The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge
ORDER DISMISSING COMPLAINT WITH LEAVE GRANTED TO AMEND
Before the court is pro se Plaintiff Dion'e KaeoTomaselli's ("Plaintiff") prisoner civil rights complaint brought pursuant to 42 U.S.C. § 1983.*fn1 Plaintiff is incarcerated at the Women's Community Correctional Center ("WCCC"). Plaintiff names WCCC Warden Mark Patterson ("Patterson"), in his official capacity and WCCC volunteer hula teacher, Halaki Ancheta ("Ancheta"), in her individual capacity, alleging that they violated her constitutional right to privacy when they divulged her confidential medical information.
The Complaint is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1), for failure to state a claim. Because it is possible that Plaintiff can cure the Complaint's deficiencies as set forth below, she is granted leave to amend her claims.
The court must screen all civil actions brought by prisoners that relate to prison conditions and/or seek redress from a governmental entity, officer, or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if its claims are legally frivolous or malicious, fail to state a claim on which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e (c)(1).
A complaint may be dismissed for failure to state a claim for (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim, a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, ----, 129 S. Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
"[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "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." Id. at 1950. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 1951.
The court must construe a pro se complaint liberally, accept all allegations of material fact as true, and construe those facts in the light most favorable to the plaintiff. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Leave to amend should be granted if it appears at all possible that the plaintiff can correct the defects of his or her complaint. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
"To sustain an action under section 1983, a plaintiff must show '(1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a federal constitutional or statutory right.'" Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007) (citation omitted), vacated and remanded on other grounds, 129 S. Ct. 2431 (2009); see also West v. Atkins, 487 U.S. 42, 48 (1988); 42 U.S.C. § 1983.
In Count I, Plaintiff claims that Patterson violated her right to privacy when he told his personal friend and WCCC volunteer hula teacher, Ancheta, that Plaintiff was dying of AIDS. In Count II, Plaintiff claims that, sometime between November 3, 2009, and December 21, 2009, Ancheta repeated this information to several inmates attending her hula class. Plaintiff alleges Defendants violated the Eighth Amendment by divulging her private medical information.
Plaintiff raised identical claims against Patterson and Ancheta in Kaeo-Tomaselli v. Women's Community Corr. Ctr., 1:11-cv-00669-SOM-RLP. In that action, Plaintiff was notified that her claim against Patterson was cognizable and could proceed, once she amended the complaint to properly name him in the caption. See 1:11-cv-00669-SOM-RLP, ECF #6 at 5-6, 11. Plaintiff was informed that, because she failed to allege or show how Ancheta, a volunteer hula teacher at the prison, was acting under color of state law, her claims against Ancheta failed to state a claim. Id. at 9. Plaintiff was granted leave to amend the complaint and did so. Id., ECF #7. Plaintiff's amended complaint did not include her claims against Patterson and Ancheta, however. Instead, Plaintiff chose to commence a separate action against them.
B. Plaintiff's Right to Privacy in her Medical Information
The Supreme Court recognizes a constitutional right to privacy
regarding "the individual interest in avoiding disclosure of personal
matters." Whalen v. Roe, 429 U.S. 589, 599 (1977). In Whalen, the
Court did not define the boundaries of this right, or hold that there
is a constitutional right to privacy for medical records, however.
Rather, it held that, insofar as there is such a right, it was not
impacted by a New York law requiring physicians to disclose
identifying information for individuals prescribed certain controlled
substances. Id. at 605. The Supreme Court's most recent discussion on
the issue, NASA v. Nelson, --- U.S. ----, 131 S. Ct. 746 (2011),
explicitly "assume[d], without deciding" that the Constitution
protects such a right, but expressly declined to consider its extent.
Id. at 751. The Court noted that it had announced that such a right
existed in Whalen, but had said virtually nothing on the matter in the
more than 30 years since. See id. at 751, 756 (citing Whalen, 429 ...