Opinion
1:19-CV-2246 (CM)
10-04-2019
GEORGE BURNS, Plaintiff, v. DEPARTMENT OF HEALTH & HUMAN SERVICES, Defendant.
ORDER OF DISMISSAL :
Plaintiff, who appears pro se, brings this action seeking mandamus relief against the United States Department of Health and Human Services ("HHS"). The Court construes Plaintiff's complaint as seeking mandamus relief under 28 U.S.C. § 1361. By order dated September 19, 2019, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis For the reasons discussed below, the Court dismisses this action.
Plaintiff filed his complaint while held in the Westchester County Jail.
Prisoners are not exempt from paying the full filing fee, even when they have been granted permission to proceed in forma pauperis. See 28 U.S.C. § 1915(b)(1).
STANDARD OF REVIEW
The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint, or portion thereof, when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the "strongest [claims] that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted, emphasis in original).
BACKGROUND
Plaintiff makes the following allegations: He filed a complaint with HHS asserting a violation of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). HHS's Office for Civil Rights ("OCR") issued a written determination to Plaintiff informing him that it declined to investigate his complaint. "OCR did not address the merits or factual allegations of [Plaintiff's] claim." (ECF 2, p. 4.) OCR's determination included "information on how to amend private health information." But Plaintiff's "original letter of complaint did not address the issue of amending [private health information.]" (Id.) Plaintiff asks this Court to order HHS "to perform duty to investigate." (Id. p. 5.)
DISCUSSION
Under 28 U.S.C. § 1361, "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." Mandamus relief is, however, a drastic remedy that should be used only in extraordinary circumstances. Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980); Kerr v. United States Dist. Court for the N. Dist. of Cal., 426 U.S. 394, 402 (1976). To obtain mandamus relief under § 1361, a plaintiff must show that: "(1) no other adequate means [exist] to attain the relief he desires, (2) the party's right to . . . the [relief] is clear and indisputable, and (3) the [relief] is appropriate under the circumstances." Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (internal quotation marks and citation omitted, first alteration in original).
Plaintiff "has no clear right to relief under HIPAA because HIPAA does not provide a private cause of action through which individuals can enforce its provisions." Premier Health Ctr., P.C. v. CureMD.com, Inc., No. 17-CV-1861, 2018 WL 1578384, *3 (S.D.N.Y. Mar. 28, 2018); e.g., Orr v. Carrington, No. 3:18-CV-1986, 2019 WL 176958 , *2 (D. Conn. Jan. 11, 2019) ("HIPAA regulations, however, do not confer a private right of action on an individual."); Rosado v. Herard, No. 12-CV-8943, 2014 WL 1303513, at *4 (S.D.N.Y. Mar. 25, 2014) (same). "Moreover, HIPAA's privacy regulations grant HHS discretion as to how to investigate potential privacy violations. This discretion renders mandamus inappropriate since the challenge does not involve a plainly defined or a 'clear nondiscretionary' duty." Premier Health Ctr., P.C., 2018 WL 1578384, at *3 (quoting Anderson v. Bowen, 881 F.2d 1, 5 (2d Cir. 1989)) (internal quotation marks omitted); Wooten v HHS - Office of Civil Rights, No. 10-CV-3728, 2011 WL 536448, at *6 (S.D.N.Y. Feb. 15, 2011) ("As the underlying HIPAA regulations provide no clear guidelines on enforcement, the HHS has discretion as to how to investigate potential Privacy Rule violations. . . . HHS has the discretion to investigate and enforce potential HIPAA violations."), aff'd, 478 F. App'x 708 (2d Cir. 2012) (summary order); see also Orr, 2019 WL 176958, at *3 ("The plaintiff's sole remedy for an alleged HIPAA violation is to lodge a written complaint with the Secretary of [HHS], through the [OCR], who has the discretion to investigate the complaint and impose sanctions, both civil and criminal.").
Because Plaintiff has no clear right to the relief he seeks - an HHS investigation of HIPAA violations - this Court cannot force HHS to grant him that relief via this § 1361 mandamus action. The Court therefore dismisses this action for failure to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
CONCLUSION
The Court directs the Clerk of Court to mail a copy of this order to Plaintiff and note service on the docket. The Court dismisses this action for failure to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects, but leave to amend is not required where it would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because the defects in Plaintiff's complaint cannot be cured with an amendment, the Court declines to grant Plaintiff leave to amend. --------
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Court also directs the Clerk of Court docket this order as a "written opinion" within the meaning of Section 205(a)(5) of the E-Government Act of 2002. SO ORDERED. Dated: October 4, 2019
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge