Pacheco v. Kim

Filing 5

ORDER adopting and accepting 3 Report and Recommendation; dismissing Plaintiff's complaint; dismissing with prejudice Plaintiff's claim under HIPAA; dismissing without prejudice Plaintiff's medical malpractice claim; directing Clerk to close this case. Signed by Judge Miranda M. Du on 10/27/2014. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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STEPHAN PACHECO,

Case No. 3:14-cv-00124-MMD-VPC
Plaintiff,

v.
SOON KIM,

ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION OF
MAJISTRATE JUDGE
VALERIE P. COOKE

Defendant.

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Before the Court is the Report and Recommendation of United States Magistrate

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Judge Valerie P. Cooke (dkt. no. 3) (“R&R”) relating to Plaintiff application to proceed in

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forma pauperis (dkt. no. 1) and pro se complaint (dkt. no. 1-1). Plaintiff filed his

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objection to the R&R on June 13, 2014 (dkt. no. 4).

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party

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timely objects to a magistrate judge’s report and recommendation, then the court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). In light of

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Plaintiff’s objection, the Court engages in a de novo review to determine whether to

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adopt Magistrate Judge Cook’s Recommendation.

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The Magistrate Judge construes Plaintiff’s Complaint to assert a claim for

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violation of his privacy rights under the Health Insurance Portability and Accountability

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(“HIPAA”) and a claim for medical malpractice. (Dkt. no. 3 at 3-4.) The Magistrate Judge

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recommends dismissal of Plaintiff’s HIPAA claim with prejudice because HIPAA does

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not provide for a private right of action. Webb v. Smart Document Solutions, LLC, 499

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F.3d 1078, 1081 (9th Cir. 2007) (“HIPAA itself provides no private right of action”). The

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Magistrate Judge recommends dismissal of Plaintiff’s medical malpractice claim without

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prejudice because Plaintiff fails to attach an affidavit of a medical expert supporting

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Plaintiff’s medical malpractice claim as required under Nevada law. NRS § 41A.071.

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This means Plaintiff may file a new action for medical malpractice once he has obtained

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a medical expert’s opinion to support his claim and attach an affidavit by that expert with

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his complaint. Plaintiff’s objection fails to address the merits of the Magistrate Judge’s

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findings. After reviewing the records, the Court agrees with the Magistrate Judge. The

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Court therefore adopts the Magistrate Judge’s R&R in full.

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It is therefore ordered that Plaintiff’s Complaint is dismissed. Plaintiff’s claim

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under HIPAA is dismissed with prejudice. Plaintiff’s claim for medical malpractice claim

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is dismissed without prejudice.

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The Clerk is directed to close this case.

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DATED THIS 27th day of October 2014.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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