Kaeo-Tomaselli v. Women's Community Correctional Center et al

Filing 6

ORDER Dismissing Complaint With Leave To Amend re 1 . Signed by JUDGE SUSAN OKI MOLLWAY on 11/7/11. (gls, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document el ectronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry. 3 copies of Prisoner Civil Rights Complaint w/instructions was served by first class mail on the date of this docket entry to the plaintiff.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DION’E KAEO-TOMASELLI,
#A5004463,
Plaintiff,
vs.
WOMENS COMMUNITY
CORRECTIONAL CENTER MEDICAL
UNIT,
Defendant.
____________________________

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CIV. NO. 11-00669 SOM-KSC
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
Before the court is pro se Plaintiff Dion’e KaeoTomaselli’s (“Plaintiff”) prisoner civil rights complaint.1
Plaintiff is incarcerated at the Women’s Community Correctional
Center (“WCCC”).

Plaintiff names the WCCC Medical Unit, and

alleges that various nurses employed by WCCC denied or delayed
medical care to her in violation of the Eighth Amendment.
Plaintiff also alleges that her right to privacy was violated by
prison officials’ inappropriate disclosure of her medical
information.
The Complaint is DISMISSED for failure to name proper
defendants, pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915(A)(b)(1).

Plaintiff is granted leave to amend the

Complaint, if possible, to cure the deficiencies detailed below.
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Plaintiff is proceeding in forma pauperis.

See ECF #[9].

I. PLAINTIFF’S CLAIMS
Plaintiff asserts four claims.

In Count I, Plaintiff

claims that WCCC nurses Abby Medrano and Tina refused to refer
her to a doctor for treatment on October 30, and November 3,
2009, although she told them she “felt like [she] was dying.”
Plaintiff claims that their denial resulted in her going into a
coma and being placed “on the life support machine . . .
[requiring her to relearn] to walk, talk, write, sing and dance
the hula.”

Compl. ECF #1 at 5.
In Count II, Plaintiff claims that, on May 6, 2009,

April 22, 2010, September 27, 2011, and “other dates,”
unidentified WCCC nurses gave her the incorrect medicine.
Plaintiff also claims that WCCC Nurse Abby Medrano rescinded her
“no shackle” and “bottom bunk” memos, contravening Plaintiff’s
physicians’ orders, and violating the Eighth Amendment.
In Count III, Plaintiff claims that her right to
privacy was violated when: (1) the WCCC Medical Unit informed the
WCCC Warden that she was dying of AIDS, (2) the Warden told a
WCCC volunteer hula teacher, (3) the hula teacher told the
inmates attending her class, and (4) WCCC Nurse Eric loudly
informed Plaintiff that she was scheduled for throat surgery in
front of other inmates.
Finally, in Count IV, Plaintiff alleges that Drs.
Joyner, Peroff, and Dewitt referred her to outside specialists

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for rehabilitative care for her throat and foot, but WCCC medical
staff countermanded these referrals.
II. STATUTORY SCREENING
The court must screen all civil actions brought by
prisoners that relate to prison conditions and/or seek redress
from a governmental entity, officer, or employee of a
governmental entity.

28 U.S.C. § 1915A(a).

The court must

dismiss a complaint or portion thereof if its claims are legally
frivolous or malicious, fail to state a claim on which relief may
be granted, or seek monetary relief from a defendant who is
immune from such relief.

28 U.S.C. § 1915(e)(2); 28 U.S.C.

§ 1915A(b); 42 U.S.C. § 1997e (c)(1).
A complaint may be dismissed as a matter of law for
failure to state a claim for (1) lack of a cognizable legal
theory; or (2) insufficient facts under a cognizable legal
theory.

Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699

(9th Cir. 1990).

To state a claim, a pleading must contain a

“short and plain statement of the claim showing that the pleader
is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

While Rule 8

does not demand detailed factual allegations, “it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, ----, 129 S. Ct.

1937, 1949 (2009).

“Threadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not
suffice.”

Id.
“[A] complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible
on its face.’”

Id. (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570 (2007)).

A claim is plausible “when the plaintiff

pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Id.

“Determining whether a complaint

states a plausible claim for relief [is] . . . a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.”

Id. at 1950.

Thus, although a

plaintiff’s specific factual allegations may be consistent with a
constitutional claim, a court must assess whether there are other
“more likely explanations” for a defendant’s conduct.

Id. at

1951.
The court must construe a pro se complaint liberally,
accept all allegations of material fact as true, and construe
those facts in the light most favorable to the plaintiff.
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

Leave to

amend should be granted if it appears at all possible that the
plaintiff can correct the defects of his or her complaint.
v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
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Lopez

III.

DISCUSSION

“To sustain an action under section 1983, a plaintiff
must show ‘(1) that the conduct complained of was committed by a
person acting under color of state law; and (2) that the conduct
deprived the plaintiff of a federal constitutional or statutory
right.’”

Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007)

(citation omitted); see also West v. Atkins, 487 U.S. 42, 48
(1988); 42 U.S.C. § 1983.
A.

Failure to Name Proper Defendants
Plaintiff lists the WCCC Medical Unit as the only

Defendant in the caption of the Complaint.

In Section A of her

Complaint, she lists the “Department of Public Safety, Department
Head of Corrections,” as the first defendant and “Department of
Health Care Unit @ WCCC” as the second defendant.

In Section C,

within her claims, Plaintiff names WCCC nurses Abby Medrano,
Tina, Jolen, Eric, and other unidentified nurses, the WCCC
Warden, and a WCCC volunteer hula instructor, Ms. Halaki Ancheta,
as individuals who have harmed her, but fails to include their
names in the caption.
First, a plaintiff must include in the caption of a
complaint the names of all the defendants against whom he or she
is asserting a claim.

See Fed. R. Civ. P. 10(a); Local Rule

11-3.8(d); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1262-63
(9th Cir. 1992) (dismissing action for refusal to comply with
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court orders to name defendants in the caption).

The court is

unable to order the United States Marshal to serve a complaint on
any defendant not named in the caption.
Second, claims under § 1983 are directed at “persons”
and a jail or prison facility is not a “person” amenable to suit
under § 1983.

See Allison v. California Adult Auth., 419 F.2d

822, 823 (9th Cir. 1969) (finding California Adult Authority and
San Quentin Prison not to be “person[s]” subject to suit under
§ 1983); Brooks v. Pembroke City Jail, 722 F. Supp. 1294, 1301
(E.D. N.C. 1989) (citing Monroe v. Pape, 365 U.S. 167, (1961));
accord Cummings v. Middletown, Ohio City Jail, No. CV08-0248,
2008 WL 1849172 at *3 (S.D. Ohio Apr 23, 2008); Carey v. Lawton
Corr. Facility, No. CIV07-944-F, 2008 WL 200053 at *3 (W.D. Okla.
Jan 24, 2008); see also Foster v. Walsh, 864 F.2d 416, 418 (6th
Cir. 1988) (holding that a court is not a “person” within the
meaning of § 1983).

To the extent Plaintiff alleges federal

constitutional or statutory violations against the WCCC Medical
Unit under § 1983, her Complaint is DISMISSED with leave to
amend, so that she may name the proper defendants allegedly
liable for her claims.
C.

Claims in Count III
In Count III, Plaintiff alleges that her right to

privacy was violated when the WCCC Medical Unit informed the WCCC
Warden that she was dying of AIDS, the Warden allegedly told a
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WCCC volunteer, who in turn, told inmates in her class.
Plaintiff also claims WCCC Nurse Eric violated her rights to
privacy and confidentiality when he informed Plaintiff that she
was scheduled for throat surgery within the hearing of other
inmates.
The Supreme Court has recognized a constitutional right
to privacy regarding “the individual interest in avoiding
disclosure of personal matters.”
599 (1977).

Whalen v. Roe, 429 U.S. 589,

Courts have generally found that prisoners’ rights

to privacy and confidentiality in their own medical records, if
any, arise under the Fourteenth Amendment, and this court
examines Plaintiff’s claims accordingly.

See Seaton v. Mayberg,

610 F.3d 530, 537–39 (9th Cir. 2010) (recognizing an inmate’s
limited right to informational privacy under the Fourteenth
Amendment’s Due Process Clause, and stating that the Fourth
Amendment is inapposite to such a claim), cert. denied, ––– U.S.
––––, 131 S. Ct. 1534 (2011); Powell v. Schriver, 175 F.3d 107
(2d Cir. 1999); see also Hudson v. Palmer, 468 U.S. 517,527-28
(1984) (stating that the Fourth Amendment’s protection of privacy
is “fundamentally incompatible” with incarceration).
In Seaton, an inmate objected to disclosure of his
mental health records to the district attorney’s office without
his consent, when the State sought the inmate’s commitment under
California’s Sexually Violent Predator Act.

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The Ninth Circuit

held that an inmate has no right to privacy in his medical
records under such circumstances.

610 F.3d at 541.

In so

holding, the court stated that, to the extent an inmate’s medical
records are disclosed “while he [is] in prison serving his
sentence” and the disclosure was “for a penological purpose
relating to his imprisonment,” any “privacy right he has may be
overridden for legitimate penological reasons.”

Id.

Examples of

such “substantial” penological interests are a prison’s need “to
protect prison staff and other prisoners from communicable
diseases and violence, and to manage rehabilitative efforts.

Id.

at 535.
1.

Claims Against The WCCC Medical Unit and Warden
Even if Plaintiff is able to name specific individuals

in the WCCC Medical Unit who allegedly disclosed her AIDS
diagnosis to the WCCC Warden, such disclosure falls within the
legitimate penological goals set forth in Seaton.

Clearly, the

WCCC Warden has a legitimate penological interest in knowing
which WCCC prisoners have communicable diseases such as AIDS, so
that prison officials may take appropriate steps to prevent
prison staff and inmates from unwarranted exposure to any
communicable disease.

As such, Plaintiff fails to state a claim

against any individual at the WCCC Medical Unit for disclosure of
any communicable disease to the Warden.

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The Warden’s alleged disclosure of this information to
the volunteer hula teacher, Halaki Ancheta (“Ancheta”), however,
who in turn allegedly told other inmates, does not exhibit the
same legitimate penological interest.

While it may come forth

later that there was a legitimate penological necessity for this
disclosure, or that this disclosure never occurred, at this stage
of the proceedings, Plaintiff has stated a claim for the
violation of her right to privacy regarding the WCCC Warden’s
alleged disclosure of Plaintiff’s medical information to Ancheta.
2.

Claims Against Ancheta
It is less certain that Ancheta, who was a volunteer at

the prison, was acting “under color of state law” when she
allegedly disclosed the information to other inmates in the hula
class.

Generally, private actors are not acting under color of

state law.
1991).

See Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir.

A private actor acts under color of law for § 1983

purposes when their allegedly improper conduct is fairly
attributable to the State.

Id. (citing Lugar v. Edmundson Oil

Co., Inc., 457 U.S. 922, 937 (1982)).

Conduct is fairly

attributable to the State when: (1) the deprivation is caused by
(a) the exercise of some right or privilege created by the State,
or (b) by a rule of conduct imposed by it or by a person for whom
the State is responsible; and (2) the defendant is (a) a state
official, (b) acted together with or obtained significant aid
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from state officials, or (c) performed conduct otherwise
chargeable to the State.

Lugar, 457 U.S. at 936-39. 937; see

also Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835
(9th Cir. 1999).

If Plaintiff intends to amend her complaint and

name Ancheta, Plaintiff must assert facts showing in what manner
Ancheta’s conduct was fairly attributable to the State.
3.

Claims Against Nurse Eric
Plaintiff alleges that WCCC Nurse Eric loudly informed

Plaintiff in front of several other inmates that she had been
scheduled for throat surgery.

While it is difficult to envision

a constitutional violation based upon a one-time, inadvertent
disclosure of a single patient’s medical information, this claim
shall be allowed to proceed.

If, however, Plaintiff is

attempting to assert a claim under the Health Insurance
Portability and Accountability Act (“HIPAA”), that claim fails
because she has no private cause of action to bring such a claim.
U.S. v. Streich, 560 F.3d 926 (9th Cir. 2009); Webb v. Smart
Document Solutions, LLC, 499 F.3d 1078, 1081 (9th Cir. 2007);
Univ. of Colorado Hosp. v. Denver Publ’g Co., 340 F. Supp.2d
1142, 1145 (D. Colo. 2004) (noting that HIPAA expressly provides
a method for enforcing prohibitions, i.e., punitive fines and/or
imprisonment, which indicates Congress did not intend to allow an
additional private remedy).

That is, only the government may

bring a claim against a medical provider for violation of HIPAA.
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Plaintiff has failed to identify any other alleged federal
constitutional violation.
D.

Leave to Amend
The Complaint is DISMISSED as discussed above.

Plaintiff may file a proposed amended complaint on or before
December 7, 2011.

The proposed amended complaint must cure the

deficiencies noted above and demonstrate how the conditions
complained of resulted in a deprivation of her federal
constitutional or statutory rights.
The court will not refer to the original pleading to
make any amended complaint complete.

Local Rule 10.3 requires

that an amended complaint be complete in itself without reference
to any prior pleading.

Defendants not named and claims not

realleged in an amended complaint are deemed waived.
Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

See King v.

Furthermore, as a

general rule, an amended complaint supersedes the original
complaint.

See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).

In an amended complaint, each claim and the involvement of each
Defendant must be sufficiently alleged.
IV.

CONCLUSION

IT IS HEREBY ORDERED that:
(1)

The Complaint is DISMISSED for failure to name proper

defendants and otherwise state a claim.
§ 1915(e)(2)(b) & 1915A(b)(1).
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See 28 U.S.C.

(2)

Plaintiff is GRANTED leave to file a proposed amended

complaint curing the deficiencies noted above by December 7,
2011.

Failure to timely or properly amend the Complaint will

result in dismissal of this action for failure to state a claim,
and may be counted as strike pursuant to 28 U.S.C. § 1915(g).
(3)

The Clerk of Court is directed to mail a form prisoner

civil rights complaint to Plaintiff so that she may comply with
the directions in this Order.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 7, 2011.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Kaeo-Tomaselli v. WCCC Medical Unit, Civ. No. 11-00669 SOM-KSC, Order Dismissing
Complaint; psa/Screening/dmp/ 2011/Tomaselli 11-669 SOM (dsm ftsc, imp. d’s lv amd)

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