Brown v. Carusso et al

Filing 6

MERIT REVIEW OPINION Entered by Judge Sue E. Myerscough on 7/27/16. The clerk is directed to attempt service on Defendants pursuant to the standard procedures. The Clerk is directed to enter the standard qualified protectiveorder pursuant to the Health Insurance Portability and Accountability Act. See Written Order. (SW, ilcd)

E-FILED

Wednesday, 27 July, 2016 09:36:11 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
KIM WILLIE BROWN,
Plaintiff,
v.
MEDICAL DIRECTOR CARUSSO,
NURSE SHAWNA AND
WEXFORD MEDICAL,
et al.
Defendants.

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16-CV-1258

MERIT REVIEW OPINION
Plaintiff filed this case pro se from Pontiac Correctional Center.
The case is before the Court for a merit review pursuant to 28
U.S.C. § 1915A.1 This statute requires the Court to review a
complaint filed by a prisoner to identify the cognizable claims and to
dismiss part or all of the complaint if no claim is stated.
In reviewing the Complaint, the Court accepts the factual
allegations as true, liberally construing them in Plaintiff's favor.
Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013). However,

1

 A prisoner  who has had three prior actions dismissed for failure to state a claim or as frivolous or malicious can 
no longer proceed in forma pauperis (without prepaying the filing fee in full) unless the prisoner is under 
“imminent danger of serious physical injury.”  28 U.S.C. § 1915(g). 

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conclusory statements and labels are insufficient. Enough facts
must be provided to "'state a claim for relief that is plausible on its
face.'" Alexander v. U.S., 721 F.3d 418, 422 (7th Cir. 2013)(quoted
cite omitted).
Plaintiff alleges that his rights under the Health Insurance
Portability and Accountability Act (HIPAA) and his privacy rights
were violated on November 8, 2015 and November 17, 2015 when
another inmate who shares the same last name as Plaintiff was
called for medical care that was supposed to be for Plaintiff.
According to Plaintiff, on November 8, 2015, the medical staff
announced loudly to the other inmate Brown and others in the
waiting area about Plaintiff’s condition and treatment. Distressed
upon learning this, Plaintiff inserted a pen into his penis and then
was put on constant watch because Plaintiff refused to allow
medical staff to take the pen out. On November 17, 2015, the other
inmate Brown was escorted to an x-ray that had been ordered for
Plaintiff. The staff told the other inmate Brown why Plaintiff had
been scheduled for the x-ray.
There is no right of private action under HIPAA, which means
that Plaintiff cannot sue for the violation of his rights under that
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Act. See Doe v. Bd. Trustees Univ. Ill., 429 F.Supp.2d 930, 944
(N.D.Ill.2006) ("Every court to have considered the issue, ... has
concluded that HIPAA does not authorize a private right of
action")(collecting cases); Carpenter v. Phillips, 419 Fed.Appx. 658
(7th Cir. 2011)(nonprecedential)(“To the extent that Carpenter
reasserts a claim under HIPAA, the district court correctly
concluded that such a claim was not cognizable because HIPAA
does not furnish a private right of action.”) Whether Plaintiff has a
constitutionally protected privacy right in nondisclosure of his
medical/mental condition is unclear, but a possible Eighth
Amendment claim might be stated regardless. Anderson v. Romero,
72 F.3d 518, 524 (7th Cir. 1995)(not deciding question but
remarking that, if “prison officials disseminated humiliating but
penologically irrelevant details of a prisoner's medical history, their
action might conceivably constitute the infliction of cruel and
unusual punishment; the fact that the punishment was purely
psychological would not excuse it.”) Additionally, given Plaintiff’s
alleged fragile mental state, the alleged actions might plausibly
arise to deliberate indifference to Plaintiff’s serious mental health

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needs. Accordingly, this case will proceed pursuant to the standard
procedures.
IT IS ORDERED:
1)

Pursuant to its merit review of the Complaint under 28

U.S.C. § 1915A, the Court finds that Plaintiff states potential
constitutional claims for the intentional disclosure, for no legitimate
penological reason, of Plaintiff’s medical/mental conditions and
treatment to other inmates and staff. This case proceeds solely on
the claims identified in this paragraph. Any additional claims shall
not be included in the case, except at the Court’s discretion on
motion by a party for good cause shown or pursuant to Federal
Rule of Civil Procedure 15.
2)

This case is now in the process of service. Plaintiff is advised

to wait until counsel has appeared for Defendants before filing any
motions, in order to give Defendants notice and an opportunity to
respond to those motions. Motions filed before Defendants' counsel
has filed an appearance will generally be denied as premature.
Plaintiff need not submit any evidence to the Court at this time,
unless otherwise directed by the Court.
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3)

The Court will attempt service on Defendants by mailing each

Defendant a waiver of service. Defendants have 60 days from the
date the waiver is sent to file an Answer. If Defendants have not
filed Answers or appeared through counsel within 90 days of the
entry of this order, Plaintiff may file a motion requesting the status
of service. After Defendants have been served, the Court will enter
an order setting discovery and dispositive motion deadlines.
4)

With respect to a Defendant who no longer works at the

address provided by Plaintiff, the entity for whom that Defendant
worked while at that address shall provide to the Clerk said
Defendant's current work address, or, if not known, said
Defendant's forwarding address. This information shall be used
only for effectuating service. Documentation of forwarding
addresses shall be retained only by the Clerk and shall not be
maintained in the public docket nor disclosed by the Clerk.
5)

Defendants shall file an answer within 60 days of the date the

waiver is sent by the Clerk. A motion to dismiss is not an answer.
The answer should include all defenses appropriate under the
Federal Rules. The answer and subsequent pleadings shall be to
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the issues and claims stated in this Opinion. In general, an answer
sets forth Defendants' positions. The Court does not rule on the
merits of those positions unless and until a motion is filed by
Defendants. Therefore, no response to the answer is necessary or
will be considered.
6)

This District uses electronic filing, which means that, after

Defense counsel has filed an appearance, Defense counsel will
automatically receive electronic notice of any motion or other paper
filed by Plaintiff with the Clerk. Plaintiff does not need to mail to
Defense counsel copies of motions and other papers that Plaintiff
has filed with the Clerk. However, this does not apply to discovery
requests and responses. Discovery requests and responses are not
filed with the Clerk. Plaintiff must mail his discovery requests and
responses directly to Defendants' counsel. Discovery requests or
responses sent to the Clerk will be returned unfiled, unless they are
attached to and the subject of a motion to compel. Discovery does
not begin until Defense counsel has filed an appearance and the
Court has entered a scheduling order, which will explain the
discovery process in more detail.

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7)

Counsel for Defendants is hereby granted leave to depose

Plaintiff at his place of confinement. Counsel for Defendants shall
arrange the time for the deposition.
8)

Plaintiff shall immediately notify the Court, in writing, of any

change in his mailing address and telephone number. Plaintiff's
failure to notify the Court of a change in mailing address or phone
number will result in dismissal of this lawsuit, with prejudice.
9)

If a Defendants fails to sign and return a waiver of service to

the clerk within 30 days after the waiver is sent, the Court will take
appropriate steps to effect formal service through the U.S. Marshal's
service on that Defendant and will require that Defendant to pay
the full costs of formal service pursuant to Federal Rule of Civil
Procedure 4(d)(2).
10)

Within 10 days of receiving from Defendants' counsel an

authorization to release medical records, Plaintiff is directed to sign
and return the authorization to Defendants' counsel.
11)

The clerk is directed to enter the standard order granting

Plaintiff's in forma pauperis petition and assessing an initial partial

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filing fee, if not already done, and to attempt service on Defendants
pursuant to the standard procedures.
12)

The Clerk is directed to enter the standard qualified protective

order pursuant to the Health Insurance Portability and
Accountability Act.
ENTERED: 7/27/2016
FOR THE COURT:
____s/Sue E. Myerscough_________
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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