Opinion
21-16527
10-17-2022
LEIHINAHINA SULLIVAN, AKA Jen, AKA Jennifer, AKA Jennifer Sullivan, AKA Lei Sullivan, Plaintiff-Appellant, v. FEDERAL BUREAU OF PRISONS; UNITED STATES ATTORNEY, District of Hawaii, Defendants-Appellees, and ESTELA DERR, Warden, in her Official Capacity; REBECCA A. PERLMUTTER, Assistant United States Attorney in Her Official Capacity; BUREAU OF PRISONS HONOLULU FEDERAL DETENTION CENTER; KENJI PRICE, in his Official Capacity; TIMOTHY RODRIGUES, Employee; JOHN DOES, 1-100, Defendants.
NOT FOR PUBLICATION
Submitted October 13, 2022 [**]
Appeal from the United States District Court for the District of Hawaii No. 1:20-cv-00269-LEK-KJM Leslie E. Kobayashi, District Judge, Presiding
Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges.
MEMORANDUM [*]
Leihinahina Sullivan appeals pro se the district court's summary judgment in her action against the Federal Bureau of Prisons ("BOP") and the United States Attorney's Office for the District of Hawaii ("USAO") (collectively, "Defendants"). Sullivan alleged that Defendants violated the Privacy Act of 1974, 5 U.S.C. § 552a(b), and her rights under the Fourth and Fourteenth Amendments. We affirm.
The district court did not err in granting summary judgment. See Lane v. Dep't of the Interior, 523 F.3d 1128, 1138 (9th Cir. 2008); Miranda v. City of Cornelius, 429 F.3d 858, 860 n.1, 861-62 (9th Cir. 2005). Sullivan waived her privacy interest in the relevant medical records because she put her medical condition at issue by filing her motion for release to home confinement. See A.C. ex rel. Park v. Cortez, 34 F.4th 783, 788, 788 n.2 (9th Cir. 2022); cf. Maynard v. City of San Jose, 37 F.3d 1396, 1402 (9th Cir. 1994). Additionally, the district court did not err in relying on Seaton v. Mayberg, 610 F.3d 530, 534-35 (9th Cir. 2010), and were there any error, it was harmless. See 28 U.S.C. § 2111.
In any event, the district court did not err in holding that the Privacy Act was not violated. The disclosure of Sullivan's medical records by the BOP to the USAO was permissible under the exception for disclosure "to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties." 5 U.S.C. § 552a(b)(1); see id. (a)(1); id. § 552(f)(1). The disclosure of her medical records also came within the "routine use" exception. See 5 U.S.C. § 552a(a)(7); see id. (b)(3); id. (e)(4)(D); Privacy Act of 1974, System of Records, 67 Fed.Reg. 11712, 11713 (c) (Mar. 15, 2002); cf. id. (d) (disclosure to courts); Swenson v. U.S. Postal Serv., 890 F.2d 1075, 1078 (9th Cir. 1989).
Nor did the district court err in holding that Defendants did not violate her right to due process. See Endy v. County of Los Angeles, 975 F.3d 757, 768 (9th Cir. 2020); A.C., 34 F.4th at 788; see also Ferm v. U.S. Tr. (In re Crawford), 194 F.3d 954, 959-60 (9th Cir. 1999). Likewise, Sullivan has not shown a violation of her Fourth Amendment rights. See Whalen v. Roe, 429 U.S. 589, 604 n.32, 97 S.Ct. 869, 878 n.32, 51 L.Ed.2d 64 (1977).
Although Sullivan brought her claim under the Fourteenth Amendment, we analyze it pursuant to the Fifth Amendment. See Castillo v. McFadden, 399 F.3d 993, 1002 n.5 (9th Cir. 2005); S.F Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 542 n.21, 107 S.Ct. 2971, 2984 n.21, 97 L.Ed.2d 427 (1987).
We do not consider matters not specifically and distinctly raised and argued in the opening brief or issues raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
AFFIRMED. Sullivan's request for an injunction pending appeal is DENIED as moot.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).