1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAUL CUENTAS, No. 2: 21-cv-0252 KJN P 12 Plaintiff, 13 v. ORDER 14 P. COVELLO, et al., 15 Defendants. 16 17 I. Introduction 18 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 19 to 42 U.S.C. § 1983. On March 1, 2021, the undersigned dismissed plaintiff’s original complaint 20 with leave to amend. (ECF No. 4.) Pending before the court is plaintiff’s amended complaint. 21 (ECF No. 8.) For the reasons stated herein, plaintiff’s amended complaint is dismissed with leave 22 to file a second amended complaint. 23 II. Amended Complaint 24 At the outset, the undersigned observes that the allegations in the amended complaint are 25 very similar to the allegations in the original complaint. 26 The amended complaint again names Warden Covello and Correctional Officer Vovkulin 27 as defendants. (Id.) Plaintiff alleges that on August 25, 2020, defendant Vovkulin gave to inmate 28 Hein plaintiff’s “sensitive medical records and legal mail and mail.” (Id. at 2.) Plaintiff alleges 1 that his (i.e., plaintiff’s) “medical results” of “HIV, Hep-C, etc.,” are protected by law. (Id.) 2 Plaintiff alleges that the disclosure of his confidential medical information to other inmates by 3 defendant Vovkulin exposes plaintiff to attacks by other inmates. (Id.) Plaintiff alleges that his 4 claim concerns not only disclosure of the results of his COVID-19 test but numerous tests. (Id. at 5 4.) 6 In support of his claim that disclosure of his confidential medical records created a risk of 7 harm, plaintiff alleges that Mule Creek State Prison (“MCSP”) is a transgender-friendly and gay- 8 friendly facility. (Id.) Based on these circumstances, plaintiff alleges that there are many 9 predators at MCSP. (Id.) Plaintiff alleges that inmates get raped at MCSP and defendant 10 Vovkulin is advertising and facilitating “such conduct against me.” (Id.) Plaintiff alleges “my 11 life was passed out to other inmates. Prisoners [do] get raped when predators know you tested 12 negative for numerous diseases in this type of prison…” (Id. at 5.) 13 Plaintiff alleges that defendant Covello violated plaintiff’s Fourteenth Amendment right to 14 equal protection by failing to implement proper training of officers. (Id. at 6.) Plaintiff alleges 15 that defendant Covello knows that officers like defendant Vovkulin tend to act against the rights 16 of Hispanics. (Id.) Plaintiff also claims that if defendant Covello had addressed the complaints 17 against defendant Vovkulin, defendant Vovkulin would not have been able to put plaintiff’s life 18 in danger. (Id. at 7.) 19 Plaintiff also alleges that from August 2020 to the present, defendants subjected plaintiff 20 to hostility and abuse in apparent retaliation for plaintiff’s complaint. (Id. at 8.) Plaintiff alleges 21 that the retaliation included cell searches, “submitting my mail period to all inmates after the 22 fact,” and placing plaintiff on a higher level for six months. (Id.) 23 The undersigned finds that the amended complaint raises the following legal claims: 24 violation of the Health Insurance Portability Protection Act of 1996 (“HIPPA”); violation of the 25 Eighth Amendment; and a retaliation claim. 26 //// 27 //// 28 //// 1 III. Discussion 2 A. HIPPA 3 A private cause of action does not exist under HIPPA. United States v. Streich, 560 F.3d 4 926, 935 (9th Cir. 2009). Accordingly, plaintiff’s HIPPA claim is dismissed. 5 B. Eighth Amendment 6 Legal Standard 7 The Eighth Amendment protects prisoners from inhumane methods of punishment and 8 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 9 2006). Although prison conditions may be restrictive and harsh, prison officials must provide 10 prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Farmer v. 11 Brennan, 511 U.S. 825, 832-33 (1994) (internal citations and quotations omitted). Prison officials 12 have a duty to take reasonable steps to protect inmates from physical abuse. Id. at 833; Hearns v. 13 Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). The failure of prison officials to protect inmates 14 from attacks by other inmates may rise to the level of an Eighth Amendment violation where 15 prison officials know of and disregard a substantial risk of serious harm to the plaintiff. E.g., 16 Farmer, 511 U.S. at 847; Hearns, 413 F.3d at 1040. 17 To establish a violation of this duty, the prisoner must establish that prison officials were 18 “deliberately indifferent to a serious threat to the inmate’s safety.” Farmer, 511 U.S. at 834. The 19 deliberate indifference standard involves both an objective and a subjective prong. First, the 20 alleged deprivation must be, in objective terms, “sufficiently serious.” Id. Second, subjectively, 21 the prison official must “know of and disregard an excessive risk to inmate health or safety.” Id. 22 at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). To prove knowledge of 23 the risk, however, the prisoner may rely on circumstantial evidence; in fact, the very obviousness 24 of the risk may be sufficient to establish knowledge. Farmer, 511 U.S. at 842; Wallis v. Baldwin, 25 70 F.3d 1074, 1077 (9th Cir. 1995). 26 Discussion 27 Plaintiff alleges that defendant Vovkulin disclosed to other inmates the results of 28 plaintiff’s negative COVID-19 test as well as the results of other medical tests, including HIV and 1 Hepatitis C. For the following reasons, the undersigned finds that plaintiff has not pled sufficient 2 facts demonstrating that defendant Vovkulin disclosed the results of plaintiff’s medical tests, 3 other than COVID-19, to other inmates. 4 Attached to the amended complaint is a form dated August 18, 2020 stating that plaintiff 5 tested negative for COVID-19. (ECF No. 8 at 13.) Also attached to the amended complaint is a 6 Health Care Services Request Form signed by plaintiff on August 27, 2020. (Id. at 12.) In this 7 form, plaintiff wrote, 8 I am stressing out because inmates are passing out my personal medical mail this happened on August 25, 2020 and I don’t know if 9 I had other medical papers? I have personal test results coming and now I don’t know. I am worried and can’t sleep! 10 11 (Id.) 12 For the following reasons, the undersigned finds that plaintiff’s August 27, 2020 Health 13 Care Services Request Form does not support plaintiff’s claim that defendant Vovkulin allowed 14 inmates to pass out any medical test results other than plaintiff’s COVID-19 test results. Plaintiff 15 apparently submitted this form after inmate Heins allegedly gave plaintiff the August 18, 2020 16 form containing the results of plaintiff’s COVID-19 test. In the August 27, 2020 form, plaintiff 17 does not specifically reference any other medical test results passed out by inmates. In the 18 August 27, 2020 form, plaintiff expresses concern that his medical test results may be passed out 19 by other inmates in the future. 20 Plaintiff’s amended complaint contains no specific allegations supporting his claim that 21 defendant Vovkulin allowed inmates to pass out the results of plaintiff’s other medical tests, such 22 as HIV or hepatitis C. For example, plaintiff does not allege when other inmates passed out the 23 results of these other tests.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAUL CUENTAS, No. 2: 21-cv-0252 KJN P 12 Plaintiff, 13 v. ORDER 14 P. COVELLO, et al., 15 Defendants. 16 17 I. Introduction 18 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 19 to 42 U.S.C. § 1983. On March 1, 2021, the undersigned dismissed plaintiff’s original complaint 20 with leave to amend. (ECF No. 4.) Pending before the court is plaintiff’s amended complaint. 21 (ECF No. 8.) For the reasons stated herein, plaintiff’s amended complaint is dismissed with leave 22 to file a second amended complaint. 23 II. Amended Complaint 24 At the outset, the undersigned observes that the allegations in the amended complaint are 25 very similar to the allegations in the original complaint. 26 The amended complaint again names Warden Covello and Correctional Officer Vovkulin 27 as defendants. (Id.) Plaintiff alleges that on August 25, 2020, defendant Vovkulin gave to inmate 28 Hein plaintiff’s “sensitive medical records and legal mail and mail.” (Id. at 2.) Plaintiff alleges 1 that his (i.e., plaintiff’s) “medical results” of “HIV, Hep-C, etc.,” are protected by law. (Id.) 2 Plaintiff alleges that the disclosure of his confidential medical information to other inmates by 3 defendant Vovkulin exposes plaintiff to attacks by other inmates. (Id.) Plaintiff alleges that his 4 claim concerns not only disclosure of the results of his COVID-19 test but numerous tests. (Id. at 5 4.) 6 In support of his claim that disclosure of his confidential medical records created a risk of 7 harm, plaintiff alleges that Mule Creek State Prison (“MCSP”) is a transgender-friendly and gay- 8 friendly facility. (Id.) Based on these circumstances, plaintiff alleges that there are many 9 predators at MCSP. (Id.) Plaintiff alleges that inmates get raped at MCSP and defendant 10 Vovkulin is advertising and facilitating “such conduct against me.” (Id.) Plaintiff alleges “my 11 life was passed out to other inmates. Prisoners [do] get raped when predators know you tested 12 negative for numerous diseases in this type of prison…” (Id. at 5.) 13 Plaintiff alleges that defendant Covello violated plaintiff’s Fourteenth Amendment right to 14 equal protection by failing to implement proper training of officers. (Id. at 6.) Plaintiff alleges 15 that defendant Covello knows that officers like defendant Vovkulin tend to act against the rights 16 of Hispanics. (Id.) Plaintiff also claims that if defendant Covello had addressed the complaints 17 against defendant Vovkulin, defendant Vovkulin would not have been able to put plaintiff’s life 18 in danger. (Id. at 7.) 19 Plaintiff also alleges that from August 2020 to the present, defendants subjected plaintiff 20 to hostility and abuse in apparent retaliation for plaintiff’s complaint. (Id. at 8.) Plaintiff alleges 21 that the retaliation included cell searches, “submitting my mail period to all inmates after the 22 fact,” and placing plaintiff on a higher level for six months. (Id.) 23 The undersigned finds that the amended complaint raises the following legal claims: 24 violation of the Health Insurance Portability Protection Act of 1996 (“HIPPA”); violation of the 25 Eighth Amendment; and a retaliation claim. 26 //// 27 //// 28 //// 1 III. Discussion 2 A. HIPPA 3 A private cause of action does not exist under HIPPA. United States v. Streich, 560 F.3d 4 926, 935 (9th Cir. 2009). Accordingly, plaintiff’s HIPPA claim is dismissed. 5 B. Eighth Amendment 6 Legal Standard 7 The Eighth Amendment protects prisoners from inhumane methods of punishment and 8 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 9 2006). Although prison conditions may be restrictive and harsh, prison officials must provide 10 prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Farmer v. 11 Brennan, 511 U.S. 825, 832-33 (1994) (internal citations and quotations omitted). Prison officials 12 have a duty to take reasonable steps to protect inmates from physical abuse. Id. at 833; Hearns v. 13 Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). The failure of prison officials to protect inmates 14 from attacks by other inmates may rise to the level of an Eighth Amendment violation where 15 prison officials know of and disregard a substantial risk of serious harm to the plaintiff. E.g., 16 Farmer, 511 U.S. at 847; Hearns, 413 F.3d at 1040. 17 To establish a violation of this duty, the prisoner must establish that prison officials were 18 “deliberately indifferent to a serious threat to the inmate’s safety.” Farmer, 511 U.S. at 834. The 19 deliberate indifference standard involves both an objective and a subjective prong. First, the 20 alleged deprivation must be, in objective terms, “sufficiently serious.” Id. Second, subjectively, 21 the prison official must “know of and disregard an excessive risk to inmate health or safety.” Id. 22 at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). To prove knowledge of 23 the risk, however, the prisoner may rely on circumstantial evidence; in fact, the very obviousness 24 of the risk may be sufficient to establish knowledge. Farmer, 511 U.S. at 842; Wallis v. Baldwin, 25 70 F.3d 1074, 1077 (9th Cir. 1995). 26 Discussion 27 Plaintiff alleges that defendant Vovkulin disclosed to other inmates the results of 28 plaintiff’s negative COVID-19 test as well as the results of other medical tests, including HIV and 1 Hepatitis C. For the following reasons, the undersigned finds that plaintiff has not pled sufficient 2 facts demonstrating that defendant Vovkulin disclosed the results of plaintiff’s medical tests, 3 other than COVID-19, to other inmates. 4 Attached to the amended complaint is a form dated August 18, 2020 stating that plaintiff 5 tested negative for COVID-19. (ECF No. 8 at 13.) Also attached to the amended complaint is a 6 Health Care Services Request Form signed by plaintiff on August 27, 2020. (Id. at 12.) In this 7 form, plaintiff wrote, 8 I am stressing out because inmates are passing out my personal medical mail this happened on August 25, 2020 and I don’t know if 9 I had other medical papers? I have personal test results coming and now I don’t know. I am worried and can’t sleep! 10 11 (Id.) 12 For the following reasons, the undersigned finds that plaintiff’s August 27, 2020 Health 13 Care Services Request Form does not support plaintiff’s claim that defendant Vovkulin allowed 14 inmates to pass out any medical test results other than plaintiff’s COVID-19 test results. Plaintiff 15 apparently submitted this form after inmate Heins allegedly gave plaintiff the August 18, 2020 16 form containing the results of plaintiff’s COVID-19 test. In the August 27, 2020 form, plaintiff 17 does not specifically reference any other medical test results passed out by inmates. In the 18 August 27, 2020 form, plaintiff expresses concern that his medical test results may be passed out 19 by other inmates in the future. 20 Plaintiff’s amended complaint contains no specific allegations supporting his claim that 21 defendant Vovkulin allowed inmates to pass out the results of plaintiff’s other medical tests, such 22 as HIV or hepatitis C. For example, plaintiff does not allege when other inmates passed out the 23 results of these other tests. 24 In order to survive dismissal for failure to state a claim, a complaint must contain more 25 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 26 allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. 27 Twombly, 550 U.S. 544, 555 (2007). Plaintiff’s claim that defendant Vovkulin allowed inmates 28 to pass out the results of his medical tests, other than COVID-19, is too vague and conclusory to 1 raise a right to relief above the speculative level. Accordingly, this claim is dismissed. 2 Turning to plaintiff’s claim concerning defendant Vovkulin’s alleged disclosure of the 3 results of his COVID-19 test to other inmates, plaintiff alleges that he (plaintiff) became a target 4 for sexual assault by other inmates who knew that he tested negative for COVID-19. In support 5 of this claim, plaintiff alleges that many gay and transgender “predator” inmates are housed at 6 MCSP. The undersigned finds that these allegations do not adequately demonstrate that plaintiff 7 suffered a serious risk of harm based on the disclosure of his negative COVID-19 test to other 8 inmates. As stated in the March 1, 2021 order addressing the original complaint, plaintiff does 9 not allege that other inmates were sexually assaulted based on the disclosure of their negative 10 COVID-19 test. Plaintiff does not allege that he, himself, was assaulted or threatened with 11 assault based on the disclosure of the results of his COVID-19 test. Plaintiff’s claim that the 12 disclosure of the results of his COVID-19 test to other inmates created a risk of harm, as pled, is 13 speculative. 14 In addition, the undersigned again finds that plaintiff has not plead sufficient facts 15 demonstrating that defendant Vovkulin knew of the risk of harm allegedly caused to plaintiff by 16 the disclosure of his negative COVID-19 test to other inmates. Because plaintiff has failed to 17 plead sufficient facts in support of the subjective and objective prong of the deliberate 18 indifference standard, plaintiff’s Eighth Amendment claim against defendant Vovkulin based on 19 the disclosure of plaintiff’s negative COVID-19 test to other inmates is dismissed. 20 C. Equal Protection 21 “Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment 22 from invidious discrimination based on race.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). 23 Plaintiff alleges that defendant Covello knows that officers like defendant Vovkulin have 24 a “tendency to act against Hispanic rights.” (ECF No. 8 at 6.) Plaintiff alleges that defendant 25 Covello knew that defendant Vovkulin “has acted racially against minorities and he has received 26 complaints of him.” (Id.) Plaintiff alleges that he (plaintiff) has personally seen defendant 27 Vovkulin “act racially against” blacks and Hispanics. (Id.) 28 //// 1 Plaintiff apparently claims that defendant Vovkulin was motivated by racial 2 discrimination when he allowed inmate Heins to pass out the results of plaintiff’s COVID-19 test. 3 However, plaintiff’s claim that defendant Vovkulin acted with discriminatory intent is vague and 4 conclusory. Plaintiff’s conclusory allegation that he witnessed defendant Vovkulin discriminate 5 against Black and Hispanic inmates and that defendant Covello knew that defendant Vovkulin 6 discriminated against minorities are not sufficient to demonstrate that defendant Vovkulin was 7 motivated by racial discrimination when he allegedly allowed inmate Heins to pass out the results 8 of plaintiff’s COVID-19 test. Accordingly, plaintiff’s equal protection claim is dismissed. 9 D. Retaliation 10 Legal Standard 11 Within the prison context, a viable claim of First Amendment retaliation entails five basic 12 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 13 because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate’s 14 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 15 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). 16 Discussion 17 Plaintiff alleges that since August 2020, defendants retaliated against plaintiff for his 18 “complaint” by searching his cell, “submitting” plaintiff’s mail to inmates and by placing plaintiff 19 in a higher level 4. By “complaint,” plaintiff apparently refers to the August 27, 2020 Health 20 Care Services Request Form and/or the grievance he filed regarding this issue. 21 Plaintiff does not allege when the alleged retaliatory acts occurred or by which defendant 22 they were committed. Plaintiff also does not explain why he believes the alleged adverse action 23 was motivated by retaliation. Without this information, the undersigned cannot determine 24 whether plaintiff has stated a potentially colorable retaliation claim. Accordingly, plaintiff’s 25 retaliation claim is dismissed with leave to amend because the undersigned cannot determine 26 whether plaintiff has stated a potentially colorable retaliation claim. 27 //// 28 //// 1 E. Defendant Covello 2 Plaintiff alleges that defendant Covello is liable for defendant Vovkulin’s disclosure of the 3 results of plaintiff’s medical tests to other inmates because defendant Covello failed to implement 4 proper training of his officers. (ECF No. 8 at 6.) 5 As stated in the March 1, 2020 order screening the original complaint, supervisory 6 personnel are generally not liable under § 1983 for the actions of their employees under a theory 7 of respondeat superior and, therefore, when a named defendant holds a supervisory position, the 8 causal link between him and the claimed constitutional violation must be specifically alleged. 9 Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009). To state a claim for relief under § 1983 based on 10 a theory of supervisory liability, a plaintiff must allege some facts that would support a claim that 11 the supervisory defendants either personally participated in the alleged deprivation of 12 constitutional rights; knew of the violations and failed to act to prevent them; or promulgated or 13 “implement[ed] a policy so deficient that the policy itself is a repudiation of constitutional rights' 14 and is ‘the moving force of the constitutional violation.” Hansen v. Black, 885 F.2d 642, 646 (9th 15 Cir. 1989) (citations and internal quotation marks omitted); Taylor v. List, 880 F.2d 1040, 1045 16 (9th Cir. 1989). For instance, a supervisor may be liable for his “own culpable action or inaction 17 in the training, supervision, or control of his subordinates,” “his acquiescence in the constitutional 18 deprivations of which the complaint is made,” or “conduct that showed a reckless or callous 19 indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 20 1991) (internal citations, quotation marks, and alterations omitted). 21 Plaintiff’s claim that defendant Covello violated plaintiff’s constitutional rights by failing 22 to adequately train defendant Vovkulin is dismissed because plaintiff has not stated a potentially 23 colorable claim against defendant Vovkulin. In addition, plaintiff’s claim that defendant Covello 24 failed to adequately train defendant Vovkulin is vague and conclusory. Plaintiff does not plead 25 sufficient facts showing that inadequate training by defendant Covello led to any alleged 26 deprivation. 27 In the amended complaint plaintiff also alleges that defendant Vovkulin received proper 28 training concerning “…sensitive medical records.” (ECF No. 8 at 2.) Plaintiff alleges that, 1 | “[a]ny improper action other than this training is given, is done with intentional sufficient 2 || deliverance.” (Id.) While this claim is not entirely clear, it appears that plaintiff is alleging that 3 || defendant Vovkulin disregarded his training when he allowed inmate Heins to deliver the results 4 | of plaintiff's COVID-19 test. This claim contradicts plaintiffs claim that inadequate training by 5 || defendant Covello led to the alleged deprivation. 6 For the reasons discussed above, plaintiffs “failure to train” claim against defendant 7 || Covello is dismissed. 8 | Conclusion 9 Plaintiff's amended complaint is dismissed with thirty days to file a second amended 10 || complaint. Ifthe second amended complaint fails to cure the pleading defects discussed above, or 11 || otherwise fails to state a potentially colorable claim for relief, the undersigned will recommend 12 || dismissal of this action. 13 Accordingly, IT IS HEREBY ORDERED that plaintiff's amended complaint is dismissed 14 | with thirty days to file a second amended complaint; failure to file a second amended complaint 15 || within that time will result in a recommendation of dismissal of this action. 16 || Dated: September 27, 2021 Aectl Aharon 18 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE Cuen252.56 20 21 22 23 24 25 26 27 28