United States District Court, D. Kansas
MATTHEW C. WARD, Plaintiff,
KEARNY COUNTY HOSPITAL and KEARNY COUNTY SHERIFF'S DEPT., Defendants.
CROW, U.S. DISTRICT SENIOR JUDGE
case is before the court to screen plaintiff's pro
se complaint pursuant to 28 U.S.C. § 1915A.
Pro se standards
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
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.
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.
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.
No private cause of action for HIPAA violations
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).
Any § 1983 action against the hospital ...