Opinion
3:22-cv-37-KAP
08-22-2022
TAREEK HEMINGWAY, Plaintiff v. ASHLEY SIMMER, et al., Defendants
REPORT AND RECOMMENDATION
KEITH A. PESTO, UNITED STATES MAGISTRATE JUDGE
Recommendation
The plaintiff's motion at ECF no. 10, considered as a motion under Fed.R.Civ.P. 59(e), should be denied.
Report
The history of this matter is familiar to the Court: plaintiff in the complaint filed at this number sought to expand the claims presented in the complaint currently pending at Hemingway v. Hollidaysburg PA/ Blair County, Case No. 3:22-cv-37-SLH-KAP, or to restate claims against defendants dismissed from that action. I recommended that this complaint be dismissed, and after the time for objections expired the Court dismissed the complaint. Plaintiff's Rule 59 motion and supporting exhibit at ECF no. 12 claim that plaintiff timely sent in his objections but for some reason they were not received. Plaintiff's objections are at ECF no. 13.
If the Court accepts the plaintiff's objection the Court should vacate the judgment, but it should, upon de novo consideration of the objections, still dismiss the complaint for failure to state a claim.
It is settled law that de novo review of a Report and Recommendation by a district court pursuant to 28 U.S.C. § 636(b)(1) requires both timely and specific objections to the report. See Goney v. Clark, 749 F.2d 5, 6 (3d Cir. 1984).
Plaintiff's objections contain one specific objection, namely that his complaint could be construed to allege that some defendants violated the Health Insurance Portability and Accountability Act. However, there is no federal private right of action under HIPAA. Baum v. Keystone Mercy Health Plan, 826 F.Supp.2d 718, 721 (E.D.Pa.2011)(collecting cases). Plaintiff's repetition of the allegations of the complaint, his relation of new events that have allegedly taken place in Cambia County Prison, his request that the Court subpoena witnesses, and his request that the Court assist him in retrieving a lost flash drive do not constitute objections, much less specific objections.
HIPAA gives plaintiff no claim against anyone for the reasons the Supreme Court explained in Blessing v. Freestone, 520 U.S. 329 (i997)(Title IV-D of the Social Security Act does not give individuals private cause of action to force state agency to substantially comply with federal law), Gonzaga University v. Doe, 536 U.S. 273 (2002)(Family Educational Rights and Privacy Act's nondisclosure provisions created no private right of action that student could enforce against university), and City of Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005)(Telecommunications Act's limitations on local zoning authority created no private right of action). Even when individual rights exist, the remedy for their violation is often limited to a specific remedial process that does not include lawsuits. That is the case here. In the case of HIPAA violations, redress is obtained by filing a complaint with the Department of Health and Human Services. If HHS pursues the matter to a finding of a violation it may impose a fine (payable to the treasury, not to the private complainant) against the offending covered entity, or in an egregious case pursue criminal sanctions. See 42 U.S.C. § 1320d-6(b); 45 C.F.R. § 160.306.
According to our Court of Appeals, factors to consider in deciding whether there is a private right of action are 1) whether the law that plaintiff claims to rely on was intended to benefit the litigant; 2) whether the alleged right is clear enough that enforcement would not strain judicial competence; and 3) whether the provision imposes a binding obligation. Assuming that those factors support the plaintiff, the next inquiry is whether the law unambiguously confers a substantive right. See Health Science Funding, LLC v. The New Jersey Department of Health and Human Services, 658 Fed.Appx. 139, 142 (3d Cir.2016) (Medicaid Act's provisions governing drug reimbursements did not create private right of action for drug manufacturer). HIPAA was intended to benefit an individual's right to keep health information private, and there is no controversy here that would strain judicial competence, but plaintiff does not identify any provision of law that confers a right to sue any person involved in a breach of privacy.
Pursuant to 28 U.S.C.§ 636(b)(1), plaintiff can within fourteen days file written objections to this Report and Recommendation. Plaintiff is advised that in the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).