(PS) Pearson v. Medicare/CMS ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NICOLE PEARSON, No. 2:20-cv-1719-JAM-EFB PS 12 Plaintiff, 13 v. ORDER 14 MEDICARE/CMS, et al., 15 Defendants. 16 17 Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 Her 18 declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2. 19 Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 20 Determining that plaintiff may proceed in forma pauperis does not complete the required 21 inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines that 22 the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim 23 on which relief may be granted, or seeks monetary relief against an immune defendant. As 24 discussed below, plaintiff’s complaint must be dismissed for failure to state a claim. 25 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 26 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 27 1 This case, in which plaintiff is proceeding in propria persona, was referred to the 28 undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). 1 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 2 Corp. v. Twombly, 550 U.S. 544, 562-563, 570 (2007) (citing Conley v. Gibson, 355 U.S. 41 3 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of 4 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 5 a cause of action’s elements will not do. Factual allegations must be enough to raise a right to 6 relief above the speculative level on the assumption that all of the complaint’s allegations are 7 true.” Id. at 555 (citations omitted). Dismissal is appropriate based either on the lack of 8 cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal 9 theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 10 Under this standard, the court must accept as true the allegations of the complaint in 11 question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the 12 pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, 13 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading 14 requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a 15 complaint to include “a short and plain statement of the claim showing that the pleader is entitled 16 to relief, in order to give the defendant fair notice of what the claim is and the grounds upon 17 which it rests.” Twombly, 550 U.S. at 555 (citing Conley, 355 U.S. at 47). 18 Plaintiff brings this action against sixteen defendants, including the Department of Health 19 Care Services, “Medicare/CMS,” and various healthcare entities. ECF No. 1. The complaint 20 requests an order: (1) requiring defendants to seal plaintiff’s medical records, and (2) precluding 21 them from releasing her medical records without her written permission. Id. at 4-5. Plaintiff 22 claims she is entitled to such relief under the Health Insurance Portability and Accountability Act 23 (“HIPAA”). But “HIPAA does not provide any a private right of action” United States v. Streich, 24 560 F.3d 926, 935 (9th Cir. 2009), and the complaint does not assert any other claims. 25 Accordingly, plaintiff’s complaint must be dismissed for failure to state a claim. Plaintiff 26 is granted leave to amended complaint. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) 27 (en banc) (district courts must afford pro se litigants an opportunity to amend to correct any 28 deficiency in their complaints). Any amended complaint must allege a cognizable legal theory 1 against a proper defendant and sufficient facts in support of that cognizable legal theory. Should 2 plaintiff choose to file an amended complaint, the amended complaint shall clearly set forth the 3 allegations against each defendant and shall specify a basis for this court’s subject matter 4 jurisdiction. Any amended complaint shall plead plaintiff’s claims in “numbered paragraphs, 5 each limited as far as practicable to a single set of circumstances,” as required by Federal Rule of 6 Civil Procedure 10(b), and shall be in double-spaced text on paper that bears line numbers in the 7 left margin, as required by Eastern District of California Local Rules 130(b) and 130(c). Any 8 amended complaint shall also use clear headings to delineate each claim alleged and against 9 which defendant or defendants the claim is alleged, as required by Rule 10(b), and must plead 10 clear facts that support each claim under each header. 11 Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to 12 make an amended complaint complete. Local Rule 220 requires that an amended complaint be 13 complete in itself. This is because, as a general rule, an amended complaint supersedes the 14 original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once 15 plaintiff files an amended complaint, the original no longer serves any function in the case. 16 Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not 17 alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 18 1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v. 19 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to 20 comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order 21 may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110. 22 III. Conclusion 23 Accordingly, it is hereby ORDERED that: 24 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 25 2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein. 26 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 27 complaint. The amended complaint must bear the docket number assigned to this case and must 28 ///// wOASe 2 OU UV VEEL EAINI SEAT MAUI POO ee OY OT Mt 1 | be labeled “First Amended Complaint.” Failure to timely file an amended complaint in 2 || accordance with this order will result in a recommendation this action be dismissed. 3 | DATED: September 25, 2020. 4 Data = ZELMA 5 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28