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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ARTHUR LEE GIBSON,
Plaintiff,

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.
J. LEWIS, et al.,
Defendants.

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United States District Court
Northern District of California

Case No. 17-cv-03995-JD

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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

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STANDARD OF REVIEW

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims

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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).

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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.” Although a complaint “does not need detailed

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factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

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relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above

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the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

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omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its

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face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face”

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standard of Twombly: “While legal conclusions can provide the framework of a complaint, they

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must be supported by factual allegations. When there are well-pleaded factual allegations, a court

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should assume their veracity and then determine whether they plausibly give rise to an entitlement

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to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

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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

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LEGAL CLAIMS

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Plaintiff states that he was notified of a potential breach regarding his personal health

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information. A laptop computer that may have included plaintiff’s health information was stolen

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out of a car of a prison health care worker. The computer was password protected but was not

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encrypted. Plaintiff seeks money damages.

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Plaintiff has failed to state a cognizable claim because he has not identified a right secured

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by the Constitution or laws of the United States that was violated. To demonstrate a violation of

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the Eighth Amendment with respect to medical care, plaintiff must demonstrate that defendants

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were deliberately indifferent to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104

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(1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds,

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WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).

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To the extent plaintiff is asserting a violation of his health privacy; he is not entitled to

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relief. The Health Insurance Portability and Accountability Act of `1996 (“HIPAA”), Pub. L. 104-

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191, 110 Stat. 1936 (codified as amended in scattered sections of 42 U.S.C.) “provides for no

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private right of action.” Webb v. Smart Document Solutions, 499 F.3d 1078, 1080 (9th Cir. 2007);

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see, e.g., Seaton v. Mayberg, 610 F.3d 530, 533 (9th Cir. 2010) (citing Webb and dismissing

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prisoner’s claim under HIPAA for disclosure of his medical records). Plaintiff assertion that

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potential release of his medical information due to theft violated his constitutionally-protected
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privacy rights fails to state a claim because “prisoners do not have a constitutionally protected

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expectation of privacy in prison treatment records when the state has a legitimate penological

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interest in access to them.” Seaton, 610 F.3d at 534.

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The complaint is dismissed with leave to amend to set forth a federal claim. If plaintiff

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cannot present a federal claim he should proceed with this action in state court. Plaintiff indicates

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that he filed a state court action but it is not clear if that action continues.
CONCLUSION

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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

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United States District Court
Northern District of California

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page. Because an amended complaint completely replaces the original complaint, plaintiff must

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include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th

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Cir. 1992). He may not incorporate material from the original complaint by reference. Failure to

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amend within the designated time will result in the dismissal of this case.

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2.

It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the

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Court informed of any change of address by filing a separate paper with the clerk headed “Notice

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of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to

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do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of

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Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: November 7, 2017

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JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ARTHUR LEE GIBSON,

Case No. 17-cv-03995-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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J. LEWIS, et al.,
Defendants.

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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

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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.

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Arthur Lee Gibson ID: K-50648
San Quentin State Prison
San Quentin, CA 94974

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Dated: November 7, 2017

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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