Gibson v. Lewis et al

Filing 14

ORDER OF DISMISSAL WITH LEAVE TO AMEND re 1 Complaint filed by Arthur Lee Gibson. Signed by Judge James Donato on 11/7/17. (lrcS, COURT STAFF) (Filed on 11/7/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ARTHUR LEE GIBSON, Plaintiff, 8 9 10 ORDER OF DISMISSAL WITH LEAVE TO AMEND v. J. LEWIS, et al., Defendants. 11 United States District Court Northern District of California Case No. 17-cv-03995-JD 12 13 14 Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. He has been granted leave to proceed in forma pauperis. DISCUSSION 15 16 STANDARD OF REVIEW 17 Federal courts must engage in a preliminary screening of cases in which prisoners seek 18 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 19 § 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims 20 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 21 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 22 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 23 Cir. 1990). 24 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 25 claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed 26 factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 27 relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a 28 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above 1 the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations 2 omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its 3 face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face” 4 standard of Twombly: “While legal conclusions can provide the framework of a complaint, they 5 must be supported by factual allegations. When there are well-pleaded factual allegations, a court 6 should assume their veracity and then determine whether they plausibly give rise to an entitlement 7 to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 8 9 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). United States District Court Northern District of California 11 LEGAL CLAIMS 12 Plaintiff states that he was notified of a potential breach regarding his personal health 13 information. A laptop computer that may have included plaintiff’s health information was stolen 14 out of a car of a prison health care worker. The computer was password protected but was not 15 encrypted. Plaintiff seeks money damages. 16 Plaintiff has failed to state a cognizable claim because he has not identified a right secured 17 by the Constitution or laws of the United States that was violated. To demonstrate a violation of 18 the Eighth Amendment with respect to medical care, plaintiff must demonstrate that defendants 19 were deliberately indifferent to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 20 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, 21 WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). 22 To the extent plaintiff is asserting a violation of his health privacy; he is not entitled to 23 relief. The Health Insurance Portability and Accountability Act of `1996 (“HIPAA”), Pub. L. 104- 24 191, 110 Stat. 1936 (codified as amended in scattered sections of 42 U.S.C.) “provides for no 25 private right of action.” Webb v. Smart Document Solutions, 499 F.3d 1078, 1080 (9th Cir. 2007); 26 see, e.g., Seaton v. Mayberg, 610 F.3d 530, 533 (9th Cir. 2010) (citing Webb and dismissing 27 prisoner’s claim under HIPAA for disclosure of his medical records). Plaintiff assertion that 28 potential release of his medical information due to theft violated his constitutionally-protected 2 1 privacy rights fails to state a claim because “prisoners do not have a constitutionally protected 2 expectation of privacy in prison treatment records when the state has a legitimate penological 3 interest in access to them.” Seaton, 610 F.3d at 534. 4 The complaint is dismissed with leave to amend to set forth a federal claim. If plaintiff 5 cannot present a federal claim he should proceed with this action in state court. Plaintiff indicates 6 that he filed a state court action but it is not clear if that action continues. CONCLUSION 7 8 9 1. The complaint is DISMISSED with leave to amend. The amended complaint must be filed within twenty-eight (28) days of the date this order is filed and must include the caption and civil case number used in this order and the words AMENDED COMPLAINT on the first 11 United States District Court Northern District of California 10 page. Because an amended complaint completely replaces the original complaint, plaintiff must 12 include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th 13 Cir. 1992). He may not incorporate material from the original complaint by reference. Failure to 14 amend within the designated time will result in the dismissal of this case. 15 2. It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 16 Court informed of any change of address by filing a separate paper with the clerk headed “Notice 17 of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to 18 do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 19 Civil Procedure 41(b). 20 21 IT IS SO ORDERED. Dated: November 7, 2017 22 23 JAMES DONATO United States District Judge 24 25 26 27 28 3 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 ARTHUR LEE GIBSON, Case No. 17-cv-03995-JD Plaintiff, 5 v. CERTIFICATE OF SERVICE 6 7 J. LEWIS, et al., Defendants. 8 9 10 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. United States District Court Northern District of California 11 12 13 14 15 That on November 7, 2017, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 18 Arthur Lee Gibson ID: K-50648 San Quentin State Prison San Quentin, CA 94974 19 20 Dated: November 7, 2017 21 22 23 Susan Y. Soong Clerk, United States District Court 24 25 26 By:________________________ LISA R. CLARK, Deputy Clerk to the Honorable JAMES DONATO 27 28 4

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