Kaeo-Tomaselli v. Patterson et al

Filing 6

ORDER DISMISSING COMPLAINT WITH LEAVE GRANTED TO AMEND 1 . Excerpt of Order: ~ "The Complaint is DISMISSED for failure to state a claim...." "Plaintiff is GRANTED leave to file a proposed amended c omplaint...by January 31, 2012. ~ Signed by JUDGE LESLIE E. KOBAYASHI on 12/29/2011. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically 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 Modified on 12/30/2011 to further note: A copy of the "Prisoner Civil Rights Complaint" form with its instructions included with the mailing of the Order to Ms. Kaeo-Tomaselli. (afc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DION’E KAEO-TOMASELLI,
#A5004463,
Plaintiff,
vs.
MARK PATTERSON, HALAKI
ANCHETA,
Defendants.
____________________________

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CIV. NO. 11-00764 LEK-BMK
ORDER DISMISSING COMPLAINT WITH
LEAVE GRANTED TO AMEND

ORDER DISMISSING COMPLAINT WITH LEAVE GRANTED TO AMEND
Before the court is pro se Plaintiff Dion’e KaeoTomaselli’s (“Plaintiff”) prisoner civil rights complaint brought
pursuant to 42 U.S.C. § 1983.1

Plaintiff is incarcerated at the

Women’s Community Correctional Center (“WCCC”).

Plaintiff names

WCCC Warden Mark Patterson (“Patterson”), in his official
capacity and WCCC volunteer hula teacher, Halaki Ancheta
(“Ancheta”), in her individual capacity, alleging that they
violated her constitutional right to privacy when they divulged
her confidential medical information.
The Complaint is DISMISSED pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915(A)(b)(1), for failure to state a claim.
Because it is possible that Plaintiff can cure the Complaint’s
deficiencies as set forth below, she is granted leave to amend
her claims.

1

Plaintiff is proceeding in forma pauperis.

See ECF #[9].

I. 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 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 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
2

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.

Lopez

v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
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
3

right.’”

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

(citation omitted), vacated and remanded on other grounds, 129 S.
Ct. 2431 (2009); see also West v. Atkins, 487 U.S. 42, 48 (1988);
42 U.S.C. § 1983.
A.

Plaintiff’s Claims
In Count I, Plaintiff claims that Patterson violated

her right to privacy when he told his personal friend and WCCC
volunteer hula teacher, Ancheta, that Plaintiff was dying of
AIDS.

In Count II, Plaintiff claims that, sometime between

November 3, 2009, and December 21, 2009, Ancheta repeated this
information to several inmates attending her hula class.
Plaintiff alleges Defendants violated the Eighth Amendment by
divulging her private medical information.
Plaintiff raised identical claims against Patterson and
Ancheta in Kaeo-Tomaselli v. Women’s Community Corr. Ctr.,
1:11-cv-00669-SOM-RLP.

In that action, Plaintiff was notified

that her claim against Patterson was cognizable and could
proceed, once she amended the complaint to properly name him in
the caption.

See 1:11-cv-00669-SOM-RLP, ECF #6 at 5-6, 11.

Plaintiff was informed that, because she failed to allege or show
how Ancheta, a volunteer hula teacher at the prison, was acting
under color of state law, her claims against Ancheta failed to
state a claim.

Id. at 9.

the complaint and did so.

Plaintiff was granted leave to amend
Id., ECF #7.
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Plaintiff’s amended

complaint did not include her claims against Patterson and
Ancheta, however.

Instead, Plaintiff chose to commence a

separate action against them.
B.

Plaintiff’s Right to Privacy in her Medical Information
The Supreme Court recognizes a constitutional right to

privacy regarding “the individual interest in avoiding disclosure
of personal matters.”

Whalen v. Roe, 429 U.S. 589, 599 (1977).

In Whalen, the Court did not define the boundaries of this right,
or hold that there is a constitutional right to privacy for
medical records, however.

Rather, it held that, insofar as there

is such a right, it was not impacted by a New York law requiring
physicians to disclose identifying information for individuals
prescribed certain controlled substances.

Id. at 605.

The

Supreme Court’s most recent discussion on the issue, NASA v.
Nelson, --- U.S. ----, 131 S. Ct. 746 (2011), explicitly
“assume[d], without deciding” that the Constitution protects such
a right, but expressly declined to consider its extent.
751.

Id. at

The Court noted that it had announced that such a right

existed in Whalen, but had said virtually nothing on the matter
in the more than 30 years since.

See id. at 751, 756 (citing

Whalen, 429 U.S. at 599-600 (1977), and Nixon v. Admin. of Gen.
Servs., 433 U.S. 425, 457 (1977)).

Declining to articulate the

scope of such a right, the Court ruled that the plaintiffs’

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claims for invasion of privacy failed on other grounds.2

Id. at

762-64.
Courts have generally found that prisoners’ rights to
informational privacy in their medical records, if any, arise
under the Fourteenth Amendment.

See Seaton v. Mayberg, 610 F.3d

530, 537–39 (9th Cir. 2010) cert. denied, ––– U.S. ––––, 131 S.
Ct. 1534 (2011) (recognizing an inmate’s limited right to
informational privacy of medical records under the Fourteenth
rather than the Fourth Amendment); see also Birks v. Terhune, 398
Fed. App’x 308, 309 (9th Cir. 2010) (affirming dismissal of
prisoner’s claim that a prison official breached a duty of
medical confidentiality, stating “prisoner’s privacy interest in
medical treatment information yields to prisons’ interest in
maintaining security”) (citing Seaton, 610 F.3d at 534-35);
Powell v. Schriver, 175 F.3d 107 (2d Cir. 1999).

The court

therefore construes Plaintiff’s claims as raised under the
Fourteenth, rather than the Eighth, Amendment.
In Seaton, the court held that an inmate had no privacy
right in preventing the disclosure of his mental health records
to the district attorney’s office, when the State sought the
inmate’s commitment under California’s Sexually Violent Predator
Act.

610 F.3d at 541.

The court stated that, to the extent an

2

In concurring, Justice Scalia opined that “[a] federal
constitutional right to ‘informational privacy’ does not exist.”
Id. at 764.
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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.”
C.

Id. at 535.

Warden Patterson
Patterson 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 it.
That interest is not so readily apparent in his alleged
disclosure of this information to Ancheta.

It may come forth

that Patterson had a legitimate penological reason to disclose
Plaintiff’s condition to Ancheta, such as institutional security,
or to protect Ancheta and other prisoners from Plaintiff’s
communicable disease, or that this disclosure never occurred.

At

this stage, however, Plaintiff has stated a claim for the
violation of her right to privacy regarding Patterson’s alleged
disclosure of her medical information to Ancheta.
//
//

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1.

Patterson is Named in His Official Capacity Only
In Will v. Michigan Dept. of State Police, 491 U.S. 58,

(1989), the Supreme Court held that states, state agencies, and
state officials sued in their official capacities are not persons
subject to civil rights suits under 42 U.S.C. § 1983.
at 664-66.

491 U.S.

Further, the Eleventh Amendment prohibits federal

jurisdiction over suits against the state or a state agency
unless the state or agency consents to the suit.

See Seminole

Tribe of Florida v. Florida, 517 U.S. 44, 53 (1996); Pennhurst
State School and Hospital v. Halderman, 465 U.S. 89, 100 (1984);
Quern v. Jordan, 440 U.S. 332, 342 (1979).

State officers acting

in their official capacities receive the same immunity as the
government agency that employs them.

Hafer v. Melo, 502 U.S. 21

(1991).
Thus, the Eleventh Amendment bars Plaintiff’s claims
for damages from Patterson in his official capacity.

See Doe v.

Lawrence Livermore Natl. Lab., 131 F.3d 836, 839 (9th Cir. 1997);
Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir. 1996); Pena v.
Gardner, 976 F.2d 469, 472 (1992).

Because Plaintiff names

Patterson in his official capacity only, and Patterson is immune
from suit in his official capacity for damages claims against
him, claims against Patterson are DISMISSED, with leave granted
to amend.
//
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D.

Ancheta
Plaintiff alleges that Ancheta is a volunteer hula

teacher at WCCC and personal friend of Patterson’s.

Section

1983, however, does not generally apply to the conduct of private
parties.

Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003);

see also Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991);
42 U.S.C. § 1983.

“The state-action element in § 1983 ‘excludes

from its reach merely private conduct, no matter how
discriminatory or wrongful.’”

Caviness v. Horizon Comty.

Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting
American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50
(1999)).
Private individuals act under color of state law only
when their conduct is fairly attributable to the State.
Edmundson Oil Co., Inc., 457 U.S. 922, 937 (1982).

Lugar v.

To be

considered as acting under color of state law, “the defendant
. . . [must] have exercised power ‘possessed by virtue of state
law and made possible only because the wrongdoer is clothed with
the authority of state law.’”

West, 487 U.S. at 49 (quoting

United States v. Classic, 313 U.S. 299, 326 (1941)).

The court

should presume that conduct by private actors is not state
action, however, and the plaintiff bears the burden of
establishing that a defendant was acting under color of state

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law.

Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916,

922 (9th Cir. 2011)(citations omitted).
The court employs a two-part test to determine whether
private action is fairly attributable to the state.
639 F.3d at 922.

See Florer,

“First, the deprivation must be caused by the

exercise of some right or privilege created by the State or by a
rule of conduct imposed by the state or by a person for whom the
State is responsible.”

Lugar, 457 U.S. at 937.

“Second, the

party charged with the deprivation must be a person who may
fairly be said to be a state actor.”

Id.

Plaintiff pleads no facts showing that Ancheta acted in
furtherance of an official prison or state policy when she
discussed Plaintiff’s medical condition, rather, Plaintiff
alleges that Ancheta violated such policies.

Plaintiff therefore

fails to show that Ancheta’s misguided discussion with other
inmates was the result of a governmental policy, and thus, fairly
attributed to the state.

See Florer, 639 F.3d at 922 (citing

Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th
Cir. 1999)) (further citations omitted).
Even if Ancheta’s conduct satisfied Lugar’s first step,
it fails the second: whether Ancheta can be fairly considered a
state actor.

See Florer, 639 F.3d at 923.

“[F]or private

conduct to constitute governmental action, ‘something more’ must
be present.”

Sutton, 192 F.3d at 835.
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“State action may be

found if, though only if, there is such a close nexus between the
State and the challenged action that seemingly private behavior
may be fairly treated as that of the State itself.”

Villegas v.

Gilroy Garlic Festival Ass’n, 541 F.3d 950, 955 (9th Cir. 2008)
(en banc) (citing Brentwood Acad. v. Tenn. Secondary Sch.
Athletic Ass’n, 531 U.S. 288, 295 (2001)).

The Ninth Circuit

Court of Appeals utilizes four tests to identify when private
conduct is fairly attributable to the state: “(1) public
function; (2) joint action; (3) governmental compulsion or
coercion; and (4) governmental nexus.”

Kirtley, 326 F.3d at 1092

(quotation omitted).
1.

No Public Function
Under the public function test, a private actor’s

conduct qualifies as state action where the private actor is
endowed with state powers or functions that are traditionally and
exclusively governmental in nature.

Kirtley, 326 F.3d at 1092.

A volunteer hula teacher at a prison does not perform a function
exclusively and traditionally performed by the state.

See

Caviness, 590 F.3d at 814 (holding that the provision of
educational services by a publicly funded charter school “is not
a function that is traditionally and exclusively the prerogative
of the state”); see also Rendell-Baker v. Kohn, 457 U.S. 830, 838
(1982) (holding that a private school that was almost wholly
state-funded was not a state actor for purposes of § 1983).
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2.

No State Compulsion
The compulsion or coercion test considers whether the

state has coercively influenced or significantly encouraged the
private conduct.

Kirtley, 326 F.3d at 1094.

Plaintiff alleges

that Patterson and Ancheta violated state prison policies, thus
there was no official governmental compulsion influencing
Ancheta’s discussion of Plaintiff’s medical condition.

See

Gorenc v. Salt River Project Agric. Improvement & Power Dist.,
869 F.2d 503, 508 (9th Cir. 1989).
3.

No Joint Action
A private individual may also “be liable under § 1983

if she conspired or entered joint action with a state actor.”
Crowe v. County of San Diego, 608 F.3d 406, 440 (9th Cir. 2010)
(quoting Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002)).
The court must determine whether “the state has so far insinuated
itself into a position of interdependence with the private entity
that it must be recognized as a joint participant in the
challenged activity.

This occurs when the state knowingly

accepts the benefits derived from the unconstitutional behavior.”
Kirtley, 326 F.3d at 1093 (citation omitted).
To state a viable conspiracy claim under § 1983,
however, “the plaintiff must [allege] specific facts to support
the existence of the claimed conspiracy.”

Burns v. Co. of King,

883 F.3d 819, 821 (9th Cir. 1989) (citation omitted).
12

To do so,

“a plaintiff must demonstrate the existence of an agreement or
meeting of the minds” to violate constitutional rights.”

Crowe,

593 F.3d 841, 875 (citation and quotation marks omitted). “
Plaintiff’s allegations regarding what transpired
between Patterson and Ancheta are vague and conclusory and, for
that reason alone, must be dismissed.

See Degrassi v. City of

Glendora, 207 F.3d 636, 647 (9th Cir. 2000) (stating that “a bare
allegation of . . . joint action will not overcome a motion to
dismiss” (citation and quotation marks omitted)); Price, 939 F.2d
at 707-08 (stating that “[c]onclusionary allegations, unsupported
by facts, [will be] rejected as insufficient to state a claim
under the Civil Rights Act” (citation and quotation marks
omitted, modifications in original).).
Moreover, Plaintiff does not allege a conspiracy
between Patterson and Ancheta to deprive her of her
constitutional rights, nor does she identify what benefit they or
the State received from divulging her medical information.
Plaintiff simply alleges that Patterson divulged her medical
condition to his friend, Ancheta, and Ancheta told her students.
This is more indicative of simple gossip than it is of a
conspiracy to deprive Plaintiff of her constitutional rights.
These facts do not suggest the level of interdependence
sufficient to support a § 1983 conspiracy under a joint action
theory.

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4.

General Nexus
Finally, the more general nexus test “asks whether

‘there is such a close nexus between the State and the challenged
action that the seemingly private behavior may be fairly treated
as that of the State itself.’”

Kirtley, 326 F.3d at 1094–95

(quoting Brentwood, 531 U.S. at 295).

The discussion of the

joint action test is equally applicable to the general nexus
test.

Simply because Ancheta, in her position as a volunteer at

the prison, revealed Plaintiff’s medical condition to others,
information she received based on her personal relationship as
Patterson’s friend, does not create a sufficiently close nexus to
the State to treat her as a state actor.

These facts do not

establish that the State participated in Ancheta’s decision to
reveal Plaintiff’s medical condition, and Plaintiff’s claims
against Ancheta must be dismissed.
D.

See Gorenc, 869 F.2d at 506.

Leave to Amend
The Complaint is DISMISSED as discussed above.

Plaintiff may file a proposed amended complaint on or before
January 31, 2012.

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.
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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)
claim.

The Complaint is DISMISSED for failure to state a
See 28 U.S.C. § 1915(e)(2)(b) & 1915A(b)(1).

(2)

Plaintiff is GRANTED leave to file a proposed amended

complaint curing the deficiencies noted above by January 31,
2012.

Failure to timely amend the Complaint and cure its

pleading deficiencies 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.

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DATED: Honolulu, Hawaii, December 29, 2011.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

Kaeo-Tomaselli v. Patterson, et al., Civ. No. 11-00764 LEK-BMK, Order Dismissing
Complaint With Leave Granted to Amend; psa/Screening/dmp/ 2011/Tomaselli 11-764 LEK
(dsm ftsc lv amd)

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