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Threats v. Ward

United States District Court, N.D. Florida, Panama City Division

July 22, 2019

DAMON L. THREATS, Plaintiff,
v.
WARD, et al., Defendants.

          REPORT AND RECOMMENDATION

          MICHAEL J. FRANK UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, proceeding pro se and in forma pauperis, has filed an amended civil rights complaint under 42 U.S.C. § 1983 (Doc. 18). The undersigned recommends that this case be dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), because Plaintiff fails to state a plausible claim for relief.[1]

         I. Background and Procedural History

         Plaintiff is a prisoner confined at the Holmes County Jail in Bonifay, Florida. (Doc. 18, p. 2). Plaintiff's amended complaint names as Defendants two medical personnel at the Jail: Dr. Ward and Nurse Womble. (Doc. 18, p. 2). Plaintiff claims the Defendants violated his rights under the Health Insurance Portability and Accountability Act (“HIPAA”), 29 U.S.C. § 1181 et seq., when they allowed two jail security officers to be present during a medical appointment concerning his foot. (Doc. 18, pp. 5-6). As relief, Plaintiff seeks “compensation” and “for both parties to either be terminated or disciplined.” (Doc. 18, p. 6).

         II. Discussion

         Because Plaintiff is a prisoner and is proceeding in forma pauperis, the court is required to review his amended complaint, identify cognizable claims and dismiss the complaint, or any portion thereof, if the complaint “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(a)-(b); see also 28 U.S.C. § 1915(e)(2)(B) (applying the same standard to in forma pauperis proceedings). Dismissals for failure to state a claim are governed by the Rule 12(b)(6) standard. See Fed. R. Civ. P. 12(b)(6); Mitchell v. Farcass, 112 F.3d 1483, 1485 (11th Cir. 1997). The court accepts all well-pleaded factual allegations of the complaint as true and evaluates all reasonable inferences derived from those facts in the light most favorable to the plaintiff. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir. 1994). To survive dismissal, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

         “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal at 678. The mere possibility that the defendant acted unlawfully is insufficient. Id.; see also 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004) (“[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”). The complaint must include “[f]actual allegations . . . [sufficient] to raise a right to relief above the speculative level, ” Twombly, 550 U.S. at 555, that is, “across the line from conceivable to plausible.” Id. at 570; see also Iqbal, 556 U.S. at 678 (reiterating that although Rule 8 of the Federal Rules of Civil Procedure does not require detailed factual allegations, it demands “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”). A complaint may also be dismissed for failure to state a claim “when its allegations, on their face, show that an affirmative defense bars recovery on the claim.” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003); see also Marsh v. Butler Cty., Ala., 268 F.3d 1014, 1022 (11th Cir. 2001); Jones v. Bock, 549 U.S. 199, 215 (2007) (reiterating that principle).

         A. Plaintiff Cannot Sue for Alleged Violations of HIPAA

         Federal courts have held that HIPAA does not create a private cause of action or rights enforceable in a § 1983 action. Dodd v. Jones, 623 F.3d 563, 569 (8th Cir. 2010) (affirming dismissal of private plaintiff's HIPAA claim: “HIPAA does not create a private right of action.”); Wilkerson v. Shinseki, 606 F.3d 1256, 1267 n.4 (10th Cir. 2010) (“Any HIPAA claim fails as HIPAA does not create a private right of action for alleged disclosures of confidential medical information.”); Webb v. Smart Document Sols., LLC, 499 F.3d 1078, 1081 (9th Cir. 2007) (“HIPAA itself provides no private right of action.”); Acara v. Banks, 470 F.3d 569, 571 (5th Cir. 2006) (same).

         As the Fifth Circuit explained in Acara:

HIPAA does not contain any express language conferring privacy rights upon a specific class of individuals. Instead, it focuses on regulating persons that have access to individually identifiable medical information and who conduct certain electronic health care transactions. 42 U.S.C. § 1320d-1. HIPAA provides both civil and criminal penalties for improper disclosures of medical information. 42 U.S.C. §§ 1320d-5, d-6. However, HIPAA limits enforcement of the statute to the Secretary of Health and Human Services. Id. Because HIPAA specifically delegates enforcement, there is a strong indication that Congress intended to preclude private enforcement.

470 F.3d at 571 (citations omitted) see also Gonzaga Univ. v. Doe, 536 U.S. 273, 286 (2002) (“[W]here the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for private suit, whether under § 1983 or under an implied right of action.”); Bradley v. Pfizer, Inc., 440 Fed.Appx. 805, 809 (11th Cir. 2011) (recognizing that “there is no private right of action for a violation of HIPAA's confidentiality provisions”); Crawford v. City of Tampa, 397 Fed.Appx. 621, 623 (11th Cir. 2010) (agreeing with the majority of federal courts “that no private right of action exists under the Healthcare Insurance Portability and Accountability Act”); Sneed v. Pan Am. Hosp., 370 Fed.Appx. 47, 50 (11th Cir. 2010) (“We decline to hold that HIPAA creates [either] a private cause of action . . . or rights that are enforceable through § 1983.”). Plaintiff's claim that the Defendants violated his rights under HIPAA, therefore, provides no plausible basis for relief under HIPAA or § 1983.

         B. Dismissal is Appropriate

         Plaintiff's amended complaint fails to state a facially plausible claim for relief. The complaint's deficiencies cannot be cured by amendment. Accordingly, this action should be dismissed ...


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