United States District Court, D. Oregon
MICHAEL J. MCSHANE UNITED STATES MAGISTRATE JUDGE
a former inmate at the Multnomah County Inverness Jail, filed
this civil rights action and alleged violations of his rights
under the Americans With Disabilities Act (ADA), the
Rehabilitation Act, and the Eighth Amendment. Plaintiff was
granted leave to proceed in forma pauperis and was provided
the necessary form for service by the U.S. Marshals Service.
However, plaintiff did not provide USM instruction forms for
the individually-named defendants, and service has not been
upon reconsideration of the claims alleged in plaintiff's
complaint, the court finds that he fails to state a claim for
relief. Federal law authorizes federal courts to review cases
filed in forma pauperis to determine if a claim is
“frivolous or malicious” or “fails to state
a claim upon which relief may be granted.” 28 U.S.C.
§ 1915(e)(2)(B). Dismissal of a pro se complaint for
failure to state a claim “is proper only if it is clear
that the plaintiff cannot prove any set of facts in support
of the claim that would entitle him to relief.”
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.
2012). The court must construe pro se pleadings liberally and
afford the plaintiff “the benefit of any doubt.”
Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)
(citation omitted). “Unless it is absolutely clear that
no amendment can cure” defects in the complaint,
“a pro se litigant is entitled to notice of the
complaint's deficiencies and an opportunity to amend
prior to dismissal of the action.” Lucas v.
Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995)
(per curiam). Here, I find plaintiff's complaint
deficient in several respects that cannot be cured by
to plaintiff's complaint, in July 2017, he was
transferred from federal custody to the Northwest Regional
Re-entry Center (NWRRC) for a portion of his one-year
sentence. Plaintiff alleges that in late July and August
2017, federal Bureau of Prison (BOP) officials denied him
prescribed medication to treat his opioid addiction while he
was housed at NWRRC. Specifically, plaintiff alleges that he
obtained a prescription for suboxone from a private medical
care provider and provided it to his NWRRC case manager. The
case manager, in turn, requested approval from the BOP.
Plaintiff alleges that defendant Cynthia James would not
approve plaintiff's use of suboxone at NWRRC because his
medical treatment had not been approved by the BOP. Instead,
James suggested an alternative medication to be prescribed by
a BOP-approved provider. Compl. at 10-11. Plaintiff further
alleges that while defendants “argued” about
bureaucratic requirements, he sought street drugs and
relapsed in August 2017, resulting in emergency
hospitalization. Id. at 12. Plaintiff claims that
defendants' denial of his medication violated his rights
under the ADA and Rehabilitation Act and exhibited deliberate
indifference toward his serious medical needs in violation of
the Eighth Amendment. Plaintiff's allegations do not
state a viable claim for relief.
the ADA does not apply to federal correctional facilities or
federal employees. 42 U.S.C. § 12131(1); Phillips v.
Tiona, 508 Fed. App'x 737, 752 (10th Cir. 2013)
(“Title II of the ADA does not apply to federal
prisoners in federal prisons, including those privately
managed by corporations such as CCA.”). To the extent
plaintiff alleges a Rehabilitation Act claim, the Act does
not waive the federal government's sovereign immunity as
to money damages. Lane v. Pena, 518 U.S. 187, 192
plaintiff's allegations do not state a claim under the
Eighth Amendment. To maintain an Eighth Amendment claim based
on medical treatment, a prisoner must show: 1) the existence
of “a serious medical need” such that the
“failure to treat a prisoner's condition could
result in further significant injury or the unnecessary and
wanton infliction of pain”; and 2) “the
defendant's response to the need was deliberately
indifferent.” Jett v. Penner, 439 F.3d 1091,
1096 (9th Cir. 2006) (citations omitted). “A prison
official acts with deliberate indifference... only if the
[prison official] knows of and disregards an excessive risk
to inmate health and safety.” Toguchi v.
Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (citation
omitted). Here, plaintiff alleges that James denied the use
of suboxone at NWRCC absent BOP approval and suggested
plaintiff be prescribed an alternative medication. Compl.
10-11. Plaintiff does not allege facts that would suggest
James acted “in conscious disregard of an excessive
risk to plaintiff's health.” Jackson v.
McIntosh, 90 F.3d 330, 332 (9th Cir.
plaintiff alleges a violation of the Health Insurance
Portability and Accountability Act of 1996, otherwise known
as HIPAA. See Ramsey v. Siskiyou Hosp., 2016 WL
3197557, at *2 (E.D. Cal. June 9, 2016) (“HIPAA
generally prohibits certain medical care providers, or
‘covered entities, ' from disclosing a
patient's protected health information beyond what is
necessary to provide care for the individual”). As an
initial matter, plaintiff does not allege that any of the
named BOP defendants disseminated plaintiff's medical
information. Regardless, plaintiff cannot state a claim for
relief because “HIPAA itself provides no private right
of action.” Webb v. Smart Document Solutions,
LLC, 499 F.3d 1078, 1081 (9th Cir. 2007). Moreover, the
Ninth Circuit has held that “prisoners do not have a
constitutionally protected expectation of privacy in prison
treatment records when the state has a legitimate penological
interest in access to them….Prisons need access to
prisoners' medical records to protect prison staff and
other prisoners from communicable diseases and violence, and
to manage rehabilitative efforts.” Seaton v.
Mayberg, 610 F.3d 530, 534-35 (9th Cir. 2010).
deficiencies in plaintiff's Complaint cannot be cured by
amendment, and this action is DISMISSED.
 Plaintiff alleges no other specific
conduct taken by James or any other BOP defendant. Likewise,
plaintiff does not allege deliberate indifference on the part
of NWRRC employees; plaintiff could not sustain an Eighth
Amendment claims against them in any event. E.g., Minneci
v. Pollard, 565 U.S. 118, (2012) (holding that a