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Thomas v. Carrasco

October 12, 2010

JOSH THOMAS, PLAINTIFF,
v.
D. A. CARRASCO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

(ECF No. 32)

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1). (ECF Nos. 4 & 54.) Before the Court is Defendants' Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b) and 12(b)(6). (ECF No. 32.) Plaintiff has opposed the motion. (ECF No. 40.)

I. PROCEDURAL HISTORY

A. Thomas I

The conduct at issue in the instant suit allegedly occurred during the course of earlier litigation between Plaintiff and some of the same Defendants named here, Thomas v. Stephens, 1:00-cv-05817 LJO SMS PC (Thomas I). In Thomas I, Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation at the California Substance Abuse Treatment Facility at Corcoran (CSATF), claimed that various personnel at the prison were deliberately indifferent to his serious medical needs.

Plaintiff's claims in that case were tried to a jury who returned a verdict for the defendants. Judgment on the verdict was affirmed on appeal.

While litigating Thomas I, Plaintiff was granted the right to review and copy portions of his medical records. In doing so he discovered that Deputy Attorney General David Carrasco and his legal assistant, Veronica Mendoza, had requested his medical records. Specifically, Plaintiff discovered Two (2) pages documents (one 'a civil rights document request form fax on March 12, 2002, from Veronica Mendoza Legal Assistant Correctional Law Section Office of the Attorney General') (Two a document request form dated May 14, 2002, from CSATF Litigation Coordinator stated as follows: 'the following is a request from the Attorney General Office for the Medical Records of Inmate Thomas C-53074. Please note that the document are needed before March 26, 2002.' D.A. Carrasco and V. Mendoza knowingly willingly and deliberately the confidentiality of medical information act and violated plaintiff's rights under both state and federal law and the United States Constitutions. (Thomas II, Compl., ¶ IV.)

2. Thomas II

Plaintiff then initiated the instant action on June 3, 2004, against Defendants Carrasco and Mendoza alleging that Defendants had "knowingly, willingly, and deliberately conducted an impermissible discovery of plaintiff's medical records without serving plaintiff a request for production or an order from the court".

On November 22, 2005, Findings and Recommendations were entered recommending that the current action be dismissed for failure to state a claim upon which relief could be granted.*fn1 The magistrate judge found that Plaintiff should have filed a motion in the action in which the claims arose, i.e. Thomas I, instead of initiating a new suit. (ECF No. 8.) On February 17, 2006, that recommendation was adopted in full, without comment. (ECF No. 10.) Judgment was entered in favor of Defendants and the case was closed. (ECF No. 11.)

On July 21, 2008, the Ninth Circuit Court of Appeals reversed. (ECF No. 20.) In a two page memorandum opinion, the court held that it was error to conclude that Plaintiff improperly brought a separate action pursuant to 42 U.S.C. § 1983, and it remanded the case with instructions to order a response from Defendants. See Thomas v. Carrasco, et al., 285 F. App'x 487 (9th Cir. 2008).

On April 29, 2009, Plaintiff filed his First Amended Complaint in this action.*fn2 (ECF No. 24.) In accordance with the Ninth Circuit's ruling, the Court ordered that the First Amended Complaint be served on Defendants. (ECF No. 26.) On September 1, 2009, Defendants Carrasco, Cooper, Clark, Adams, and Mendoza filed the instant Motion to Dismiss. (ECF No. 32.) Defendants ...


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