Curry v. Newsom

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARCUS CURRY, Case No.: 3:23-cv-01148-RBM-MSB CDCR #P-74528, 12 ORDER: Plaintiff, 13 vs. (1) DENYING MOTION TO APPOINT 14 COUNSEL; AND GAVIN NEWSOM, Governor; 15 KATHLEEN ALLISON, CDCR (2) DISMISSING FIRST AMENDED 16 Secretary; J. HILL, Warden, COMPLAINT FOR FAILING TO 17 Defendants. STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) AND 18 28 U.S.C. § 1915A(b) 19

20 [Docs. 6, 7] 21 22 I. PROCEDURAL HISTORY 23 On June 15, 2023, Plaintiff Marcus Curry (“Plaintiff”), while incarcerated at Richard J. 24 Donovan Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, 25 filed a civil rights complaint filed pursuant to 42 U.S.C. § 1983. (See Doc. 1 at 1.) 26 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a); instead, 27 he filed a Motion for Leave to Proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. 28 § 1915(a). (See Doc. 2.) 1 On July 6, 2023, the Court granted Plaintiff’s Motion to Proceed IFP but 2 simultaneously dismissed his Complaint for failing to state a claim pursuant to 28 U.S.C. 3 § 1915(e)(2)(B) and § 1915A(b). (See Doc. 5.) Plaintiff was granted leave to file an 4 amended complaint in order to correct the deficiencies of pleading identified in the Court’s 5 Order. (See id. at 9.) On August 28, 2023, Plaintiff filed his First Amended Complaint 6 (“FAC”), along with a Motion to Appoint Counsel. (See Docs. 6, 7.) 7 II. MOTION TO APPOINT COUNSEL 8 Plaintiff requests counsel be appointed because he is indigent and has limited access 9 to the law library. (Doc. 6 at 1.) However, there is no constitutional right to counsel in a 10 civil case, and the decision to appoint counsel is within “the sound discretion of the trial 11 court and is granted only in exceptional circumstances.” Agyeman v. Corr. Corp. of 12 America, 390 F.3d 1101, 1103 (9th Cir. 2004). Exceptional circumstances exist where 13 there is cumulative showing of both a likelihood of success on the merits and an inability 14 of a pro se litigant to articulate their claims in light of the complexity of the legal issues. 15 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 16 It appears Plaintiff is capable of articulating the facts and circumstances relevant to 17 his claims, which are not legally complex, and for the reasons discussed below he has been 18 unable to show that he is likely to succeed on the merits of any claim. Therefore, Plaintiff’s 19 Motion to Appoint Counsel is DENIED. 20 III. SCREENING PER 28 U.S.C. §§ 1915(e)(2)(B) AND 1915A(b) 21 A. Legal Standards 22 a. 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 23 As the Court previously informed Plaintiff, because he is a prisoner, his FAC 24 requires a pre-answer screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). 25 Under these statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any 26 portion of it that is frivolous, malicious, failing to state a claim, or seeking damages from 27 defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) 28 (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 1 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to 2 ensure that the targets of frivolous or malicious suits need not bear the expense of 3 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted). 4 “The standard for determining whether a plaintiff has failed to state a claim upon 5 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 6 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 7 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 8 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 9 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 10 12(b)(6)”). Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to 11 “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible 12 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks 13 omitted); Wilhelm, 680 F.3d at 1121. 14 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 15 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 16 Iqbal, 556 U.S. at 678. The court “ha[s] an obligation where the petitioner is pro se, 17 particularly in civil rights cases, to construe the pleadings liberally and to afford the 18 petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 19 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)). However, it may 20 not “supply essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents 21 of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 22 b. 42 U.S.C. § 1983 23 “Section 1983 creates a private right of action against individuals who, acting under 24 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 25 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive 26 rights, but merely provides a method for vindicating federal rights elsewhere conferred.” 27 Graham v. Connor, 490 U.S. 386, 393‒94 (1989) (internal quotation marks and citation 28 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a 1 right secured by the Constitution and laws of the United States, and (2) that the deprivation 2 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 3 698 F.3d 1128, 1138 (9th Cir. 2012). 4 As an initial matter, the Court finds Plaintiff’s entire action is subject to dismissal 5 because he has failed to clearly identify a deprivation of a right secured by the Constitution 6 or laws of the United States. However, the Court will set forth below additional reasons 7 for why Plaintiff’s action must be dismissed. 8 i. Plaintiff’s Allegations 9 While the Court found that the factual allegations in his original Complaint were 10 sparse, there are even less specific factual allegations contained in Plaintiff’s FAC. (See 11 Doc. 7.) However, based on the allegations in his original Complaint and his apparent 12 claims in his FAC, Plaintiff is seeking to hold all Defendants liable for a data breach within 13 the California Department of Corrections and Rehabilitation (“CDCR”) that may have led 14 to Plaintiff’s social security number and health care records being compromised. See 15 generally, FAC.1 16 Plaintiff seeks $35,000 in compensatory damages and $25,000 in punitive damages 17 against each Defendant. (See Doc. 7 at 4, 7, 10, 13, 19.) 18 ii. Personal Liability 19 Once again, the Court finds Plaintiff’s FAC fails to state any plausible claim for 20 relief as to any of the named Defendants. These Defendants are named in their supervisory 21 roles. Plaintiff claims that they all have a “ministerial dutiful obligation to ensure that any 22 and all materials, recordings and data are secure and not accessible to any unauthorized 23 person or agency especially those parties protected under HIPPA2.” (Doc. 7 at 2.) 24

25 1 Plaintiff’s FAC consist of the same three pages of identical allegations against each of the 26 individual defendants. It appears he repeatedly photocopied these three pages and the only 27 change made in the following pages is to substitute the names of the individual defendants. 2 HIPPA is an acronym for the Health Insurance Portability and Accountability Act. See 28 1 Because “vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead 2 that each Government-official defendant, through the official’s own individual actions, has 3 violated the Constitution.” Iqbal, 556 U.S. at 676; Palmer v. Sanderson, 9 F.3d 1433, 4 1437–38 (9th Cir. 1993) (noting there is no respondeat superior liability under 42 U.S.C. 5 § 1983). Supervisory officials may only be held liable under § 1983 if the plaintiff alleges 6 their “personal involvement in the constitutional deprivation, or . . . a sufficient causal 7 connection between the supervisor’s wrongful conduct and the constitutional violation.” 8 Keates v. Koile, 883 F.3d 1228, 1242‒43 (9th Cir. 2018); Starr v. Baca, 652 F.3d 1202, 9 1207 (9th Cir. 2011). In other words, “a supervisor is liable for the acts of his subordinates 10 ‘if the supervisor participated in or directed the violations, or knew of the violations of 11 subordinates and failed to act to prevent them.’” Corales v. Bennett, 567 F.3d 554, 570 12 (9th Cir. 2009) (citations omitted). 13 Plaintiff’s allegations are far from clear, but he appears to hold Defendants liable in 14 their supervisory position for failing to take “corrective action” to prevent the purported 15 data breach from happening. (Doc. 7 at 3.) There are no allegations that any of these 16 Defendants were actually aware that a data breach could or would take place and failed to 17 stop this from happening. Plaintiff’s FAC “pleads no factual content that allows the court 18 to draw the reasonable inference that [Defendants] [are] liable for the misconduct alleged.” 19 Iqbal, 556 U.S. at 678. Plaintiff includes no specific factual allegations with respect to any 20 of the named Defendants, and he does not describe what any of them either did, or failed 21 to do, with respect to his housing, health, safety, or medical treatment. Id. at 679 22 (“Determining whether a complaint states a plausible claim for relief [is] … a context- 23 specific task.”). Further, “HIPPA itself provides no private right of action.” Seaton v. 24 Mayberg, 610 F.3d 530, 533 (9th Cir. 2010) (quoting Webb v. Smart Document Solutions, 25 LLC, 499 F.3d 1078, 1081 (9th Cir. 2007)). 26 While Federal Rule of Civil Procedure 8 “does not require ‘detailed factual 27 allegations,’” it “demands more than an unadorned, the-defendant-unlawfully-harmed-me 28 accusation.” Iqbal, 556 U.S. at 678 (citation omitted). In order “[t]o survive a motion to 1 dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a 2 claim for relief that is plausible on its face.’” Id. (citations omitted). As currently pleaded, 3 however, nothing in Plaintiff’s FAC plausibly suggests Defendants “through [their] own 4 individual actions, . . . violated the Constitution.” Iqbal, 556 at 676; see also Jones v. 5 Community Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 6 1984) (even pro se plaintiff must “allege with at least some degree of particularity overt 7 acts which defendants engaged in” in order to state a claim). 8 Therefore, Plaintiff’s claims against all named Defendants must be dismissed sua 9 sponte for failing to state a claim upon which § 1983 relief can be granted pursuant to 28 10 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Watison 668 F.3d at 1112; Wilhelm, 11 680 F.3d at 1121. 12 iii. Privacy claims 13 Plaintiff also claims that Defendants allowed a data breach to occur which 14 purportedly may have caused unauthorized access to his medical records and social 15 security number. (See Doc. 7 at 3.) However, Plaintiff lacks standing to bring such an 16 action because he has failed to allege facts to show that there is proof that his information 17 was disclosed. See e.g. Tinsley v. Cal. Health Care Servs., 2016 WL 5791675, at *2 (E.D. 18 Cal. Oct. 3, 2016) (“Here, plaintiff has not shown he has standing to sue because the 19 complaint demonstrates only that the theft of the state’s laptop has the potential to injury 20 plaintiff. Plaintiff alleges no actual misuse of his personal information stemming from the 21 theft.”); Fuller v. Cal. Health Care Servs., 2017 WL 1408120, at * 3 (E.D. Cal. Apr. 20, 22 2017) (“Plaintiff cannot state a claim for relief based upon the speculative breach of his 23 sensitive information” and “[a]ny claim for violation of his constitutional right to 24 informational privacy should be dismissed without prejudice for lack of standing.”). 25 IV. CONCLUSION 26 For the foregoing reasons, the Court DISMISSES Plaintiff’s First Amended 27 Complaint sua sponte and in its entirety based on his failure to state a claim upon which 28 relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). The 1 || Court further finds that amendment would be futile. See Gonzalez v. Planned Parenthood, 2 || 759, F.3d 1112, 1116 (9th Cir. 2014) (‘Futility of amendment can, by itself, justify the 3 |/denial of ... leave to amend.’”) (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 4 111995). 5 The Clerk of Court is directed to close the file. 6 IT IS SO ORDERED. T |! Dated: September |, 2023 8 eat Breaky, Mpa EGRO 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7