Fialho v. Auld, 2:21-cv-1698 DB P

• Decision Date: 26 October 2021
• Docket Number: 2:21-cv-1698 DB P
• Parties: SCOTT FRANK FIALHO, Plaintiff, v. AULD, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

SCOTT FRANK FIALHO, Plaintiff,
v.
AULD, et al., Defendants.

No. 2:21-cv-1698 DB P

United States District Court, E.D. California

October 26, 2021

ORDER AND FINDINGS AND RECOMMENDATIONS

DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE

Plaintiff is a state prisoner proceeding pro se. Before the court is plaintiff's complaint for screening and plaintiff's motion to proceed in forma pauperis. For the reasons set forth below, this court grants plaintiff's motion to proceed in forma pauperis, grants petitioner leave to file an amended complaint based on his Eighth Amendment claims, and recommends his claims based on the Health Insurance Portability and Accountability Act and on California regulations be dismissed with prejudice.

IN FORMA PAUPERIS

Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

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the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

SCREENING

I. Legal Standards for Civil Rights Complaints

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1) & (2).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

However, in order to survive dismissal for failure to state a claim a complaint must contain more than “a formulaic recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

The Civil Rights Act under which this action was filed provides as follows:

Every person who, under color of [state law] . . . subjects or causes to be subjected, any citizen of the United States . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A person ‘subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

II. Analysis

A. Allegations of the Complaint

Plaintiff is incarcerated at Mule Creek State Prison (“MCSP”). He seeks relief for conduct that occurred there in 2020. Plaintiff identifies the following defendants: (1) Auld, a registered nurse; (2) HLA, a physician; and (3) Malle, a physician.

Plaintiff alleges that starting in December 2020, he refused further testing for COVID-19.^[1]Plaintiff claims that on December 28, 2020, he was placed on a 21-day quarantine for refusing the test. While in quarantine, a sign was posted on his cell door at the authorization of defendants. That sign stated “Failure to Test” and “compliance with future testing protocols will allow removal from 21-day quarantine.” Plaintiff claims the sign violated his right to medical privacy established by the Health Insurance Portability and Accountability Act (“HIPAA”).

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Plaintiff alleges several other claims. First, he contends that he has a right to refuse testing, as set out in 15 Cal. Code Regs. tit. 15, § 3999.210(e) (“Health care treatment, including medication, shall not be forced over the objections of a mentally competent patient.”). Second, he contends that posting the sign on his cell amounted to coercion to agree to testing, which violated his rights under the Eighth Amendment prohibition on cruel and unusual punishment. Third, plaintiff claims that the length of the 21-day quarantine, which exceeded the 14-day quarantine recommended by the Centers for Disease Control and Prevention (“CDC”), also amounted to an Eighth Amendment violation.

Finally, plaintiff states that he was “constantly exposed” to COVID-19 from March 16 to April 5, 2021 when, after he had a false positive test, he was placed in a cell block with COVID-positive prisoners. He appears to allege that his exposure to COVID-19 during that time also violated his Eighth Amendment rights.

For relief, plaintiff seeks damages from all defendants.

B. Does Plaintiff State Claims Cognizable under § 1983?

1. HIPAA Claim

HIPAA prohibits the disclosure of a patient's medical information without his consent. See 42 U.S.C. §§ 1320d-1 to d-7. However, the statute does not expressly create a private right of action to enforce this substantive prohibition. See Freier v. Colorado, 804 Fed.Appx. 890, 891-92 (10th Cir. 2020) (citing Wilkerson v. Shinseki, 606 F.3d 1256, 1267 n.4 (10th Cir. 2010) (“HIPAA does not create a private right of action for alleged disclosures of confidential medical information.”)); Stewart v. Parkview Hosp., 940 F.3d 1013, 1015 (7th Cir. 2019); Dodd v. Jones, 623 F.3d 563, 569 (8th Cir. 2010); Seaton v. Mayberg, 610 F.3d 530, 533 (9th Cir. 2010); Acara v. Banks, 470 F.3d 569, 571 (5th Cir. 2006). Therefore, plaintiff may not pursue a claim based on any rights under HIPAA in this § 1983 action. Plaintiff's claim under HIPAA should be dismissed with prejudice.

2. Violation of Regulations

Plaintiff's allegation that revelation of his refusal to test violates California regulations does not state a claim under § 1983. Noncompliance with state regulations is not cognizable under § 1983. Rather, the conduct must rise to the level of a violation of a constitutional right to

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be actionable. See Davis v. Scherer, 468 U.S. 183, 192 (1984); Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009) (section 1983 claims must be premised on violation of a federal constitutional right). Plaintiff's state-law claim should be dismissed with prejudice.

3. Eighth Amendment Claims

Plaintiff appears to attempt to state three claims under the Eighth Amendment: (1) the posting on his cell door coerced him to take the COVID-19 tests, amounting to excessive force; (2) the 21-day quarantine was excessive; and (3) defendants failed to protect him by exposing him to COVID-19. To state a claim under the Eighth Amendment, a prisoner must allege that objectively he suffered a serious deprivation and that subjectively prison officials acted with deliberate indifference in allowing or causing the deprivation to occur. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991).

a. Coercion to Test

To state an excessive force claim, plaintiff must allege facts showing that he was subjected to excessive physical force that was applied “maliciously and sadistically to cause harm” rather than “in a good-faith effort to maintain or restore...