Opinion
5:22-CV-531-M
03-06-2023
ROSE MARIE DUNN JR., Plaintiff, v. FRANK LEE, Defendant.
ORDER AND MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES, JR., UNITED STATES MAGISTRATE JUDGE
This matter is before the court on pro se Plaintiff Rose Marie Dunn Jr.'s application to proceed in forma pauperis and for frivolity review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). [DE-1]. Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs, and the application to proceed in forma pauperis is allowed. However, it is recommended that the complaint be dismissed for failure to state a claim.
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) “to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims”). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) (“Examples of frivolous claims include those whose factual allegations are ‘so nutty,' ‘delusional,' or ‘wholly fanciful' as to be simply ‘unbelievable.'”). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.” Id. at 327-28.
In determining whether a complaint is frivolous, “a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the Plaintiff's allegations.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous “when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.” Id. “The word ‘frivolous' is inherently elastic and not susceptible to categorical definition.... The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim.” Nagy v. Fed. Med. Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may “apply common sense.” Nasim v. Warden., Md. House of Corr., 64 F.3d 951, 954 (4th Cir. 1995).
In order to state a claim on which relief may be granted, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Factual allegations must be enough to raise a right to relief above the speculative level . . . Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id.
In the present case, Plaintiff is proceeding pro se and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). The court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id.; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required “to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
IL DISCUSSION
Plaintiff alleges that her neighbor, Frank Lee, tells others in the area that Plaintiff is crazy. Plaintiff has Parkinson's Disease for which she takes prescription medications. Plaintiff claims Defendant violated her rights under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) by talking about her medical condition, and she seeks monetary damages. Compl. [DE-1-3]; Suppl. [DE-1-4, -5].
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); see Payne v. Taslimi, 998 F.3d 648, 660 (4th Cir.), cert, denied, 211 L.Ed.2d 403 (2021). It is not clear that Defendant disclosed Plaintiff's “identifiable health information” as it is defined by HIPAA. But even if Defendant did so, HIPAA does not provide a private cause of action. Id. (“HIPAA does not expressly allow for a private cause of action but delegates enforcement authority to the Secretary of the Department of Health and Human Services, reflecting Congress's intent to forgo creating a private remedy.”) (citations omitted); Hart v. Delhaize Am. Transportation, LLC, No. 5:18-CV-244-BO, 2018 WL 4714781, at *3 (E.D. N.C. Oct. 1, 2018) (dismissing HIPAA claims because the statute does not confer a private right of action) (citations omitted). Accordingly, because no private cause of action exists, it is recommended that Plaintiff's HIPAA claim be dismissed with prejudice.
III. CONCLUSION
For the reasons stated above, Plaintiff's application to proceed in forma pauperis is allowed, and it is recommended that the complaint be dismissed with prejudice.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until March 20,2023 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g, 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline will bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841,846-47 (4th Cir. 1985).