Opinion
3:19-cv-01733-AC
12-14-2020
JAMES MICHAEL MURPHY, M.D., Plaintiff, v. THOMAS J. WILHELM, M.D.; and HOOD RIVER COUNTY DISTRICT ATTORNEY OFFICE, Defendants.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA UNITED STATES MAGISTRATE JUDGE
Introduction
Plaintiff James M. Murphy (“Murphy”), brings this action against Defendants Thomas J. Wilhelm (“Wilhelm”), and the Hood River County District Attorney Office (“HRDA”) for violations of 5 U.S.C. § 552a (“Privacy Act”), 18 U.S.C. § 241 (“Conspiracy Against Rights Act”), 42 U.S.C. § 1983 (“Section 1983”), 31 U.S.C. § 3729 (“False Claims Act”), the Health Insurance Portability and Accountability Act (“HIPAA”), Pub. L. 104-191, 110 Stat. 1936 (codified as amended in scattered sections of 42 U.S.C.), Oregon Revised Statute (“ORS”) § 165.800 (“Identity Theft Statute”), and ORS § 192.553 (“Policy for Protected Health Information”). Currently before the court is Defendant Hood River County District Attorney's Office's Motion for Summary Judgment (ECF No. 24), and Murphy's Motion to Amend Pleading (ECF No. 48). For the following reasons, the court recommends that HRDA's motion for summary judgment be granted, and Murphy's motion to amend be denied, with prejudice.
Background
The relevant facts appear in Murphy's Complaint (ECF No. 1), which the court liberally construes in his favor. On July 15, 2016, Murphy was arrested on charges of careless driving and driving under the influence. (Compl. and Summons (“Compl.”), ECF No. 1 at 1.) During the investigation and arrest, Murphy suffered chest pain and was transferred to the Providence Hood River Hospital emergency department. (Id.) During evaluation in the emergency department, the nursing staff drew Murphy's blood for diagnostic testing. (Id. at 2.) A Hood River Police Department (“HRPD”) officer also requested, and obtained, a blood sample for testing. (Id.) Murphy alleges that both the diagnostic and HRPD blood samples were obtained illegally, and when Murphy confronted the HRPD officer, the officer verbally abused Murphy and his wife and “became physically aggressive and slammed [Murphy's] head into a metal cabinet.” (Id.)
Wilhelm was the physician who evaluated Murphy's condition in the emergency department. (Id.) Murphy alleges that Wilhelm was aware that Murphy did not consent to any blood alcohol testing. (Id.) Additionally, Murphy alleges Wilhelm conspired with law enforcement to provide the results of the diagnostic blood test to law enforcement without authorization, and that those results were disclosed as evidence at his arraignment. (Id. at 2-3.) Murphy also alleges that by ordering the diagnostic test, Wilhelm violated the standard of care for evaluating chest pain (also alleging the “20-30” minute wait time, prior to assessment, is a violation of care). (Id. at 2.) Murphy admits that the diagnostic results Wilhelm obtained did not establish that he was over the legal blood alcohol limit for operating a motor vehicle, but he alleges that the diagnostic result showed a greater blood alcohol concentration than the blood sample obtained by police and sent to the crime lab. (Id. at 3.)
On July 16, 2016, Murphy was charged with Making an Improperly Executed Right Turn, Failure to Drive Within a Lane, and Careless Driving. (Decl. Jessica Spooner Supp. Def. HRDA's Mot. Summ. J. (“Spooner Decl.”), ECF No. 25, Ex. 2 at 1.) Murphy was arraigned in August 2016. (Compl. at 8.) At the arraignment, HRDA presented Murphy's diagnostic blood alcohol test results as evidence, which Murphy alleges created an “unfair prosecutorial advantage” and forced him “to enter a [guilty] plea” “under duress.” (Id. at 3.) On September 26, 2016, Murphy pleaded guilty to Careless Driving, resulting in a $260 traffic fine. (Spooner Decl., Ex. 2 at 1.) The other charges were dismissed. (Id.)
Murphy filed this law suit on October 30, 2019, seeking $800,000 in damages. (Id. at 8.) Murphy subsequently filed a motion to amend his pleading. (Pl.'s Mot. Am. Compl., ECF No. 48.) Defendant HRDA timely filed a motion for summary judgment. (Def. Hood River County DA's Off.'s Mot. for Summ. J., ECF No. 24.) Defendant Wilhelm timely filed a motion to dismiss (Def. Thomas J. Wilhelm's Rule 12 Mot. to Dismiss (“Mot. to Dismiss”), ECF No. 9), which the court addresses concurrently in a separate Findings and Recommendation.
Legal Standard
Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment is not proper if material factual issues exist for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. A nonmoving party cannot defeat summary judgment by relying on the allegations in the complaint, or with unsupported conjecture or conclusory statements. Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Thus, summary judgment should be entered against “a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
To determine whether summary judgment is proper, the court must view the evidence in the light most favorable to the nonmoving party. Curley v. City of N. Las Vegas, 772 F.3d 629, 631 (9th Cir. 2014); Hernandez, 343 F.3d at 1112. All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). When different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Life Ins. Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981).
However, deference to the nonmoving party has limits. If the nonmoving party “fails to properly support an assertion of fact or fails to properly address another party's assertion of fact . . . the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for the purposes of the motion; [or] (3) grant summary judgment if . . . the movant is entitled to it.” Fed. R. Civ. P. 56(e). The “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Therefore, where “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted).
Discussion
Defendant HRDA moves for summary judgment on all of Murphy's claims. HRDA contends that the Section 1983 and Privacy Act claims are time-barred and that no private right of action exists under HIPAA or the Conspiracy Against Rights Act. Also, HRDA argues that their office is immune from suit under the Eleventh Amendment.
I. Violation of Civil Rights, 42 U.S.C. § 1983
It is unclear whether Murphy alleges HRDA independently violated Section 1983 or conspired with HRPD and Wilhelm to violate Section 1983. Murphy alleges HRDA violated his Fourth Amendment right by disclosing illegally obtained evidence “for the sole purpose of making the result public, via a public police report” and “in a public record and . . . in a public court.” (Compl. at 2-5). To the extent that Murphy's Section 1983 claim is premised on HRDA's alleged conspiracy with HRPD and Wilhelm (Id. at 2-5), his claim fails as a matter of law.
Conspiracy itself is not a constitutional tort under Section 1983. Lacey v. Maricopa County, 693 F.3d 896, 935 (9th Cir. 2012). “[Conspiracy] does not enlarge the nature of the claims asserted by the plaintiff, as there must always be an underlying constitutional violation.” Id.; see also Cassettari v. Nevada County, Cal., 824 F.2d 735, 739 (9th Cir. 1987) (“The insufficiency of these allegations to support a [S]ection 1983 violation precludes a conspiracy claim predicated upon the same allegations.”); Landrigan v. City of Warwick, 628 F.2d 736, 742 (1st Cir. 1980) (“[M]ere proof of a conspiracy is insufficient to establish a [S]ection 1983 claim.”) (quoting Hampton v. Hanrahan, 600 F.2d 600, 622 (7th Cir. 1979), rev'd in part on other grounds, 446 U.S. 754, (1980)). “To state a claim under § 1985(3), a plaintiff must first show that the defendants conspired-that is, reached an agreement-with one another.” Ziglar v. Abbasi, --- U.S. ---, 137 S.Ct. 1843, 1868, (2017). And the “intent to deprive [the plaintiff] of equal protection, or equal privileges and immunities . . . must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.” Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971). Murphy's conclusory allegations that HRDA conspired with HRPD and Wilhelm to deprive Murphy of his Fourth Amendment rights are insufficient to state a claim for relief. Murphy also fails to allege the requisite invidious animus against a suspect class under § 1985(3). Therefore, Murphy's Section 1983 claim fails as a matter of law.
Even if Murphy were able to establish HRDA infringed his Fourth Amendment rights, the claim would be time-barred. Although Section 1983 contains no statute of limitations, the Supreme Court “requires courts to borrow and apply to all § 1983 claims the one most analogous state statute of limitations.” Owens v. Okure, 488 U.S. 235, 240 (1989); see Cooper v. City of Ashland, 871 F.2d 104, 105 (9th Cir. 1989) (“Oregon's two-year statute of limitations for personal injury actions applies to actions under 42 U.S.C. § 1983.”); see also Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (“For actions under 42 U.S.C. § 1983, courts apply the forum state's statute of limitations for personal injury actions, along with the forum state's law regarding tolling, including equitable tolling, except to the extent any of these laws is inconsistent with federal law.”); ORS 12.110. Federal law determines when a cause of action accrues and the statute of limitations begins to run for a Section 1983 claim. Norco Construction, Inc. v. King County, 801 F.2d 1143, 1145 (9th Cir. 1986). A federal claim accrues when the plaintiff “‘knows or has reason to know of the injury which is the basis of the action.'” Id. (quoting Trotter v. Int'l Longshoreman's & Warehouse Union, 704 F.2d 1141, 1143 (9th Cir. 1983).
There is no genuine dispute as to any material fact. Murphy's allegations all stem from his July 2016 arrest and subsequent testing, his August 2016 arraignment, and his September 2016 plea hearing. Murphy certainly knew about his injury at the time of his plea on September 26, 2016, but he filed this lawsuit on October 30, 2019, more than three years past the date of alleged injury. Therefore, Murphy's claim is untimely and should be dismissed with prejudice.
In short, Murphy's Section 1983 claim fails as a matter law, and even if such a claim could be brought, there is no material factual dispute that his claim is time-barred. Accordingly, HRDA's motion for summary judgment should be granted.
II. Oregon's Privacy Act
Murphy refers to the “Oregon's Privacy Act” only in the Complaint's caption, and later refers to the Privacy Act generally and the “Federal Privacy Rule and Oregon statutes.” (Compl. at 1, 3, 5-7.) Unclear is whether Murphy intends to pursue a state law claim under the Policy for Protected Health Information, ORS 192.553; pursue a Privacy Act claim pursuant to 5 U.S.C. § 552a; or pursue a claim under the HIPAA Privacy Rule, 45 C.F.R. § 164.500. Therefore, the court examines all three statutes.
Murphy alleges HRDA violated the Policy for Protected Health Information by disclosing illegally obtained evidence on a public record and in a public court. (Compl. at 2-5.) Under ORS 192.571, Private Cause of Action, the Policy for Protected Health Information is applicable to healthcare providers or a state health plan. ORS 192.571. The statutory duty of confidentiality does not create “a new private right of action against a healthcare provider or a state health plan.” ORS 192.571. Thus, where the legislature did not specifically provide a statute of limitations, “claims are governed by the two-year statute of limitations contained in ORS 12.110(1).” Bradbury v. Teacher Standards & Practices Com'n, 328 Or. 391 (1999).
HRDA is not a health care provider or a state health plan, and ORS 192.553 therefore is inapplicable. Furthermore, even if HRDA fell within ORS 192.553's scope, any claim under the common-law breach of duty of confidentiality is barred by the two-year statute of limitations. Thus, any potential claim arising under ORS 192.553 is inapplicable to HRDA and, in any event, is time-barred.
Under 5 U.S.C. § 552a of the Privacy Act, a civil action for violation must be brought “within two years from the date on which the cause of action arises.” 5 U.S.C. § 552a(g)(5) (2014). Therefore, any claim Murphy might have arising under the Privacy Act claim also is time-barred.
Finally, to the extent Murphy's claim arises under the HIPAA Privacy Rule, “HIPAA itself provides no private right of action.” Webb v. Smart Document Solutions, LLC, 499 F.3d 1078, 1081 (9th Cir. 2007). The “[e]nforcement of HIPAA rests solely with the Secretary of Health and Human Services.” Frye v. Ayers, No. 99-0628, 2009 WL 1312924, at *3 (May 12, 2009) (citing Logan v. Dep't of Veterans Affairs, 357 F.Supp.2d 149, 155 (2004)). Pursuant to 45 C.F.R. § 160.402, the Secretary determines if the covered entity or business associate has violated a provision. 45 C.F.R. § 160.402(a) (2013). Because HIPAA fails to provide a private right of action, Murphy's Privacy Rule claim fails as a matter of law.
Because all of the statutes upon which Murphy rely for his Oregon Privacy Act claim are inapplicable or, alternatively, because his claims clearly are time-barred under each of those statutes, there is no genuine issue of material fact and HRDA is entitled to judgment as a matter of law. HRDA's motion for summary judgment should be granted.
III. Conspiracy Against Rights Act, 18 U.S.C. § 241
Defendant HRDA moves for summary judgment on Murphy's Conspiracy Against Rights Act claim as a matter of law because no civil claim exists under the statute. The Conspiracy Against Rights Act is a criminal statute and provides no private right of action. Agnew v. Compton, 239 F.2d 226, 230 (9th Cir. 1956), overruled on other grounds by Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962). “[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); see also United States v. Nixon, 418 U.S. 683, 693 (1974) (“[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.”); Robertson v. U.S. ex rel. Watson, 560 U.S. 272, 278 (2010) (Roberts, J., dissenting) (“Our entire criminal justice system is premised on the notion that a criminal prosecution pits the government against the governed, not one private citizen against another.”). Moreover, the penalty for violating § 241 is a criminal penalty (monetary fine, imprisonment, or both). 18 U.S.C. § 241 (1996). Because § 241 is a criminal statute and fails to provide a private civil right of action, HRDA's motion for summary judgment on Murphy's Conspiracy Against Rights Act claim should be granted.
IV. Hood River District Attorney's Office Immunity
Defendant HRDA moves for summary judgment on Murphy's claims as a matter of law because HRDA is immune form suit in federal court. “In general, the Eleventh Amendment shields nonconsenting states from suits for monetary damages brought by private individuals in federal court.” N.E. Med. Serves., Inc. v. California Dep't of Health Care Servs., Health and Human Servs. Agency, California, 712 F.3d 461, 499 (9th Cir. 2013). “[A]bsent waiver by the State or valid congressional override, the Eleventh Amendment bars a damages action against a State in federal court.” Kentucky v. Graham, 473 U.S. 159, 169 (1985). Section 1983 “was not intended to abrogate a State's Eleventh Amendment immunity.” Id. at 169 n.17 (citing Quern v. Jordan, 440 U.S. 332, (1979)).
Section 1983 is applicable to “persons.” 42 U.S.C. § 1983 (1996). “[A]rms of the State . . . are not ‘persons' under [S]ection 1983.” Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1327 (9th Cir. 1991) (citing Will v. Michigan Dep't of State Police 491 U.S. 68, 70 (1989) (“[N]either a State nor its officials acting in their official capacities are ‘persons' under § 1983.”); see also Morris v. State Bar of California, 2010 WL 4977677, at *2 (E.D. Cal. Dec. 2, 2010) (“[d]istrict [a]ttorney's office is a ‘sub-unit' of the [county] and is not a person under § 1983”). “[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself.” Will v. Michigan Dep't of State Police 491 U.S. 68, 71 (1989) (internal citation omitted); see, e.g., Kentucky v. Graham, 473 U.S. 159, 165-166 (1985); see also Davis v. San Diego District Attorney, 2018 WL 4204892, at *5 (S.D. Cal. Sep. 4, 2018) (“Plaintiff's claims against . . . [the] [d]istrict [a]ttorney's [o]ffice are barred by absolute immunity, ” and noting thatwhere a plaintiff does not clearly distinguish between the actions taken by the district attorney and those actions taken by the district attorney's office, the district attorney's office is essentially a placeholder for actions taken by prosecutors). Therefore, HRDA is immune from suit.
Here, there is no genuine issue of material fact and HRDA is entitled to judgment as a matter of law. HRDA's motion for summary judgment should be granted.
V. Murphy's Motion to Amend
Murphy seeks to amend his Complaint (ECF No. 1) to correct the spelling of “Welhelm” to “Wilhelm” and to add a defendant, Deputy District Attorney Timothy Wong (“Wong”). (See Pl.'s Mot. Am. Compl., ECF No. 48.) “[A] district court need not grant leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4) is futile.” AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (citing Bowles v. Reade, 198 F.3d 752, 757 (9th Cir. 1999). Both proposed amendments would be futile here.
First, because Wilhelm does not dispute he is the person that Murphy intended to sue, Wilhelm's identity is not at issue and correcting the spelling of his name therefore will not change the outcome of the court's summary judgment analysis. Furthermore, correcting the spelling of Wilhelm's name will not change the court's analysis that Murphy can bring no cognizable or timely legal claim against him.
Second, Wong, as a prosecutor, would be entitled to absolute immunity from Murphy's claims. “Absolute immunity is generally accorded to . . . prosecutors functioning in their official capacity.” Olsen v. Idaho Stat Bd. Of Med., 363 F.3d 916, 922 (9th Cir. 2004). Prosecutors are granted absolute immunity for actions “intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976). By “initiating a prosecution and [] presenting the State's case, the prosecutor is immune from a civil suit for damages under s [sic] 1983.” Id. at 431. Thus, Murphy's amendment to add Wong is futile and leave to amend to add Wong as a defendant should be denied.
The court addresses futility in relation to Wilhelm's Mot. to Dismiss (ECF No. 9) concurrently in a separate Findings and Recommendation.
Conclusion
Murphy's claims under HIPAA, and the Conspiracy Against Rights Act fail as a matter of law because they do not provide a private cause of action. Murphy's remaining claims are time-barred. Accordingly, HRDA is entitled to judgment as a matter of law and the motion for summary judgment should be granted. Murphy's request to amend his complaint to correct the spelling of Wilhelm's name should be denied because the correction would not change the outcome of the court's analysis, and his request to add Wong as a defendant should be denied because Wong is entitled to absolute immunity.
Recommendation
For the reasons stated above, the court recommends that HRDA's Motion for Summary Judgment (ECF No. 24) be GRANTED, and Murphy's Motion to Amend Pleading (ECF No. 48) be DENIED.
Scheduling Order
The above Findings and Recommendation are referred to a United States District Judge for review. Objections, if any, are due in fourteen days. If no objections are filed, review of the Findings and Recommendation will go under advisement that date.
A party may respond to another party's objections within 14 days after the objections are filed. If objections are filed, review of the Findings and Recommendation will go under advisement upon receipt of the response.