United States District Court, E.D. California
M. KELLISON UNITED STATES MAGISTRATE JUDGE
a prisoner proceeding pro se, brings this civil rights action
pursuant to 42 U.S.C. § 1983. Plaintiff has consented to
Magistrate Judge jurisdiction pursuant to 28 U.S.C. §
636(c) and no other party has been served or appeared in the
action. Pending before the court is plaintiff's complaint
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
plaintiff's 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.
statement of his claim is as follows:
On 2-25-16 a California Correctional Health Care Services
employee took a unencrypted laptop to his, her personal
vehicle. The laptop was then stolen. My sensitive personal
information may have still been in that laptop. Confidential
mental health, medical and custodial info was most likely on
the hard drive. (CCHCS) claims not to know what information
was on the laptop, however they claim to know that the laptop
was password protected.
(Comp. at 3).
are several defects in plaintiff's 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 defendant plaintiff has named is the
California Correctional Health Care Services (CCHCS). CCHCS
is a division of the California Department of Corrections and
Rehabilitation which provides health care the prison inmate
population. As a state agency, it is not a person 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, the speculative allegations of the complaint
still fail to establish that plaintiff has standing because
he cannot show an injury-in-fact.
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)).
disclosure of plaintiff's medical information, and
therefore any injury, is entirely speculative. Plaintiff
specifically states in his complaint that it is unknown if
his information was on the laptop. While 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 plaintiff's 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).
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 Court may dismiss without
leave to amend. See Cato, 70 F.3d at 1005-06. As set
forth above, given plaintiff's lack of standing, any
amendment to his complaint would be futile, and no leave to
amend will be granted.