Doneghy v. Kentucky Parole Board et al

Filing 5

MEMORANDUM OPINION & ORDER: 1. Doneghy's claims under § 1983 and HIPAA [R. 1] are DISMISSED WITH PREJUDICE. Doneghy's claims arising under state law are DISMISSED WITHOUT PREJUDICE; and 2. This matter is STRICKEN from the active docket. Signed by Judge Gregory F. VanTatenhove on 7/26/2018.(AKR)cc: paper copy to Doneghy via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
FRANKFORT
GLENN RAHAN DONEGHY,
Plaintiff,
V.
KENTUCKY PAROLE BOARD
and VAN HUSSIN,
Defendants.

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Civil No. 17-22-GFVT

MEMORANDUM OPINION
&
ORDER

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Inmate Glenn Rahan Doneghy has filed a pro se civil rights complaint pursuant to 42
U.S.C. § 1983. [R. 1.] This matter is before the Court to conduct the initial screening required
by 28 U.S.C. §§ 1915(e)(2), 1915A. Hill v. Lappin, 630 F. 3d 468, 470-71 (6th Cir. 2010).
In his complaint, Doneghy alleges that during a parole hearing in February 2016,
Kentucky Parole Board (“KPB”) Officer Van Hussin verbally recited information contained
within his medical records, including diagnoses for bipolar disorder, schizophrenia, and paranoid
schizophrenia, even though members of the general public and the media were present. Doneghy
contends that this disclosure violated his rights under the Fourth, Eighth, Ninth, Tenth, and
Fourteenth Amendments; the confidentiality provisions of the Health Insurance Portability and
Accountability Act of 1996, 42 U.S.C. § 1320d (“HIPAA”); and internal policy guidelines of
KPB and the Kentucky Department of Corrections. Doneghy seeks $20 million in damages. [R.
1.]
As a threshold matter, KPB is part of the Justice and Public Safety Cabinet, Ky. Rev.
Stat. §§ 12.250, 15A.020, an agency of the Commonwealth of Kentucky. As such, it is not a

“person” subject to suit within the meaning of Section 1983. Will v. Mich. Dep’t of State Police,
491 U.S. 58, 71 (1989); Warick v. Ky. Justice & Pub. Safety Cabinet, No. 08-146-ART, 2008
WL 4443056, at *4 (E.D. Ky. Sept. 26, 2008). In addition, it constitutes an “arm of the State”
immune from suit in federal court pursuant to the Eleventh Amendment. Puerto Rico Aqueduct
& Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993); Long v. Ky. State Parole Bd.,
No. CIV.A.1:05CV-P21-M, 2005 WL 1949544, at *4 (W.D. Ky. Aug. 12, 2005). Doneghy’s
constitutional claims against KPB must therefore be dismissed.
With respect to such claims against KPB Officer Van Hussin, in the broadest sense the
Fourteenth Amendment1 to the United States Constitution can be read to protect the privacy of
personal medical information, hence generally requiring that it be maintained in confidence. Cf.
Whalen v. Roe, 429 U.S. 589, 599 (1977). Here, of course, Van Hussin would have valid
grounds to recite the information to make it part of the record to explain part of the basis for her
substantive decision to deny parole. Regardless, the scope of the privacy right depends on
context, and it is considerably narrower for a prisoner. Powell v. Schriver, 175 F.3d 107, 112 (2d
Cir. 1999). The Sixth Circuit, interpreting Whalen, has expressly held that “the Constitution
does not encompass a general right to nondisclosure of private information” by government
officials. Doe v. Wiggington, 21 F. 3d 733, 740 (6th Cir. 1994) (quoting J.P. v. DeSanti, 653
F.2d 1080 (6th Cir. 1981)). The categorical rule established in DeSanti has consistently been

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The nature of the privacy interest at stake and the circumstances under which that interest is implicated
govern which constitutional amendment provides the source for the privacy right at issue. Neither the Ninth
nor the Tenth Amendment have any apparent relevance to Doneghy’s claim. The Eighth Amendment is
not implicated because the disclosure at issue cannot in any sense be deemed part of the punishment
imposed for Doneghy’s crimes, whatever they may be. The Fourth Amendment does protect certain privacy
interests, but it typically does so in the face of “searches and seizures,” neither of which transpired here.
Where private information has been disclosed outside of that context, courts routinely analyze such claims
under the Fourteenth Amendment, and the Court adopts that mode of analysis here.
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read to preclude any “generic” Fourteenth Amendment claim for the disclosure of private
information. Cf. Treesh v. Cardaris, 2010 WL 3001738, at *2-4 (S.D. Ohio July 30, 2010).
Even assuming that under some circumstances such a claim could be viable, under facts like
those presented here courts have held that the disclosure of mental health records to the parole
board to evaluate an inmate’s suitability for parole does not state a privacy claim under the
Fourteenth Amendment. Coleman v. Martin, 63 F. App’x 791, 792 (6th Cir. 2003); see also
Landor v. Hardin, No. 10-CV-236-GFVT, 2012 WL 1984801, at *3 (E.D. Ky. June 1, 2012).2
Second, Doneghy lacks standing to assert a violation of HIPAA’s confidentiality rules.
HIPAA is designed to protect the privacy of personal medical information by limiting its
disclosure, and provides for both civil and criminal penalties for violations of its requirements.
42 U.S.C. §§ 1320d-5, d-6; Gratton v. United Parcel Service, Inc., 2008 WL 4934056, at *4
(E.D.N.Y. 2008). However, HIPAA only expressly provides the authority to enforce its
provisions to the Secretary of Health and Human Services. Sneed v. Pan American Hosp., 370 F.
App’x 47, 50 (11th Cir. 2010). While Doneghy alleges that the defendants violated his rights
under HIPAA, the Supreme Court has stressed that “the fact that a federal statute has been
violated and some person harmed does not automatically give rise to a private cause of action in
favor of that person.” Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979). Federal
courts have therefore consistently held that a private citizen lacks standing to sue a covered
entity for a violation of HIPAA. Carpenter v. Phillips, 419 F. App’x 658, 658 (7th Cir. 2011);
Dodd v. Jones, 623 F.3d 563, 569 (8th Cir. 2010); Seaton v. Mayberg, 610 F.3d 530, 533 (9th

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The Court further notes that Doneghy does not allege that he suffered any physical injury, or any harm
at all, as a result of the conduct complained of, precluding the remedy he seeks. 42 U.S.C. § 1997e(e).
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Cir. 2010); Wilkerson v. Shinseki, 606 F.3d 1256, 1267 n.4 (10th Cir. 2010). The Court will
therefore dismiss Doneghy’s HIPAA claim with prejudice.
Finally, Doneghy asserts that defendants’ actions violated certain internal procedures of
KDOC and KPB, as well as a Kentucky statute regarding “misuse” of confidential information.
The Court does not reach the merits of these claims, as a district court may “decline to exercise
supplemental jurisdiction over a claim [if] the district court has dismissed all claims over which
it has original jurisdiction ...” 28 U.S.C. § 1367(c)(3). Where, as here, the Court has dismissed
all of the plaintiff’s federal claims, the Court concludes that the balance of judicial economy,
convenience, fairness, and comity all point toward declining supplemental jurisdiction.
Carnegie–Mellon University v. Cohill, 484 U.S. 343 (1988); Musson Theatrical, Inc. v. Federal
Exp. Corp., 89 F.3d 1244, 1255 (6th Cir. 1996) (noting that “[i]f the court dismisses plaintiff’s
federal claims pursuant to Rule 12(b)(1), then supplemental jurisdiction can never exist”, and
that “[a]fter a 12(b)(6) dismissal, there is a strong presumption in favor of dismissing
supplemental claims.”). The Court will therefore dismiss the plaintiff’s state law claims without
prejudice.
Accordingly, it is ORDERED as follows:
1.

Doneghy’s claims under § 1983 and HIPAA [R. 1] are DISMISSED WITH

PREJUDICE. Doneghy’s claims arising under state law are DISMISSED WITHOUT
PREJUDICE; and
2.

This matter is STRICKEN from the active docket.

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This the 26th day of July, 2018.

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