Smith v. United States Marshal Service
MEMORANDUM AND ORDER ENTERED: This petition is dismissed. Petitioner's motion for leave to proceed in forma pauperis (Doc. 2 ) is granted. Signed by U.S. Senior District Judge Sam A. Crow on 03/31/21. Mailed to pro se party Gary L. Smith by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GARY L. SMITH,
CASE NO. 21-3091-SAC
UNITED STATES MARSHAL
MEMORANDUM AND ORDER
This matter is a petition for mandamus filed under 28 U.S.C. § 1361. Petitioner is
detained at CoreCivic Leavenworth Detention Center in Leavenworth, Kansas, pending a
probation violation hearing. Petitioner appears pro se, and the Court grants Petitioner’s motion
for leave to proceed in forma pauperis. For the reasons that follow, the Court concludes that this
matter must be dismissed.
Petitioner seeks an order compelling the United States Marshals Service (“USMS”) to
allow Petitioner to lodge a criminal complaint with the local sheriff regarding alleged HIPPA
violations resulting from the disclosure of Petitioner’s private medical information to the United
States Probation Office. Petitioner alleges that this disclosure violated K.S.A. § 65-5601, et seq.
Petitioner proceeds under 28 U.S.C. § 1361, which authorizes the federal district courts
“to compel an officer or employee of the United States or any agency thereof to perform a duty
owed to the plaintiff.” Mandamus relief is an extraordinary remedy and may issue only “to
compel the performance of a clear nondiscretionary duty.” Pittston Coal Group v. Sebben, 488
U.S. 105, 121 (1988) (quotations omitted). A court may grant mandamus relief only where it
finds “(1) a clear right in the plaintiff to the relief sought; (2) a plainly defined and preemptory
duty on the part of the defendant to do the action in question; and (3) no other adequate
[available] remedy….” Wilder v. Prokop, 846 F.2d 613, 620 (10th Cir. 1988) (citation omitted).
Petitioner does not meet these standards. He has not identified any clear right to the
relief he seeks, nor has he shown that no other adequate remedy is available. Petitioner has not
shown that an alleged HIPPA violation entitles Petitioner to bring criminal charges and it is not
apparent how a writ of mandamus would benefit him.
The Secretary of Health and Human Services (“HHS”) is specifically tasked with the
investigation of suspected HIPPA violations and enforcement of the law’s terms. See 42 U.S.C.
§ 1320d–5; 45 C.F.R. § 160.306 (Complaints to the Secretary); Royce v. Veteran Affairs Reg’l
Office, No. 08–cv–01993-KMT-KLM, 2009 WL 1904332, at *6 (D. Colo. July 1, 2009)
(“HIPPA expressly provides the penalties for improper disclosures of medical information[,] . . .
and limits enforcement to the Secretary of HHS.”) (citing Univ. of Colo. Hosp. Auth., 340
F.Supp.2d 1142, 1144–45 (D.Colo.2004) (The specific punitive enforcement provision precludes
any finding of an intent by Congress to create a private right of action.); Logan v. Dep’t of
Veterans Affairs, 357 F. Supp. 2d 149, 155 (D. D.C. 2004) (“[T]he law specifically indicates that
the Secretary of HHS”, not a private individual, “shall pursue the action against an alleged
offender.”). Moreover, HHS’ Office for Civil Rights is directly responsible for fielding HIPPA–
related complaints and administering penalties. See Brown v. Hill, 174 F. Supp. 3d 66, 71
(D.D.C. 2016) (“[A]n 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.” (internal quotations omitted) (citations omitted)).
Likewise, Petitioner has failed to show that he is entitled to bring criminal charges under
the Kansas statute. The plaintiff’s in Merryfield, two persons civilly committed to the Kansas
sexually violent predator treatment program, argued that the program’s policies violated their
confidentiality privilege under K.S.A. 65-5602. Merryfield v. Kansas Social and Rehabilitation
Servs., 253 P.3d 386 (Table), 2011 WL 25556622, at *4 (Kan. Ct. App. 2011). The Kansas
Court of Appeals denied mandamus relief and held that “K.S.A. 65-5602 doesn’t confer a duty
on SRS; rather, it gives treatment-facility patients, like [plaintiffs], a privilege not to disclose
certain information in civil or criminal proceedings.” Id.
Thus, Petitioner can assert any
privilege that he is entitled to in his probation revocation proceedings and seek relief in that
IT IS THEREFORE ORDERED that this petition is dismissed.
IT IS FURTHER ORDERED that Petitioner’s motion for leave to proceed in forma
pauperis (Doc. 2) is granted.
IT IS SO ORDERED.
Dated March 31, 2021, in Topeka, Kansas.
s/ Sam A. Crow
Sam A. Crow
U.S. Senior District Judge
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