IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
July 21, 2008
MARK A COTTONHAM, PLAINTIFF(S),
CITY & COUNTY OF SAN FRANCISCO, ET AL, DEFENDANT(S).
The opinion of the court was delivered by: Vaughn R Walker United States District Chief Judge
ORDER OF DISMISSAL
Plaintiff, a prisoner at the San Francisco County Jail, has filed a pro se civil rights complaint under 42 USC § 1983 alleging that Center for Special Problems therapists Andreas Schmitz and Matt Foley breached their duty of patient-doctor confidentiality when they divulged parts of their initial interview with plaintiff to plaintiff's probation officer, which caused plaintiff to be placed in custody. Plaintiff seeks damages and release from custody.
A. Standard of Review
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a 28 governmental entity. USC § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v Pacifica Police Dep't, 901 F2d 696, 699 (9th Cir 1990). To state a claim under 42 USC § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v Atkins, 487 US 42, 48 (1988).
B. Legal Claims
Plaintiff's claim for damages for breach of his therapists' duty of doctor- patient confidentiality must be dismissed for failure to state a claim under § 1983. Although the alleged breach may be sufficient to state a claim for violation of California law, it is not enough to state a claim for violation of a right secured by the Constitution or laws of the United States. See id. Moreover, therapists Schmitz and Foley are private individuals who did not act under color of state law, an essential element of a § 1983 action. See Gomez v Toledo, 446 US 635, 640 (1980). Purely private conduct, no matter how wrongful, is not covered under § 1983. See Ouzts v Maryland Nat'l Ins Co, 505 F2d 547, 550 (9th Cir 1974). Plaintiff's naming the City and County of San Francisco as a defendant does not compel a different result because the therapists were not employees of the City and County and, even if they were, that would not be a sufficient basis for liability under § 1983. See Board of County Comm'rs v Brown, 520 US 397, 403 (1997) (city or county may not be held vicariously liable for unconstitutional acts of its employees under theory of respondeat superior).
Plaintiff's claim for injunctive relief -- to be released from custody -- must be dismissed without prejudice to bringing the claim in a petition for a writ of habeas corpus after exhausting state judicial remedies. It is well-established that any claim by a prisoner attacking the fact or duration of his confinement must be brought under the habeas sections of Title 28 of the United States Code. See Calderon v Ashmus, 523 US 740, 747 (1998); Edwards v Balisok, 520 US 641, 648 (1997); Preiser v Rodriguez, 411 US 475, 500 (1973).
For the foregoing reasons, the complaint is DISMISSED under the authority of 28 USC § 1915A(b). The clerk enter judgment in accordance with this order, terminate all pending motions as moot and close the file.
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