Romero v. Advanced Correctional Healthcare et al
MEMORANDUM AND ORDER ENTERED: This matter is dismissed for failure to state a claim. Plaintiff's Motion for Leave to Proceed In Forma Pauperis (Doc. 2 ) is denied. Signed by District Judge John W. Lungstrum on 11/17/22. Mailed to pro se party John Ryan Romero by regular mail. (smnd)
Case 5:22-cv-03235-JWL-JPO Document 5 Filed 11/17/22 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN RYAN ROMERO,
CASE NO. 22-3235-JWL-JPO
HEALTHCARE, et al.,
MEMORANDUM AND ORDER
Plaintiff filed this pro se case under 42 U.S.C. § 1983. Plaintiff is a pretrial detainee at
the Russell County Jail in Russell, Kansas. On October 17, 2022, the Court entered an Order to
Show Cause (Doc. 4) (“OSC”) granting Plaintiff until November 10, 2022, in which to show
good cause why his Complaint should not be dismissed for the reasons set forth in the OSC.
Plaintiff has failed to respond by the Court’s deadline.
Plaintiff alleges in his Complaint that a nurse employed by Advanced Correctional
Healthcare, a private company, attempted to draw blood from Plaintiff while he was detained at
the Russell County Jail. Plaintiff alleges that she switched needles only once, that after multiple
failed attempts from one arm, she switched to his other arm, that she did not wear a glove or
sanitize her hands, and that she asked him in front of a corrections officer if he was a needle user
or had HIV. Plaintiff alleges medical malpractice and a HIPAA violation. He seeks damages
and to have the nurse terminated from her employment.
The Court found in the OSC that Plaintiff’s claims failed to show that he was deliberately
exposed to an excessive risk of harm or that he sustained an injury. (Doc. 4, at 4.) The Court
also found that while Plaintiff asserts a claim of medical malpractice, a “negligent failure to
Case 5:22-cv-03235-JWL-JPO Document 5 Filed 11/17/22 Page 2 of 3
provide adequate medical care, even one constituting medical malpractice, does not give rise to a
constitutional violation.” Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 811 (10th Cir. 1999).
The Court also found that Plaintiff’s claim of a HIPAA violation does not state a claim
for relief under § 1983. The Tenth Circuit Court of Appeals has determined that HIPAA does
not create a private right of action for unlawful disclosures of medical information. See
Wilkerson v. Shinseki, 606 F.3d 1256, 1267 n.4 (10th Cir. 2010) (“Any HIPAA claim fails as
HIPAA does not create a private right of action for alleged disclosures of confidential medical
Lastly, the Court found that to the extent Plaintiff seeks the termination of the nurse’s
employment, he cannot obtain that relief in this action. See, e.g., Nicholas v. Hunter, 228 F.
App’x 139, 141 (3rd Cir. 2007) (“The remaining relief requested is not available as the District
Court lacks authority to order a federal investigation and prosecution of the defendants or the
termination of their employment.”); Martin v. LeBlanc, 2014 WL 6674289, at n. 1 (W.D. La.
Nov. 24, 2014) (finding that where plaintiff requested an investigation, the termination of the
defendants’ employment and the closure of the prison, “[s]uch relief is not available in this
The OSC provides that “[t]he failure to file a timely response may result in the dismissal
of this matter without additional prior notice.” (Doc. 4, at 5.) Plaintiff has failed to respond by
the Court’s deadline and has failed to show good cause why his Complaint should not be
dismissed for the reasons set forth in the OSC.
IT IS THEREFORE ORDERED BY THE COURT that this matter is dismissed for
failure to state a claim.
Case 5:22-cv-03235-JWL-JPO Document 5 Filed 11/17/22 Page 3 of 3
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to Proceed In Forma
Pauperis (Doc. 2) is denied.
IT IS SO ORDERED.
Dated November 17, 2022, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE
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