     Case: 09-30614 Document: 00511501605 Page: 1 Date Filed: 06/07/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 7, 2011

                                       No. 09-30614                         Lyle W. Cayce
                                                                                 Clerk

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




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                      No. 09-30614

14th Amendment right to privacy.1 The case was referred to a magistrate judge
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.2
       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.



       1
         Alfred alleged many theories of liability, but he only asserts his 14th Amendment
right to privacy on appeal.
       2
        Alfred asserts in his brief on appeal that Noel contacted Bowman about the incorrect
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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                                       No. 09-30614

       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.3



       3
         While this appeal was pending, Alfred accumulated his third strike pursuant to 28
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.5 In reviewing for abuse of discretion, we may consider whether (1)
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.6
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.”7 Therefore, unlike a Rule 12(b)(6) motion, § 1915(e)(2)(B) gives the district
court authority to dismiss based on both frivolous legal arguments and frivolous
factual allegations.8
      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


      4
          Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999).
      5
          Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994).
      6
          Denton v. Hernandez, 504 U.S. 25, 34 (1992).
      7
          Neitzke v. Williams, 490 U.S. 319, 325 (1989).
      8
          Id.

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                                         No. 09-30614

against the plaintiff, dismissal on Rule 12(b)(6) grounds is appropriate, but
dismissal on the basis of frivolousness is not.”9 Indeed, “a failure to state a claim
does not invariably mean that the claim is without arguable merit.” 10 The
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.11 With this is mind, we have said
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.”13 “As those words suggest, a finding of factual frivolousness is
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.”14 The district court may not dismiss the case simply because
it finds the plaintiff’s allegations unlikely.15
C. Discussion



       9
           Id. at 328.
       10
            Id. at 329.
       11
         Id. at 329-30. “To conflate the standards of frivolousness and failure to state a claim
. . . would thus deny indigent plaintiffs the practical protections against unwarranted
dismissal generally accorded paying plaintiffs under the Federal Rules.” Id. at 330.
       12
            Berry, 192 F.3d at 507.
       13
            Denton, 504 U.S. at 32-33.
       14
            Id. at 33.
       15
            Id.

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                                  No. 09-30614

      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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                                            No. 09-30614

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,16 but there we merely stated that it was not a constitutional
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.”17               That said, it remains unclear
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.18 At bottom, we are satisfied that Alfred’s claim is
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




       16
            976 F.2d 268 (5th Cir. 1992).
       17
         Id. at 271. The Second Circuit has ratified this understanding of Moore. See Powell
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).
       18
          See, e.g., Powell, 175 F.3d at 112 (noting that a regulation that impinges on
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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                               No. 09-30614

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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