DEAN D. PREGERSON

ORDER GRANTING DEFENDANTS' MOTION

TO DISMISS PLAINTIFF'S FIRST

AMENDED COMPLAINT

[Dkt. Nos. 24, 27]

Presently before the court is Defendants' Motion to Dismiss Plaintiff's First Amended Complaint. (Dkt. Nos. 24, 27.) The Motion is fully briefed. Having considered the parties' submissions and heard oral argument, the court adopts the following order.

I. Background

The following allegations are drawn from Plaintiff's First Amended Complaint:

K.L. ("Plaintiff") was an inmate at the California Institute for Men in Chino, California, residing in Angeles Hall. (FAC ¶ 20.) Plaintiff is HIV positive and suffers from hepatitis C and lupus. (Id. ¶¶ 2, 21, 35.)

Shortly after becoming incarcerated, Plaintiff met with prison medical staff. (Id. ¶ 21.) In order to receive treatment for his lupus, he completed and submitted paperwork to Defendant California Department of Corrections and Rehabilitation ("CDCR") authorizing the transfer of medical records from his previous medical provider. (Id. ¶¶ 21-23.) Plaintiff's medical records were transferred in January 2012, and, as a result, Defendants maintained medical records which included information concerning Plaintiff's HIV status. (Id. ¶ 28.)

On January 21, 2012, Defendant Ms. I. Young ("Young"), a CDCR Health Records Technician, visited Plaintiff for the purpose of providing Plaintiff with a copy of his medical records. (Id. ¶ 30.) When she arrived she was unable to locate Plaintiff's records, but indicated they were likely in her office. (Id.) In fact, she had given Plaintiff's medical records to another inmate, E. Leopoldo ("Leopoldo"), who lived in Joshua Hall. (Id. ¶ 32.) Consequently, Inmate Leopoldo was provided access to and allowed to keep the records for over two weeks, during which time he circulated them to other inmates. (Id. ¶ 34.) The medical records contained highly personal information, including Plaintiff's HIV status, hepatitis C diagnosis, and the fact that he had undergone surgery to correct a urethral stricture. (Id. ¶ 35.)

On or about January 22, 2012, Plaintiff became aware that his medical records had been disclosed to another prisoner when a Joshua Hall inmate taunted Plaintiff about having "lost something." (Id. ¶ 37.) Plaintiff was also taunted by several other inmates, including Leopoldo, about the disclosure. (Id. ¶ 38.) Leopoldo, however, never disclosed that he was the recipient of Plaintiff's medical records. (Id.)

Plaintiff notified Defendant Officer Valenzuela ("Valenzuela"), a CDCR employee, about the disclosure and requested her assistance in retrieving his medical records. (Id. ¶ 39.) Valenzuela told Plaintiff that she would not become involved or notify anyone else at CDCR because it was a "legal matter." (Id.) Given Valenzuela's response, Plaintiff was unsure where to turn for help. (Id. ¶ 40.) On or about February 1, 2012, he spoke to an officer who worked in the "pill line" about the disclosure. (Id.) The officer instructed Plaintiff to speak to Defendant Sgt. Nash ("Nash"), a prison guard. (Id.) That day, Plaintiff notified Nash about the incident. (Id. ¶ 41.) Plaintiff never received a response. (Id.)

On or about February 7, 2012, Plaintiff, met with CDCR Psychiatrist Dr. Kondo ("Kondo"). (Id. ¶ 42-43.) During the appointment, Kondo contacted Defendant Sgt. Botello ("Botello"), a CDCR prison guard in Angeles Hall. (Id. ¶ 43.) Botello told Plaintiff he would not collect the records until Plaintiff could provide the identity of the inmate in possession of the records. (Id. ¶ 44.) Plaintiff did not have his information, as he and Leopoldo resided in different halls of the prison. (Id. ¶ 44.) Moreover, none of the inmates who Plaintiff asked to identify the recipient of his records were willing to identify Leopoldo. (Id. ¶ 45.) Plaintiff, hoping to identify the inmate, requested a meeting with Defendant Young, the health technician who had given Leopoldo the records. (Id. ¶ 46.) However, Young refused to meet with Plaintiff, and he was told he needed to meet with her supervisor, Defendant Bernice Logan ("Logan"). (Id. ¶¶ 46-47.)

On February 9, 2012, Botello informed Plaintiff that his records had been retrieved from the "officer of the day" in Joshua Hall. (Id. ¶ 49.) The retrieval of the records occurred twenty days after the records were initially disclosed and nineteen days after CDCR officials were initially notified about the disclosure. (Id. ¶ 50.)

Plaintiff asserts two claims. The first claim is brought under 42 U.S.C. § 1983 and the Fourteenth Amendment of the U.S. Constitution against Defendants Young, Logan, Nash, Botello, Valenzuela, and Does 1-10. (Id. ¶¶ 93-95.) The second claim is brought pursuant to Article I, Section 1 of the California Constitution against same Defendants, as well as the California Department of Corrections and Rehabilitation (CDCR), Jeffery Beard (Secretary of CDCR) and Matthew Cate (Former Secretary of CDCR). (Id. ¶¶ 96-106.)

II. Legal Standard

A complaint will survive a motion to dismiss when it contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). When considering a Rule 12(b)(6) motion, a court must "accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Although a complaint need not include "detailed factual allegations," it must offer "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. Conclusory allegations or allegations that are no more than a statement of a legal conclusion "are not entitled to the assumption of truth." Id. at 679. In other words, a pleading that merely offers "labels and conclusions," a "formulaic recitation of the elements," or "naked assertions" will not be sufficient to state a claim upon which relief can be granted. Id. at 678 (citations and internal quotation marks omitted).

"When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief." Id. at 679. Plaintiffs must allege "plausible grounds to infer" that their claims rise "above the speculative level." Twombly, 550 U.S. at 555. "Determining whether a complaint states a plausible claim for relief" is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

III. Discussion

A. Section 1983 Claim

Defendants move to dismiss Plaintiff's Section 1983 claim on three grounds: (1) that Plaintiff has failed to allege the personal participation of Defendants Logan, Botello, and Valenzuela in the alleged violations, as required for liability under Section 1983; (2) that all Defendants are entitled to qualified immunity to the extent that they are sued in their individual capacities; and (3) that all Defendants are entitled to Eleventh Amendment sovereign immunity to the extent that they are sued in their official capacities. (Motion at 4-10.)

Because it is dispositive as to all claims brought against Defendants in their personal capacities, the court addresses the issue of qualified immunity first.

i. Qualified Immunity

Section 1983 creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights. 42 U.S.C. § 1983. Qualified immunity, however, shields Section 1983 defendants "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court clarified the two-step qualified immunity inquiry. To decide whether a defendant is protected by qualified immunity, a court must first determine whether, "[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the officer's conduct violated a constitutional right." Id. at 201. If the plaintiff's factual allegations do add up to a violation of the plaintiff's federal rights, then the court must proceed to determine whether the right was "clearly established," i.e., whether the contours of the right were already delineated with sufficient clarity to make a reasonable officer in the defendant's circumstances aware that what he was doing violated the right. Id. at 201-02. In essence, at the first step, the inquiry is whether the facts alleged constitute a violation of the plaintiff's rights. If they do, then, at the second step, the question is whether the defendant could nonetheless have reasonably, but erroneously, believed that his or her conduct did not violate the plaintiff's rights. Id. at 205 ("The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct."). Courts may exercise their sound discretion in deciding which of the two prongs should be addressed first in light of the circumstances in the particular case at hand. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

Defendants contend that Plaintiff has not alleged a violation of a constitutional right by Defendants. The court agrees. While the court is persuaded that the right to privacy regarding medical information invoked by Plaintiff exists and is applicable to prisoners absent circumstances that do not appear to be relevant, Plaintiff has not alleged sufficient facts to show that he suffered a non-negligent deprivation of the right.

a. The right to privacy of medical information

The Ninth Circuit has repeatedly recognized a constitutionally protected interest in avoiding disclosure of personal matters, including medical information. See, e.g., Nelson v. Nat'l Aeronautics & Space Admin., 530 F.3d 865, 877 (9th Cir. 2008) rev'd on other grounds and remanded, 131 S. Ct. 746 (U.S. 2011) ("Information relating to medical treatment and psychological counseling fall squarely within the domain protected by the constitutional right to informational privacy.") (citations omitted); Tucson Woman's Clinic v. Eden, 379 F.3d 531, 551 (9th Cir. 2004) ("Individuals have a constitutionally protected interest in avoiding 'disclosure of personal matters,' including medical information.") (quoting Whalen v. Roe, 429 U.S. 589, 599 (1977)); 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."); Doe v. Attorney Gen. of U.S., 941 F.2d 780, 795 (9th Cir. 1991) (holding that "medical information was encompassed within the . . . privacy interest related to disclosure of personal matters."). The Ninth Circuit's recognition of a right to privacy applicable to medical records stems from the Supreme Court's recognition in Whalen that there is a privacy interest "in avoiding disclosure of personal matters." Whalen, 429 U.S. at 599.

Defendants cite two aspects of Seaton v. Mayberg, 610 F.3d 530, 538 (9th Cir. 2010), the Ninth Circuit's most recent case dealing with medical privacy, which they contend limits the applicability of the right to informational privacy in relation to medical information and in relation to prisoners. (See Motion at 8.)

First, referring to the Ninth Circuit's previous recognition of the right to informational privacy with respect to medical records, the Ninth Circuit stated in Seaton: "It is not entirely clear yet whether the constitutional right we have recognized falls entirely within the class Whalen carves out, for disclosure that burdens 'matters relating to marriage, procreation, contraception, family relationships, and child rearing and education.'" 610 F.3d at 537 (quoting Whalen, 429 U.S. at 600 n.26). In Whalen, the Supreme Court cited the enumerated areas as ones in which "it has been held that there are limitations on the States' power to substantively regulate conduct." See 429 U.S. at 600 n.26.

This court understands the sentence quoted from Seaton above to refer to the fact that the Supreme Court has never expressly recognized a right to informational privacy with respect to medical information and that its grant of certiorari in Nelson, which was pending at the time Seaton was decided, raised the prospect that, in reviewing Nelson, the Supreme Court might hold that no such constitutional right exists, invalidating the Ninth Circuit's jurisprudence on this question. As noted, Nelson, like Tucson, Norman-Bloodsaw, and Doe before it, explicitly recognized an informational right to privacy encompassing information concerning medical treatment. See Nelson, 530 F.3d at 877. The Seaton court attributed its perception of a lack of clarity as to the applicability of a privacy right in relation to medical records to the Supreme Court's grant of certiorari in Nelson, which, the court stated, rendered the Ninth Circuit's decision in that case "not yet final." 610 F.3d at 538.

The Supreme Court has since decided Nelson, reversing and remanding the case. 131 S.Ct. at 746. However, in doing so, the Supreme Court did not reverse the Ninth Circuit on the issue of the existence of a right to informational privacy and its applicability to medical records. See 131 S.Ct. at 756 (noting that the court "assume[s] for present purposes that the Government's challenged inquiries [of government contract employees regarding certain medical treatment] implicate a privacy interest of constitutional significance"). The Supreme Court's decision in Nelson thus appears to leave intact the Ninth Circuit's longstanding recognition of an informational privacy right encompassing medical information.

Second, Seaton held that prison inmates "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." 610 F.3d at 534. In Seaton, hospital psychologists who examined an inmate convicted of forcible rape shared their opinions with the district attorney's office for the purposes of evaluating whether to seek civil commitment of the plaintiff. Id. The prisoner subsequently brought a Section 1983 claim, alleging that his constitutional right to informational privacy under the Due Process Clause of the Fourteenth Amendment had been violated. Id. The court dismissed the claim, finding a substantial, legitimate penological interest in disclosing the plaintiff's records existed because "[p]risons need access to prisoners' medical records to protect prison staff and other prisoners from communicable diseases and violence, and to manage rehabilitative efforts." Id. at 534-35. In the present case, Defendants do not contend that the disclosure of Plaintiff's medical records to other inmates served any penological interest.

Thus, under Ninth Circuit authority, Plaintiff has a constitutional right to informational privacy applicable to medical information, including the medical records allegedly disclosed in this case. A question remains, however, whether Defendants' alleged conduct constituted an actionable violation of this right under Section 1983.

b. Lack of violation of constitutional right

Plaintiff's allegations fall into two categories: (1) the initial disclosure of his records, and (2) the failure of Defendants to remedy the disclosure by retrieving his medical records.

As to the initial disclosure, Plaintiff's allegations are insufficient to state a claim because Plaintiff has alleged only negligent conduct by Defendants. It is well established that negligent conduct is ordinarily not enough to state a claim alleging a denial of liberty or property under the Fourteenth Amendment. See Daniels v. Williams, 474 U.S. 327, 330 (1986); Davidson v. Cannon, 474 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 required.").

The highly sensitive nature of personal medical information requires that the government take correspondingly robust precautions to safeguard individual privacy. Indeed, the status of one's personal medical well-being is among the most sensitive information a person may possess. The evolving appreciation of the importance of preventing the involuntary disclosure of such information is reflected, among other developments, by the 1996 enactment of the Health Insurance Portability and Accountability Act (HIPAA), Pub.L. 104-191, 110 Stat. 1936, which "recogniz[ed] the importance of protecting the privacy of health information in the midst of the rapid evolution of health information systems." Webb v. Smart Document Solutions, LLC, 499 F.3d 1078, 1083 (9th Cir. 2007) (quotation marks and citation omitted). Disclosures resulting from a failure by Defendants to take appropriately robust safeguards may constitute conduct that is more than negligent and thus subject to liability under Section 1983.

Here, however, Plaintiff has not alleged any facts to show that the government failed to take appropriate precautions and that the disclosure was a result of such a failure. The FAC expressly alleges that the disclosure of Plaintiff's medical records by Defendant Young on January 21, 2012, was "negligent[]." (FAC ¶ 64.) Plaintiff's factual allegations do not contradict this characterization, stating only that "Young had in fact given Plaintiff's medical records to another inmate. . ." (Id. ¶ 32.) Therefore, Plaintiff has not alleged that the government violated its duty of care.

As to the alleged failure of Defendants to retrieve the records, the court does not understand such conduct to be an independent basis for liability. Rather, the alleged failure to retrieve the records appears to go to the failure of Defendants to address the harm caused by the original disclosure.

Plaintiff contends in his Opposition that Defendants' failure to retrieve the records may be analyzed under the "deliberate indifference" standard set forth in Estelle v. Gamble, 429 U.S. 97, 103 (1976) (holding that the intentional delay in providing necessary medical care to a seriously ill inmate can constitute "deliberate indifference" and thus violate the Eighth Amendment's prohibition on cruel and unusual punishment). Plaintiff has cited no authority to establish that the deliberate indifference standard is applicable in Section 1983 claims based upon violations of the Fourteenth Amendment, but there is support for this proposition. See, e.g., Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989) (holding, in the context of Fourteenth Amendment claim alleging that a state trooper abandoned the plaintiff in an area in which the trooper knew she would be in danger, that deliberate indifference by state actors to known or obvious dangers created by their conduct is actionable under Section 1983).

However, Plaintiff has not alleged, as he must to show deliberate indifference, that Defendants "knew of, and nevertheless, consciously disregarded a substantial risk of serious harm to [him]." Taylor v. City & Cnty. of San Francisco, 166 F.3d 344, 344 (9th Cir. 1999). Plaintiff has alleged only that his medical records were inappropriately disclosed and that he notified Defendants of this fact. (FAC ¶¶ 39-47.) He has not alleged that his personal safety was under threat as a result of the disclosure; that he notified Defendants, or that they were otherwise aware, of this threat; and that Defendants nevertheless failed to take appropriate action. Absent sufficient allegations of this sort, the FAC does not state a viable claim of deliberate indifference under Section 1983.

Because Plaintiff has not alleged an actionable violation of Section 1983, the court does not reach the question of whether the privacy right at issue was "clearly established," so as to make a reasonable officer in Defendants' circumstances aware that what he was doing violated the right. Saucier, 533 U.S. at 194.

Because it is not clear that amendment would be futile, the court will dismiss with leave to amend.

ii. Eleventh Amendment Sovereign Immunity

Defendants contend that, to the extent that Plaintiff additionally asserts claims for money damages against Defendants in their official capacities, such claims are barred under the Eleventh Amendment.

Defendants are correct. The Eleventh Amendment bars any suit against a state or state agency absent a valid waiver or abrogation of its sovereign immunity. Hans v. Louisiana, 134 U.S. 1, 10 (1890). Neither exception to sovereign immunity is applicable to Section 1983 claims against the State of California, its agencies, or its officials in their official capacity because the Supreme Court has held that "§ 1983 was not intended to abrogate a State's Eleventh Amendment immunity," Kentucky v. Graham, 473 U.S. 159, 169 n.17 (1985), and the "State of California has not waived its Eleventh Amendment immunity with respect to claims brought under § 1983 in federal court." Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 1999). It is also well established that a suit brought against a state official in his or her official capacity is a suit against that person's office, and thus the state itself, and is therefore barred under the Eleventh Amendment. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 64-66 (1989). Accordingly, Plaintiff's claims against Defendants must be dismissed to the extent that Defendants are sued in their official capacities. As the Eleventh Amendment constitutes a fatal bar to Plaintiff's claims, dismissal will be with prejudice.

B. State Law Claims

Defendants argue that Plaintiff's state law claim, which seeks relief under Article I, Section 1 of the California Constitution, should be dismissed because Plaintiff has not alleged a sufficiently serious violation of his state constitutional right to privacy and because the claim is subject to various statutory immunities. (Mot. at 11-15.) The court does not reach these arguments. Because the court has already "dismissed all claims over which it has original jurisdiction," 28 U.S.C. § 1367(c)(3), the court declines to exercise supplemental jurisdiction over the remaining state law claim.

IV. Conclusion

For the reasons stated herein, Defendants' Motion to Dismiss is GRANTED, as follows: Count I of Plaintiff's First Amended Complaint is DISMISSED WITHOUT PREJUDICE as to all Defendants named in their individual capacities; Count I is DISMISSED WITH PREJUDICE as to all individual Defendants named in their official capacities; Count II is DISMISSED WITHOUT PREJUDICE as to all Defendants for lack of jurisdiction. No relief is therefore warranted as to either claim. Plaintiff shall file a Second Amended Complaint within twenty-one days of this Order. Failure to do so may lead to the dismissal of this action. IT IS SO ORDERED.

DEAN D. PREGERSON

United States District Judge