McNary v. Corrections Corporation of America et al

Filing 8

MEMORANDUM OPINION AND ORDER re 1 Notice of Removal by Chief Judge M. Christina Armijo. Defendants CCA and Corizon Medical are dismissed; G-Unit Manager Mrs. Baines and Corrections Officer Saracino are added as defendants. (vv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

DOMINIQUE MCNARY,
Plaintiff,
v.

No. 17-CV-00614-MCA-GJF

CORRECTIONS CORPORATION OF
AMERICA, CORIZON MEDICAL,
Defendants.

MEMORANDUM OPINION AND ORDER
This matter is before the Court, sua sponte under 28 U.S.C. §§ 1915(e) and 1915A, on
Plaintiff Dominique McNary’s Complaint (Tort) [Doc. 1-1], which was removed from the
Thirteenth Judicial District Court of the State of New Mexico pursuant to 28 U.S.C. §§ 1441(a)
on June 5, 2017. [Doc. 1] Plaintiff was granted free process in state court and based on the
financial information provided by Plaintiff in that proceeding, the Court will grant her leave to
proceed in forma pauperis in this Court pursuant to 28 U.S.C. § 1915. [Doc. 2-1 at 20-26] For
the reasons explained below, Plaintiff’s claims under the Heath Insurance Portability and
Accountability Act (HIPAA) will be dismissed as frivolous, Plaintiff’s constitutional claims
against Defendants CCA and Corizon Medical will be dismissed for failure to state a claim upon
which relief may be granted, Defendants Baines and Saracino will be added to the caption as
defendants, and the Clerk of the Court will be directed to send notice and waiver of service forms
to Defendants Corizon Medical, Baines, and Saracino.
Plaintiff, who currently is incarcerated at Springer Correctional Facility, alleges that on
March 15, 2015, the “G Unit Manager Mrs. Baines and the health department” disclosed

Plaintiff’s confidential health information, namely her diagnosis with human immunodeficiency
virus (HIV), to her entire pod. As a consequence of this disclosure, Plaintiff endured “foul
treatment,” verbal assaults, and “torture[]” that eventually resulted in a physical altercation with
another inmate and Plaintiff’s transfer to a different pod. [Doc. 1-1 at 3] On August 4, 2015, the
medical staff and “c/o Saracino” allegedly disclosed Plaintiff’s HIV-positive status again, this
time to the entire G-Unit housing unit consisting of “around 370 inmates,” by distributing a call
list containing Plaintiff’s name and listing “the reasons for being seen at chronic care clinic was
HIV.” [Doc. 1-1 at 4] As a result of this disclosure, Plaintiff “once again” had to endure
“[i]nmates verbally assaulting” her and “torturing” her. [Doc. 1-1 at 4]
On March 24, 2017, Plaintiff filed a pro se Complaint (Tort) in the Thirteenth Judicial
District of the State of New Mexico against Defendants Corrections Corporation of America
(CCA)1 and Corizon Medical, which appears to raise four claims: (1) violation of HIPAA laws;
(2) mental stress and anguish; (3) cruel and unusual punishment; and (4) violation of rules and
policies. [Doc. 1-1 at 2] Plaintiff’s complaint does not specify the relief sought. [Doc. 1-1 at 5]
Defendant CCA removed Plaintiff’s action to this Court pursuant to 28 U.S.C. § 1441(a) because
Plaintiff’s complaint raises claims arising under federal law. [Doc. 1 at 2]
The Court has the discretion to dismiss an in forma pauperis complaint sua sponte under
§§ 1915(e)(2)(B) and 1915A at any time if the action is frivolous, malicious, or fails to state a
claim on which relief may be granted. See §§ 1915(e)(2)(B), 1915A(b). “Dismissal of a pro se
complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot
prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.”
Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). The burden is on the plaintiff to frame a
1

Defendant CCA filed an Answer to Plaintiff’s complaint on June 12, 2017, which states that CCA “recently
announced a corporate rebranding as CoreCivic.” [Doc. 3 at 1 n.1] Defendant CCA has not moved to substitute
CoreCivic for CCA and, therefore, the Court will continue to refer to Defendant CCA as CCA.

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complaint that contains “sufficient factual matter, accepted as true, to ‘state a claim for relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements do not suffice.” Id.
Plaintiff is proceeding pro se and “[a] pro se litigant’s pleadings are to be construed
liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Therefore, “if the court can reasonably read the
pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the
plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor
syntax and sentence construction, or his unfamiliarity with pleading requirements.” Id. At the
same time, however, it is not “the proper function of the district court to assume the role of
advocate for the pro se litigant.” Id.
HIPAA imposes civil and criminal penalties on persons who knowingly and wrongfully
disclose “individually identifiable health information.” See 42 U.S.C. § 1320d-6. The statute
does not, however, “create a private right of action for alleged disclosures of confidential
medical information.” Wilkerson v. Shinseki, 606 F.3d 1256, 1267 n.4 (10th Cir. 2010); see also
Acara v. Banks, 470 F.3d 569, 572 (5th Cir. 2006) (holding that “there is no private right of
action under HIPAA”). Because there is no private right of action under HIPAA, Plaintiff’s
HIPAA claims will be dismissed as frivolous under 28 U.S.C. §§ 1915(e)(2)(B)(i) and
1915A(b)(1).

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Nonetheless, “confidential medical information is entitled to constitutional privacy
protection.” A.L.A. v. West Valley City, 26 F.3d 989, 990 (10th Cir. 1994). Specifically, the
United States Court of Appeals for the Tenth Circuit has held that the alleged “disclosure of
information regarding one’s HIV status by a government official” states a claim for the
“violation of a constitutional right to privacy.” Herring v. Keenan, 218 F.3d 1171, 1175 (10th
Cir. 2000); see also Doe v. Delie, 257 F.3d 309, 311 (3rd Cir. 2001) (holding that “the
Fourteenth Amendment protects an inmate’s right to medical privacy, subject to legitimate
penological interests”); Powell v. Schriver, 175 F.3d 107, 110 (2d Cir. 1999) (holding that the
“Constitution protect[s] a prisoner’s right to maintain confidentiality of HIV-positive status” and
transsexualism). Additionally, the Eighth Amendment to the United States Constitution protects
inmates from the wanton and unnecessary infliction of psychological pain and, therefore, “prison
officials may not punish [a] plaintiff for being an HIV carrier” by, for example, “disseminating
‘humiliating but penologically irrelevant details of a prisoner’s medical history’, or ‘branding or
tattooing HIV-positive inmates . . . or making them wear a sign around their neck that read[s] ‘I
AM AN AIDS CARRIER!’” Perkins v. Kansas Dep’t of Corr., 165 F.3d 803, 810-11 (10th Cir.
1999) (quoting Anderson v. Romero, 72 F.3d 518, 526 (7th Cir. 1995)); see also Powell, 175
F.3d at 114-15 (holding that the disclosure of an inmate’s HIV-positive status “under certain
circumstances and absent legitimate penological purposes could constitute deliberate
indifference to a substantial risk that such inmate would suffer serious harm at the hands of other
inmates” in violation of the Eighth Amendment).
Title 42 of the United States Code, section 1983 “provides a remedy . . . for the
deprivation of ‘rights, privileges, or immunities secured by the Constitution and laws’ of the
United States.” Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) (quoting 42 U.S.C. § 1983).

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Defendants CCA and Corizon Medical are private entities acting under color of state law and,
therefore, they “cannot be held liable solely because [they] employ[] a tortfeasor—or, in other
words . . . cannot be held liable under § 1983 on a respondeat superior theory.” Dubbs v. Head
Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003) (quoting Monell v. New York City Dep’t of Soc.
Serv., 436 U.S. 658, 691 (1978)). Rather, to be liable under § 1983, Defendants CCA and
Corizon Medical “must have had an official policy of some nature . . . that was the direct cause
or moving force behind the constitutional violations.” Id. (internal quotation marks and citations
omitted).
Plaintiff’s complaint fails to allege that Defendants CCA and Corizon Medical had an
official policy or custom that resulted in the unconstitutional disclosure of Plaintiff’s confidential
medical information. To the contrary, Plaintiff alleges that the disclosure of her confidential
medical information was a “violation of rules and policies.” [Doc. 1-1 at 2] Therefore, Plaintiff’s
§ 1983 claims against Defendants CCA and Corizon Medical will be dismissed for failure to
state a claim on which relief may be granted under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1).2
“[I]n a pro se case when the plaintiff names the wrong defendant in the caption or when
the identity of the defendants is unclear from the caption, courts may look to the body of the
complaint to determine who the intended and proper defendants are.” Trackwell v. United States
Gov’t, 472 F.3d 1242, 1243-44 (10th Cir. 2007). In the body of her complaint, Plaintiff alleges
that G-Unit Manager Mrs. Baines and Corrections Officer Saracino were the persons responsible
for the alleged disclosure of her confidential medical information. [Doc. 1-1 at 3] Therefore, the
Clerk of the Court will be directed to add Baines and Saracino to the caption as defendants in this
action.
2

The dismissal of Plaintiff’s § 1983 claims has no effect on her state law tort claims.

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Plaintiff’s complaint raises colorable claims under 42 U.S.C. § 1983 and state tort law
against Defendants Baines and Saracino and, therefore, the Clerk of the Court will be directed to
send notice and waiver of service forms to these defendants.3 See Fed. R. Civ. P. 4(d).
Additionally, Plaintiff’s complaint raises colorable claims under state tort law against Defendant
Corizon Medical, doing business as Corizon Health, Inc., who has not yet been served with
process. [See Docs. 1, 2; New Mexico Secretary of State, Corporations and Business Services,
https://portal.sos.state.nm.us/BFS/online/CorporationBusinessSearch (last visited November 9,
2017)]. Therefore, the Clerk of the Court will be directed to send notice and waiver of service
forms to Defendant Corizon Medical.
IT IS THEREFORE ORDERED that Plaintiff is GRANTED leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915;
IT IS FURTHER ORDERED that Plaintiff’s HIPAA claims are DISMISSED as frivolous
under 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1); and Plaintiff’s § 1983 claims against
Defendants CCA and Corizon Medical are DISMISSED for failure to state a claim on which
relief may be granted under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1);
IT IS FURTHER ORDERED that the Clerk of the Court is directed to add G-Unit
Manager Mrs. Baines and Corrections Officer Saracino to the caption as defendants and to send
notice and waiver of service forms, along with a copy of this Memorandum Opinion and Order
and Plaintiff’s complaint [Doc. 1], to: (1) Defendant Baines at Corrections Corporation of
America, P.O Box 800, 1700 East Old Highway 66, Grants, New Mexico, 87020; (2) Defendant
Saracino at Corrections Corporation of America, P.O. Box 800, 1700 East Old Highway 66,
Grants, New Mexico 87020; and (3) Defendant Corizon Medical, doing business as Corizon
3

Plaintiff’s complaint does not specify the place of her incarceration at the time of the alleged disclosures of her
confidential medical information, but according to CCA’s Answer To Plaintiff’s Complaint, Plaintiff was
incarcerated at the New Mexico Women’s Correctional Facility, which is operated by CCA. [Doc. 3 at 2]

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Health, Inc., at C T Corporation System, 206 S Coronado Ave., Espanola, NM 87532-2792.

________________________________
UNITED STATES DISTRICT JUDGE

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