The opinion of the court was delivered by: Caulfield, District Judge
Plaintiff, an inmate at Pelican Bay State Prison, has filed this suit under 42 U.S.C. § 1983. On October 15, 1992, the court determined that plaintiff stated a cognizable claim against defendant K. Slayton for the violation of his arguable constitutional right to privacy. On December 21, 1992, defendant filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), claiming that he is entitled to qualified immunity. After being ordered by the court to respond to defendant's motion, plaintiff filed a response on March 2, 1993 in the form of an "Affidavit for Motion of Discovery." On that same day, plaintiff also filed a motion for appointment of counsel.
Plaintiff maintains that his privacy rights have been violated as a result of the dissemination by Correctional Counselor Slayton of allegedly confidential information in plaintiff's prison files. Plaintiff states that his fiance contacted Slayton to inquire about marriage requirements and that Slayton then proceeded to disclose to plaintiff's fiance false information about plaintiff and information from plaintiff's prison file without plaintiff's consent. According to plaintiff, Slayton released information about plaintiff's current incarceration, his past experiences, and other negative information, including information about plaintiff's age and an incident involving plaintiff at the Los Angeles County Jail. Plaintiff maintains that as a result of these unauthorized disclosures his fiance broke her engagement to plaintiff.
On October 15, 1992, the court dismissed plaintiff's claims for defamation, for violations of state law, and for injunctive relief. The court ordered served on defendant the claim for violation of a constitutional right to privacy. The court noted, however, that "the parameters of this right have not been clearly defined by the Supreme Court, or determined without conflict among the federal circuit and district courts." Because it was at least "arguable" that plaintiff stated a claim, the court ordered the claim served, following the requirements of 28 U.S.C. § 1915(d) and Denton v. Hernandez, 112 S.Ct. 1728 (1992).
I. Defendant's Motion to Dismiss
Defendant moves to dismiss this action under FRCP 12(b)(6), arguing that he is entitled to qualified immunity because the constitutional right to privacy is not clearly established.
State officials who are sued in their individual capacities may assert qualified immunity as an affirmative defense. Scheuer v. Rhodes, 416 U.S. 232, 247-49 (1974). The current test for qualified immunity is an objective one. "Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Ninth Circuit has divided the qualified immunity analysis into two inquiries: 1) was the law governing the officer's conduct clearly established, and 2) under that law, could a reasonable officer have believed the conduct was lawful. Act Up!/Portland v. Bagley, No. 90-33888, slip op. at 1071, 1076-77 (9th Cir., Feb. 10, 1993).
In determining whether the law is "clearly established," it is not sufficient for a court to ascertain in a general sense that the alleged right at issue existed; otherwise "[p]laintiff[ ] would be able to convert the rule of qualified immunity ... into a rule of virtually unqualified immunity simply by alleging a violation of extremely abstract rights." Anderson v. Creighton, 483 U.S. 635, 639 (1987). A right is clearly established only if the contours of the right [are] sufficiently clear that a reasonable officer would understand that what he is doing violates that right." Anderson, 483 U.S. at 640. To make that determination, courts look to binding precedent, and in the absence of such precedent, to all available decisional law, including decisions of state courts, other circuits, and district courts. Capoeman v. Reed, 754 F.2d 1512, 1514 (9th Cir.1985).
While no "right of privacy" is expressly guaranteed in the Constitution, the Supreme Court has recognized that specific constitutional guarantees may create "zones of privacy." See Paul v. Davis, 424 U.S. 693, 712-13 (1976). In particular, the Court has noted that a privacy right under the fourteenth amendment exists in "the individual interest in avoiding disclosure of personal matters." Whalen v. Roe, 429 U.S. 589, 599 (1977). Whalen, however, held that a state statute that authorized the state to record certain personal information did not violate this privacy right. Id. at 600-03. The court explicitly reserved the question whether the "unwarranted disclosure of accumulated private data" by the state would violate the Constitution. Id. at 605- 06. Thus, the decision provides little guidance as to the nature of the privacy right itself.
Nor do lower court decisions. While the Ninth Circuit has clarified that medical information is encompassed within the constitutional privacy interest, Doe v. Attorney General of U.S., 941 F.2d 780, 795-96 (9th Cir.1991), it has not clarified what other kind of information is or is not protected. As a result, the contours of the right to privacy are less than clear. Davis v. Bucher, 853 F.2d 718, 719 (9th Cir.1988). While assuming that the Constitution protects against state disclosures of confidential information in some instances, the Ninth Circuit has held that a prison officer's disclosure of an inmate's photographs of his nude wife did not violate the right to privacy. Davis, 853 F.2d at 720-21. The injury was not one of constitutional magnitude, the court concluded, and therefore the claim fell within the ambit of state tort law protection. Id.
Some courts have applied a balancing test and found that the governmental interest at issue outweighed the privacy invasion. See, e.g., Ramie v. City of Hedwig Village, 765 F.2d 490, 492-93 (5th Cir.1985), cert. denied, 474 U.S. 1062 (1986) (police inquiry into personal matters); Barry v. City of New York, 712 F.2d 1554, 1558-64 (2d Cir.), cert. denied, 464 U.S. 1017 (1983) (upholding financial disclosure statute because state interest in deterring corruption outweighed privacy interest). Where prisoners are involved, the public interest in the security of prisons and effective rehabilitation has outweighed prisoners' privacy rights. See Taylor v. Best, 746 F.2d 220, 224 (4th Cir.1984), cert. denied, 474 U.S. 982 (1985) (prisoner's asserted privacy interest in his family history, which prison officials inquired about during a psychological screening, was outweighed by public interest); cf. Grummet v. Rushen, 779 F.2d 491, 494-95 (9th Cir.1985) (state's interest in prison security outweighed prisoners' rights to privacy in their naked bodies).
Other courts have declined to apply a balancing test, holding instead that there is no general constitutional right to non-disclosure of private information. J.P. v. DeSanti, 653 F.2d 1080, 1089 (6th Cir.1981) (disclosure of juvenile records to governmental and social agencies did not violate the Constitution); Crain v. Krehbiel, 443 F.Supp. 202, 208- 09 (N.D.Cal.1977) (government disclosure of information ...