Carlile v. Shinseki et al

Filing 20

ORDERED that the # 14 Motion to Dismiss is GRANTED, with leave to amend in part. Signed by Chief Judge Robert C. Jones on 3/11/2013. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RYAN C. CARLILE,
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Plaintiff,
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vs.
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ERIC K. SHINSEKI et al.,
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Defendants.
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3:12-cv-00151-RCJ-WGC
ORDER

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This case arises out of an alleged hostile workplace environment, improper access of

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medical records, and false reports. Pending before the Court is a motion to dismiss. For the

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reasons given herein, the Court grants the motion, with leave to amend in part.

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I.

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FACTS AND PROCEDURAL HISTORY
Plaintiff Ryan C. Carlile has filed the present Complaint in pro se against Secretary of

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Veteran’s Affairs Eric Shinseki and four employees of the VA Medical Center in Reno, Nevada:

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Dr. Kurt W. Schlegelmilch, Phyllis Mohr, Lynda H. Cochrane, and Chistine K. Sullivan.

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Although he has used a form for filing a complaint pursuant to 42 U.S.C. § 1983, Plaintiff brings

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no claims under that statute, but rather lists the following eight causes of action: (1), (4)–(7)

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illegal access of medical records (Cochrane); (2) testifying falsely during an EEOC investigation

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(Mohr); (3) falsifying documentation (Dr. Schlegelmilch); and (8) illegal access of medical

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records (Sullivan). Defendant has moved to dismiss for lack of jurisdiction and failure to state a

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claim. Plaintiff has not timely responded.

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II.

LEGAL STANDARDS

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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” in order to “give the defendant fair notice of

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what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47

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(1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action

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that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule

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12(b)(6) tests the complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n, 720

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F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for

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failure to state a claim, dismissal is appropriate only when the complaint does not give the

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defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is

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sufficient to state a claim, the court will take all material allegations as true and construe them in

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the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th

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Cir. 1986). The court, however, is not required to accept as true allegations that are merely

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conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden

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State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action

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with conclusory allegations is not sufficient; a plaintiff must plead facts pertaining to his own

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case making a violation plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 677–79

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(2009) (citing Twombly, 550 U.S. at 556) (“A claim has facial plausibility when the plaintiff

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pleads factual content that allows the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.”). In other words, under the modern interpretation of Rule

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8(a), a plaintiff must do more than specify the legal theory under which he seeks to hold a

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defendant liable; he also must identify the theory of his own case so that the court can properly

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determine not only whether any such legal theory exists (Conley review), but also whether the
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plaintiff has any basis for relief under such a theory even assuming the facts are as he alleges

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(Twombly-Iqbal review).

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“Generally, a district court may not consider any material beyond the pleadings in ruling

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on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the

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complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner

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& Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, “documents

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whose contents are alleged in a complaint and whose authenticity no party questions, but which

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are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6)

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motion to dismiss” without converting the motion to dismiss into a motion for summary

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judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule

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of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay

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Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court

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considers materials outside of the pleadings, the motion to dismiss is converted into a motion for

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summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.

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2001).

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III.

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ANALYSIS
As an initial matter, none of the claims directly identify statutory or common law causes

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of action. Defendants argue against the statutory claims that Plaintiff presumably means to

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identify. First, Defendants are correct that none of them can be liable under § 1983, which

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applies to actions “under color of state law.” Second, Defendants are correct that there is no

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private cause of action for unauthorized access to medical records under the Health Insurance

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Portability and Accountability Act of 1996 (“HIPAA”). See Webb v. Smart Document Solutions,

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LLC, 499 F.3d 1078, 1081 (9th Cir. 2007). Third, Defendants are correct that the Americans

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with Disabilities Act does not include the United States within its definition of “employer.” See

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42 U.S.C. § 12111(5)(B)(i). Fourth, Defendants are correct that Plaintiff has not sufficiently
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alleged a claim under the Rehabilitation Act of 1973, which does prohibit disability-based

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discrimination against a federal employer. This implied claim relates to Plaintiff’s “hostile

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workplace environment” allegations. Fifth, Defendants are correct that Plaintiff may not

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privately prosecute criminal statutes under Title 18. Sixth, Defendants are correct that only an

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agency may be sued for wrongful disclosure under the Privacy Act of 1974, and Plaintiff has

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sued only individuals. See Schowengerdt v. Gen. Dynamics Corp., 823 F.2d 1328, 1340 (9th Cir.

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1987) (citing 5 U.S.C. § 552a(g)(1)).

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Accordingly, the Court will dismiss the Complaint, with leave to amend to plead claims

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against Secretary Shinseki under the Rehabilitation Act of 1973 (the disability-based “hostile

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workplace environment” claim), see 29 U.S.C. § 794a; 42 U.S.C. § 2000e-16(c), as well as a

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claim against the Veteran’s Administration under the Privacy Act of 1974, see 5 U.S.C.

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§ 552a(g)(1). The other Defendants are dismissed with prejudice.

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CONCLUSION
IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 14) is GRANTED,
with leave to amend in part.

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IT IS SO ORDERED.

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Dated this 11thday of December, 2012.
4th day of March, 2013.

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_____________________________________
ROBERT C. JONES
United States District Judge

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