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Montgomery v. Zyck

August 11, 2009

LEPIZE MONTGOMERY, PLAINTIFF,
v.
C. ZYCK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Murphy, District Judge

MEMORANDUM AND ORDER

Plaintiff, LePize Montgomery, formerly an inmate at USP-Marion, brings this action for alleged violations of his constitutional rights by persons acting under the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides:

(a) Screening.-- The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.

(b) Grounds for Dismissal.-- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint--

(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A. An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007).

Based on the allegations of the complaint, the Court finds it convenient to divide Montgomery's pro se complaint into three counts. The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The designation of these counts does not constitute an opinion as to their merit.

COUNT 1

Montgomery alleges that on December 3, 2006, Defendant Zyck knowingly gave his private medical records to another inmate. He further alleges that this inmate disseminated Montgomery's medical information, particularly his HIV status, to other inmates. Montgomery alleges that as a result he was verbally abused and physically beaten by other inmates, but later he was placed in protective custody. Montgomery claims that as a result of this abuse, he suffered emotional and physical damage.

Although the Seventh Circuit has yet to squarely address the issue of whether an inmate has a privacy right in his medical records, see Massey v. Helman, 196 F.3d 727, 742 n. 8 (7th Cir. 1999); Anderson v. Romero, 72 F.3d 518, 523 (7th Cir. 1995), the Second and Third Circuits have expressly recognized that such a right exists, see Powell v. Schriver, 175 F.3d 107, 112-13 (2nd Cir. 1999); Doe v. Delie, 257 F.3d 309, 315-17 (3rd Cir. 2001).*fn1 Those courts found, however, that "a prisoner does not enjoy a right of privacy in his medical information to the same extent as a free citizen." Doe, 257 F.3d at 317. "Specifically, an inmate's constitutional right may be curtailed by a policy or regulation that is shown to be 'reasonably related to legitimate penological interests.'" Id. (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). In each of these cases, the courts considered whether an inmate had a protected interest in maintaining the confidentiality of a specific medical condition, rather than a blanket right to all medical privacy. Doe, 257 F.3d at 317 (HIV-positive status); Powell, 175 F.3d at 112 ("individuals who are transsexuals are among those who possess a constitutional right to maintain medical confidentiality"). Further, a distinction was drawn for the purpose of that disclosure. Powell, 175 F.3d at 112 ("gratuitous disclosure of an inmate's confidential medical information as humor or gossip... violates the inmate's constitutional right to privacy").

Applying these standards to the allegations in the complaint, the Court is unable to dismiss this claim at this time.

COUNT 2

While in protective custody on February 25, 2007, Montgomery alleges that Defendant Lockridge served (or allowed to be served) burnt or overcooked pasta with meat sauce that was unfit to eat. Montgomery claims he must take a certain medication each day on a full stomach and that Lockridge knew this but refused to replace the meal. Montgomery alleges that Lockridge told him that if he wanted to take his medication, he would have to eat the burnt pasta. Montgomery claims Lockridge's actions violated his Eighth Amendment rights ...


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