United States District Court, E.D. California
FINDINGS AND RECOMMENDATION
M. KELLISON UNITED STATES MAGISTRATE JUDGE
a prisoner proceeding pro se, brings this civil rights action
pursuant to 42 U.S.C. § 1983. Pending before the court
is plaintiffs complaint (Doc. 1).
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. See 28 U.S.C.
§ 1915A(a). The court must dismiss a complaint or
portion thereof if it: (1) is frivolous or malicious; (2)
fails to state a claim upon which relief can be granted; or
(3) seeks monetary relief from a defendant who is immune from
such relief. See 28 U.S.C. § 1915A(b)(1), (2).
Moreover, the Federal Rules of Civil Procedure require that
complaints contain a "short and plain statement of the
claim showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a)(2). This means that claims must be stated
simply, concisely, and directly. See McHenry v.
Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to
Fed.R.Civ.P. 8(e)(1)). These rules are satisfied if the
complaint gives the defendant fair notice of the plaintiffs
claim and the grounds upon which it rests. See Kimes v.
Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because
plaintiff must allege with at least some degree of
particularity overt acts by specific defendants which support
the claims, vague and conclusory allegations fail to satisfy
this standard. Additionally, it is impossible for the court
to conduct the screening required by law when the allegations
are vague and conclusory.
alleges his personal and confidential medical records were
placed on an unencrypted laptop. The laptop was then left
unattended in a personal vehicle where it was stolen, causing
a breach of data. Attached to the complaint is a letter from
CCHCS notifying plaintiff of the "potential
breach." The letter states that it is unknown if
"any sensitive information was contained in the
laptop" and that the laptop was password protected.
Plaintiff asserts a violation of the Fourth Amendment as well
as violations of his rights to Due Process.
are several defects in plaintiffs complaint. First, plaintiff
has failed to name a proper defendant. Section 1983 imposes
liability upon any person who, acting under color of state
law, deprives another of a federally protected right. 42
U.S.C. § 1983 (1982). "To make out a cause of
action under section 1983, plaintiffs must plead that (1) the
defendants acting under color of state law (2) deprived
plaintiffs of rights secured by the Constitution or federal
statutes." Gibson v. United States, 781 F.2d
1334, 1338 (9th Cir.1986).
complaint, the only defendants plaintiff has named is the
California Correctional Health Care Services (CCHCS) and the
California Department of Corrections and Rehabilitation
(CDCR). CCHCS and CDCR are state agencies, which are not
considered persons under § 1983. See Will v. Mich.
Dept. of State Police, 491 U.S. 58, 71 (1989)
("[N]either a State nor its officials acting in their
official capacities are 'persons' under §
1983.").However, even if plaintiff could substitute
appropriate individuals as defendants, there are other
defects in this case which are not subject to cure.
plaintiff is required to establish standing for each claim he
asserts. See DaimlerChrysler Corp. v. Cuno, 547 U.S.
332, 352 (2006). If a plaintiff has no standing, the court
has no subject matter jurisdiction. See Nat'l
Wildlife Fed'n v. Adams, 629 F.2d 587, 593 n. 11
(9th Cir. 1980) ("[B]efore reaching a decision on the
merits, we [are required to] address the standing issue to
determine if we have jurisdiction."). There are three
requirements that must be met for a plaintiff to have
standing: (1) the plaintiff must have suffered an
"injury in fact"-an invasion of a legally protected
interest which is both concrete and particularized and actual
or imminent; (2) there must be a causal connection between
the injury and the conduct complained of; and (3) it must be
likely that the injury will be redressed by a favorable
decision. See Monsanto Co. v. Geertson Seed Farms,
561 U.S. 139, 149 (2010) (citation omitted); Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). In
this case, although plaintiff may have constitutional right
to privacy of his medical information, whether or not his
right to privacy was breached is unknown. See
Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d
1260, 1269 (9th Cir. 1998) ("The constitutionally
protected privacy interest in avoiding disclosure of personal
matters clearly encompasses medical information and its
confidentiality") (citing Doe v. Attorney Gen, of
the United States, 941 F.2d 780, 795 (9th Cir. 1991)).
Speculative allegations in the complaint fail to establish
that plaintiff has standing because he cannot show an
alleges his Fourth Amendment rights to be secure in his
confidential information and documents have been violated by
an employee of the defendants' action in leaving an
unencrypted laptop unattended in a car, resulting in the
theft of the laptop and the possible release of his personal
information, placing him at risk of exposure. However, the
disclosure of plaintiffs medical information, and therefore
any injury, is entirely speculative. It is clear from
plaintiffs complaint and the attachments thereto, that it is
unknown if his information was on the laptop, nor whether or
not the laptop was breached as it was password protected.
potential future harm can in some instances confer standing,
plaintiff must face "a credible threat of harm"
that is "both real and immediate, not conjectural or
hypothetical." Krottner v. Starbucks Corp., 628
F.3d 1139, 1143 (9th Cir. 2010) (citations and internal
quotation marks omitted) (holding that threat of potential
identity theft created by theft of a laptop known to contain
plaintiffs' unencrypted names, addresses, and social
security numbers was sufficient to confer standing, but that
"more conjectural or hypothetical" allegations
would make threat "far less credible"). The
speculative injury plaintiff alleges, where it is unknown
whether plaintiffs information was on the potentially
compromised laptop, is simply insufficient to provide
plaintiff standing. Plaintiff cannot state a claim for relief
based upon the speculative breach of his sensitive
information, and his claim for violation of his
constitutional right to informational privacy must be
dismissed without prejudice for lack of standing. See
Fleck & Assoc, Inc. v. City of Phoenix, 471 F.3d
1100, 1106-07 (9th Cir. 2006) (dismissal for lack of standing
is without prejudice).
addition, the undersigned finds the complaint fails to state
a claim for a violation of plaintiffs Fourth Amendment
rights. The Fourth Amendment governs the reasonableness of
government searches and seizures. Here, no government search
or seizure is alleged. Similarly, the complaint fails to
state a claim under the Due Process Clause, which protects
prisoners from being deprived of property without due process
of law. See Wolff v. McDonnell, 418 U.S. 539, 556
(1974). The allegations in the complaint amount to no more
than negligence. While plaintiff alleges the defendants
"willfully allowed employees " to use laptops away
from the institution, the actual alleged violation of due
process was the result of negligence in leaving the laptop
unattended and unsecured. Negligence is insufficient to
support a claim of denial of due process. See Davidson v.
Cannon, 747 U.S. 344, 347 (1986) ("[T]he Due
Process Clause of the Fourteenth Amendment is not implicated
by the lack of due care of an official causing unintended
injury to life, liberty or property. In other words, where a
government official is merely negligent in causing the
injury, no procedure for compensation is constitutionally
to the extent plaintiff alleges conspiracy under 42 U.S.C.
§ 1985, the complaint again fails to state a claim.
"Conspiracy requires an agreement-and in particular an
agreement to do an unlawful act-between or among two or more
separate persons." Ziglar v. Abbasi, 137 S.Ct.
1843, 1867 (2017). Here, there are no such allegations in the
court finds that a complaint should be dismissed for failure
to state a claim, the court has discretion to dismiss with or
without leave to amend. See Lopez v. Smith, 203 F.3d
1122, 1126-30 (9th Cir. 2000) (en banc). Leave to amend
should be granted if it appears possible that the defects in
the complaint could be corrected, especially if a plaintiff
is pro se. See id. at 1130-31; see also Cato v.
United States, 70 F.3d 1103, 1106 (9th Cir. 1995)
("A pro se litigant must be given leave to amend his or
her complaint, and some notice of its deficiencies, unless it
is absolutely clear that the deficiencies of the complaint
could not be cured by amendment.") (citing Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). However,
if, after careful consideration, it is clear that a complaint
cannot be cured by amendment, the ...