United States District Court, M.D. Florida, Fort Myers Division
ORDER OF DISMISSAL WIHTOUT PREJUDICE
E. STEELE UNITED STATES DISTRICT JUDGE.
matter comes before the Court upon initial review of the
file. Plaintiff initiated this action by filing a pro
se civil rights complaint form (Doc. #1) on May 3, 2018.
Plaintiff seeks leave to proceed in forma pauperis
(Doc. #2). For the reasons set forth below, Plaintiff's
complaint is dismissed for failure to state a claim upon
which relief can be granted. 28 U.S.C. §
is civilly committed to the Florida Civil Commitment Center
(“FCCC”) pursuant to the Sexual Violent Predators
Act, Fla. Stat. §§ 394.910-.913, by which a person
determined to be a sexually violent predator is required to
be housed in a secure facility “for control, care, and
treatment until such time as the person's mental
abnormality or personality disorder has so changed that it is
safe for the person to be at large.” § 394.917(2).
Despite Plaintiff's non-prisoner status, the Complaint
remains subject to review under 28 U.S.C. §
1915(e)(2)(B)(i)-(iii), which requires the Court sua
sponte to dismiss a case which is frivolous or
malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief against a defendant who is
immune. Id.; see Troville v. Venz, 303 F.3d
1256, 1260 (11th Cir. 2002)(wherein the Eleventh Circuit
found that a district court did not err by dismissing a
Complaint filed by a civil detainee for failure to state a
claim under the in forma pauperis statute, 28 U.S.C.
Section 1915 (e)(2)(B)). Ordinarily, a pro se litigant must
be given an opportunity to amend his complaint. Brown v.
Johnson, 387 F.3d 1344, 1349 (11th Cir. 2004). However,
if an amendment would be futile, the district court may deny
leave to amend. Bryant v. Dupree, 252 F.3d 1161,
1163 (11th Cir. 2001). The Court, nonetheless, must read a
pro se plaintiff's complaint in a liberal
fashion. Hughes v. Lott, 350 F.3d 1157, 1160 (11th
Complaint names four defendants: Dr. Donald Sawyer, the
Administrator of the FCCC; Dr. Nicole Knox, a clinical team
leader at the FCCC; Edgardo Gomez, a clinical therapist at
the FCCC; and, Genna Marx Brisson, Vice-President of
Operations of Correct Care Recovery. Plaintiff contends that
the inclusion of detailed information of his underlying
criminal offense in his Integrated Care Plan
(“ICP”) violates the Eighth and Fourteenth
Amendments, as well as Articles Five and Seven of The
Universal Declaration of Human Rights. Doc. 1 at 6.
reiterates verbatim the same claim he raised in his grievance
to FCCC officials in the body of his Complaint. In particular,
Plaintiff states that, on March 26, 2018, he filed a
grievance after Mr. Gomez brought a copy of his ICP that
contained “detailed information of [his]
offense.” Id. at 11. Plaintiff complained to
FCCC officials that the information “violates HIPPA law
that such information cannot be on this document” and
requested that “the specific information of [his]
offense” be “removed and kept off the ICP”
or he would “file a 1983 complaint.” Id.
Plaintiff submits that Defendant Dr. Knox's response to
his informal grievance stating that “the information in
[Plaintiff's] ICP is for treatment planning purposes and
does not violate HIPPA” “intentionally
circumvented the issue.” Id. at 11. Plaintiff
elected to forward his informal grievance to Defendant Dr.
Sawyer. Plaintiff avers that Defendant Dr. Sawyer
“showed deliberate indifference when he denied the
grievance with the following response: ‘There is no
violation. Accurately capturing all aspects of your history
[and] treatment is beneficial to you and will assist in your
progress in the Comprehensive Treatment Program.'”
Id. Plaintiff then submitted an appeal claiming
“[d]etailed information of my criminal offense . . .
not only violates HIPPA, it constitutes as degrading
treatment purposely imposed by this facility contrary to
Article 5 of the Universal Declaration of Human
Rights.” Id. at 12. Further, Plaintiff
maintained that the “information is also illegal
profiling.” Id. Plaintiff avers that Defendant
Brisson “showed deliberate indifference when she denied
the grievance with the following response: ‘Outlining
criminal history in a treatment plan does not violate Article
5.'” Id. As relief, Plaintiff seeks,
inter alia, $50, 000 per day from each Defendant and
an order directing “this information be removed
permanently.” Id. at 13.
suggests that the inclusion of Plaintiff's underlying
criminal offense in his Comprehensive Treatment Plan violates
HIPPA and the Universal Declaration of Human Rights and
consequently violates Plaintiff's constitutional rights.
The Health Insurance and Portability and Accountability Act
(“HIPPA”) generally provides for confidentiality
of medical records. 42 U.S.C. §§ 1301 d-1 to d-7.
See also 45 C.F.R. § 164.502. The Act provides
for both civil and criminal penalties for improper
disclosures of medical information and limits enforcement of
the statute to the Secretary of Health and Human Services. 42
U.S.C. §§ 1320d-5(a)(1), 1320d-6. The Eleventh
Circuit has determined that HIPAA contains no express
provision creating a private cause of action, or rights
enforceable pursuant to 42 U.S.C. § 1983. Sneed v.
Pan Am. Hosp., 370 Fed.Appx. 47, 50 (11th Cir. 2010).
Even assuming arguendo that the nature of
Plaintiff's underlying offense constitutes “medical
information” to fall within the purview of HIPPA, the
Court does not have jurisdiction over Plaintiff's
asserted claim because HIPPA does not provide for a private
cause of action.
Section 1983 provides litigants with a cause of action based
on “the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws.” 42
U.S.C. § 1983. The rights promulgated under the
Universal Declaration of Human Rights (“UDHR”)
are not federal rights. See Sosa v. Alvarez-Machain,
542 U.S. 692, 734 (2004). Consequently, Plaintiff cannot base
a § 1983 action on an alleged violation of the UDHR.
Moore v. McLaughlin, 569 Fed.Appx. 656, 659 (11th
liberally construing the Complaint, the Court finds no viable
Fourth Amendment violation. Information of Plaintiff's
underlying criminal offense furnished to officials for
Plaintiff's treatment purposes could not be characterized
as a violation of Plaintiff's right to privacy under
these circumstances. See Tosh v. Buddies Supermarkets,
Inc., 482 F.2d 329, 332(5th Cir. 1973); Irwin v.
Miami-Dade Cty. Pub. Sch., 398 Fed.Appx. 503, 507 (11th
it is hereby
1. The Complaint (Doc. #1) is dismissed without