Opinion
No. C 02-1811 WHA(PR) (Docs 2, 4 5)
August 15, 2002
ORDER OF DISMISSAL
Plaintiff, who is hospitalized at Napa State Hospital, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. He contends that defendant, the institution's Patients' Rights Advocate, violated his constitutional rights by failing to take action to require that the institution's doctors to release certain of his medical records to him. He also requests leave to proceed in forma pauperis.
DISCUSSION
A. Standard of Review
Federal courts are required to dismiss a case filed in forma pauperis if the court determines at any time that the action is frivolous, fails to state a claim, or is directed against a defendant who is immune. 28 U.S.C. § 1915(d)(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
B. Legal Claims
Plaintiff alleges that he filed a number of complaints with defendant, and that she violated his constitutional rights by not taking any action on them.
There is no constitutional right for a patient to see his or her own medical records. Gotkin v. Miller. 514 F.2d 125, 128 (2d Cir. 1975). The federal Freedom of Information and Privacy Acts, although containing provisions regarding access to records, apply only to federal, not state, agencies. See 5 U.S.C. § 552; 552a. Therefore, to the extent plaintiff is contending that defendant violated a federal right by not providing him with the medical records, he has failed to state a claim. To the extent he contends he has a constitutional right to defendant's assistance, he has provided no basis for this purported right this except his nonexistent constitutional right to see the records, and the court has found no authority establishing such a right. This is essentially a contention that he has a right to a certain outcome from petitioning the government. There is no such constitutional right. See Flick v. Alba. 932 F.2d 728 (8th Cir. 1991) (although there certainly is a First Amendment right to petition government for redress of grievances, there is no right to a response or any particular action). In view of this, it is clear that plaintiff cannot state a claim, so the dismissal will be without leave to amend.
Although Gotkin is an older case, the court has found no authority to the contrary, and it has not been overruled. It has been relied upon in relatively recent law review commentary for the proposition that there is no constitutional right to access to one's own medical records. Hayley Rosenman, Note, Patients' Rights to Access Their Medical Records: An Argument for Uniform Recognition of a Right of Access in the United States and Australia, Fordham Int'l L. J. 1500, 1510 (1998); Paul V. Stearns, Commentary, 21 L.J. Legal Med. 79, 100-03 (2000).
A California statute provides a right of access to one's own medical records, Cal. Health Safety Code § 123110, but contains an exception for mental health records if the health care provider determines that seeing the records would present a substantial risk of significant adverse or detrimental consequences to the patient, Cal. Health Safety Code § 123115(b). Even if this statute were violated — and there is no contention in the complaint that is was — that would involve a state right rather than a federal one, hence provide no basis for federal jurisdiction.
Plaintiff also contends that defendant's failure to act on his behalf to obtain access to the records was "attorney malpractice." In the absence of any federal basis for plaintiff's suit, the court declines to exercise supplemental jurisdiction over this state law claim. See 28 U.S.C. § 1367(C)(3). It will be dismissed without prejudice.
CONCLUSION
Leave to proceed in forma pauperis (doc 2) is GRANTED. Plaintiff's motion for entry f default (doc 4) is DENIED because no service has occurred. His motion to alter or amend he clerk's declination to enter a default (doc 5) is DENIED for the same reason. For the reasons set out above, plaintiff's federal claims are DISMISSED with prejudice. His state laim is DISMISSED without prejudice.The Clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT
The court has dismissed this in forma pauperis compliant. A judgment is entered in favor of defendant and against plaintiff. Plaintiff shall take nothing by way of his complaint.