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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ANDREW L. CARVER 

Plaintiff,

v.

JAMES RATHLESBERGER; RON

JOSEPH; DAVE THORNTON; and DOES

3 through 50, inclusive, 

Defendants. 

CIV-S-04-1918 DFL PAN

MEMORANDUM OF OPINION 

AND ORDER

Defendants Ron Joseph ("Joseph") and Dave Thornton

("Thornton") (collectively "defendants") move to dismiss

plaintiff Andrew L. Carver's ("Carver") claim under 42 U.S.C. §

1983 (“§ 1983") or, in the alternative, for a more definite

statement. For the reasons stated below, defendants’ motion to

dismiss Carver’s § 1983 claim is GRANTED. The court declines to

exercise supplemental jurisdiction over the remaining state law

claims. Those claims are dismissed without prejudice.

I.

Carver operated a podiatry practice in San Francisco. (SAC

¶ 3.) On December 30, 2002, the San Francisco Chronicle

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published an article titled "The Sport of Doctoring." (Id. ¶

13.) In the article, the author alleged that Carver attracted

patients by falsely claiming that he had treated professional

athletes. (Id. ¶ 15.) In addition, the author claimed that

Carver had 22 complaints filed against him with the Medical Board

of California ("Medical Board"). (Id.) 

On February 11, 2003, Carver received a letter from the

Medical Board stating that he had six complaints filed against

him. (Id. ¶ 18.) Again, on January 13, 2004, the Medical Board

confirmed that Carver had six complaints filed against him, that

the complaints were not public information, and that "anyone

purporting to have additional information does not have correct

information." (SAC Ex. C.) In June 2004, the Medical Board

informed Carver's counsel that there may have been 22 complaints

filed against Carver, but any meritless complaints, or complaints

which had not been acted upon for more than five years, should

have been removed from his file. (SAC ¶ 20.) 

On July 21, 2004, Carver filed this suit, naming as

defendants James Rathlesberger, Executive Officer of the Board of

Podiatric Medicine, and Does 1-20. (Compl. ¶¶ 12-13.) In the

complaint, Carver alleged that Rathlesberger retained the

confidential complaints and released them to the San Francisco

Chronicle in retaliation for previous suits that Carver brought

against Rathlesberger. (Id. ¶ 1.)

On March 18, 2005, on plaintiff’s motion, the court

dismissed defendant James Rathlesberger. (3/18/05 Order at 1.) 

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In addition, the parties stipulated that Carver may file "a

Second Amended Complaint naming DOE 1, the Executive Director of

the Medical Board of California, and serve same on or before

March 18, 2005." (Id.) 

 On March 21, 2005, Carver filed a second amended complaint

naming Ron Joseph, the former Executive Director of the Medical

Board, Dave Thornton, the current Executive Director of the

Medical Board, and DOES 3-20 as defendants. (SAC ¶ 1.) The

complaint includes the following claims: (1) a § 1983 claim for a

violation of Carver’s right of privacy and a violation of his due

process rights; (2) a state law claim for invasion of privacy;

and (3) a state law claim for a breach of a mandatory duty to

destroy complaints on file at the Medical Board, as required by

Cal. Gov. Code § 815.6. (Id. ¶¶ 22-50.) Carver seeks

prospective injunctive relief against Thornton and damages from

Joseph in his personal capacity. (Id. ¶ 10.)

Defendants now move to dismiss Carver's § 1983 claim on four

grounds: (1) the court lacks subject matter jurisdiction because

Carver's claim for an invasion of privacy does not state a

constitutional claim actionable under § 1983; (2) defendants are

not "persons" within the meaning of § 1983; (3) Carver fails to

state a claim under § 1983 because his complaint contains only

vague or conclusory allegations; and (4) Carver's claim is barred

by the statute of limitations. (Mot. at 4.)

II.

On a motion to dismiss, the allegations in the complaint are

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accepted as true. Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733

(1964). The complaint may not be dismissed for failure to state

a claim “unless it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle

him to relief.” Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99

(1957). 

A. Right to Privacy

To state a viable § 1983 claim, Carver must allege

violations of rights secured by the United States Constitution or

the laws of the United States. 42 U.S.C. § 1983. The

constitutional right to privacy includes the “individual interest

in avoiding disclosure of personal matters.” Whalen v. Rose, 429

U.S. 589, 599, 97 S.Ct. 869 (1977). However, courts have

construed this right narrowly, limiting it to those rights which

are “‘fundamental or ‘implicit’ in the concept of ordered

liberty.’” St. Michael’s Convalescent Hosp. v. California, 643

F.2d 1369, 1375 (9th Cir. 1981) (quoting Palko v. Connecticut,

302 U.S. 319, 325, 58 S.Ct. 149 (1937)). “Only the most intimate

phases of personal life have been held to be constitutionally

protected.” McNally v. Pulitzer Pub. Co., 532 F.2d 69, 76 (8th

Cir. 1976).

Carver’s allegations do not come within this narrow

constitutional right. Even if defendants released information

about the number of complaints filed against Carver to the

public, this does not rise to the level of a constitutional

violation. The information allegedly released by defendants does

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not include intimate, personal information, such as medical

records. See Bloch v. Ribar, 156 F.3d 673, 686 (6th Cir. 1998)

(holding that a rape victim has a fundamental right of privacy in

preventing government officials from releasing intimate details

of rape where there is no overriding penalogical interest); Doe

v. Attorney Gen. of United States, 941 F.2d 780, 795-96 (9th Cir.

1991) (recognizing that the right to privacy encompasses medical

information). 

One can well imagine that to protect or inform the public, a

state regulatory agency, without vouching for the accuracy of

consumer complaints, might decide to make its consumer complaint

files available to members of the public for inspection. At

least where all of the information comes from members of the

public, it is difficult to understand how any constitutional

right of privacy, held by the person complained of, could be

implicated. Indeed, if there were such a right of privacy, court

filings alleging malpractice must also be shielded, and yet there

is a well recognized right of access to such files.

Carver responds that a right of privacy is created by

California law because it requires the Medical Board to keep

confidential the records of complaints against him and to destroy

any complaints over five years old that had not been acted on. 

See Cal. Bus. & Prof. Code § 800. However, even if California

law restricts access to complaints against medical doctors, this

does not create a constitutional right to privacy in those

documents. It merely provides for a possible state law remedy.

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 The court notes that Carver captions his first cause of 1

action as a “Deprivation of Rights of Privacy and Due Process

Under Color of State Law.” (SAC at 6:2.) Although Carver’s use

of the conjunctive suggests he brings two claims under his first

cause of action, it appears that this is simply one claim

alleging a violation of a right to privacy. 

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See Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir. 1995)

("While state statutes and regulations may inform our judgment

regarding the scope of constitutional rights, they ‘fall far

short of the kind of proof necessary' to establish a reasonable

expectation of privacy.") (citation omitted). Therefore,

Carver’s § 1983 claim for invasion of privacy is dismissed. 

Because the court has dismissed Carver’s sole federal claim, 

the court declines to exercise supplemental jurisdiction over the

remaining state law claims. See U.S.C. § 1367(c)(3); O’Connor 1

v. Nevada, 27 F.3d 357, 363 (9th Cir. 1994). Those claims are

dismissed without prejudice. 

III.

For the reasons stated above, defendants’ motion to dismiss

plaintiff’s § 1983 claim is GRANTED and the remaining state law

claims are dismissed without prejudice. The clerk shall enter

judgment. IT IS SO ORDERED.

Dated: 11/11/2005

DAVID F. LEVI

United States District Judge

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