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December 18, 1995

ROY HETZEL, Plaintiff
JIM SWARTZ, et al., Defendants

The opinion of the court was delivered by: CONABOY


 Plaintiff Roy Hetzel, an inmate at Luzerne County Prison (the "Prison") in Wilkes-Barre, Pennsylvania, filed this action under 42 U.S.C. § 1983 against Community Counseling Services of Northeastern Pa. ("CCS") *fn1" and Jim Swartz, who is employed by Community Counseling and works as a counselor at the Prison. Plaintiff proceeds pro se and in forma pauperis. Document 4 of the record. The court has jurisdiction over this suit under 28 U.S.C. §§ 1331 and 1343(a).

 Liberally construing this pro se plaintiff's complaint, see Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), he alleges: failure to provide psychological or psychiatric care as required by the Eighth Amendment of the United States Constitution; failure to provide a copy of the plaintiff's medical records to him pursuant to his express authorization via a release form; and violations of his right to freedom from invasion of privacy guaranteed by the Fourteenth Amendment. Document 1 of the record. More specifically, he claims that Swartz acted unlawfully by refusing to provide counseling to the plaintiff although he suffers from a terminal disease, by disclosing information about the plaintiff's condition to an unnamed doctor and to "prison officers and head counselors," id. at p. 4 *fn2" , and, as stated above, by refusing to give the plaintiff a copy of his medical records. For relief the plaintiff requests an unspecified amount of damages and injunctive relief in the form of counseling from an individual other than Swartz.

 In response to the complaint the defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Document 15 of the record. No answer has been filed. The court has denied two motions by the plaintiff for appointment of counsel, Documents 12 and 22 of the record, but this issue may be reconsidered sua sponte or pursuant to a motion. The dispositive motion is ripe for the court's consideration.


 In support of their motion to dismiss, the defendants press the following arguments: the plaintiff has failed to plead that he has a serious medical need and that Swartz was deliberately indifferent to that need; the plaintiff has failed to state a cause of action for invasion of privacy; and the plaintiff has failed to aver that CCS was directly liable for the alleged unlawful actions. Documents 15 and 16 of the record. Swartz concedes for the purpose of this motion that he acted under color of state law. Document 15 of the record, p. 2. Also, the defendants do not argue that the plaintiff lacked a privacy interest in his medical records. Document 16 of the record, pp. 7-8.

 The court notes that the defendants do not address the plaintiff's substantive due process claim (which was not clearly presented in the complaint): Swartz unlawfully denied the plaintiff a copy of his medical records. This intentional deprivation of personal property claim is clearly meritless, however, see Hudson v. Palmer, 468 U.S. 517, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984), and will be dismissed. In addition, the defendants do not respond to another claim by the plaintiff, which is apparent only under the requisite liberal construction of the complaint: that Swartz revealed information about the plaintiff's illness to "prison officers and head counselors." Document 1 of the record, p. 4.

 Now, the court will review important and pertinent legal principles with respect to the remaining claims. In considering motion to dismiss, the court must accept the veracity of a plaintiff's allegations. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); White v. Napoleon, 897 F.2d 103, 106 (3d Cir. 1990). Furthermore, "the complaint should 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, 45-6, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); D.P. Enters., Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir. 1984). "The test for reviewing a 12(b)(6) motion is whether under any reasonable reading of the pleadings, plaintiff may be entitled to relief." Simon v. Cebrick, 53 F.3d 17, 19 (3rd Cir. 1995). However, a court is "not required to accept legal conclusions either alleged or inferred from the pleaded facts." Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (quoting Mescall v. Burrus, 603 F.2d 1266, 1269 (7th Cir. 1979)).

 In order to state a viable § 1983 claim, a plaintiff must allege that the conduct complained of was committed by a person acting under color of state law and that said conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or by laws of the United States. E.g., Cohen v. City of Philadelphia, 736 F.2d 81, 83 (3d Cir.), cert. denied, 469 U.S. 1019, 83 L. Ed. 2d 360, 105 S. Ct. 434 (1984). A defendant's conduct must have a close causal connection to plaintiff's injury in order for § 1983 liability to attach. Martinez v. California, 444 U.S. 277, 285, 62 L. Ed. 2d 481, 100 S. Ct. 553 (1980). A prerequisite for a viable civil rights claim is that a defendant directed, or knew of and acquiesced in, the deprivation of a plaintiff's constitutional rights. E.g., Monell v. Department of Social Serv. of the City of N.Y., 436 U.S. 658, 694-95, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1979); Gay v. Petsock, 917 F.2d 768, 771 (3d Cir. 1990); Capone v. Marinelli, 868 F.2d 102, 106 n.7 (3d Cir. 1989); Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988). Liability may not be imposed under § 1983 on the principle of respondeat superior. 868 F.2d at 106 (citing Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir. 1976)). A private doctor who provides medical services to inmates pursuant to a contract with the prison may be held liable in a civil rights suit. West v. Atkins, 487 U.S. 42, 54, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988). Absent a showing that an employee committed the alleged unlawful act(s) at issue pursuant to a policy of her or his private corporate employer, said employer cannot be held vicariously liable for its employee's purported misdeed(s) in a civil rights suit. Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir. 1982); McIlwain v. Prince William Hospital, 774 F. Supp. 986, 990 (E.D. Va. 1991); Temple v. Albert, 719 F. Supp. 265, 268 (S.D.N.Y. 1989).

 The prison wall is not a solid barrier between an inmate and constitutional protections. Turner v. Safley, 482 U.S. 78, 84, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987). But "lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285, 92 L. Ed. 1356, 68 S. Ct. 1049 (1948). In regard to an individual's Fourteenth Amendment liberty right to keep personal medical information private, it is initially noted that there are two (2) primary kinds of privacy interests: "one is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions." Whalen v. Roe, 429 U.S. 589, 599-600, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977) (emphasis added). In a case involving private employee medical records, our Court of Appeals held that an individual had a privacy interest in such a medical record and stated:

There can be no question that an employee's medical records, which may contain intimate facts of a personal nature, are well within the ambit of materials entitled to privacy protection. Information about one's body and state of health is matter which the individual is ordinarily entitled to retain within the 'private enclave where he may lead a private life'. . . The medical information requested in this case is more extensive than the mere fact of prescription drug usage . . . and may be more revealing of intimate details.

 United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir. 1980) (citations omitted). However, "the right of an individual to control access to her or his medical history is not absolute," id. at 578, and courts have weighed the competing interests of privacy and the necessity of disclosure of sensitive information. See id. at 577-81; *fn3" Harris v. Thigpen, 941 F.2d 1495, 1515-21 (11th Cir. 1991); Faison v. Parker, 823 F. Supp. 1198, 1201-05 (E.D. Pa. 1993). Various courts, including sister courts within this circuit, have held or assumed that an inmate or a non-inmate has a privacy interest in the fact that she or he has a terminal illness. Watson v. Lowcountry Red Cross, 974 F.2d 482, 487 (4th Cir. 1992) (non-inmate); Harris, 941 F.2d at 1513-14 (inmates); Westinghouse, 638 F.2d at 1201-02 (non-inmates); Austin v. Pennsylvania Dep't of Corrections, 876 F. Supp. 1437, 1467 (E.D. Pa. 1995) (inmates); Nolley v. County of Erie, 776 F. Supp. 715, 731 (W.D.N.Y. 1991) (inmate); Doe v. Borough of Barrington, 729 F. Supp. 376, 384 (D.N.J. 1990) (non-inmate); Woods v. White, 689 F. Supp. 874, 876 (W.D. Wis. 1988) (inmate), aff'd, 899 F.2d 17 (7th Cir. 1990); Doe v. Coughlin, 697 F. Supp. 1234, 1237 (N.D.N.Y. 1988). But see Doe v. Wigginton, 21 F.3d 733, 740 (6th Cir. 1994) (no privacy right violated when non-medical corrections officer reviewed confidential medical file of inmate to obtain information after inmate refused to answer questions about his current medical condition). *fn4"

 Now addressing an inmate's right to counseling, the seminal principle is that failure to provide adequate medical treatment is a violation of the Eighth Amendment when it results from "deliberate indifference to a prisoner's serious illness or injury." Estelle v. Gamble, 429 U.S. 97, 105, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). Our Court of Appeals in Inmates of the Allegheny County Jail v. Pierce, 612 F.2d 754 (3d Cir. 1979), a case challenging, inter alia, the program of mental health care at a prison, held that "when inmates with serious mental ills are effectively prevented from being diagnosed and treated by qualified professionals, the system of care does not meet the constitutional requirements set forth by Estelle v. Gamble, supra, and thus violates" the Constitution. Id. at 763. Accord Greason v. Kemp, 891 F.2d 829, 834 (11th Cir. 1990); Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir. 1983), cert. denied, 468 U.S. 1217, 82 L. Ed. 2d 885, 104 S. Ct. 3587 (1984); Ramos v. Lamm, 639 F.2d 559, 574 (10th Cir. 1980), cert. denied, 450 U.S. 1041, 68 L. Ed. 2d 239, 101 S. Ct. 1759 (1981). Deliberate indifference ...

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