Cutts v. St. Louis County Department of Health

Filing 25

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that the Motion to Dismiss St. Louis County (ECF No. 22 ) is GRANTED. Terminate Case. Signed by District Judge Ronnie L. White on 12/16/2015. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOHN R. CUTTS,
Plaintiff,
v.
ST. LOUIS COUNTY,
Defendant.

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No. 4:15CV672 RLW

MEMORANDUM AND ORDER
This matter is before the Court on Defendant St. Louis County's Motion to Dismiss (ECF
No. 22). Plaintiff filed a response in opposition. Defendant did not file a reply brief, and the
time for doing so has expired. See E.D. Mo. L.R. 4.01. Upon review of the Amended
Complaint, Defendant's Motion to Dismiss, and Plaintiffs response, the Court will grant
Defendants' motion.

Background
On June 23, 2015, Plaintiff filed an Amended Complaint alleging that Defendant St.
Louis County violated his right to privacy under the Fourteenth Amendment to the United States
Constitution, violated his civil rights under 42 U.S.C. § 1983, and violated Mo. Rev. Stat. §
191.227, pertaining to the release of medical records to a patient. Plaintiff generally alleges that
Defendant gave an employee the authority to access Plaintiffs health records and disclose those
records via electronic means to a personal email account without Plaintiffs authorization. He
states that the employee was not a member of medical staff nor trained under the Health
Insurance Portability and Accountability Act ("HIP AA"). According to Plaintiff, the Director of
St. Louis County's Health Department, Faisal Khan, sent Plaintiff a letter indicating that a

county employee had emailed a document containing Plaintiffs name and social security number
to a personal email account. Plaintiff further avers that the letter explained this action constituted
a breach of federal law. Plaintiff seeks $2 Million in damages, claiming that the full effect of
damages caused by the release of highly personal medical records without authorization will be
"ongoing and immeasurable," causing fear of embarrassment and negative effects on his future
health. Plaintiff asserts that this disclosure violated Privacy and Security Rules set forth by the
Department of Health and Human Services, Federal and State Privacy Laws, Missouri statutes,
and St. Louis County's Written Security of Personal Information Policy.
Defendant filed a motion to dismiss, arguing that Plaintiff has failed to state a claim
against Defendant in that there is no private cause of action for an alleged HIP AA violation; the
disclosure of a social security number to an employee ' s private email account does not violate
Plaintiffs constitutional right to privacy; the constitutional protection of privacy extends only to
highly personal matters; and Plaintiff has not stated a claim against Defendant because there is
no vicarious liability under 42 U.S.C. § 1983.

Legal Standards
A complaint must be dismissed under Federal Rule 12(b)(6) for failure to state a claim
upon which relief can be granted if the complaint fails to plead "enough facts to state a claim to
relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S . 544, 570 (2007).
"Factual allegations must be enough to raise a right to relief above the speculative level . . .. "

Id. at 555. Courts must liberally construe the complaint in the light most favorable to the
plaintiff and accept the factual allegations as true. See Schaaf v. Residential Funding Corp., 517
F.3d 544, 549 (8th Cir. 2008) (stating that in a motion to dismiss, courts accept as true all factual
allegations in the complaint); Eckert v. Titan Tire Corp. , 514 F .3d 801 , 806 (8th Cir. 2008)

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(explaining that courts should liberally construe the complaint in the light most favorable to the
plaintiff). However, " [w]here the allegations show on the face of the complaint there is some
insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate." Benton v._Merrill Lynch
& Co., 524 F.3d 866, 870 (8th Cir. 2008) (citation omitted).

Discussion
First, Defendant argues, and the Plaintiff acknowledges, that HIP AA does not create a
private right of action. Indeed, "[t]here is no dispute that HIP AA does not create a private cause
of action, either via§ 1983 or through an implied right of action." IS. v. Washington Univ., No.
4:11CV235SNLJ, 2011WL2433585, at *1 (E.D. Mo. June 14, 2011) (citations omitted).
To the extent that Plaintiff claims that sending Plaintiffs social security number to the
employee' s private email account violated Plaintiffs constitutional right to privacy, Defendant
argues that such act does not rise to the level of a constitutional violation. It is established that
"notions of substantive due process contained within the Fourteenth Amendment safeguard
individuals from unwarranted governmental intrusions into their personal lives." Eagle v.
Morgan, 88 F.3d 620, 625 (8th Cir. 1996) (citation omitted). This includes an individual' s
interest in avoiding disclosure of personal matters, characterized as the right to confidentiality.

Id. (citation omitted). However, the "protection against public dissemination of information is
limited and extends only to highly personal matters representing 'the most intimate aspects of
human affairs. "' Eagle v. Morgan, 88 F.3d 620, 625 (8th Cir. 1996) (quoting Wade v. Goodwin,
843 F.2d 1150, 1153 (8th Cir. 1988)). The Eighth Circuit Court of Appeals has "consistently
held that to violate the constitutional right to privacy 'the information disclosed must be either a
shocking degradation or an egregious humiliation . .. to further some specific state interest, or a
flagrant bre[a]ch of a pledge of confidentiality which was instrumental in obtaining the personal

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information."' Cooksey v. Boyer, 289 F.3d 513, 516 (8th Cir. 2002) (quoting Alexander v.

Peffer, 993 F.2d 1348, 1350 (8th Cir. 1993)).
Here, the Court finds that no constitutional violation occurred when the employee
emailed the document containing Plaintiffs name and social security number to a personal email
account. Indeed, the Eighth Circuit has found that the disclosure of one's social security number
did not violate a constitutional right to privacy. Spurlock v. Ashley Cnty., 281 Fed. App' x 628,
629 (8th Cir. 2008); see also Potocnik v. Carlson, 9 F. Supp. 3d 981 , 1000 (D. Minn. 2014)
(fmding a police officer accessing plaintiffs Department of Vehicle Services information, which
included plaintiffs social security number, did not constitute a "flagrant" breach of a promise of
confidentiality required by the Eighth Circuit). Plaintiffs Amended Complaint merely asserts
that an employee accessed Plaintiffs records and emailed an unspecified document containing
his name and social security number to a personal email account. Nothing in his allegations rises
to the level of a flagrant breach of a pledge of confidentiality sufficient to merit a constitutional
violation. See Potocnik, 9 F. Supp. 3d at 1000 ("The information about [plaintiff] in the DVS
data base is statutorily defined as private, but it cannot fairly be said to include the ' most private
details' of her life."). Thus, the Court finds that Plaintiff is unable to state a claim for a violation
of the Fourteenth Amendment right to privacy such that dismissal of that claim is warranted
under Rule 12(b)(6).
Additionally, the Defendant correctly notes that with regard to Plaintiffs§ 1983 claim,
Defendant may not be held vicariously liable for the employee' s action. "Generally, a
government entity is not liable for its employee' s actions under § 1983 ... [b ]ut a plaintiff can
pursue a Monell claim under § 1983 by identifying a government entity's policy or custom that
caused the plaintiffs injury." Keefe v. City of Minneapolis, 785 F.3d 1216, 1227 (8th Cir. 2015)

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(citation omitted). Plaintiff has not identified a policy by Defendant St. Louis County that
caused his alleged injury. To the contrary, Plaintiff has alleged one isolated incident that is
contrary to the official privacy policy. The letter by Dr. Khan referenced in the Amended
Complaint further demonstrates that the action of the employee was contrary to St. Louis
County' s policy. Therefore, the Court finds that Plaintiff is unable to state a claim for relief
under 42 U.S.C. § 1983.
Finally, the Court notes that Plaintiff purports to raise a claim under Mo. Rev. Stat. §
191.227. That statute provides that upon written request from a patient, health care providers
shall furnish a copy of the patient' s health history and treatment. Mo. Rev. Stat.§ 191.227.1.
Plaintiffs Amended Complaint fails to allege facts demonstrating the applicability ofthis
provision to Plaintiffs claims. The statute cited by Plaintiff pertains to a patient's right to have
access to his or her medical records. See Wear v. Walker, 800 S.W.2d 99, 102 (Mo. Ct. App.
1990). Plaintiff does not claim that he requested, but was denied, access to his medical records
by the Defendant. Id at 103 (finding plaintiff stated a claim for violation of§ 191.227 where
plaintiff submitted a written request for a copy of the medical record, and defendant health care
provider refused to comply). Instead, he seeks information on the identity and motivation of the
"unnamed female employee" who emailed the document. Therefore, the Court finds that
Plaintiff has failed to state a claim for relief under Mo. Rev. Stat. § 191.227, and the Court will
dismiss Plaintiffs claim pursuant to Rule 12(b)(6).
Accordingly,

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IT IS HEREBY ORDERED that the Motion to Dismiss St. Louis County (ECF No. 22)
is GRANTED.
Dated this 16th day of December, 2015.

~/Mio

ONNIEL:WHITE
UNITED STATES DISTRICT JUDGE

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