United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS DISMISSING THE ACTION
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE.
Emmerick seeks to proceed pro se in this action
against Ridgecrest Regional Hospital, its CEO, the
Chairperson of the Board of Directors, the Safety and
Regulatory Compliance Manager, a patient advocate, and a pay
agent. (See Doc. 6) According to Plaintiff, the
defendants are liable for violations of federal and state law
due to the disclosure of his medical records without
Plaintiff's permission. Because Plaintiff fails to allege
facts sufficient to support his federal claims, the Court
recommends the complaint be DISMISSED
individual seeks to proceed in forma pauperis, the
Court is required to review the complaint and shall dismiss
it, or portion of it, if it is “frivolous, malicious or
fails to state a claim upon which relief may be granted; or .
. . seeks monetary relief from a defendant who is immune from
such relief.” 28 U.S.C. § 1915A(b); 28 U.S.C.
§ 1915(e)(2). A plaintiff's claim is frivolous
“when the facts alleged rise to the level of the
irrational or the wholly incredible, whether or not there are
judicially noticeable facts available to contradict
them.” Denton v. Hernandez, 504 U.S. 25, 32-33
(1992). In other words, a complaint is frivolous where the
litigant sets “not only the inarguable legal
conclusion, but also the fanciful factual allegation.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Court must review Plaintiff's First Amended Complaint
because it supersedes the previously filed complaint. See
Forsyth v. Humana, 114 F.3d 1467, 1474 (9th Cir. 1997);
King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
rules for pleading complaints are governed by the Federal
Rules of Civil Procedure. A pleading must include a statement
affirming the court's jurisdiction, “a short and
plain statement of the claim showing the pleader is entitled
to relief; and . . . a demand for the relief sought, which
may include relief in the alternative or different types of
relief.” Fed.R.Civ.P. 8(a).
complaint must give fair notice and state the elements of the
plaintiff's claim in a plain and succinct manner.
Jones v. Cmty. Redevelopment Agency, 733 F.2d 646,
649 (9th Cir. 1984). The purpose of the complaint is to
inform the defendant of the grounds upon which the complaint
stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506,
512 (2002). The Supreme Court noted,
Rule 8 does not require detailed factual allegations, but it
demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation. A pleading
that offers labels and conclusions or a formulaic recitation
of the elements of a cause of action will not do. Nor does a
complaint suffice if it tenders naked assertions devoid of
further factual enhancement.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)
(internal quotation marks and citations omitted). Vague and
conclusory allegations do not support a cause of action.
Ivey v. Board of Regents, 673 F.2d 266, 268 (9th
Cir. 1982). The Court clarified further,
[A] complaint must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is
plausible on its face.” [Citation]. A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. [Citation].
The plausibility standard is not akin to a “probability
requirement, ” but it asks for more than a sheer
possibility that a defendant has acted unlawfully.
[Citation]. Where a complaint pleads facts that are
“merely consistent with” a defendant's
liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to
Iqbal, 556 U.S. at 679 (citations omitted). When
factual allegations are well-pled, a court should assume
their truth and determine whether the facts would make the
plaintiff entitled to relief; legal conclusions are not
entitled to the same assumption of truth. Id. The
Court may grant leave to amend a complaint to the extent
deficiencies of the complaint can be cured by an amendment.
Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir.
2000) (en banc).
asserts that he “has an organic mental disorder”
and is disabled within the meaning of the Americans with
Disabilities Act. (Doc. 6 at 11, 22) He reports that he was
injured “in a slip and fall accident” while
“a consumer at the Ridgecrest California Home Depot
store.” (Id. at 19, 38) Plaintiff sought
treatment at Ridgecrest Regional Hospital for this injury.
(Id. at 38) He reports that in August 2015, he
discussed the fact that he was engaged in negotiations with
Home Depot with Janice Kern, a “pay agent” at
Ridgecrest Hospital. (Id. at 23) Plaintiff asserts
Ms. Kern “asked Plaintiff if he would like her to send
an invoice [to Home Depot] to see if they would pay the
hospital so that she could ‘clear the
alleges that on August 28, 2015, “Ms. Kern sent a
facsimile from Ridgecrest Regional Hospital to an open
facsimile machine at Home Depot, a non-covered entity.”
(Doc. 6 at 10) Plaintiff asserts “the facsimile
contained complete treatment notes providing personal
information beyond the minimum necessary required for billing
purposes.” (Id. at 18) Plaintiff contends Ms.
Kern “did not have Plaintiff's authorization to
send any health information to The Home Depot Inc.”
(Id. at 17) He asserts that authorization was only
for a billing invoice to be sent, and “[n]o reference
to Health records or any treatment sheets were made.”
(Id.) Further, he alleges the facsimile “was
openly available and viewed by … The Home Depot Inc.
personnel.” (Id. at 18)
to Plaintiff, the facsimile sent by Ms. Kern contained
information that was “highly sensitive, deeply
personally hurtful and erroneous.” (Doc. 6 at 19) He
contends, “It was also harmful because Plaintiff and
The Home Depot Inc. to whom the information was disseminated
were negotiating … their financial responsibility for
Plaintiffs injury.” (Id.) He asserts the
receipt of the information “lead to The Home Depot
Inc.'s decision to discontinue negotiations” and
the “payment of [an] overdue Emergency Room
debt.” (Id. at 20) Plaintiff alleges the
inclusion of his treatment sheets by Ms. Kern “was a
deliberate malicious effort with the ‘Specific
Intent' to derail [the] negotiations.”
(Id. at 23) Further, Plaintiff asserts that
Ridgecrest Regional Hospital then “placed the debt into
collections, ” which has damaged his credit.
(Id. at 31-32)
asserts he visited the billing office again on September 1,
2015 and spoke to Ms. Kern. (Doc. 6 at 42) Plaintiff reports
Ms. Kern informed him “of a second visit bill for [his]
injury that also had not been paid.” (Id.)
According to Plaintiff, Ms. Kern “then sent another
unauthorized facsimile to The Home Depot Inc. for
payment.” (Id.) Plaintiff alleges he
“attempted to discuss the breach with Janice Kern and
found her unreceptive, ” though Ms. Kern gave Plaintiff
the phone number for Kristen Hendon, a patient advocate.
(Id.) He reports he “began leaving
messages” for Ms. Hendon the same day, but “[n]o
one returned his calls.” (Id.)
alleges that on September 5, 2015, he received a certified
letter from Stephanie Meeks, Ridgecrest Regional
Hospital's Privacy Officer. (Doc. 6 at 42) Plaintiff
asserts, “The letter was in reference to another
matter” (Doc. 1 at 15), but Ms. Meeks “included
an assurance that Ridgecrest Regional Hospital had policies
and procedures to protect his Privacy.” (Doc. 6 at 43)
He reports that Ms. Meeks included “a telephone number
where Plaintiff could leave a message if he had any
questions, ” which Plaintiff called and “left
detailed messages, ” but “his messages were not
returned.” (Id.; Doc. 1 at 15)
reports he went to the hospital several times throughout
September 2015, attempting to speak to Ms. Meeks or Ms.
Hendon. (Doc. 1 at 15) He asserts the attempts were
“unsuccessful, ” and the hospital staff