Davis v. Johnson
| Decision Date | 29 July 2022 |
| Docket Number | 2:21-cv-02311-BHH-MGB |
| Parties | Jeremy Chance Davis, #33569-171, Plaintiff, v. K. Johnson; Jay Koon; Correct Case Solutions; and Rosalie Herberger, Defendants. |
| Court | U.S. District Court — District of South Carolina |
REPORT AND RECOMMENDATION
Plaintiff Jeremy Chance Davis (“Plaintiff”), a federal prisoner proceeding pro se and in forma pauperis, brings this civil action pursuant to the Health Insurance Portability and Accountability Act (“HIPAA”); 42 U.S.C. § 1983; and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Under 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2) (D.S.C.), the undersigned is authorized to review all pretrial matters in this case and submit findings and recommendations to the United States District Judge. For the reasons discussed below, the undersigned recommends that this action be summarily dismissed, with prejudice and without issuance and service of process.
The instant case involves an alleged violation of Plaintiff's constitutional right to privacy based on the purported unauthorized disclosure of certain medical records. Upon reviewing the initial Complaint (Dkt. No. 1), the undersigned issued an order notifying Plaintiff that his action was subject to summary dismissal for failure to state a claim upon which relief may be granted. (Dkt. No. 7.) In light of Plaintiff's pro se status, however, the undersigned gave him an opportunity to cure the deficiencies identified in the Complaint by submitting an amended pleading, which he filed after receiving several lengthy extensions from the Court. (See Dkt. Nos. 12, 17, 22.) Unfortunately the revised allegations largely restate those presented in the initial pleading, such that Plaintiff's claims are still subject to summary dismissal.
Specifically the Amended Complaint (Dkt. No. 22) claims that Plaintiff was ordered to take a polygraph examination on February 21, 2019 as part of his plea deal in a pending federal criminal matter, Case No. 3:18-cr-00628-JMC-8.[1]At the time of the examination, Plaintiff informed Defendant Rosalie Herberger, an agent with the United States Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), that he was taking medication (Depakote) that could potentially affect the results of his test. (Dkt. No. 22 at 1-2.) Although Plaintiff had been taking this medication “for months prior to the polygraph examination,” he claims could not recall the name of the medication at the time of the test. (Id. at 2; see also Dkt. No. 22-2 at 1-2, stating that the medication was prescribed “for depression” and “to help prevent another stroke.”) Plaintiff claims that his attorney advised him against taking the polygraph examination until a proper investigation into the medication could be completed, and Plaintiff therefore declined to take the test. (Dkt. No. 22 at 2; Dkt. No. 22-2 at 2.)
Later that same day, Plaintiff returned to the Lexington County Jail where he was asked to sign a medical release form by Defendant K. Johnson, a doctor with the facility's medical services contractor, Correct Care Solutions (“CCS”). (Dkt. No. 22 at 2; Dkt. No. 22-2 at 2.) Plaintiff was suspicious of the timing of Defendant Johnson's request and asked her “if she was trying to release his private medical/mental health records to Herberger,” to which she replied, “she wasn't.” (Dkt. No. 22 at 2.) Rather, Defendant Johnson allegedly told Plaintiff that the only purpose of the form was to release his medical records to the jail's mental health team, and that “it was standard procedure.” (Dkt. No. 22-2 at 2-3.) The form, which is attached to the Amended Complaint, authorizes the Federal Bureau of Prisons (“BOP”) to release records relating to Plaintiff's “mental health treatment” to CCS and Lexington County Jail for “continuing care.” (Dkt. No. 22-1.)
According to Plaintiff, Defendant Herberger visited the Lexington County Jail on March 6, 2019, with a copy of Plaintiff's “private medical/mental health records in hand.” (Dkt. No. 22 at 3.) When Plaintiff asked her how she procured the records, Defendant Herberger apparently stated that she had “followed up with [the] jail” (Dkt. No. 22-2 at 3) and “conducted her own investigation into [Plaintiff's] private records” (Dkt. No. 22 at 3). Based on the above, Plaintiff surmises that Defendant Johnson “aided and abetted” Defendant Herberger in obtaining these “confidential mental health records” without his consent or a court order. (Dkt. No. 22 at 4.) Plaintiff further claims that “as a result of the illegally obtained medical records/mental health records,” the district court ultimately found him in breach of his plea agreement and sentenced him to 360 months in prison, rather than the 120 months originally stipulated to in the agreement. (Id. at 5.) Thus, the Amended Complaint asserts that the “actions of Defendant K. Johnson and Herberger deprived Plaintiff of life, liberty, and freedom for a[n] additional 240 months.” (Id.) Plaintiff asks that the Court “calendar this case for trial.” (Id. at 6.)
Under established local procedure in this judicial district, a careful review has been made of the Amended Complaint pursuant to the procedural provisions of the Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (1996). This action has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit, and is also governed by 28 U.S.C. § 1915A, which requires the court to review a complaint filed by a prisoner that seeks redress from a governmental entity or officer or employee of a governmental entity.
To protect against possible abuses, the court must dismiss any prisoner complaints, or portions of complaints, that are frivolous or malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b). A complaint is frivolous if it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). Indeed, a claim based on a meritless legal theory may be dismissed sua sponte “at any time” under 28 U.S.C. § 1915(e)(2)(B). Neitzke v. Williams, 490 U.S. 319, 324-25 (1989). The United States Supreme Court has explained that the statute “is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits.” Id. at 326.
As to failure to state a claim, a complaint filed in federal court must contain “a short and plain statement of the claim showing that the pleader is entitled to relief” as required under Rule 8(a) of the Federal Rules of Civil Procedure. In order to satisfy this standard, a plaintiff must do more than make conclusory statements. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (). Rather, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” See id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations,” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), the complaint fails to state a claim.
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is therefore charged with liberally construing a complaint filed by a Pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nonetheless, the requirement of liberal construction does not mean that the court can ignore a clear failure to allege facts that set forth a cognizable claim under Rule 8(a). See Weller v. Dep t of Soc. Servs., 901 F.2d 387, 39091 (4th Cir. 1990); see also Iqbal, 556 U.S. at 684 (2009) (). Such is the case here.
As noted above, the Amended Complaint contends that Defendants violated Plaintiff's right to privacy under HIPPA and the United States Constitution by sharing his private medical records without his permission during the course of Crim Case No. 628. For the same reasons discussed in the undersigned's initial order (Dkt. No. 7), however, Plaintiff's allegations are subject to summary dismissal.
HIPAA provides that “[a] person who knowingly . . . discloses individually identifiable health information to another person” without authorization shall be fined imprisoned, or both. 42 U.S.C. § 1320d-6(a)(3), (b). However, even if Defendants violated this provision in releasing Plaintiff's records, it is well-established that HIPAA does not provide individuals with a private right of action. See, e.g., Carelock v. Johnson, No. 5:20-cv-1635-JD-KDW, 2021 WL 4691678, at *14 (D.S.C. July 7, 2021) (), adopted, 2021 WL 4350567 (D.S.C. Sept. 24, 2021); Pronin v. Al Cannon, No. 5:19-cv-00594-DCN-KDW, 2020 WL 9209287, at *6 (D.S.C. Aug. 13, 2020) (collecting cases), adopted, 2021 WL 960510 (D.S.C. Mar. 15, 2021), aff'd, No. 21-6517, 2022 WL 42466 (4th Cir. Jan. 5, 2022); see also Payne v. Taslimi, 998 F.3d 648, 660 (4th Cir.) (...
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