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Ward v. Kearney County Hospital

United States District Court, D. Kansas

May 10, 2019

MATTHEW C. WARD, Plaintiff,
v.
KEARNY COUNTY HOSPITAL and KEARNY COUNTY SHERIFF'S DEPT., Defendants.

          ORDER

          SAM A. CROW, U.S. DISTRICT SENIOR JUDGE

         This case is before the court to screen plaintiff's pro se complaint pursuant to 28 U.S.C. § 1915A.

         I. Pro se standards

         “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A pro se litigant, however, is not relieved from following the same rules of procedure as any other litigant. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992), cert. denied, 507 U.S. 940 (1993). A district court should not “assume the role of advocate for the pro se litigant.” Hall, supra. Nor is the court to “supply additional factual allegations to round out a plaintiff's complaint.” Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).

         II. Screening standards

         Title 28 United State Code Section 1915A requires the court to review cases filed by prisoners seeking redress from a governmental entity or employee to determine whether the complaint is frivolous, malicious or fails to state a claim upon which relief may be granted. When deciding whether plaintiff's complaint “fails to state a claim upon which relief may be granted, ” the court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Id. A plausibility analysis is a context-specific task depending on a host of considerations, including judicial experience, common sense and the strength of competing explanations for the defendant's conduct. See id. at 679; Twombly, 550 U.S. at 567.

         The court accepts the plaintiff's well-pled factual allegations as true and views them in the light most favorable to the plaintiff. United States v. Smith, 561 F.3d 1090, 1098 (10th Cir. 2009). The court, however, is not required to accept legal conclusions alleged in the complaint as true. Iqbal, 556 U.S. at 678.

         III. The complaint

         Plaintiff written his complaint on forms for bringing an action under 42 U.S.C. § 1983. His complaint alleges that in November 2016 he was accompanied by a Kearny County Sheriff's Deputy to the Kearny County Hospital. He asserts that at the hospital, the Deputy, who indicated he was acting as a friend, heard private medical information regarding plaintiff without plaintiff's permission which the Deputy later reported to a corrections officer. Plaintiff alleges that he discovered that this happened in May 2017.

         IV. No private cause of action for HIPAA violations

         Plaintiff asserts that defendants committed HIPAA law violations. There is no private cause of action, however, for HIPAA law violations. “HIPAA” stands for Health Insurance Portability and Accountability Act. The law provides for civil and criminal penalties for improper disclosure of medical information. But, orders from the Tenth Circuit and this court have observed that there is a consensus opinion that HIPAA does not create a private right of action. E.g., Wilkerson v. Shinseki, 606 F.3d 1256, 1267 n.4 (10th Cir. 2010); Wilson v. Saint Francis Community Services, 2018 WL 4409440 *2 (D.Kan. 9/17/2018); Leiser v. Moore, 2017 WL 4099469 *6 (D.Kan. 9/15/2017); Keltner v. Bartz, 2013 WL 761157 *4 (D.Kan. 2/27/2013); Howard v. Douglas County Jail, 2009 WL 1504733 *4 (D.Kan. 5/28/2009). The Tenth Circuit has also noted that two circuit courts have held that § 1983 may not be used to remedy a HIPAA violation. Thompson v. Larned State Hospital, 597 Fed.Appx. 548, 550 (10th Cir. 2015)(citing Dodd v. Jones, 623 F.3d 563, 569 (8th Cir. 2010) and Seaton v. Mayberg, 610 F.3d 530, 533 (9th Cir. 2010)). In other words, a governmental agency must enforce penalties for HIPAA violations. Adams v. CCA, 2011 WL 2909877 *5 (D.Idaho 7/18/2011); Agee v. U.S., 72 Fed.Cl. 284, 289-90 (Fed.Ct.Cl. 2006).

         V. Any ยง 1983 action against the hospital ...


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