BROWN v. HILL et al

Filing 40

MEMORANDUM AND OPINION. Signed by Judge Tanya S. Chutkan on 3/28/16. (ms)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
MELVIN BROWN,
)
)
Plaintiff,
)
v.
)
)
SANDRA HILL, et al.,
)
)
Defendants.
)
___________________________________ )

Civil Action No. 14-0140 (TSC)

MEMORANDUM OPINION
This matter is before the court on the defendants’ motions to dismiss. For the reasons
discussed below, the motions will be granted.
I. BACKGROUND
Plaintiff, who is proceeding pro se and in forma pauperis, filed his initial complaint on
December 11, 2013, and an Amended Complaint [ECF No. 13] on November 21, 2014. The
defendants include So Others Might Eat, its President, and several of its staff members
(collectively, “S.O.M.E.”), see Am. Compl. at 1-2, Green Door, its President and several staff
members (collectively, “Green Door”), id. at 2, and David Walker (“Walker”), a District of
Columbia government employee, see id. at 2, 4-5. Although the bases of the plaintiff’s claims
are not entirely clear, the court begins with its understanding of the relevant facts.
The plaintiff received services from S.O.M.E., Green Door, and the District of Columbia
Department of Behavioral Health (“DBH”), formerly known as the Department of Mental
Health. See Compl. at 3. The District of Columbia contracted with Green Door, which the

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Plaintiff identifies as “his core service agency,” presumably to provide mental health services for
District residents such as the Plaintiff. 1 Id.; see Am. Compl. at 6. The Plaintiff lived at Shalom
House, a residence operated by S.O.M.E. 2 See Am. Compl. at 6-7. He apparently was
dissatisfied with certain S.O.M.E. employees and services, and he “filed grievance(s)/complaints
against [S.O.M.E.].” Id. at 7; see Compl. at 5. According to the Plaintiff, S.O.M.E. not only
ignored his grievances, but also retaliated against him, beginning with Margaret Simmons’s call
to the DBH’s Health’s Access Helpline on December 2, 2010, Compl. at 2; see Am. Compl. at 7,
“purportedly seeking cris[i]s assistance for [the Plaintiff],” Am. Compl. at 4.
Walker took the call, and in the course of his conversation with Simmons, Walker
allegedly “disclosed the plaintiff’s mental health information,” id. at 4-5, and Simmons
wrongfully obtained this information, id. at 12, without the Plaintiff’s permission, see id. at 5, 8,
12-13; Compl. at 2. Walker referred Simmons to Green Door, whose staff members in turn
“disclosed protected health information . . . to Margaret Simmons [and] Ann Chauvin,” Compl.
at 3, S.O.M.E.’s Chief Medical Officer, Am. Compl. at 1. In the course of these conversations,
either Green Door or DBH staff “told or disclosed that [the Plaintiff] had not taken his meds for
months[,]” and disclosed his diagnosis. Compl. at 3.

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The Plaintiff has been diagnosed with paranoid schizophrenia and cocaine dependence. See Pl.’s Mot. Opposing
Green Door’s Mot. to Dismiss at 33 (page numbers designated by ECF); Pl.’s Mot. Opposing Moving Parties[’]
Motion to Dismiss at 40, 45 (page numbers designated by ECF).

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The events described in the Plaintiff’s pleadings allegedly were part of “a vendetta” against him “hatched by
[S.O.M.E.] (administrators) simply because he filed a grievance against their organization[.]” Pl.’s Mot. Opposing
Moving Parties[’] Mot. to Dismiss at 24. In addition to the December 2, 2010 telephone call to the Access Helpline
and the January 13, 2011 incident, the Plaintiff points to eviction proceedings initiated by S.O.M.E. in the Superior
Court of the District of Columbia, see Compl. at 4-5; Pl.’s Mot. Opposing Green Door’s Mot. to Dismiss at 38-39,
as another retaliatory act, see Compl. at 4-5; Pl.’s Mot. Opposing Green Door’s Mot. to Dismiss at 4. The Plaintiff
disputes S.O.M.E.’s claim that he threatened a night manager with physical harm on November 28, 2010, Compl. at
4, and “pulled a razor” on S.O.M.E. staff members, id. at 5. He considers these claims as evidence of their efforts to
‘“get rid of [him]’ (not for threatening behavior, but for filing grievances/complaints against S.O.M.E., hoping that
they would breeze thru LTC (Landlord Tenant Court[]) figuring that [he] would be at St. Elizabeth[’s Hospital,]” id.

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According to the Plaintiff, “Ann Chauvin, Suzanne Bond and Belinda Sealey ‘concocted
a story,’” Compl. at 3, and “made false allegations to the [Metropolitan Police Department],
causing [him] to be deprived of his liberty,” Am. Compl. at 5. “Chauvin initiated [a] referral (as
if the plaintiff is bi-polar or psychotic),” prompting the Department of Behavioral Health to
dispatch a Mobile Crisis Team to Shalom House on January 13, 2011. Am. Compl. at 5; see
Pl.’s Mot. Opposing Green Door’s Mot. to Dismiss, Ex. 2. Chauvin reported that she and two
other S.O.M.E. staff members found notes under their office doors from the plaintiff using
“threatening words such as ‘murder’ and ‘die.’” Pl.’s Mot. Opposing Moving Parties[’] Motion
to Dismiss at 30 (page numbers designated by ECF). The Plaintiff reportedly became
“increasingly agitated,” id. at 31, and these staff members felt “threatened and sufficiently
concerned such that [they] made a call to the [Department of Behavioral Health] Mobile Crisis
Team,” id. at 30.
The Mobile Crisis Team arrived at Shalom House with police officers. Id. They
handcuffed the Plaintiff and transferred him to the Comprehensive Psychiatric Emergency
Program (CPEP), described by the Plaintiff as “a psych ward,” Am. Compl. at 4, by ambulance
and accompanied by police officers, see id. at 6; Compl. at 4. According to Amelia Villaruz,
M.D., who conducted a psychiatric evaluation of the plaintiff on January 13, 2011, the Plaintiff’s
“speech [was] rambling and pressured with disorganized thoughts and loose associations.” Pl.’s
Mot. Opposing Moving Parties[’] Motion to Dismiss at 40. She reported that the Plaintiff had
“no insight to his illness,” and he “refused medications ordered.” Id. This was the Plaintiff’s
fifth admission to CPEP. Id. He refused to take prescribed medications over the next two days,
and “continue[d] to be delusional and [easily] agitated when approached.” Id. at 41. Dr.
Villaruz certified that the Plaintiff exhibited symptoms of mental illness and, as a result, he was

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likely to injure himself and others if he were not detained immediately. See id. at 42. He was
subsequently “transferred to PIW (Psychiatric Institute of Washington) for 4 days [and was]
forced [to take] meds (in heavy dosages.).” Am. Compl. at 4; see Compl. at 4. The Plaintiff was
discharged on January 19, 2011, at which time he was “stable and improved” and “compliant
with the medications.” Pl.’s Mot. Opposing Moving Parties[’] Motion to Dismiss at 45. He no
longer “[met] criteria for [involuntary] commitment and refuse[d] to be a voluntary inpatient.”
Id.
The Plaintiff appears to bring two claims. First, he alleges that “the defendants conspired
to deprive him of his liberty.” Am. Compl. at 4 (emphasis omitted); see id. at 9; see Compl. at 4.
The court construes these allegations as a civil rights claim under 42 U.S.C. § 1983 for violations
of rights protected by the Fourth and Fifth Amendments to the United States Constitution.
Second, insofar as the defendants obtained and disclosed mental health information about the
Plaintiff without his permission, the Court construes the Amended Complaint as bringing claims
under the Health Insurance Portability and Accountability Act (“HIPAA”), see 42 U.S.C. §
1320d-6, and the District of Columbia Mental Health Information Act (“DCMHIA”), see D.C.
Code § 7-1201.01 et seq. The Plaintiff demands compensatory and punitive damages totaling
$16,500,000. Am. Compl. at 12.
The Clerk of Court received the Plaintiff’s original complaint and application to proceed
in forma pauperis on December 11, 2013. The court granted the Plaintiff’s application by order
signed on January 7, 2014, and the Clerk of Court officially filed these documents on the Court’s
electronic docket on January 30, 2014. The Court dismissed the complaint, and the Plaintiff
appealed the decision to the United States Court of Appeals for the District of Columbia Circuit.
The Circuit ordered:

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that the case be remanded for the district court to reconsider the
dismissal of [the plaintiff’s] complaint for lack of subject matter
jurisdiction. [The plaintiff’s] complaint alleges that the defendants,
at least one of whom is alleged to be a District of Columbia
employee, wrongfully disclosed his medical information and
deprived him of his liberty by making false allegations to the police.
The civil cover sheet accompanying the complaint cites 42 U.S.C. §
1983 as the civil statute under which the case of action was filed. It
appears, therefore, that [the plaintiff] was attempting to invoke the
district court’s jurisdiction under 28 U.S.C. § 1331 (federal question
jurisdiction) . . . . But if [the plaintiff] were to file a new complaint
stating the basis for the district court’s jurisdiction, the complaint
would be time-barred . . . . Accordingly, in the interest of justice,
the district court is directed to allow [the plaintiff] to amend his
complaint to clearly state the jurisdictional basis for this action and
all of the claims [he] is attempting to raise . . . .
Brown v. Hill, No. 14-7028 (D.C. Cir. filed July 25, 2014) (per curiam). The Plaintiff filed his
Amended Complaint on November 21, 2014.
II. DISCUSSION 3
A. There Is No Private Right of Action Under HIPAA
Green Door and Walker move to dismiss the Plaintiff’s HIPAA claims on the ground that
there is no private cause of action under that statute. S.O.M.E. moves to dismiss the Plaintiff’s
HIPAA claim on the ground that his amended complaint fails to allege facts to show that
S.O.M.E. is a covered entity that is required to protect his health care records.
“HIPAA generally provides for confidentiality of medical records.” Acara v. Banks, 470
F.3d 569, 571 (5th Cir. 2006) (citing 42 U.S.C. §§ 1320d-1 to d-7). It does not create a private
right of action. Id.; Hudes v. Aetna Life Ins. Co., 806 F. Supp. 2d 180, 196 (D.D.C. 2011) (“In
light of the statutory language of § 1320d–5 and the apparent consensus among the courts that

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For purposes of this Memorandum Opinion, the court presumes without deciding that all the defendants have been
served with process.

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have considered the question, this Court finds that Plaintiff has no private HIPAA right of
action.”), aff’d, 493 F. App’x 107 (D.C. Cir. 2012); Runkle v. Gonzales, 391 F. Supp. 2d 210,
237 (D.D.C. 2005) (concluding “that there is no private right of action under HIPAA of which
the plaintiff can avail himself”). Rather, an individual’s “only redress for an alleged HIPPA
violation is to lodge a written complaint with the Secretary of Health and Human Services,
through the Office for Civil Rights, which has the discretion to investigate the complaint and
impose sanctions, both civil and criminal.” Johnson v. Kuehne & Nagel Inc., No. 11-cv-02317,
2012 WL 1022939, at *5 (W.D. Tenn. Mar. 26, 2012) (citing 45 C.F.R. § 160.306); see Royce v.
Veterans Affairs Regional Office, No. 08-1993, 2009 WL 1904332, at *6 (D. Colo. July 1, 2009)
(noting that “HIPPA expressly provides the penalties for improper disclosures of medical
information . . . and limits enforcement to the Secretary of HHS”); Hudes, 806 F. Supp. 2d at 196
(noting that it is “the Secretary’s prerogative to impose penalties for violations of HIPAA”).
In light of the foregoing legal authority and the Plaintiff’s subsequent clarification that he
“is not suing the blameworthy defendants for violating HIPAA,” Pl.’s Mot. Opposing Green
Door’s Mot. to Dismiss at 10, the Court will dismiss the Plaintiff’s HIPAA claims.
B. The D.C. Mental Health Information Act Claim Is Time-Barred
A claim under the DCMHIA, see D.C. Code § 7-1201.01 et seq., must be brought within
one year. D.C. Code § 12-301(9). It appears that any claim the Plaintiff could have brought
under the DCMHIA accrued as early as December 2, 2010, the date of Simmons’s call to the
Access Helpline, but not later than January 13, 2011, the date on which the Plaintiff was taken
away from Shalom House in handcuffs. In these circumstances, the filing of the Plaintiff’s initial
complaint on December 11, 2013, roughly three years after his cause of action arose, is untimely.
Therefore, the Court will dismiss the Plaintiff’s claim under the DCMHIA.

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C. The Plaintiff Fails to Allege § 1983 Claims
1. Dismissal Under Rule 12(b)(6)
A complaint is subject to dismissal if it fails to state a claim upon which relief can be
granted. Fed. R. Civ. P. 12(b)(6). A plaintiff need only provide a “short and plain statement of
[his] claim showing that [he] is entitled to relief,” Fed. R. Civ. P. 8(a)(2), that ‘“give[s] the
defendant fair notice of what the . . . claim is and the grounds upon which it rests,’” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (per curium) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). To survive a motion to dismiss under Rule 12(b)(6), “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 Twombly, 550 U.S. at 570). In other words,
it must “plead factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Patton Boggs LLP v. Chevron Corp., 683 F.3d
397, 403 (D.C. Cir. 2012) (internal quotation omitted). Although a complaint filed by a pro se
plaintiff is “to be liberally construed,” Erickson, 551 U.S. at 94 (internal citation omitted), it, too,
must set forth factual allegations that “raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555.
2. Elements of a § 1983 Claim
In relevant part, 42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress.

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Id. Section 1983 is not itself a source of substantive rights; rather, it is a method of vindicating
federal rights conferred elsewhere. Albright v. Oliver, 510 U.S. 807, 811 (1994); Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979).
To state a claim under § 1983, a complaint must allege facts sufficient to show that a
person acting under color of State or District of Columbia law committed an action which
deprived the plaintiff of rights protected under the United States Constitution or federal law. See
West v. Atkins, 487 U.S. 42, 48 (1988). A “person” for purposes of § 1983 can be a municipality,
such as the District of Columbia, see Monell v. Dep’t of Soc. Servs. of the City of New York, 436
U.S. 658, 690 (1978) (defining “person” to include municipalities and local government entities),
and a private party may act under color of state or District of Columbia law if it is “a willful
participant in joint activity with the State or its agents,” Adickes v. S. H. Kress & Co., 398 U.S.
144, 152 (1970) (internal quotation marks and citation omitted).
The court begins by identifying the specific constitutional right that the defendants
allegedly infringed. See Graham v. Connor, 490 U.S. 386, 394 (1989); see also Baker v. District
of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (“All that is being established at this stage is
that there is some constitutional harm suffered by the plaintiff, not whether the municipality is
liable for that harm.”). Based on the Plaintiff’s allegations that the defendants conspired to
deprive him of his liberty, see generally Am. Compl. at 4-6, as stated above, the court will read
the complaint to allege violations of his rights under the Fourth and Fifth Amendments to the
United States Constitution.
3. The Claims Against Green Door and Walker Are Not Time-Barred
Green Door and Walker note that they became parties to this action when the Plaintiff
filed his Amended Complaint on November 12, 2014. The claim against Green Door pertains to

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Plaintiff’s alleged false imprisonment on January 13, 2011, see Green Door Mot. at 9, and the
claim against Walker arises from a telephone conversation occurring on December 2, 2010 of
which the Plaintiff learned on January 11, 2011, see Am. Compl. at 4, 19. Green Door and
Walker argue that a three-year statute of limitations applies to a claim under § 1983, and that the
claims set forth against them in the Amended Complaint are time-barred. See Green Door Mot.
at 8-9; Walker Mot. at 3-4.
“Since Section 1983 does not have a built-in statute of limitations, the general three-year
statute of limitations imposed by District of Columbia law on claims for personal injury, see
D.C. Code § 12-301(8), applies.” Proctor v. District of Columbia, 74 F. Supp. 3d 436, 457
(D.D.C. 2014) (citations omitted); see Earle v. District of Columbia, 707 F.3d 299, 305 (D.C.
Cir. 2012) (applying three-year residual statute of limitations to § 1983 claim). However,
Plaintiff relies on D.C. Code § 7-1205.04, which authorizes an action in the Superior Court to
compel access to a client’s mental health records if a mental health professional denies access to
them within six months of the denial of access. See Pl.’s Mot. Opposing Green Door’s Mot. to
Dismiss at 14. Without his health records, Plaintiff argues, he “could not effectively bring his
cause of action.” Id. He argues that, because he filed this action within six months of the
Superior Court’s July 7, 2014 order, his claims are timely. See id. However, as Walker points
out, the Plaintiff cites no authority either for the proposition that a six-month statute of
limitations applies to a claim under § 1983, or that the limitations period began to run after the
Superior Court’s decision. Def. David Walker’s Reply to Pl.’s Opp’n to his Mot. to Dismiss at 1,
The court is mindful of the D.C. Circuit’s remand order, particularly its observation that,
if Plaintiff were to have filed a new complaint with 42 U.S.C. § 1983 as a basis for this Court’s
jurisdiction, the complaint would have been time-barred. In the interest of justice, the D.C.

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Circuit directed this court to allow Plaintiff an opportunity to amend his complaint. Under these
circumstances, the court will treat the allegations of the Amended Complaint as relating back to
the original complaint filed on December 11, 2013. Therefore, the Plaintiff’s § 1983 claims
against Green Door and Walker are timely filed. 4
Although the court declines to dismiss Plaintiff’s § 1983 claims as time-barred, there are
other grounds on which to dismiss them.
4. Green Door
Green Door summarizes Plaintiff’s claim as one alleging that it “supplied his individually
identifiable health information to the [DBH and S.O.M.E.],” and from this he “loosely concludes
that [their] action was a conspiracy . . . resulting in the denial of his liberty interest within the
Due Process Clause of the Fifth Amendment to the Constitution.” Green Door Mot. at 6. It
moves to dismiss on two grounds: that the complaint fails to allege the existence of a civil rights
conspiracy, id., and that it is not a “state actor” for purposes of § 1983. See id. at 7.
“A person may be considered a state actor for purposes of section 1983 if he is a willful
participant in joint activity with the State or its agents, if there is such a close nexus between the
State and the challenged action that seemingly private behavior may be fairly treated as that of
the State itself, or where there is a transfer of State authority.” Edwards v. Okie Dokie, Inc., 473
F. Supp. 2d 31, 40-41 (D.D.C. 2007) (internal quotation marks and citations omitted). Nothing
in the Plaintiff’s complaint suggests that any action by Green Door or its staff is attributable to
the District of Columbia itself.

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To the extent that the Plaintiff may intend to raise a false imprisonment claim, see Am. Compl. at 9, it would be
time-barred. The statute of limitations for this tort claim is one year, D.C. Code § 12-301(4), which would have
expired on or about January 13, 2012, assuming that the statute of limitations would not have been tolled, for
example, due to the Plaintiff’s disability, see D.C. Code § 12-302(a).

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The Plaintiff’s success also depends on the existence of a conspiracy, and to this end his
complaint must allege “(1) an agreement between two or more persons; (2) to participate in an
unlawful act, or a lawful act in an unlawful manner; (3) an injury caused by an unlawful overt act
performed by one of the parties to the agreement; (4) which overt act was done pursuant to and
in furtherance of the common scheme.” Halberstam v. Welch, 705 F.2d 472, 477 (D.C. Cir.
1983) (citation omitted). Plaintiff’s conclusory assertions of the existence of an agreement
among the purported conspirators cannot sustain a conspiracy claim. Furthermore, the Plaintiff
clarifies that he “never stated nor alleged that Green Door and the [DBH] did anything together.”
Pl.’s Mot. Opposing Green Door’s Mot. to Dismiss at 2. Rather, he contends, Green Door
supplied his mental health information to the “chief conspirators,” referring to Ann Chauvin and
S.O.M.E. Id. At most, the Plaintiff alleges that Green Door conspired with S.O.M.E., and
collusion between private entities is not state action for purposes of § 1983. The court therefore
will grant Green Door’s motion to dismiss the Plaintiff’s § 1983 claim.
b. S.O.M.E.
S.O.M.E. asserts that the Plaintiff does not allege that it violated his constitutional rights;
rather, according to his pleadings, “the District of Columbia police with representatives of the
District of Columbia Mental Health Mobile Crisis Service. . . removed plaintiff . . . without any
further intervention by [S.O.M.E.].” S.O.M.E. Mot. at 4-5. It points to the DBH and the
Metropolitan Police Department as the culprits, who independently “determined that plaintiff
required removal to CPEP,” and necessarily rejected alternative courses of action, such as
leaving the scene or arresting the Plaintiff. Id. at 5. Even though a S.O.M.E. staff member “may
have made the initial call” to the DBH, S.O.M.E. was “not the proximate cause of plaintiff’s
being held” either at CPEP or later at the Psychiatric Institute of Washington. Id.

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Plaintiff deems S.O.M.E. “the ‘actual cause’ of the plaintiff being held at CPEP and
PIW.” Pl.’s Mot. Opposing Moving Parties’ Mot. to Dismiss at 5-6. “[T]heir lies or false
allegations made to the police and to the Dep[artment] of [Behavioral] Health . . . officials[,]
misleading them to act,” caused him to be handcuffed and taken to CPEP. Id. at 6.
“Tort law proximate cause principles apply to § 1983 action,” and “[p]roximate cause
requires both a causal relationship between the [wrongful] act and the plaintiff’s injury and
foreseeability of the injury.” Elkins v. District of Columbia, 610 F. Supp. 2d 52, 61 (D.D.C.)
(citations omitted), clarified on denial of reconsideration, 636 F. Supp. 2d 29 (D.D.C. 2009),
aff’d, 690 F.3d 554 (D.C. Cir. 2012). However, “if there exists a superseding cause, or ‘an act of
a third person or other force which by its intervention prevents the actor from being liable for
harm to another which his antecedent wrongful act was a substantial factor in bringing about.’”
Murray v. Earle, 405 F.3d 278, 291 (5th Cir. 2005) (citing Restatement 2d of Torts § 440-41
(1965)). The court agrees with the S.O.M.E.’s position that their call to the Access Helpline was
not the proximate cause of the alleged violations of the Plaintiff’s Fourth and Fifth Amendment
rights. Rather, based on the Plaintiff’s own submissions, it appears that the mental health
professionals and police officers determined based on their interaction with the Plaintiff on
January 13, 2011, that his involuntary commitment was warranted. “Only those who cause a
violation of a right secured by the Constitution are liable.” Elkins v. District of Columbia, 690
F.3d 554, 564 (D.C. Cir. 2012) (citing Iqbal, 556 U.S. at 676), and the Plaintiff does not set forth
sufficient factual allegations to show S.O.M.E.’s liability.
III. CONCLUSION
The Court concludes that the Plaintiff’s complaint fails to state claims under the Health
Insurance Portability and Accountability Act, the District of Columbia Mental Health

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Information Act, and 42 U.S.C. § 1983. The defendants’ motions to dismiss will be granted. An
Order is issued separately.

Tanya S. Chutkan
DATE: March 28, 2016

TANYA S. CHUTKAN
United States District Judge

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