(PC) Brown v. Vovkulin

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 ANTHONY BROWN, SR., No. 2:20-cv-02098 CKD P 12 Plaintiff, 13 v. ORDER 14 V. VOVKULIN, et al., 15 Defendants. [16] 17 Plaintiff is a state inmate proceeding pro se in this civil rights action filed pursuant to 42 18 U.S.C. § 1983 . This proceeding was referred to this court by Local Rule 302 pursuant to 28 19 U.S.C. § 636 (b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915 (a), his request will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 23 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915 (b)(2). 1 I. Screening Standard 2 The court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 7 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 8 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 9 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 10 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, [11] 490 U.S. at 327 . The critical inquiry is whether a constitutional claim, however inartfully 12 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 13 Cir. 1989); Franklin, 745 F.2d at 1227 . 14 In order to avoid dismissal for failure to state a claim a complaint must contain more than 15 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 16 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 17 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 18 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 19 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570 . “A 20 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 21 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 22 at 678 . When considering whether a complaint states a claim upon which relief can be granted, 23 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 24 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 25 U.S. 232 , 236 (1974). 26 II. Allegations in the Complaint 27 At all times relevant to the allegations in the complaint, plaintiff was an inmate at Mule 28 Creek State Prison. In the first cause of action, plaintiff asserts that defendant Vovkulin and his 1 partner, defendant Milliken, retaliated against him by filing false disciplinary charges after 2 plaintiff filed an inmate grievance. ECF No. 1 at 9-10. Defendant Vovkulin also retaliated by 3 removing plaintiff from his prison job assignment on September 8, 2020. ECF No. 1 at 11. 4 Plaintiff’s second cause of action alleges a violation of his Fourteenth Amendment right to 5 due process. ECF No. 1 at 21-23. Specifically, plaintiff contends that on September 8, 2020, 6 defendant Vovkulin lied to other CDCR staff to get plaintiff removed from his job as an inmate 7 porter. ECF No. at 21. Plaintiff was not afforded any procedural due process before his prison 8 job assignment was taken away which violates CDCR administrative regulations. Id. at 21-22 . 9 In his third cause of action, plaintiff alleges that defendant Vovkulin violated his right to 10 privacy in his medical records by ordering another inmate to distribute mail that contained 11 plaintiff’s medical test results. Plaintiff alleges that defendant Vovkulin’s actions violated the 12 federal constitution, CDCR regulations, and the Health Insurance Portability and Accountability 13 Act of 1996 (“HIPAA”). 14 By way of relief, plaintiff requests monetary damages, the dismissal of the false 15 disciplinary charges made by defendants, and that each defendant be fired from their jobs based 16 on the false or intentionally misleading statements that they made in official reports. See ECF 17 No. 1 at 26. 18 III. Legal Standards 19 The following legal standards are being provided to plaintiff based on his pro se status as 20 well as the nature of the allegations in his complaint. 21 A. Linkage Requirement 22 The civil rights statute requires that there be an actual connection or link between the 23 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 24 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 25 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 26 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 27 in another's affirmative acts or omits to perform an act which he is legally required to do that 28 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 1 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 2 link each named defendant with some affirmative act or omission that demonstrates a violation of 3 plaintiff's federal rights. 4 B. False Disciplinary Charges 5 A prisoner has no constitutionally-guaranteed immunity from being falsely or wrongly 6 accused of conduct that may lead to disciplinary sanctions. See Sprouse v. Babcock, 870 F.2d 7 450, 452 (8th Cir. 1989). As long as a prisoner is afforded procedural due process in the 8 disciplinary hearing, allegations of a fabricated charge generally fail to state a claim under section 9 1983. See Hanrahan v. Lane, 747 F.2d 1137 , 1140– 41 (7th Cir. 1984). An exception exists 10 when the fabrication of charges infringed on the inmate's substantive constitutional rights, such as 11 when false charges are made in retaliation for an inmate's exercise of a constitutionally protected 12 right. See Sprouse, 870 F.2d at 452 (holding that filing of a false disciplinary charge in retaliation 13 for a grievance filed by an inmate is actionable under section 1983). 14 C. Right to Informational Privacy 15 The right to privacy includes the protection against the disclosure of medical information. 16 See Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260 , 1269 (9th Cir. 1998) (stating 17 that “[t]he constitutionally protected privacy interest in avoiding disclosure of personal matters 18 clearly encompasses medical information and its confidentiality.”) (citations omitted). “This 19 interest, often referred to as the right to ‘informational privacy,’ applies both when an individual 20 chooses not to disclose highly sensitive information to the government and when an individual 21 seeks assurance that such information will not be made public.” Voss v. Baker, Case No. 1:1722 cv-00626-DAD-EPG, 2017 WL 6406044 at *4 (E.D. Cal. Dec. 15, 2017) (internal citations 23 omitted). However, in the prison context, the Ninth Circuit has found that an inmate’s right to 24 informational privacy may yield to the need for institutional safety and security. Seaton v. 25 Mayberg, 610 F.3d 530, 534-35 (9th Cir. 2010). “Prisons need access to prisoners' medical 26 records to protect prison staff and other prisoners from communicable diseases and violence, and 27 to manage rehabilitative efforts.” Seaton, 610 F.3d at 534-35 . Therefore, “prisoners do not have 28 a constitutionally protected expectation of privacy in prison treatment records when the state has 1 a legitimate penological interest in access to them.” Id. 2 To the extent relevant here, the Health Insurance Portability and Accountability Act 3 (“HIPAA”) was designed to protect the confidentiality of private medical information by limiting 4 disclosure to certain entities or individuals. See Webb v. Smart Document Solutions, LLC, 499 5 F.3d 1078, 1082 (9th Cir. 2007) (citations omitted). However, this law does not provide 6 individuals with a private cause of action. Id., Seaton v. Mayberg, 610 F.3d 530, 533 (9th Cir. 7 2010). 8 IV. Analysis 9 After conducting the required screening, the court finds that plaintiff may proceed on the 10 First Amendment retaliation claim against defendants Vovkulin and Milliken. To the extent that 11 plaintiff alleges a separate cause of action under the Fourteenth Amendment, the court finds that 12 the factual allegations in support thereof are just a recapitulation of the retaliation claim against 13 defendant Vovkulin. Plaintiff fails to plead a separate procedural due process violation against 14 any named defendant particularly considering that they were not the senior hearing officers 15 involved in adjudicating the disputed rule violations. Therefore, the court concludes that 16 plaintiff’s second cause of action for violating his Fourteenth Amendment right to due process 17 fails to state a claim for relief. 18 Similarly, the court finds that plaintiff’s third cause of action for a violation of his right to 19 privacy fails to state a claim. While the Ninth Circuit has held that the constitutional right to 20 informational privacy extends to medical information, the allegations that plaintiff’s medical 21 information was disclosed in the process of distributing mail is too vague to state a claim. It is 22 not clear whether plaintiff’s medical information was actually disclosed to another inmate or 23 whether the information was contained inside an envelope that merely passed through another 24 inmate’s hands without being opened and read. Therefore, the allegations in the complaint do not 25 contain sufficient detail to state a claim against defendant Vovkulin for instructing another inmate 26 to distribute plaintiff’s mail. Nor does plaintiff allege a separate HIPAA violation based on 27 defendant Vovkulin’s conduct because there is no private right of action under this federal statute. 28 See Webb, 499 F.3d at 1082. As a result, the court finds that plaintiff’s third cause of action fails 1 to state a claim for relief. 2 Plaintiff may elect to proceed immediately on the First Amendment retaliation claim 3 against defendants; or, in the alternative, plaintiff may elect to amend his complaint to attempt to 4 cure the deficiencies with respect to the remaining claims. See Lopez v. Smith, 203 F.3d 1122 , 5 1126–27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity to 6 amend to correct any deficiency in their complaints). If plaintiff chooses to proceed on the 7 retaliation claim found cognizable in this screening order, the court will construe this as a request 8 to voluntarily dismiss the additional claims pursuant to Rule 41(a)(1)(i) of the Federal Rules of 9 Civil Procedure. 10 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 11 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 12 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in 13 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 14 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 15 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 16 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 17 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 18 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 19 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 20 complaint be complete in itself without reference to any prior pleading. This is because, as a 21 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 22 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 23 longer serves any function in the case. Therefore, in an amended complaint, as in an original 24 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 25 V. Plain Language Summary for Pro Se Party 26 The following information is meant to explain this order in plain English and is not 27 intended as legal advice. 28 //// 1 Some of the allegations in the complaint state claims for relief against the defendants, and 2 || some donot. You must decide if you want to (1) proceed immediately on the First Amendment 3 | retaliation claim found cognizable against defendants; or, (2) amend the complaint to fix the 4 | problems identified in this order with respect to the remaining claims. Once you decide, you 5 | must complete the attached Notice of Election form by checking only one box and returning 6 | it to the court. 7 Once the court receives the Notice of Election, it will issue an order telling you what you 8 || need to donext. If you do not return this Notice, the court will order service of the complaint 9 | only on the First Amendment claim found cognizable in this screening order and will recommend 10 | dismissing the remaining claims. 11 In accordance with the above, ITIS HEREBY ORDERED that: 12 1. Plaintiff’s motions for leave to proceed in forma pauperis (ECF Nos. 5, 7) are granted. 13 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 14 | shall be collected and paid in accordance with this court’s order to the Director of the California 15 || Department of Corrections and Rehabilitation filed concurrently herewith. 16 3. Plaintiff has the option to proceed immediately on the First Amendment retaliation 17 || claim against defendant Vovkulin. In the alternative, plaintiff may choose to amend the 18 | complaint to fix the deficiencies identified in this order with respect to the remaining claims. 19 4. Within 21 days from the date of this order, plaintiff shall complete and return the 20 | attached Notice of Election form notifying the court whether he wants to proceed on the screened 21 || complaint or whether he wants time to file a first amended complaint. 22 5. If plaintiff fails to return the attached Notice of Election within the time provided, the 23 || court will construe this failure as consent to dismiss the deficient claims and proceed only on the 24 || cognizable claim identified above. 25 | Dated: April 16, 2021 bh rd PL fo—, 26 CAROLYN K DELANEY 7 UNITED STATES MAGISTRATE JUDGE 28 || 12/brow2098.option.docx [7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 ANTHONY BROWN, SR., No. 2:20-CV-02098-CKD 12 Plaintiff, 13 v. NOTICE OF ELECTION 14 V. VOVKULIN, et al., 15 Defendants. 16 Check only one option: 17 _____ Plaintiff wants to proceed immediately on the First Amendment retaliation claim against 18 defendants. Plaintiff voluntarily dismisses the remaining claims. 19 _____ Plaintiff wants time to file a first amended complaint. [20] 21 DATED: [23] ____________________ 24 Plaintiff