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Manuel R. Lopez v. John H. Missirlian

January 16, 2013


The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge



On December 3, 2012, Plaintiff Manuel R. Lopez ("Plaintiff"), proceeding pro se and in forma pauperis, filed this action against Defendants John H. Missirlian ("Missirlian") and the law firm of Ciummo & Associates ("Ciummo," collectively "Defendants"). For the reasons set forth below, Plaintiff's complaint (Doc. 1) is DISMISSED without prejudice and with leave to amend.


Plaintiff's complaint alleges that Defendant Missirlian is employed as an attorney with Defendant Ciummo.*fn1 (Doc. 1, p. 2.) Plaintiff alleges that Missirlian interviewed Plaintiff on an unspecified date in the Fresno County Jail concerning Missirlian "being re-assigned as [Plaintiff's] lawyer regarding [his] pending criminal case." (Doc. 1, p. 3.) Plaintiff asserts that Missirlian misled Plaintiff and "illegally acquired [Plaintiff's] confidential and personal medical files which contain [his] confidential information without [Plaintiff's] signed consent." (Doc. 1, p. 3.) Plaintiff contends that this file contained "private psychological information regarding injuries [he] sustained . . . while working at Corporate Express, Inc., in the year 2004." (Doc. 1, p. 3.) As such, Plaintiff contends that Missirlian "illegally acquired" the "personal medical file" and thus violated Plaintiff's "right to protect [his] confidential information." (Doc. 1, p. 3.)

Plaintiff thus seeks to prevent Ciummo and attorney "Michael J Aed*fn2 [("Aed")]from using or disclosing [Plaintiff's] personal medical file in any way[,] shape or form in Fresno Superior Court" because Plaintiff's "workman's comp case is still pending." (Doc. 1, p. 3.) Plaintiff asserts that disclosure of his medical information in his criminal proceedings would "present premature decisions and further injustices of criterias [sic] and or discrepancies concerning [his] inconclusive medical circumstances," although it is not clear whether Plaintiff is contending that his criminal proceeding or his worker's compensation proceeding would be prejudiced. (Doc. 1, p. 4.) Plaintiff requests that the Court "prevent attorney Michael J. Aed from using and/or disclosing the contents of [Plaintiff's] personal-private workman's compensation confidential medical file" in any court or legal proceeding, including in the proceeding before the Fresno Superior Court. (Doc. 1, p. 4.) Plaintiff also requests that the Court order Aed to provide Plaintiff with all copies of Plaintiff's confidential worker's compensation files. (Doc. 1, p. 4.)


A. Screening Requirement

In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen each case and shall dismiss the case at any time if the Court determines that the allegation of poverty is untrue or the action or appeal is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the Court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).

B. Legal Standard for Screening

In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 557). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).

C. Plaintiff's Complaint is Unclear and Fails to Plead a Claim

1. The Defendants are Not Properly Identified

The caption in Plaintiff's complaint identifies "John H. Missirlian of Ciummo & Associates, Attorneys at Law" as the Defendant, but Plaintiff's application to proceed in forma pauperis states that both Ciummo and Missirlian are separate defendants. (See Doc. 1, p. 1; Doc. 2, p. 1.) Further, while Plaintiff alleges that attorney Missirlian interviewed Plaintiff in the Fresno County Jail, Plaintiff seeks to prevent attorney Aed from using Plaintiff's medical records but fails to name Aed as a Defendant or identify his connection to Missirlian. As such, the identity of the Defendants and the basis of Plaintiff's claims ...

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