HIPAA for

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disclosure of his medical records).

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The case therefore will be remanded to state court so that plaintiff may litigate in his

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chosen forum. See Swett v. Schenk, 792 F.2d 1447, 1450 (9th Cir. 1986) (“it is within the district

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court’s discretion, once the basis for removal jurisdiction is dropped, whether to hear the rest of

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the action or remand it to the state court from which it was removed”); Plute v. Roadway Package

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System, Inc., 141 F. Supp. 2d 1005, 1007 (N.D. Cal. 2001) (court may remand sua sponte or on

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motion of a party). The action is REMANDED to the Monterey County Superior Court for such

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other and further proceedings as that court deems proper. The Clerk shall close the file and send

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the necessary materials to the Monterey County Superior Court for the remand.

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Richard Kirkland, Chief Deputy Receiver, has also been removed as a defendant from the FAC.
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In light of the remand to state court, all pending motions are dismissed as moot. All
further motions must be filed in state court.
IT IS SO ORDERED.
Dated: June 29, 2017

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JON S. TIGAR
United States District Judge

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United States District Court
Northern District of California

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