Lorah v. Christiana Care Hospital
MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 8/8/2017. (crb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civ. No. 16:-1018-LPS
CHRISTIANA CARE HOSPITAL,
Jordean Lorah, Wilmington, Delaware, Pro Se Plaintiff.
August 8, 2017
STARK, U.S. DistrictJudge:
PlaintiffJordean Lorah ("Plaintiff') .filed this action on November 2, 2016. (D.I. 2) She
appears pro se and has been granted leave to proceed in Jonna pauperis. (D.I. 4) Plaintiff moves to:
(1) consider the HIPPA Act (D.I. 5); (2) include specific medical documentation as an admission
(D.I. 6); and (3) amend the Complaint (D.I. 6). The Court proceeds to review and screen the
Complaint pursuant to 28 U.S.C. § 1915(e)(2).
While not clear, Plaintiff appears to complain that her medical records contain incorrect or
inaccurate information, errors, false statements, false entries, and refer to medical issues that she has
not been diagnosed with or for which she has been tested. She alleges that her medical history was
collected on July 7, 2016, via the telephone, in preparation for surgery scheduled for the next day.
She also alleges that, as of October 12, 2016, there was documentation of newly-discovered evidence
regarding false medical documents. Plaintiff alleges that on February 22 and 23, May 6 and 11, June
22, July 5, August 5, 24, and 31, 2016, she was either: (1) at Defendant's medical facility for testing;
(2) at a physician's appointment; (3) speaking with a privacy officer in the legal risk department; or
(4) picking up copies of her lab work. Plaintiff alleges that the dissemination of false information
was communicated by Defendant's employees. It appears that Plaintiff reviewed her medical
records, discovered the errors, and some corrections were made, but a few medical entries remain
"undiagnosed." (See D.I. 2)
Plaintiff frames her allegations as: (1) a First Amendment violation of her right to privacy "as
it misrepresents the facts of [her] present or past circumstances;" (2) a Fourteenth Amendment
violation "suspect identify, regarding no legitimate purpose which deprived [her] of her citizenship
and national origin pertaining to life, liberty, [and] property as it falsely misrepresents [her] identity;"
(3) a HIPPA violation, as her "privacy has been invaded as she has been strictly scrutinized and
isolated as if she was a health risk;" (4) Defendant's failure to comply with 18 U.S.C. § 1035(2) "false
statements or false writing"; (5) a violation of 42 C.F.R. 482.24(c) "standard condition of
participation medical information must support diagnosis;" and (6) a violation of 8 U.S.C. § 1324c
for document fraud in preparing "a document that is false resulting in false misrepresentation and
Plaintiff seeks mediation to resolve the dispute, as well as penalties under 8 U.S.C. § 1324c
for document fraud, ranging from $250 to $2,000 per page.
A federal court may properly dismiss an action sua sponte under the screening provisions of
28 U.S.C. § 1915(e)(2)(B) if "the action 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."
Bali v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013); see also 28 U.S.C. § 1915(e)(2) (informa pauperis
actions). The Court must accept all factual allegations in a complaint as true and take them in the
light most favorable to a prose plaintiff. See Phillips v. County ofAllegheny, 515 F.3d 224, 229 (3d Cir.
2008); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because Plaintiff proceeds prose, her pleading is
liberally construed and her Complaint, "however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers." Erickson, 551 U.S. at 94 (citations omitted).
An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitz.foe v.
Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i), a court may dismiss a
complaint as frivolous if it is "based on an indisputably meritless legal theory" or a "clearly baseless"
or "fantastic or delusional" factual scenario. Neitzke, 490 at 327-28; see also Wilson v. Rackmill, 878
F.2d 772, 774 (3d Cir. 1989); Deutsch v. United States, 67 F.3d 1080, 1091-92 (3d Cir. 1995) (holding
frivolous a suit alleging that prison officials took an inmate's pen and refused to give it back).
The legal standard for dismissing a complaint for failure to state a claim pursuant to
§ 1915(e)(2)(B)(ii) is identical to the legal standard used when deciding Rule 12(b)(6) motions. See
Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying Fed. R. Civ. P. 12(b)(6) standard
to dismissal for failure to state a claim under§ 1915(e)(2)(B)). However, before dismissing a
complaint or claims for failure to state a claim upon which relief may be granted pursuant to the
screening provisions of 28 U .S.C. § 1915, the Court must grant a plaintiff leave to amend her
complaint unless amendment would be inequitable or futile. See Grqyson v. Mqyview State Hosp., 293
F.3d 103, 114 (3d Cir. 2002).
A complaint may be dismissed only if, accepting the well-pleaded allegations in the
complaint as true and viewing them in the light most favorable to the plaintiff, a court concludes
that those allegations "could not raise a claim of entitlement to relief." BellAtL Cotp. v. Twombfy, 550
U.S. 544, 558 (2007). While "detailed factual allegations" are not required, a complaint must do
more than simply provide "labels and conclusions" or "a formulaic recitation of the elements of a
cause of action." Davis v. Abington Mem'l Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (internal quotation
marks omitted). In addition, a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face. See Williams v. BASF Catafysts LLC, 765 F.3d 306,
315 (3d Cir. 2014) (citingAshcroftv. Iqbal, 556 U.S. 662, 678 (2009) and Twombfy, 550 U.S. at 570).
Finally, a plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See
Johnson v. City of Shelf?y, _U.S._, 135 S.Ct. 346, 347 (2014). A complaint may not dismissed for
imperfect statements of the legal theory supporting the claim asserted. See id. at 346.
Under the pleading regime established by Twomb/y and Iqbal, a court reviewing the
sufficiency of a complaint must take three steps: (1) take note of the elements the plaintiff must
plead to state a claim; (2) identify allegations that, because they are no more than conclusions, are
not entitled to the assumption of truth; and (3) when there are well-pleaded factual allegations, the ·
court should assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief. See Conne!/y v. Lane Const. Cop., 809 F.3d 780, 787 (3d Cir. 2016). Elements are
sufficiently alleged when the facts in the complaint "show" that the plaintiff is entitled to relief. See
Iqbal, 556 U.S. at 679 (citing Fed. R. Civ. P. 8(a)(2)). Deciding whether a claim is plausible will be a
"context-specific task that requires the reviewing court to draw on its judicial experience and
common sense." Id.
Plaintiff seeks recovery under federal criminal statutes 18 U.S.C. § 1035(2) and 8 U.S.C.
§ 1324c. To the extent that Plaintiff seeks to impose criminal liability upon Defendant pursuant to
the criminal statutes upon which she relies, she lacks standing to proceed. See Allen v. Administrative
Office ofPenn!Jlvania Courts, 270 F. App'x 149, 150 (3d Cir. Mar. 17, 2008); United States v. Friedland, 83
F.3d 1531, 1539 (3d Cir. 1996) ("[I]he United States Attorney is responsible for the prosecution of
all criminal cases within his or her district."). The decision of whether to prosecute, and what
criminal charges to bring, rests with the prosecutor. See United States v. Batchelder, 442 U.S. 114, 124
In addition, these criminal statutes do not give rise to a private cause of action. See Avdeej v.
Rock!ine Indus., Inc., 2013WL12099295, at *2 (N.D. Tx. Apr. 4, 2013) (no private right of action
under 18 U.S.C. § 1035); Anders v. Purifqy, 2016 WL 3102229, at *1 (W.D. Tenn. June 2, 2016) (18
U.S.C. § 1324c does not provide for private right of action); Mecado v. Quantum Servicing Corp., 2015
WL 1969028, at *1 (E.D.N.Y. Apr. 29, 2015) (there is no private right of enforcement under§
Therefore, the Court will dismiss the claims raised pursuant to federal criminal statutes as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
Plaintiff alleges that Defendant violated her rights under the First and Fourteenth
Amendments to the United States Constitution. Conduct by a private actor generally does not give
rise to a claim for violations of a plaintiffs federal constitutional rights. See West v. Atkins, 487 U.S.
42, 48 (1988). While a private individual may be liable under 42 U.S.C. § 1983, such liability requires
that "the party charged with the deprivation must be a person who may fairly be said to be a state
actor." Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982). "The critical issue is whether the
state, through its agents or laws, has established a formal procedure or working relationship that
drapes private actors with the power of the state." Cruz v. Donnel!J, 727 F.2d 79, 82 (3d Cir. 1984).
There are no claims that Defendant is a state actor. The constitutional violation claims are
legally frivolous and will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
Plaintiff alleges in a conclusory manner an invasion of her privacy in violation of HIPPA.
To the extent Plaintiff seeks to raise a claim under HIPPA, the claim fails. HIPPA does not provide
a private right of action. See Polanco v. Omnicell Inc., 988 F. Supp. 2d 451, 468 (D.N.J. 2013) ("HIPPA
does not provide a private right of action to remedy HIPPA violations"); Baum v. Krystone Merry
Health Plan, 826 F. Supp. 2d 718, 721 (E.D. Pa. 2011) ("There is no federal private right of action
under HIPPA."). Therefore, the Court will dismiss the HIPPA claim as legally frivolous pursuant to
28 U.S.C. § 1915(e)(2)(B)(i).
42 C.F.R. 482.24(c)
Plaintiff seems to allege violations of 42 C.F.R. 482.24(c). This federal regulation does not
provide Plaintiff with a private right of action. Instead, it is a Medicare condition of participation
regulation that provides medical record services guidance. See Bak/id-Kunz v. Halifax Hosp. Med. Ctr.,
2014 WL 2968251, at *7 n.5 (M.D. Fla. July 1, 2014). Plaintiff's claim is frivolous and will be
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
To the extent Plaintiff attempts to raise claims under Delaware law, the Court declines to
exercise supplemental jurisdiction. See 28 U.S.C. § 1367; De Asencio v. Ijlson Foods, Inc., 342 F.3d 301,
309 (3d Cir. 2003).
For the above reasons, the Court will: (1) deny as moot the motions to consider the HIPPA
Act (D.I. 5), to include specific medical documentation as an admission (D.l. 6), to amend the
Complaint (D.I. 7)1, and concerning Department of Justice and Medicaid fraud (D.I. 10); (2) dismiss
the Complaint as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i); and (3) decline to exercise
supplemental jurisdiction. The Court finds amendment futile.
An appropriate Order follows.
Plaintiffs claims are frivolous. In addition, the proposed amendments are also frivolous.
Where the proposed amendment "is frivolous or advances a claim or defense that is legally
insufficient on its face, the court may deny leave to amend." Harrison Beverage Co. v. Dribeck Importers,
Inc., 133 F.R.D. 463, 468 (D.N.J. 1990).
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