United States District Court, N.D. Florida, Panama City Division
DAMON L. THREATS, Plaintiff,
WARD, et al., Defendants.
REPORT AND RECOMMENDATION
MICHAEL J. FRANK UNITED STATES MAGISTRATE JUDGE.
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.
Background and Procedural History
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).
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)).
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).
Plaintiff Cannot Sue for Alleged Violations of
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)
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.
Dismissal is Appropriate
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