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Thompkins v. Medical Board of California


December 14, 2009



By order filed November 23, 2009, the undersigned denied plaintiff's motion to file his complaint under seal, denied plaintiff's in forma pauperis application, directed plaintiff to pay the filing fee, and dismissed plaintiff's complaint with leave to amend. In response, plaintiff has requested dismissal of this action pursuant to Rule 41 without prejudice and without costs. Plaintiff has also moved to seal all documents in the case.

A plaintiff may voluntarily dismiss an action by filing a notice of dismissal before the opposing party serves an answer or a motion for summary judgment. Fed. R. Civ. P. 41(a)(1)(A)(i). Such a notice effects dismissal of the action without prejudice unless the notice of dismissal states otherwise or the plaintiff previously dismissed an action that included the same claim. Here, no opposing party has appeared, and the court is not aware of a previous dismissal of an action alleging the same claim. Plaintiff's request for dismissal will be granted.

In support of his motion to seal "all documents pertaining to this case," plaintiff argues that "[t]he papers in this case are peppered with information from the medical records of third parties" and asserts that "[d]isclosure of the contents would compromise these persons rights to privacy with respect to their medical records." In denying plaintiff's initial motion to seal his complaint, the undersigned noted plaintiff's failure to cite any legal authority for sealing and informed plaintiff of the requirement that any request to seal "shall set forth the statutory or other authority for sealing." Local Rule 141(b) (previously numbered 39-141(b)). Despite that information, plaintiff's renewed and expanded motion to seal cites no stautory or other authority for sealing all documents in this action.

Plaintiff's vague allusion to a right to privacy in medical records does not provide legal authority for a sealing order. There is a strong presumption that the public has a common law right of access to judicial proceedings. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 598-99 (1978); Does I Through XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067-68 (9th Cir. 2000); EEOC v. Erection Co., Inc., 900 F.2d 168, 169-70 (1990). To overcome the presumption, a party who seeks a sealing order must cite applicable statutes or other authority, such as decisional law. Here, even if plaintiff were to cite statutes or court cases establishing or recognizing a right of privacy in medical records, such authorities would be unavailing in this instance because it does not appear that any document filed in this action contains information from medical records. The information alleged in plaintiff's complaint is derived from testimony given in judicial and administrative proceedings. In addition, plaintiff alleges that the third parties were informants rather than real patients and that each presented herself to plaintiff for medical examination based on fabricated conditions. For these reasons, plaintiff's renewed motion to seal will be denied.


1. Plaintiff's December 7, 2009 motion to seal all documents (Doc. No. 6) is denied; and

2. Plaintiff's December 7, 2009 request to dismiss (Doc. No. 6) is granted pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), and this action is dismissed in its entirety without prejudice and without costs.


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