Levin v. Board of Educ. of City of Chicago

Citation470 F.Supp.2d 835
Decision Date08 January 2007
Docket NumberNo. 05 C 1729.,05 C 1729.
CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
PartiesJoel LEVIN, Plaintiff, v. BOARD OF EDUCATION OF the CITY OF CHICAGO, a municipal corporation, and Cermak Health Services, a division of Cook County, a municipal corporation, Defendants.

Albert F. Ferolie, Law Offices of Albert F. Ferolie, P.C., Chicago, IL, for Plaintiff.

Sunil Kumar, Chicago School Reform Board of Trustees, Jamie Melissa Sheehan, John A. Ouska, Chicago, IL, for Defendants.

MEMORANDUM OPINION & ORDER

GRADY, District Judge.

This case is before the court for ruling on defendants' motions to dismiss the Fourth Amended Complaint. For the following reasons, the motions are granted.

BACKGROUND

Plaintiff Joel Levin is employed by the Board of Education of the City of Chicago (the "Board") as a teacher at Consuella B. York Alternative High School ("York School"), a Chicago public school for inmates at the Cook County Jail.1 In his original complaint filed in state court, Levin sued the Board and Cook County (incorrectly identified as Cermak Health Services)2 alleging that defendants improperly disclosed his personal medical information in violation of the Health Insurance Portability and Accountability Act ("HIPAA"), 42 U.S.C. §§ 1320d et seq., and Illinois common law. Plaintiffs claims were based on two sets of facts, the first relating to a tuberculosis screening in 2004 and the second relating to a memorandum the Board distributed after he contracted meningitis in November 2002. After removing the case to federal court based on federal question jurisdiction, defendants moved for dismissal. The motions to dismiss were granted in part and denied in part. (12.20.05 Mem.. Op. at 1.) Specifically, the court dismissed the HPAA claims because there is no private right of action for HIPAA violations (id. at 6), but found that plaintiff had raised claims under 42 U.S.C. § 1983.3 (Id. at 7-8.) As for the state law claims, we dismissed the claims that were based on the distribution of the meningitis memorandum because the statute of limitations had expired, but the claims based on the tuberculosis screening survived because defendants presented no argument for dismissal. (Id. at 6-7.)

Levin subsequently amended his complaint several times, resulting in the Fourth Amended Complaint which is presently, before the court. In the Fourth Amended Complaint, Levin sues both the Board and Cook County d/b/a Cermak Health Services (the "County"), alleging that defendants improperly disclosed his personal medical information and thus are liable under § 1983 for violating his constitutional right to privacy and under Illinois common law for "public disclosure of private facts," "intrusion upon seclusion" and "loss of privacy." Plaintiffs amended claims stem from two different sets of facts.

Claims Based on Tuberculosis Screenings

In Count I, plaintiff asserts § 1983 and state law claims relating to tuberculosis screenings conducted in 2004 and 2005. Regarding the 2004 screening, according to plaintiff, he received a letter from the Board around February 17, 2004 directing him to attend a mandatory Cook County Department of Corrections "Civilian Inservice Training" at Moraine Valley Community College. On February 23, 2004, plaintiff attended the training, which was conducted by "agents, servants or employees" of the County. There were approximately twenty participants, including ten of plaintiffs fellow employees. As part of the training, participants were informed that they would be subjected to mandatory tuberculosis screening. The participants were given medical forms to complete that sought certain medical information regarding the tuberculosis test that was about to be administered, and they were instructed to put a "plus mark" at the top of the form if they had previously tested positive for tuberculosis. They were then instructed to stand in line to be given the tuberculosis skin test.

Plaintiff had previously tested positive for tuberculosis. It was his understanding that once an individual tests positive for tuberculosis, he or she "does not need and should not have a subsequent test." (Fourth Am. Compl. at 2, ¶ 9.) Plaintiff wrote "Check Your Records" at the top of his medical form, refused to participate in the screening, and left the room.

There was a second tuberculosis screening in February 2005, while this litigation was pending. According to plaintiff, he received a letter around April 20, 2005 directing him to attend another mandatory "Civilian Inservice Training" at Moraine Valley Community College. Like the previous year, the training included mandatory tuberculosis screening. There were approximately 30 participants, including 10-12 of plaintiffs co-workers. Participants were instructed to complete a medical form then stand in line to be given the tuberculosis skin test. This time, Levin completed the medical form and stood in line. When his turn came, he informed the County's personnel that he had previously tested positive for tuberculosis. At that point, he was instructed to sit back down and not participate in the screening.

According to plaintiff, the manner in which both the 2004 and 2005 screenings were conducted disclosed to others (including his fellow employees) that he had previously contracted tuberculosis. Plaintiff, further alleges that the manner in which the screenings were conducted constitutes an unconstitutional, widespread practice and custom of the Board and/or the County. Based on the alleged disclosure of his private medical information, plaintiff sues defendants under § 1983 for violating his constitutional right to privacy, and also asserts claims for public disclosure of private facts, intrusion upon seclusion and loss of privacy under Illinois common law.

Claims Relating to Plaintiff's Contraction of Meningitis

In Count H; plaintiff raises § 1983 and state law claims relating to his contraction of meningitis. On November 3, 2002, plaintiff was diagnosed with meningitis and then hospitalized for thirty-six days. On November 4, 2002, the assistant principal of York School wrote and distributed a memorandum regarding "Meningitis" to the staff of York School (approximately ninety people) and to employees of the Cook County Department of Corrections. The memorandum stated in full:

One of our staff members has been diagnosed with meningitis. He is currently hospitalized and undergoing treatment. It is not known at this time whether the meningitis is viral or bacterial. Meningitis is not highly contagious, but to allay concerns among staff members the attached sheet will provide you with additional information.

(Fourth Am. Compl., Ex. A.) Plaintiff was not mentioned by name. Attached to the memorandum was a two-page Illinois Department of Public Health publication about meningitis.

According to plaintiff, there is also (1) an agenda disseminated by the Board that included plaintiffs name and medical condition as part of the written agenda for presentation at the mandatory professional development meeting (Id., Ex. C), and (2) minutes from Local School Council ("LSC") meetings in January and February 2003 that identified plaintiff and his personal medical condition (Id., Ex. D). A review of the documents shows that although they refer to Levin by name, they do not reveal any private medical information about Levin. The November 8, 2002 agenda contains a line in the "Welcome" section that states "Joel Levin Update." (Id., Ex. C.) In the minutes from the Local School Council meeting held on the January 18, 2003, under "Staff Notifications" in the "Principal's Report" section, the minutes state "Sick Leaves: Joel Levin, Div. 9; Departure: Jeanette Kweli, Counselor; Resignation: Joel Rapp; New Teachers: Matthew Driscoll, Div. 11, English, and Kevin Hall, Div. 11, Science." (Id., Ex. D.)

According to plaintiff, he was not aware of the November meningitis memorandum until he returned to work in March 2003 (and did not discover the other documents until early 2006). In any event, upon his return to work, he discovered that his colleagues knew about his illness and diagnosis of meningitis. His co-workers "made inappropriate and wrongful comments" about his health condition, "including but not limited to an instance where some of his immediate colleagues created a mock `Joel Levin Memorial Crate' in the teachers' lounge." (Id. at 8, ¶ 13.)

Plaintiff contends that by disseminating the meningitis memorandum, the agenda and the LSC meeting minutes, the Board improperly disclosed his private health information and thus is liable under § 1983 for violating his constitutional right to privacy. Additionally, plaintiff asserts claims for public disclosure of private facts, intrusion upon seclusion and loss of privacy under Illinois common law.

Defendants now seek dismissal of all claims.

DISCUSSION

The purpose of a 12(b)(6) motion to dismiss is to test the sufficiency of the complaint, not to resolve the case on the merits. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356, at 354 (3d ed.2004). When evaluating such a motion, the court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiffs favor. Hentosh v. Herman M. Finch Univ. of Health Sciences, 167 F.3d 1170, 1173 (7th Cir.1999); Jang v. A.M. Miller & Assocs., 122 F.3d 480, 483 (7th Cir.1997). But the court need not ignore factual allegations that undermine the plaintiffs claim. Hamilton v. O'Leary, 976 F.2d 341, 343 (7th Cir.1992). Dismissal is appropriate only if "`it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir.1997).

For purposes of discussion, we will treat defendants' motions as a single motion because they make many of the same arguments.4

A. § 1983 Claims for...

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