IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30614

PETER ROY ALFRED, JR.

Plaintiff-Appellant

v.

CORRECTIONS CORPORATION OF AMERICA, et al.

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:09-CV-300

Before KING, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM:

*

Plaintiff-Appellant Peter Roy Alfred, Jr. filed a complaint in forma

pauperis (“IFP”) in February 2009 asserting, pursuant to 42 U.S.C. § 1983, that

Defendants-Appellees Corrections Corporation of America (“CCA”), Corrections

Corporation of Tennessee, Winn Correctional Center (“Winn”), Chris Bowman,

Tim Wilkinson, Pat Thomas, and an unnamed insurance company, violated his

United States Court of Appeals

Fifth Circuit

F I L E D

June 7, 2011

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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14th Amendment right to privacy. The case was referred to a magistrate judge

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who sua sponte recommended dismissal of the case as frivolous pursuant to 28

U.S.C. § 1915(e)(2)(B). The district court adopted that recommendation and

dismissed the case with prejudice. We reverse the dismissal of Alfred’s action

and remand for further proceedings.

I. FACTS AND PROCEEDINGS

Alfred is an inmate in the custody of the Louisiana Department of Public

Safety and Corrections, currently incarcerated at Winn. Alfred is HIV-positive

and is infected with Hepatitis B. He has kept his diagnosis secret, asserting that

he has not even informed his family of his diagnosis.

In November 2008, Willie Noel, a fellow inmate at Winn received his

medical records from Chris Bowman, an attorney for CCA. In them, Noel

discovered, in addition to his own records, those of Alfred and Craig Bercegeay,

another inmate at Winn. Alfred’s records that Noel received contained

information reflecting that Alfred is HIV-positive and infected with Hepatitis B.

Alfred asserts that Noel then approached him to return his medical records.

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 Alfred’s complaint alleges that his record was “intentionally disclosed to”

Noel without Alfred’s consent. Noting that his records were labeled with a red

stamp, which is used to signify confidential information, Alfred asserts that

putting his records in with Noel’s must have been intentional because

defendants supervised the placement of each document in Noel’s file. He alleges

that Bowman personally reviewed the file before giving it to Noel, so he had to

know exactly what documents it contained.

Alfred alleged many theories of liability, but he only asserts his 14th Amendment 1

right to privacy on appeal.

Alfred asserts in his brief on appeal that Noel contacted Bowman about the incorrect 2

records and that Bowman told Noel to keep them. This information was not in Alfred’s

complaint and is asserted for the first time on appeal.

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When liberally construed, Alfred’s amended complaint also makes a claim

based on an unconstitutional custom or policy that is undertaken with deliberate

indifference to constitutional violations. That complaint states that defendants

should be liable if Alfred can show “Deliberate Indifference in a pattern of

incidents.” He specifically pleads that inmates’ private medical records should

not be scattered around and negligently placed in other inmates’ files. He

specifies the frequency of this practice by noting that, in addition to the

disclosure of Alfred’s and Bercegeay’s records, defendants gave him a different

inmate’s medical records when he asked for his own files. Finally, Alfred asserts

that Warden Tim Wilkinson and Pat Thomas, the medical director at Winn, are

liable for failing to train, supervise, and instruct their employees how to protect

the privacy of inmates’ medical records.

After administratively exhausting his complaint at Winn, Alfred filed a

complaint under 42 U.S.C. § 1983, asserting inter alia a violation of his 14th

Amendment right to privacy. The case was referred to the magistrate judge

who, without receiving an answer from the defendants, dismissed Alfred’s claim

as frivolous under 28 U.S.C. § 1915(e)(2)(B). In so doing, the magistrate judge

made essentially two holdings: (1) Alfred’s claim that the violation was

intentional is “entirely conclusory” and lacks specific facts demonstrating a

constitutional deprivation; and (2) “prisoners have no absolute constitutional

right in the privacy of their medical records.” The district court adopted the

magistrate judge’s recommendation and dismissed Alfred’s action with prejudice.

Alfred timely filed a notice of appeal.

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While this appeal was pending, Alfred accumulated his third strike pursuant to 28

3

U.S.C. § 1915(g). Alfred v. Forcht Wade Corr. Ctr., 354 F. App’x 58, 60 (5th Cir. 2009). Alfred

is once again warned that he is barred from proceeding in forma pauperis pursuant to § 1915

while he is incarcerated or detained in any facility unless he is under imminent danger of

serious physical injury. See 28 U.S.C. § 1915(g). This development does not, however, affect

Alfred’s IFP status in the instant case on remand.

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II. ANALYSIS

A. Standard of Review

We review a dismissal of a complaint as frivolous for abuse of discretion.

4

If the plaintiff could have more fully pleaded his complaint, we also review the

district court’s refusal to conduct a hearing or submit a questionnaire for abuse

of discretion. In reviewing for abuse of discretion, we may consider whether (1)

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the plaintiff was proceeding pro se, (2) the court inappropriately resolved

genuine issues of disputed fact, (3) the court applied erroneous legal conclusions,

(4) the court has provided a statement explaining the dismissal that facilitates

intelligent appellate review, and (5) the dismissal was with or without

prejudice.

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B. Applicable Law

“[A] complaint, containing . . . both factual allegations and legal

conclusions, is frivolous where it lacks an arguable basis either in law or in

fact.” Therefore, unlike a Rule 12(b)(6) motion, § 1915(e)(2)(B) gives the district

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court authority to dismiss based on both frivolous legal arguments and frivolous

factual allegations.

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Although both Rule 12(b)(6) and § 1915(e)(2)(B) counsel the district court

to decide whether dismissal is warranted based only on the complaint, each

requires the district court to employ a different standard when determining

whether a legal issue is frivolous. “When a complaint raises an arguable

question of law which the district court ultimately finds is correctly resolved

Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999).

4

Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994). 5

Denton v. Hernandez, 504 U.S. 25, 34 (1992). 6

Neitzke v. Williams, 490 U.S. 319, 325 (1989). 7

Id. 8

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against the plaintiff, dismissal on Rule 12(b)(6) grounds is appropriate, but

dismissal on the basis of frivolousness is not.” Indeed, “a failure to state a claim

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does not invariably mean that the claim is without arguable merit.” The

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Supreme Court has emphasized that the standard for dismissal is higher under

§ 1915(e)(2)(B) because the plaintiff may not have the opportunity to respond

meaningfully by opposing a motion to dismiss. With this is mind, we have said

11

that a claim lacks an arguable basis in law if it is grounded on an indisputably

meritless theory or alleges a violation of a legal interest that clearly does not

exist.

12

The Supreme Court has likewise provided guidance for when a factual

allegation is frivolous under § 1915(e)(2)(B). It has stated that a court may

dismiss a claim only if the facts are “clearly baseless,” “fanciful,” “fantastic,” or

“delusional.” “As those words suggest, a finding of factual frivolousness is

13

appropriate when the facts alleged rise to the level of the irrational or the wholly

incredible, whether or not there are judicially noticeable facts available to

contradict them.” The district court may not dismiss the case simply because

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it finds the plaintiff’s allegations unlikely.

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C. Discussion

Id. at 328.

9

Id. at 329.

10

Id. at 329-30. “To conflate the standards of frivolousness and failure to state a claim 11

. . . would thus deny indigent plaintiffs the practical protections against unwarranted

dismissal generally accorded paying plaintiffs under the Federal Rules.” Id. at 330.

Berry, 192 F.3d at 507.

12

Denton, 504 U.S. at 32-33. 13

Id. at 33. 14

Id. 15

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The magistrate judge held that Alfred’s complaint was “entirely

conclusory.” First, we see nothing fanciful or fantastic about Alfred’s factual

claims. Neither was Alfred’s complaint as conclusional as the magistrate judge

indicated. Alfred alleges discrete facts to demonstrate that his claims involve an

intentional act. He states that multiple defendants personally put together the

file and knew what was in it. He also states that his records contained a red

stamp, which indicates that they are confidential. Alfred contends that these

factors reduce the likelihood that this was merely a negligent action. Regardless

of whether this is enough evidence to prove that the action was intentional, it is

sufficient to eschew conclusionality. It is up to the trier of fact to determine the

sufficiency of the evidence.

What is more, the magistrate judge appears to have ignored Alfred’s claim

that the defendants may be liable because they have a custom of disclosing

medical information with deliberate indifference. In support of this claim, Alfred

cites to evidence that Noel received both his and another inmate’s medical

records, and that on another occasion he received another inmate’s records. Yet

the magistrate judge did not make a finding concerning deliberate indifference.

Regardless, the magistrate judge could not have found Alfred’s claim fanciful

and fantastic or its assertions conclusional. We hold that the district court

abused its discretion when it adopted the magistrate judge’s recommendation

that the complaint was entirely conclusional.

We also hold that the district court erred in adopting the magistrate

judge’s determination that Alfred’s claim is barred as a matter of law. We note

first that the magistrate judge’s brief statement, even taken on its face, is

insufficient to show that Alfred’s complaint has no arguable basis in law. The

magistrate judge stated that “prisoners have no absolute constitutional right in

the privacy of their medical records.” This is correct, of course, but it does not

show that Alfred’s claim is premised on a baseless legal argument. The fact that

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there is not an absolute right to this privacy protection says nothing about

whether there is, in fact, such a right in this particular case.

As a matter of law, Alfred has pleaded a non-frivolous contention that the

defendants committed a constitutional violation, either by intentionally

disclosing his record or by fostering an atmosphere of disclosure with deliberate

indifference to constitutional rights. The magistrate judge cites to our decision

in Moore v. Mabus, but there we merely stated that it was not a constitutional

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violation for a prison to identify HIV-positive inmates for purposes of

segregating them from the general prison population because that “obviously

serves a legitimate penological interest.” That said, it remains unclear

17

whether a disclosure that does not serve a penological interest is a constitutional

violation or whether the disclosure in this case did or did not serve a penological

interest. We note that other circuits have found that disclosures of this kind can

be constitutional violations. At bottom, we are satisfied that Alfred’s claim is

18

not wholly baseless and that it is not frivolous as a matter of fact or law.

III. CONCLUSION

In adopting the magistrate judge’s report and recommendation,the district

court abused its discretion by concluding that Alfred’s complaint is frivolous as

 976 F.2d 268 (5th Cir. 1992).

16

Id. at 271. The Second Circuit has ratified this understanding of Moore. See Powell

17

v. Schriver, 175 F.3d 107, 112-13 (2d Cir. 1999) (noting that Moore is an example of when

disclosure of HIV status is permissible because it serves a legitimate penological purpose).

See, e.g., Powell, 175 F.3d at 112 (noting that a regulation that impinges on 18

constitutional rights is only valid if it has a penological interest and that gratuitous disclosure

for purposes of humor or gossip is not reasonably related to a penological interest); Doe v.

Delie, 257 F.3d 309, 317 (3d Cir. 2001); Moore v. Prevo, 379 F. App’x 425, 427-28 (6th Cir.

2010) (holding that inmates have a “Fourteenth Amendment privacy interest in guarding

against disclosure of sensitive medical information from other inmates subject to legitimate

penological interests”). 

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a matter of fact or law. We therefore REVERSE that court’s dismissal of the

case and REMAND for further proceedings consistent with this opinion.

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