United States District Court, N.D. California
ORDER OF DISMISSAL WITH LEAVE TO AMEND
DONATO, UNITED STATES DISTRICT JUDGE.
a state prisoner, has filed a pro se civil rights complaint
under 42 U.S.C. § 1983. He has been granted leave to
proceed in forma pauperis.
courts must engage in a preliminary screening of cases in
which prisoners seek redress from a governmental entity or
officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). In its review, the Court must identify any
cognizable claims, and dismiss any claims which are
frivolous, malicious, fail to state a claim upon which relief
may be granted, or seek monetary relief from a defendant who
is immune from such relief. Id. at 1915A(b)(1), (2).
Pro se pleadings must be liberally construed. Balistreri
v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th
Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Although a complaint “does
not need detailed factual allegations, . . . a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. . . . Factual
allegations must be enough to raise a right to relief above
the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A
complaint must proffer “enough facts to state a claim
to relief that is plausible on its face.” Id.
at 570. The United States Supreme Court has explained the
“plausible on its face” standard of
Twombly: “While legal conclusions can provide
the framework of a complaint, they must be supported by
factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Ashcroft v. Iqbal, 556 U.S. 662,
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege that: (1) a right secured by the Constitution or laws
of the United States was violated, and (2) the alleged
deprivation was committed by a person acting under the color
of state law. West v. Atkins, 487 U.S. 42, 48
states that he was notified of a potential breach regarding
his personal health information. A laptop computer that may
have included plaintiff's health information was stolen
out of a car of a prison health care worker. The computer was
password protected but was not encrypted. Plaintiff seeks
has failed to state a cognizable claim because he has not
identified a right secured by the Constitution or laws of the
United States that was violated. To demonstrate a violation
of the Eighth Amendment with respect to medical care,
plaintiff must demonstrate that defendants were deliberately
indifferent to his serious medical needs. See Estelle v.
Gamble, 429 U.S. 97, 104 (1976); McGuckin v.
Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on
other grounds, WMX Technologies, Inc. v. Miller, 104
F.3d 1133, 1136 (9th Cir. 1997) (en banc).
extent plaintiff is asserting a violation of his health
privacy; he is not entitled to relief. The Health Insurance
Portability and Accountability Act of `1996
(“HIPAA”), Pub. L. 104-191, 110 Stat. 1936
(codified as amended in scattered sections of 42 U.S.C.)
“provides for no private right of action.”
Webb v. Smart Document Solutions, 499 F.3d 1078,
1080 (9th Cir. 2007); see, e.g., Seaton
v. Mayberg, 610 F.3d 530, 533 (9th Cir. 2010) (citing
Webb and dismissing prisoner's claim under HIPAA
for disclosure of his medical records). Plaintiff assertion
that potential release of his medical information due to
theft violated his constitutionally-protected privacy rights
fails to state a claim because “prisoners do not have a
constitutionally protected expectation of privacy in prison
treatment records when the state has a legitimate penological
interest in access to them.” Seaton, 610 F.3d
complaint is dismissed with leave to amend to set forth a
federal claim. If plaintiff cannot present a federal claim he
should proceed with this action in state court. Plaintiff
indicates that he filed a state court action but it is not
clear if that action continues.
complaint is DISMISSED with leave to amend.
The amended complaint must be filed within
twenty-eight (28) days of the date this
order is filed and must include the caption and civil case
number used in this order and the words AMENDED COMPLAINT on
the first page. Because an amended complaint completely
replaces the original complaint, plaintiff must include in it
all the claims he wishes to present. See Ferdik v.
Bonzelet,963 F.2d 1258, 1262 (9th Cir. 1992). He may
not incorporate ...