Hernandez v. Kirby Forensic Psychiatric Hospital et al

Filing 61

OPINION AND ORDER. Accordingly, plaintiff's application for the appointment of counsel is denied without prejudice to renewal. Any renewed application for counsel should address the factors identified above. (As further set forth in this order) (Signed by Magistrate Judge Henry B. Pitman on 11/18/2015) Copies Mailed By Chambers. (lmb)

USDCSDNY
DOCUMENT
ELECfRONICALLY FILED

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-----------------------------------X

DOC#:
DATE FILED:

II

hrlt S:

VICTOR HERNANDEZ,
14 Civ. 5910

Plaintiff,

(AJN) (HBP)

OPINION
AND ORDER

-againstSHTA DANIELS, et al.,
Defendants.

-----------------------------------X
PITMAN, United States Magistrate Judge:

In letters dated October 19, 2015 and November 7, 2015,
plaintiff seeks to have the Court provide counsel for him.

For

the reasons set forth below, the applications are denied without
prejudice to renewal.
Unlike a criminal case, there is no right to the
appointment of counsel in a civil case such as this.

There is no

provision of the Constitution or statutory provision that
requires or permits the Court to appoint, at public expense, an
attorney to represent a litigant in a civil case.
Nevertheless, the Court can and does request volunteer
attorneys ( 11 pro bono counsel 11 )

to represent indigent civil

litigants if certain conditions are met.
The factors to be considered in determining whether to
request pro bono counsel are well settled and include "the merits

i\

U

of plaintiff's case, the plaintiff's ability to pay for private
counsel,

[plaintiff's] efforts to obtain a lawyer, the

availability of counsel, and the plaintiff's ability to gather
the facts and deal with the issues if unassisted by counsel."
Cooper v. A. Sargenti Co., 877 F.2d 170, 172
these,

(2d Cir. 1989).

Of

"[t]he factor which command[s] the most attention [is] the

merits."

Id.; accord Odom v. Sielaff, 90 Civ. 7659 (DAB), 1996

WL 208203

(S.D.N.Y. Apr. 26, 1996)

(Batts, J.); see Berry v.

Kerik, 366 F.3d 85, 88 (2d Cir. 2003).

As noted fifteen years

ago by the Court of Appeals:
Courts do not perform a useful service if they appoint
a volunteer lawyer to a case which a private lawyer
would not take if it were brought to his or her
attention. Nor do courts perform a socially justified
function when they request the services of a volunteer
lawyer for a meritless case that no lawyer would take
were the plaintiff not indigent.
Cooper v. A. Sargenti Co., supra, 877 F.2d at 174; see also
Hendricks v. Coughlin, 114 F.3d 390, 392
deciding whether to appoint counsel .

(2d Cir. 1997)

("'In

. the district judge

should first determine whether the indigent's position seems
likely to be of substance.'").
The Court of Appeals for the Second Circuit has
stated in various ways the applicable standard for
assessing the merits of a pro se litigant's claim.
In
Hodge [v. Police Officers, 802 F.2d 58 (2d Cir. 1986)],
[the court] noted that "[e]ven where the claim is not
frivolous, counsel is often unwarranted where the
2

indigent's chances of success are extremely slim," and
advised that a district judge should determine whether
the pro se litigant's "position seems likely to be of
substance," or showed "some chance of success." Hodge,
802 F.2d at 60-61 (internal quotation marks and
citation omitted).
In Cooper v. A. Sargenti Co., [the
court] reiterated the importance of requiring indigent
litigants seeking appointed counsel "to first pass the
test of likely merit." 877 F.2d 170, 173 (2d Cir.
1989) (per curiam) .
Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 204
(2d Cir. 2003).
Plaintiff's application does not address what efforts
plaintiff has made to obtain counsel on his own or any special
reasons why plaintiff is unable to litigate this case without
counsel.

Nevertheless, even if I assume that these criteria are

met, the case does not appear to have sufficient merit to warrant
a request for representation to pro bono counsel.
The Amended Complaint alleges, in pertinent part, that
a state employee improperly disclosed information concerning
plaintiff's medical status to other inmates.
plaintiff can prove this fact.

I shall assume that

However, it seems doubtful that

these allegations state a viable claim.

A number of cases have

held that there is no private right of action under the Health
Insurance Portability and Accountability Act ("HIPAA").

In other

words, HIPPA does not permit an aggrieved individual to sue for
damages based on an unauthorized disclosure of medical

3

information.

Copies of three of these decisions -- Rodgers v.

Rensselaer County Sheriff's Dep't, 1:14-CV-1162 (MAD/TWD), 2015
WL 4404788 (N.D.N.Y July 17, 2015); Perez v. City of New York, 13
Civ. 3328 (KEF), 2013 WL 6182931 (S.D.N.Y. Nov. 21, 2013); Warren
Pearl Constr. Corp. v. Guardian Life Ins. Co., 639 F. Supp. 2d
371 (S.D.N.Y. 2009)

are attached.

Although I am not deciding

the matter, it strongly appears, at this preliminary stage, that
plaintiff's claim is not meritorious as a matter of law.
Accordingly, plaintiff's application for the
appointment of counsel is denied without prejudice to renewal.
Any renewed application for counsel should address the factors
identified above.
Dated:

New York, New York
November 18, 2015
SO ORDERED
;_

7Lc_

rt~NRY P~I-T-~United States Magistrate Judge
Copies mailed to:
Mr. Victor Hernandez
DIN 15-A-2050
Green Haven Correctional Facility
594 Rt. 216
Stormville, New York 12582-0010

4

Gillian A. Breuer, Esq.
Barbara K. Hathaway, Esq.
Assistant Attorneys General
State of New York
24th Floor
120 Broadway
New York, New York 10271

5

Rodgers v. Rensselaer County Sheriff's Dept., Slip Copy (2015)

2015 WL 4404788
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.

Currently before the Court are Defendants RCSD, Mahar,
and Dinan's motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure and Plaintiffs crossmotion to amend the complaint pursuant to Rule 15(a)(2) of
the Federal Rules of Civil Procedure. Dkt. Nos. 16-1,35-2.

Kevin RODC1ERS, Plaintiff,
v.
RENSSELAER CO UNIT SHERIFF'S

II. BACKGROUND

DEPARTMENT, Jack Mahar, Katrina
Dinan and Elaine Young, Defendants.
No. 1:14-CV-01162 (MAD/
TWD).

I

Signed July 17, 2015.

Attorneys and Law Firms
Tully, Rinckey, PLLC, David A. Fallon, Esq., of Counsel,
Albany, NY, for Plaintiff.
Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C.,
James A. Resila, Esq., Albany, NY, for Defendants.
Luibrand Law Finn, PLLC, Kevin A. Luibrand, Esq.,
Latham, NY, for Defendant Elaine Young.

A. Plaintiffs Original Complaint
Plaintiff was employed by RCSD as a corrections officer from
1990-1996 and then again from 2003 until the present. See
Dkt. No. I at ~ 7. Plaintiff asserts that in March of 2013,
he received notice from Samaritan Hospital that his medical
records had been accessed on multiple occasions without
Plaintiffs consent by Defendants Dinan and Young. !d. at~~
8-10. Plaintiff claims that Defendants Dinan and Young are
authorized as RCJ nurses to access the hospital's electronic
medical record system in order to retrieve inmate's records
but that they exceeded their authority when they accessed
Plaintiffs records. !d. at~~ II, 24. Plaintiff brings this action
under§ 1983 for violation of his Fourteenth Amendment right
to privacy. !d. at~ 24. Plaintiff alleges that Defendant Mahar
should have known, knew, or even directed Defendants Dinan
and Young to access his records. !d. at~~ 14, 24, 27.

MEMORANDUM-DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.

I. INTRODUCTION
*1 On September 22, 2014, Kevin Rodgers (hereinafter
"Plaintiff'), a corrections officer at Rensselaer County
Jail ("RCJ"), commenced this action against Defendants
Rensselaer County Sheriffs Department (hereinafter
"RCSD"), Rensselaer County Sheriff Jack Mahar (hereinafter
"Mahar"), and registered nurses Katrina Dinan and Elaine
Young (hereinafter "Dinan" and "Young"). See Dkt. No.
I. Plaintiff alleges that Defendants deprived him of his
Fourteenth Amendment right to privacy in violation of 42
U.S.C. § 1983 when they accessed his medical records
without his consent. See id. at ~~ 14, 26. Plaintiff named
as Defendants Mahar, Dinan, and Young in their individual
capacities, as well as Mahar in his official capacity. Further,
Plaintiff asserts a municipal liability claim against RCSD
for acting pursuant to custom or policy and/or for failing to
adequately train, supervise, or discipline employees Dinan
and Young. See id. at~~ 24, 26, 30, 31, 36, 37.

Plaintiff also brings this claim against RCSD and Sheriff
Mahar alleging a pattern and practice at RCJ of high ranking
officials improperly accessing computer databases in order
to obtain employee's personal and medical information. !d.
at ~~ 14, 15, 32. Plaintiff claims that Defendant Mahar
used his medical information in an attempt to terminate
him in 2004 and that other employees were subjected to
similar actions. !d. at~ 13. Finally, Plaintiff states that the
County failed to adequately train, supervise, and/or discipline
Defendants Dinan and Young for exceeding their authority,
demonstrating a deliberate indifference to constitutional
violations against employees. !d. at~~ 35, 36, 38. The original
complaint contained forth and fifth causes of action under
the Americans with Disabilities Act ("ADA") and Computer
Frauds and Abuse Act ("CFF A"), which have subsequently
been withdrawn. 42 U.S.C. § 12112; 18 U.S.C. § 1030; Dkt.
No. 22-1 at 12.

B. Defendants RCSD, Mahar and Dinan's 12(b)(6)
Motion to Dismiss

Rodgers v. Rensselaer County Sheriff's Dept., Slip Copy (2015)

*2 On November 24,2014, Defendants RCSD, Mahar, and
Dinan filed a Motion to Dismiss pursuant to Rule 12(b)(6).
Dkt. No. 16-1. First, Defendants argue that RCSD should
be dismissed as a party because a sheriff's department is
not a suitable entity under § 1983. See Dkt. No. 16-1 at
12. Next, Defendants argue that Plaintiff's Monell claims
must be dismissed because the complaint fails to plausibly
allege a pattern, policy, or custom of accessing employees'
private information. Id at 14. Further, Defendants argue that
the failure to train and supervise claims must be dismissed
because the facts indicate that this was merely an isolated
incident about which Defendant Mahar and RCSD had no
reason to know. Id at 16.

C. Plaintiffs Memorandum of Law in Opposition to
Defendants' Motion to Dismiss
On December 22, 2014, Plaintiff filed an opposition to
Defendants' 12(b)(6) motion. Dkt. No. 22-1. Plaintiff
reasserts and offers further arguments in support of counts
one, two, and three of the complaint and withdraws counts
four and five. !d. at 12. Plaintiff also requests that the Court
either direct the Clerk to amend the caption of the complaint
listing RCSD as a Defendant or grant Plaintiffleave to amend
the complaint to name the "County of Rensselaer" as a party
instead because
where a municipality has received
notice of the suit against it, and the
caption erroneously lists a subdivision
of the municipality rather than the
municipality itself, it is appropriate to
correct the caption of the complaint
to identify the municipality as the
party defendant, so long as the
municipality will not be prejudiced by
such substitution.
Id at 2 (citation omitted). Finally, Plaintiff submits that
the original complaint is sufficient but requests that, if the
Court finds otherwise, that it grant him leave to amend the
complaint. Id at 13.

D. Defendants' Reply
In their reply, Defendants again allege that Plaintiffs
complaint fails to state a claim. See Dkt. No. 25 at 2.
Additionally, Defendants argue that Plaintiff fails to identify
a constitutional right that was violated, as required under §
1983. Id. at 7. Further, Defendants assert that unauthorized

access to medical records could be construed as a HIPPA
violation and therefore cannot serve as the basis of a private
right of action under § 1983. Id at 8-9.

E. Plaintiffs Sur-Reply and Cross Motion to Amend the
Complaint
On January 10, 2015, Plaintiff filed a sur-reply requesting
denial of Defendants' motion and cross-moving for leave
to amend the complaint under Rule 15(a)(2) of the Federal
Rules of Civil Procedure. Dkt. Nos. 35-2, 35-3. Plaintiff
makes five changes in the proposed amended complaint. First,
Plaintiff alters the caption to read "County of Rensselaer"
instead of "Rensselaer County Sheriff's Department." Dkt.
No. 35-2 at 4. Second, Plaintiff removes the fourth and fifth
causes of action, which were previously withdrawn. I d Third,
Plaintiff consolidates the first three causes of action from the
original complaint into count one of the proposed amended
complaint, clarifying that the constitutional right at issue is
Plaintiff's right to privacy under the Fourteenth Amendment.
Id Plaintiff clarifies that the specific medical condition he
suffers from is depression. See Dkt. No. 35--4 at 10. Fourth,
Plaintiff changes the language of the complaint to indicate
that he is seeking punitive damages against the individual
Defendants. See Dkt. No. 35-2 at 4. Finally, Plaintiff adds a
new claim alleging First Amendment retaliation. Id.
*3 In support of his First Amendment claim, Plaintiff states
that Defendant Mahar placed him on administrative leave
on January 30, 2012. See Dkt. No. 35-3 at ~ 15. This
adverse action occurred less than one month after Defendant
Mahar was re-elected as county sheriff. Id Plaintiff actively
campaigned for Defendant Mahar's opponent in both the 2003
election and when Mahar was up for re-election in 2011. Id at
~~ 7, 14. Plaintiff asserts that the short length of time between
Defendant Mahar's re-election and his decision to put Plaintiff
on leave is evidence of a causal connection. Id at~ 56.

F. Defendants' Opposition to Plaintifrs Cross-Motion
for Leave to Amend
On January 30, 2015, Defendants filed opposition to
Plaintiff's motion, arguing that granting leave to amend the
complaint would be futile because the proposed amended
complaint is deficient. See Dkt. No. 37 at 2. Defendants argue
that the Fourteenth Amendment protects against unauthorized
disclosure of medical information but not improper access.
Defendants therefore assert that Plaintiffs rights were not
violated. Id at 6. Instead, Defendants again state that
improper access of medical records is best construed as a

Rodgers v. Rensselaer County Sheriff's Dept., Slip Copy (2015)

HIPAA violation and cannot therefore serve as the basis of
a § 1983 claim. Id. In the alternative, Defendants state that
even if improper access to medical information is considered
a privacy violation, Plaintiff still fails to state a claim
because Plaintiff here suffers from depression, which is not
a condition that qualifies for constitutional protection. Id. at
7-8.
Instead, Defendants argue that Plaintiff should have filed
this suit as a violation of the ADA because depression is
considered a "disability" under the Act. !d. at 10. Since
Plaintiff withdrew his ADA claim after failing to properly
file his complaint with the Equal Employment Opportunity
Commission ("EEOC"), Defendants argue that "he should
not be allowed to bring a Section 1983 [claim] to remedy
an alleged harm which should have been brought under
the ADA." Id. at 10. Finally, Defendants move to dismiss
Plaintiffs newly introduced First Amendment violation claim
on the grounds that it is time barred under New York's three
year statute oflimitations. Id. at 12.

III. DISCUSSION
A. Standards of Review
1. Motion to Dismiss under Rule l2(h)(6)
A motion to dismiss for failure to state a claim pursuant
to Rule 12{b)(6) of the Federal Rules of Civil Procedure
tests the legal sufficiency of the party's claim for relief.
See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir.2007)
(citation omitted). In considering the legal sufficiency, a court
must accept as true all well-pleaded facts in the pleading
and draw all reasonable inferences in the pleader's favor.
See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd.. 493 F.Jd
87, 98 (2d Cir.2007) (citation omitted). This presumption
of truth, however, does not extend to legal conclusions. See
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009) (citation omitted). Although a court's
review of a motion to dismiss is generally limited to the facts
presented in the pleading, the court may consider documents
that are "integral" to that pleading, even if they are neither
physically attached to, nor incorporated by reference into, the
pleading. See ldangiafico v. Blumenthal, 471 F.3d 391, 398
(2d Cir.2006) (quoting Chambers v. Time Warner, Inc., 282
F.3d 147, 152-53 (2d Cir.2002)).
*4 To survive a motion to dismiss, a party need only plead
"a short and plain statement of the claim," see Fed.R.Civ.P.

8(a) (2), with sufficient factual "heft to 'sho[w] that the
pleader is entitled to relief[,]' "Bell At/. Corp. v. Twombly,
550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)
(quotation omitted). Under this standard, the pleading's
"[f]actual allegations must be enough to raise a right of relief
above the speculative level," id. at 555 (citation omitted),
and present claims that are "plausible on [their] face," id. at
570. "The plausibility standard is not akin to a 'probability
requirement,' but it asks for more than a sheer possibility
that a defendant has acted unlawfully." Iqbal, 556 U.S.
at 678 (citation omitted). "Where a complaint pleads facts
that are 'merely consistent with' a defendant's liability, it
'stops short of the line between possibility and plausibility of
"entitlement to relief"'" Id. (quoting Twombly, 550 U.S. at
557, 127 S.Ct. 1955, 167 L.Ed.2d 929). Ultimately, "when
the allegations in a complaint, however true, could not raise
a claim of entitlement to relief," Twombly, 550 U.S. at 558,
or where a plaintiff has "not nudged [its] claims across the
line from conceivable to plausible, the[ ] complaint must be
dismissed[,]" id. at 570.

2. Motion to Amend a Complaint under Rule 15(a)(2)
The Federal Rules provide for liberal leave to amend a
complaint, and state that a court should freely grant leave
to re-plead "when justice so requires." Fed.R.Civ.P. 15(2).
It is "well-established that 'outright dismissal for reasons
not going to the merits is viewed with disfavor in the
federal courts.' " Harrison v. En venture Capital Group, Inc.,
666 F.Supp. 473, 479 (W.D.N.Y.1987) (quoting Nagler v.
Admiral Corporation, 248 F.2d 319, 322 (2d Cir.1957)).
For this reason, "dismissals for insufficient pleadings are
ordinarily with leave to replead." Stern v. General Elec. Co.,
924 F.2d 472,477 (2d Cir.l991). Leave to amend a pleading
need not be granted, however, if it would be futile to do so. See
O'Hara v. Weeks Marine, inc .. 294 F.Jd 55, 69 (2d Cir.2002)
(citing Acito v. JMCERA Group, Inc .. 47 F.3d 47, 55 (2d
Cir.l995)).

B. Plaintiffs 42 U.S.C. § 1983 Claims
Section 1983 establishes a civil cause of action for deprivation
of rights secured by the Constitution or a federal statue:
"Every person who, under color of [state law, subjects] ...
any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any right, privileges,
or immunities secured by the Constitution and laws, shall be
liable to the party injured[.]" 42 U.S. C. § 1983. In order to
state a claim under Section 1983, a plaintiff must show that:
(1) "some person has deprived him of a federal right," and

Rodgers v. Rensselaer County Sheriff's Dept., Slip Copy (2015)

(2) "the person who deprived him of that right acted under
the color of state ... law." Velez v. Levy. 401 F.3d 75, 84 (2d
Cir.2005) (quoting Gomez v. Toledo. 446 U.S. 635, 640, 100
S.Ct. 1920, 64 L.Ed.2d 572 ( 1980)).
*5 Not only must the conduct deprive the plaintiff of a
protected right, but the actions or omissions attributable to
each defendant must be the proximate cause of the injuries
and consequent damages that the plaintiff sustained. See
Brown v. Coughlin, 758 F.Supp. 876, 881 (S.D.N.Y.1991)
(citing Martinez v. California, 444 U.S. 277, 100 S.Ct. 553,
62 L.Ed.2d 481, reh. denied, 445 U.S. 920, 100 S.Ct. 1285,
63 L.Ed.2d 606 (1980)). As such, for a plaintiff to recover in a
§ 1983 action, he must establish a causal connection between
the acts or omissions of each defendant and any injury or
damages he suffered as a result of those acts or omissions.
See id. (citing Givhan v. Western Line Consolidated School
District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979))
(other citation omitted).

1. Defendant RCSD as a Non-Suitable Entity
Under New York State law," 'a department of a municipal
entity is merely a subdivision of the municipality and has no
separate legal existence.'" Polite v. Town of Clarkstown, 60
F.Supp.2d214, 216 (S.D.N.Y.1999) (quotation omitted). As a
result, municipal departments in New York are not amenable
to suit. See id. (citations omitted). However, where a plaintiff
lists a department or subdivision of a municipality in the
caption of the complaint, but it is otherwise clear the plaintiff
intended to name the municipality, the court can either direct
the Clerk to modifY the caption or grant the plaintiff leave to
amend the complaint to remedy the error. See United States
v. Edwards, 241 F.R.D. 146, 149 (E.D.N.Y.2007); see also
Bernier v. N.Y.C.D.O.C., No. 96 CIV. 7752(HB), 1997 WL
639028, *l (S.D.N.Y. Oct.l5, 1997) (holding that in such
instances "the appropriate remedy ... is not dismissal of the
case against the City, which has received notice and has been
defending the action, but amendment of the caption").

In this instance, although RCSD is listed in the caption,
Plaintiff properly identifies the municipal Defendant as the
"County of Rensselaer" in all relevant point headings and
otherwise throughout the complaint. See Dkt. No. I at 2, 7, 8.
Further, Plaintiff properly served the County Clerk, County
Executive, and County Attorney, thereby putting the County
on notice of this suit against it. See Dkt. Nos. 2-2, 2-3, 24. As such, this Court grants Plaintiffs motion for leave to
amend insofar as the proposed amended complaint properly

names the County of Rensselaer as a Defendant. 1 For the
same reasons, the Court denies Defendants' motion to dismiss
against the County of Rensselaer.
As will be discussed below, Plaintiffs motion to amend
the complaint will be granted in part and denied in part.
2. Fourteenth Amendment Substantive Due Process Claim
a. Right to Privacy
To state a substantive due process claim under § 1983, a
plaintiff must demonstrate two elements: (1) the plaintiff
"had a valid property interest in a benefit that was
entitled to constitutional protection;" and (2) "the defendant's
actions were 'so outrageously arbitrary as to be a gross
abuse of governmental authority.' " Taluker v. County
of Rensselaer. No. 1:12CV1765, 2013 U.S. Dist. LEXIS
78809, *13, 2013 WL 2446246 (N.D.N.Y. June 5, 2013)
(quoting Lisa's Party City, Inc. v. Town of Henrietta,
185 F.3d 12, 17 (2d Cir.1999)). The right to privacy and
confidentiality of the status of one's health is a protected
interest under the Fourteenth Amendment. See Rush v. Aruz,
No. 00Civ3436(LMM). 2004 WL 1770064, *II (S.D.N.Y.
Aug. 6, 2004) (citation omitted); see also Doe v. City ofNew
York. 15 F.3d 264,267 (2d Cir.l994) (quoting Whalen v. Roe,
429 U.S. 589,599,97 S.Ct. 869, 51 L.Ed.2d 64 (1977)). The
interest in privacy "goes to the heart of one's right to be left
alone." Loper v. New York City Police Dep't, 802 F.Supp.
1029. 1042 (S.D.N.Y.l992).

*6 Defendants argue that Plaintiff fails to adequately
plead the depravation of a constitutionally protected right.
See Dkt. No. 25 at 7. Defendants assert that, although
the Fourteenth Amendment protects against unauthorized
disclosure of medical information, it does not protect against
improper access. See Dkt. No. 37 at 6. The right to privacy
"takes two somewhat different forms: the right to personal
autonomy ... and the right to confidentiality (i.e., the right
to hold certain information private)." O'Connor v. Pierson,
426 F.3d 187, 201 (2d Cir.2005) (citations omitted). "As
a more general matter, the right to confidentiality includes
the right to protection regarding information about the state
of one's health." O'Connor, 426 F.3d at 201; Doe v. City
ofNew York, 15 F.3d 264, 267 (2d Cir.l994) (holding that
the right to confidentiality includes the right to protection
regarding information about the state of one's health).
Although confidentiality is often addressed in the context
of unauthorized disclosure of medical information, it has
been construed to protect against other types of intrusions

Rodgers v. Rensselaer County Sheriff's Dept., Slip Copy (2015)

as well. See Schwenk v. Kavanaugh, 4 F.Supp.2d 110, 115
(N.D.N.Y.l998) (holding that a plaintiffs right to privacy
was violated when a prosecutor improperly possessed his
medical files in order to "set an example for the defendants
and others who might be tempted to take a short cut in
securing possession of a person's mental health records"); see
also O'Connor 426 F.3d at 20l(finding that an employee's
right to privacy was violated where an employer improperly
demanded that the employee release his medical records).
Some courts have required an additional element of
wrongdoing in cases where there was no disclosure. See Appel
v. Spiridon, 521 Fed. Appx. 9. II (2d Cir.2013) (stating that
"invading or intending to invade the privacy of an employee's
medical or mental health records will violate the employee's
Fourteenth Amendment right to substantive due process if
the employer's intent is to injure or to spite the plaintiff');
see also Lank:fhrd v. City (?/Hobart, 27 F.3d 477, 479 (lOth
Cir.1994) (finding that the right to privacy can protect against
an employer accessing an employee's private information by
seizing her medical records from a local hospital without her
consent); Tapia v. City ofAlbuquerque, 10 F.Supp.3d 1207,
1301 (D.N.M.2014) (holding that a government employer
may have"violated plaintiffs' substantive due process privacy
rights by accessing their records without public disclosure
[where] the government officials involved accessed the
plaintiffs' confidential information as part of an unlawful
campaign of sexual harassment") (citation omitted). Even
assuming that this additional element is required, the Court
finds that Plaintiff plausibly states a claim against Defendants
because unauthorized access to medical records can be
construed as a violation of confidentiality. Further, Plaintiff
alleges that Defendants accessed his files in bad faith and with
the intent to use the information to retaliate against Plaintiff,
thus asserting an additional element of wrongdoing. See Dkt.
No. 35-3 at~~ 20, 33, 34, 36.
000

*7 Finally, Defendants argue that even if the right to
privacy protects against unauthorized access to medical
information, Plaintiff nevertheless fails to state a claim
because only certain medical conditions-those which are
both serious in nature and subject a person to societal
discrimination and intolerance-are protected. Doe, 15 F.3d
at 267. Defendants contend that Plaintiffs alleged medical
condition, i.e., depression, is not a condition subject to
constitutional protection. Although it is clear that "medical
conditions should only be constitutionalized within 'narrow
parameters,' " Powell v. Schriver, 175 F .3d I 07, 112 (2d
Cir.l998), the Second Circuit has made it clear that "medical

information in general, and information about a person's
psychiatric health in particular, is information ofthe most
intimate kind." O'Conner, 426 F.3d at 201. For these reasons,
the Court denies Defendants' motion to dismiss and grants
Plaintiffs cross motion to amend as to this claim.
000

b. The Health Insurance Portability and Accountability
Act ("HIPAA")
Defendants claim that improper access to medical records is
best construed as a HIP AA violation and, as such, Plaintiff
was required to"use the mechanisms of that statute to have
his claim remedied." Dkt. No. 25 at 8-9. It is well established
that, because there is no private right to action under HIP AA,
a violation of the Act cannot serve as the basis of a § 1983
claim. See Warren Pearl Const. Corp. v. Guardian Life Ins.
Co. ofAm., 639 F.Supp.2d 371,377 (S.D.N.Y.2009); see also
Adams v. Eureka Fire Prot. Dist . ., 352 Fed. Appx. 137, 139
(8th Cir.2009) (holding that"[ s]ince HIPAA does not create a
private right, it cannot be privately enforced either via § 1983
or through an implied right of action"). However, contrary to
Defendants' assertions, the fact that there is no private right of
action under HIPAA does not preclude Plaintiffs Fourteenth
Amendment right to privacy claim because it is predicated on
conduct outside the scope ofHIPAA.

In support of their position, Defendants cite the standard
articulated by the Supreme Court in Gonzaga and Abrams.
See Gon:::aga Univ. v. Doe, 536 U.S. 273, 282, 122 S.Ct.
2268, 153 L.Ed.2d 309 (2002); City <lRancho Palos Verdes,
Cal. v. Abrams, 544 U.S. 113, 126, 125 S.Ct. 1453, 161
L. Ed.2d 316 (2005). In those cases, however, the Supreme
Court addressed when a federal statute creates a personal right
to enforce pursuant to Section 1983. See Gon:::aga Univ., 536
l.J.S. at 279-80. In the present matter, however, Plaintiff is
not seeking to enforce his rights secured by HIPAA. Not
once is HIP AA mentioned in either the original or amended
complaints. Rather, in both Plaintiffs original and proposed
amended complaints, he asserts that Defendants violated his
Fourteenth Amendment right to privacy. See Dkt. No. 1
at ~~ 23, 24; Dkt. No. 35-3 at ~~ 32, 33. Since Plaintiff
alleges that Defendants violated the Constitution rather than a
federal statute, Defendants' reliance on Gonzaga and Abrams
is misplaced. As such, this Court denies Defendants' motion
to dismiss on these grounds.

c. The Americans with Disabilities Act ("ADA")
*8 Next, Defendants state that Plaintiffs§ 1983 substantive
due process claim should be barred because depression falls

Rodgers v. Rensselaer County Sheriff's Dept., Slip Copy (2015)

within the definition of a "disability" under the ADA and
that Act requires that a plaintiff exhaust all administrative
remedies before filing an action in federal court. 42 U.S.C. §
12101; Dkt. No. 37 at ll. Defendants contend that because
"Plaintiff failed to exhaust his administrative remedies under
the ADA, he should not be allowed to bring a Section 1983
to remedy an alleged harm which should have been brought
under the ADA. The Court finds Defendants' argument
unavailing. Although any attempt by Plaintiff to enforce
rights protected by the ADA through a Section 1983 cause
of action may, in fact, be foreclosed because of his failure
to exhaust, See George v. New >'ork City Transit Autl!., No.
13 Civ. 7986, 2014 WL 3388660, *3 (S.D.N.Y. July 11,
2014) (citations omitted), the proposed amended complaint
makes clear that Plaintiff is making no such claim. Rather, the
proposed amended complaint clearly indicates that Plaintiff
is alleging violations of his Fourteenth Amendment right
to privacy, which are outside the scope of the protections
afforded by the ADA.
Based on the foregoing, the Court denies Defendants' motion
to dismiss.

d. Monell Liability
"Although municipalities are within the ambit of section
1983, municipal liability does not attach for actions
undertaken by city employees under a theory of respondeat
superior." Birdvall v. City ofHartfiml, 249 F.Supp.2d 163,
173 (D.Conn.2003) (citing Monell v. New York City Dep't
of Soc. Sen•s. of City of New York; 436 U.S. 658, 691,
98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Despite the fact
that respondeat superior liability does not lie, a municipal
entity or employee sued in his or her official capacity can
be held accountable for a constitutional violation which
has occurred pursuant to "a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by
[the municipality's] officers ... [or] pursuant to governmental
'custom' even though such a custom has not received
formal approval through the body's official decision-making
channels." Monell, 436 U.S. at 690-91. Such municipal
liability can be established in a case such as this in several
different ways, including through proof of an officially
adopted rule or widespread, informal custom demonstrating
"a deliberate government policy or failing to train or supervise
its officers." Bn1ker v. City l!{ New York, 337 F.Supp.2d
539, 556 (S.D.N.Y.2004) (quoting Anthony v. City (~f New
York, 339 F.3d 129, 140 (2d Cir.2003)). A plaintiff may also
show that the allegedly unconstitutional action was "taken
or caused by an official whose actions represent an official

policy," or when municipal officers have acquiesced in or
condoned a known policy, custom, or practice. See .Jeffes v.
Barnes, 208 F.3d 49, 57 (2d Cir.2000), cert. denied sub nom.,
County of Schenectady v. .lejfes. 531 U.S. 813, 121 S.Ct.
47, 148 L.Ed.2d 16 (2000)); see also Wenger v. Canastota
Cent. Sch. Dist., No. 5:95-CV-1081, 2004 WL 726007, *3
(N.D.N.Y. Apr.5, 2004).
*9 Defendants claim that Plaintiff fails to plausibly allege
a policy or custom of RCJ officials improperly accessing
employees' records. See Dkt. No. 16--1 at 14. Similarly,
Defendants argue that there are no allegations suggesting
a failure to train, supervise or discipline Defendants Dinan
and Young. Id at 17-19. In Plaintiff's proposed amended
complaint, however, he cites to several specific instances
where other RCJ employees have allegedly had their medical
and criminal records accessed without their consent. See Dkt.
No. 35-3 at~~ 24-27. Construing all facts in Plaintiffs favor,
the Court finds that the facts contained in both the original and
proposed amended complaint are sufficient to plausibly state
a claim of a municipal policy or custom at RCJ of improper
accessing of employees' records.
Similarly, Plaintiff states a plausible claim that the County
failed to adequately train, supervise, and or discipline
Defendants Dinan and Young regarding exceeding their
authority to improperly access employees' records. See
Dkt. No. 35-3 at~~ 18-19, 21-24 .. Plaintiff claims that
Defendant Mahar was aware that Defendants Dinan and
Young improperly accessed employee records. See id at ~~
18-20, 23. Plaintiff likewise states that Defendant Mahar
failed to discipline another RCJ employee after he pled guilty
in a separate action to unauthorized use of a computer. See id.
at~ 26. That individual is still an RCJ employee. Id
For these reasons, Defendants' motion to dismiss for failure
to state a claim for Monell liability is denied.

3. First Amendment Retaliation
To state a claim of retaliation under the First Amendment, a
plaintiff must allege facts plausibly suggesting the following:
(1) the speech or conduct at issue was "protected;" (2)
the defendants took "adverse action" against the plaintiffnamely, action that would deter a similarly situated individual
of ordinary firmness from exercising his or her constitutional
rights; and (3) there was a causal connection between the
protected speech and the adverse action-in other words, that
the protected conduct was a "substantial or motivating factor"
in the defendant's decision to take action against the plaintiff.

See Afount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Gill v.
PidZvpchak. 389 F.3d 379, 380 (2d Cir.2004) (citing Dawes
v. Walker. 239 F.3d 489, 492 (2d. Cir.2001)).

In count two of the proposed amended complaint, Plaintiff
asserts that Defendants retaliated against him for engaging
in political speech from 2003 through January 30, 2012,
when Plaintiff was finally placed on administrative leave.
See Dkt. No. 35-3 at ~ 48. Specifically, Plaintiff states
that he was active in the political campaigns of Defendant
Mahar's opponents in both the 2003 and 2011 elections for
County Sheriff. !d. at~~ 7, 14. Defendant Mahar's opponent
in 2003 also happened to be Plaintiffs uncle. !d. at ~ 7.
Plaintiff was also an active union participant in 2005. !d. at
~ 10. Plaintiff alleges that in retaliation for these activities,
Defendant Mahar targeted him with constant harassment and
intentionally assigned him to undesirable tasks at RCJ. Id.
at~~ 11, 12. Defendant Mahar also suspended Plaintiff on
five different occasions without pay, each instance of which
was eventually deemed baseless. !d. at~ 11. Further, Plaintiff
claims that from 2004 through late January 2012, Defendant
Mahar "would routinely tell Rodgers that he should 'go on
disability' ... despite the fact that Rodgers was medically
fit to perform the essential functions of his position." !d. at
~ 13. Finally, on January 30, 2012, just twenty-seven days
after being sworn in as Sheriff, Defendant Mahar placed
Plaintiff on administrative leave, where he remains to this
day. !d. at ~ 15. Plaintiff states that there is no legitimate
justification for Defendant Mahar's actions. !d. Defendants
move to dismiss this claim on the grounds that once Plaintiffs
allegations are properly limited by the controlling statute of
limitations, the proposed amended complaint fails to state a
plausible retaliation claim. See Dkt. No. 37 at 13. The statute
of limitations applicable to § 1983 claims is the "statute of
limitations applicable to personal injuries occurring in the
state in which the appropriate federal court sits." Dmy v.
Ryan, 999 F.2d 679, 681 (2d Cir.1993) (citation omitted). In
New York State, the statute of limitations for personal injury
claims is three years. See id. (citing N.Y. Civ. Prac. L. §
214(5) (McKinney 1990)) (other citations omitted); see also
Pearl v. City (~fLong Beach, 296 F.3d 76, 79 (2d Cir.2002)
(holding that § 1983 claims arising in New York are subject
to a three-year statute of limitations). Further, accrual begins
when the plaintiff"knows or has reason to know of the injury
that is the basis for his action." ?auk v. Bd. of Trustees ofCi~v
Univ. Of New York, 654 F.2d 856, 859 (2d Cir.l98l) (citation
omitted).

*10 Plaintiff filed his cross-motion to amend the complaint,
which includes this new cause of action, on January 10,
2015. See Dkt. No. 35-2. Therefore, as Defendants correctly
contend, the statute of limitations precludes any alleged

.,

incidences of retaliation prior to January I 0, 2012.- Even
when so limited, however, the Court finds that Plaintiff
pleads facts sufficient to support his claim against Defendant
Mahar. The fact that Plaintiff was placed on administrative
leave less than one month after Defendant Mahar was reelected is well within the time frame courts have accepted as
evidence of a causal connection. See Afanoharan v. Columbia
Unh·. Col!. <Jf Physicians & Surgeons, 842 F.2d 590, 593
(2d Cir.l988) (holding that "[p]roof of the causal connection
can be established indirectly by showing that the protected
activity was closely followed in time by the adverse action");
see also Gorman-Bakos v. Cornell Co-op Extension of
Schenectac(v Cn~v., 252 F.3d 545, 555 (2d Cir.200 I) (finding
that a time lapse three or more months is "brief enough
to support an inference of a causal connection between the
free speech and the alleged retaliatory actions"). Further, the
date ranges provided by Plaintiff for the alleged ongoing
acts of retaliation, including harassment and the assignment
of undesirable work tasks, state that such acts continued
through "late January, 2012." See Dkt. No. 35-3 at~~ 11,
12. Construing all facts in favor of Plaintiff, the Court finds
that the proposed amended complaint states a plausible claim
of First Amendment retaliation against Defendant Mahar for
conduct occurring after January 10, 2012.

2

Although Rule 15tc) of the Federal Rules of Civil
Procedure allows for new claims in an amended
complaint to relate back to the date the original complaint
was filed in certain situations, the relation-back doctrine
is inapplicable in the present matter. See Fed.R.Civ.P.
l5(c). "An amendment of a pleading relates back to the
date of the original pleading when .. . the amendment
asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out--or attempted to be
set out-in the original pleading." Fed.R.Civ.P. 15(c)(l)
(B). "In determining whether the claim arises out of the
same conduct or occurrence, '[t]he pertinent inquiry ...
is whether the original complaint gave the defendant
fair notice of the newly alleged claims .' " Fama v.
Commissioner of Corr. Serv., 235 F.3d 804, 815 (2d
Cir.2000) (quoting Wilson v. Fairchild Republic Co.,
143 F.3d 733, 738 (2d Cir.l998)). Plaintiffs original
complaint does not assert any facts relating to the alleged
retaliation asserted in the proposed amended complaint;
and, therefore, Plaintiffs First Amendment retaliation

Rodgers v. Rensselaer County Sheriff's Dept., Slip Copy (2015)
-------~~~--"'~~,~~--,~~--~---~

claim does not relate back to the filing date of the original
complaint.

IV. CONCLUSION
After carefully reviewing the entire record in this matter, the
parties' submissions and the applicable law, and for the above
stated reasons, the Court hereby
ORDERS that Plaintiffs motion to amend the complaint is

ORDERS that the Defendants' motion to dismiss is
GRANTED in part and DENIED in part; and the Court
further
ORDERS that Plaintiff shall file a signed copy of his
amended complaint within ten (10) days of the filing date of
this Memorandum-Decision and Order; and the Court further
ORDERS that the Clerk of this Court shall serve a copy
of this Memorandum-Decision and Order on all parties in
accordance with the Local Rules.

GRANTED in part and DENIED in part; 3 and the Court
further
IT IS SO ORDERED.
3

As set forth in this Memorandum-Decision and Order,
Plaintiffs motion to amend the complaint is only denied
insofar as the proposed amended complaint set forth a
claim relating to harm stemming from First Amendment
retaliation which occurred prior to January 10, 2012.

End of Document

All Citations
Slip Copy, 2015 WL 4404788

@ 2015 Thomson Reuters. No claim to original U.S. Government Works.

8

Perez v. City of New York, Slip Copy (2013)

2013 WL 6182931
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.

Jorge PEREZ, Plaintiff,
v.
The CTIY OF NEW YORK et al., Defendants.
No.

13

Civ.

3328(KBF).

in his complaint refused to provide him with treatment that
other patients received. (!d) Finally, plaintiff alleges that
defendants violated HIP AA by discussing his medical issues
with officers who had no medical experience, as well as at
least one other inmate. (Id)
Defendants filed the instant motion to dismiss on September
16,2013, arguing thatplaintiffhas failed to state a claim under
both causes of action. (ECF No. 22.) Plaintiff did not oppose
defendants' motion.

Nov. 21, 2013.

Attorneys and Law Firms
Jorge Perez, NIC/Medical Unit, East Elmhurst, NY, prose.

MEMORANDUM DECISION & ORDER

KATHERINE B. FORREST, District Judge.
*1 On May 16, 2013, plaintiff pro se Jorge Perez
commenced this action alleging misconduct with respect to
his medical treatment by defendants City of New York,
Prison Health Services, doctor Raul Ramos, and nurses Alma
Scott-Baptiste, Nadyne Pressley, Adetokunbo Odunbaku,
and Tanisha Bowen. (Compl. 13, ECF No.2.) Plaintiff pleads
a claim for deliberate indifference to his medical needs in
violation of the Eighth Amendment pursuant to 42 U.S.C.
§ 1983 and a claim for violation of the Health Insurance
Portability and Accountability Act (HIPAA). Before the
court now is defendants' unopposed motion to dismiss
the complaint. For the following reasons, the motion is
GRANTED.

I. BACKGROUND

Plaintiff, an inmate at the City of New York Department
of Correction, alleges a sequence of events occurring on
February 21, 2013, the date on which he was arrested.
(Compl.2.) Specifically, plaintiff claims that defendant
Ramos was instructed by an unspecified "outside hospital
doctor" to continue administering to him certain pain and
diabetes medications, but that Ramos discontinued treatment.
(Compl.3.) Plaintiff notified both defendants Ramos and
Bowen of his lack of medical treatment, but found that
they did not follow up with him, and that "they [did]
not care" when he was "feeling sick or not doing very
well." (Id.) Plaintiff further alleges that the nurses named

II. STANDARDS OF REVIEW

To survive a Rule 12(b)(6) motion to dismiss, a complaint
must allege "enough facts to state a claim to relief that is
plausible on its face." Bell At/. Corp. v. Twomb~v. 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." Ashcrqft v. Iqbal, 556 U.S. 662, 678
(2009). The court accepts as true all well-pleaded factual
allegations and draws all reasonable inferences in plaintiffs
favor, but does not credit "mere conclusory statements" or
"[t]hreadbare recitals ofthe elements of a cause of action." Id.
"[A] pro se complaint, however inartfully pleaded, must
be held to Jess stringent standards than formal pleadings
drafted by lawyers .... " Estelle 1'. Gamble, 429 U.S. 97,
106 (1976) (citations and internal quotation marks omitted).
Accordingly, the Court "liberally construe[s] pleadings
and briefs submitted by pro se litigants ... reading such
submissions to raise the strongest arguments they suggest."
Bertin v. United States, 478 F.3d 489, 491 (2d Cir.2007).
However, even a prose complaint must plead "factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Iqbal, 556
U.S. at 678; see Fuentes v. Tilles. 376 F. App'x 91, 92 (2d.
Cir.2010) (affirming the district court's dismissal of a prose
complaint for failure to state a claim).
*2 A "court should not dismiss [a prose complaint] without
granting leave to amend at least once when a liberal reading of
the complaint gives any indication that a valid claim might be
stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d. Cir.2000)
(citation omitted). Nonetheless, "a futile request to replead
should be denied." Id.

U_

Guvernrnt2:nt \/\!oris

Perez v. City of New York, Slip Copy (2013)

In deciding an unopposed motion to dismiss, the Court is
to "assume the truth of a pleading's factual allegations and
test only its legal sufficiency. Thus, although a party is of
course to be given a reasonable opportunity to respond to
an opponent's motion, the sufficiency of a complaint is a
matter of law that the court is capable of determining based
on its own reading of the pleading and knowledge of the
law." McCall v. Pataki, 232 F.3d 321, 32223 (2d Cir.2000)
(citation omitted).

III. DISCUSSION

Construed liberally, plaintiffs complaint states two causes of
action: first, deliberate indifference to his medical needs in
violation of the Eighth Amendment pursuant to 42 U.S.C. §
1983, and second, a claim for violation of HIPAA.

A. Plaintijj's Claims Under 42 U.S.C § 1983

1. Claims Against Individual Defendants
To succeed on a claim under 42 U .S.C. § 1983 for deprivation
of medical care, a plaintiff must show that a defendant
undertook "acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs." Estelle, 429
U.S. at 106; see also Cuoco, 222 F.3d at 106. "The standard
for deliberate indifference includes a subjective component
and an objective component." Hill v. Curcione, 657 F.3d 116,
122 (2d Cir.20 I I).
To fulfill the subjective prong of the standard, "the
official charged with deliberate indifference must act with
a 'sufficiently culpable state of mind.' That is, the official
must 'know of and disregard an excessive risk to inmate
health or safety; the official must both be aware offacts from
which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.' "Jd.
(alterations omitted) (quoting Wilson v. Seiter. 50 I U.S. 294,
298 (1991); Farmerv. Brennan, 511 U.S. 825, 837 (1994)).
Here, plaintiff alleges that an outside hospital doctor
recommended that defendant Ramos administer or continue
administering certain medications, and that Ramos failed to
do so. (Compl.3.) Plaintiff also alleges that defendants Ramos
and Bowen acted "like they do not care." (Id.) However,
these barebones allegations fail to rise to the level required
for a "sufficiently culpable state of mind." See Hill. 657
F.Jd at 122. The complaint alleges no facts indicating that
Ramos and Bowen knew of and disregarded any risk-let

alone an excessive risk-{)fharm to plaintiff. Similarly, while
plaintiff alleges that the other nurses did not provide him with
medication with which other prisoners were provided, the
complaint is devoid of allegations relevant to their state of
mind and whether they were aware of any risk that arose from
their failure to provide him medication.
*3 Therefore, plaintiffs claim does not fulfill the subjective
component of deliberate indifference. See Colon v. City of
N.Y., No. 08 Civ. 3142(HB), 2009 WL 1424169, at *7
(S.D.N.Y. May 21, 2009) ("Nor can deliberate indifference be
established where an inmate might prefer a different treatment
or feels he did not receive the level of medical attention he
desired.") (quotation marks omitted).
To fulfill the objective component of the deliberate
indifference standard, plaintiff must show that "the alleged
deprivation [is] sufficiently serious, in the sense that
a condition of urgency, one that may produce death,
degeneration, or extreme pain exists." Hill, 657 F.3d at
122 (quoting Hathaway v. Coughlin. 99 F.3d 550, 553 (2d
Cir.1996)).
Here, plaintiff does not allege any condition that would
constitute a sufficiently serious deprivation of medical care.
Plaintiff alleges only that the medical staff did not did not
follow up with him and acted like "they [did] not care" when
plaintiff was "feeling sick or not doing very well." (Compl.3.)
At no point does plaintiff allege an "urgen[t]" condition that
"may produce death, degeneration, or extreme pain." Hill,
657 F.3d at 122. Plaintiff also does not allege that defendant
Ramos's decision not to administer medication to plaintiff, or
the nurses' failure to provide him with the same medication
other patients received, created such a condition.
As a result, plaintiffs complaint does not meet the objective
component of the deliberate indifference standard. See Fox
v. Fischer, 242 F. App'x. 759, 759 (2d Cir.2007) (summary
order) (holding that plaintiff failed to meet the objective
prong of a deliberate indifference claim because there was "no
allegation that the change in medication caused harm").
Because plaintiff meets neither the subjective nor the
objective component of the deliberate indifference standard,
his claim against the individual defendants for deprivation of
medical care must be dismissed.

2. Claims Against the City ofNew York

2

Perez v. City of New York, Slip Copy (2013)

Plaintiff names the City of New York as one defendant in
this case. (Compl.l.) However, a municipality can only be
liable under 42 U.S.C. § 1983 where the "execution of a
government's policy or custom ... inflicts the injury." A1onell
v. Dep'lt?(Soc. Servs., 436 U.S. 658,694 (1978). In particular,
to establish municipal liability, a plaintiff must demonstrate
three elements: "(I) an official policy or custom that (2)
causes the plaintiff to be subjected to (3) a denial of a
constitutional right." Batista v. Rodriguez. 702 F.2d 393, 397
(2d Cir.\983).
Here, plaintiff has not identified a policy or custom-or
even suggested that one may exist-relevant to medical
treatment and dispensing medication that led to a violation
of his constitutional rights. (See generally Compl.) Thus,
even accepting all of plaintiffs' factual allegations as true and
liberally construing his complaint, his claim against the City
ofNew York must be dismissed.

3. Claims Against Prison Health Services
*4 Based on the uncontested representation by defendants
in their motion to dismiss, Corizon Health, Inc., rather than
Prison Health Services, provided medical care at the facility
in which plaintiff was incarcerated. (Mem. of L. in Supp.
of Defs.' Mot. to Dismiss 2 n. 2, ECF No. 24). Therefore,
plaintiffs claim against Prison Health Services must be
dismissed as against an improper party to this action.

B. Plaintiff's Claims Under HIPAA
"HIPAA established standards for the protection of individual
health information, and allowed the promulgation of
regulations designed to protect the privacy and accuracy of
individually identifiable health information." Alsa(fullah v.
Furco, No. 12 Civ. 2907(ER), 2013 WL 3972514, at *17
(S.D.N.Y. Aug 2, 2013). Here, plaintiff alleges violations of
HIPAA by unspecified individuals who discussed his medical
issues with corrections officers and inmates. (Compl.3.)
However, HIPAA does not provide for a private right of
action. See Warren Pearl Col/str. Corp., et al. v. Guardian
Life Ins. Co. t~(Am., 639 F.Supp.2d 371. 377 (S.D.N.Y.2009)
(collecting cases across numerous circuits standing for that

proposition). Rather, HIP AA enforcement actions are in the
exclusive purview of the Department of Health and Human
Services. See 42 U.S.C. § 300gg-22(a) (explaining that "the
Secretary" shall enforce HIPAA); Shallow v. Scofield, 11
Civ. 6028(JMF), 2012 WL 4327388, at *4 (S.D.N.Y. Scp.
21, 2012) ("[O]nly the Secretary ofHHS or authorized state
authorities may bring a HIPAA enforcement action.").
Accordingly, plaintiffs HIPAA claim must be dismissed.

IV. CONCLUSION
For the reasons set forth above, defendants' motion is
GRANTED, and plaintiffs complaint is DISMISSED without
prejudice for failure to state a cause of action pursuant to
Fed.R.Civ.P. 12(b )(6).
The Court is mindful that a plaintiff should be granted leave
to amend "when a liberal reading of the complaint gives any
indication that a valid claim might be stated." Cuoco, 222
F .3d at 112. Here, an amended complaint could in theory state
a valid claim, if plaintiff made specific allegations as to the
state of mind ofthe individual defendants and as to plaintiffs
medical conditions.
Accordingly, the Court grants plaintiff leave to reopen the
case within 60 days. Plaintiff may reopen the case by filing
an amended complaint addressing the infirmities discussed
in this Decision by Monday, January 20, 2014. See, e.g.,
i\4/tchell v. New York City Dep't of Cons .. No. 10 Civ.
0292(RJH). 2011 WL 503087, at *6 (S.D .N.Y. Feb. 14,
2011).
The Clerk of Court is hereby directed to close the motion at
ECF No. 22 and to terminate this action.
SO ORDERED.

All Citations
Slip Copy, 2013 WL 6182931

r:;J 2015 Thomson Reuters. No claim to original U.S. Government Works.

End of Document

Thornson

Warren Pearl Const. Corp. v. Guardian Life Ins. Co. of America, 639 F.Supp.2d 371 (2009)
C8S':"'16 f§'"'"'"'"'
'm'·N'~·'

4-r'Effiployee~a~enetfts

NmmNNmmmm' mwo

639 F.Supp.2d 371
United States District Court,
S.D. New York.

West Headnotes (13)

Ill
WARREN PEARL CONSTRUCTION
CORPORATION et al., Plaintiffs,
v.
GUARDIAN LIFE INSURANCE
COMPANY OF AMERICA, Defendant.
No. o8 Civ. 9445(WHP).

Health
Records and duty to report; confidentiality
in general
Insurance
0=· Grounds of action

July 22, 2009.

Health Insurance Portability and Accountability
Act (HIPAA) does not provide for either an
express or implied private right of action. Health
Insurance Portability and Accountability Act of
1996, § 102(a), 42 U.S.C.A. § 300gg-22.

Synopsis
Background: Employer and beneficiaries of a benefit plan
governed by the Employee Retirement Income Security Act
{ERISA) sued insurer, seeking to prevent the insurer from
terminating coverage under a small group supplemental
major medical insurance policy. Insurer moved for summary
judgment.

16 Cases that cite this headnote

121

Without a showing of congressional intent, a
cause of action does not exist and courts may not
create one, no matter how desirable that might be
as a policy matter, or how compatible with the
statute.

[ 1] Health Insurance Portability and Accountability Act
{HIPAA) does not provide for a private right of action;
[2] resolving an issue of first impression, insurer's decision to
withdraw the policy from the market did not "establish rules
for eligibility" within the meaning of ERISA;

[4] certificate of coverage adequately set forth the
circumstances which could result in disqualification,
ineligibility, or denial or loss of benefits; and
[5] policies sought as replacement options were not "currently
being offered" within the meaning of a state statute addressing
required options.

Motion granted.

Action
Statutory rights of action
Constitutional Law
·ir' Creation of tights of action

Holdings: The District Court, William H. Pauley III, J., held
that:

[3] insurer was not liable, as the de facto plan administrator,
for failure to furnish a summary plan description (SPD);

Adion
·~ Statutory rights of action

1 Cases that cite this headnote

[3]

Insurance
0= Health Related Entities
Insurance
W= Underwriting
Labor and Employment
v= Eligibility rules in general
Insurer's decision to withdraw a small group
supplemental major medical insurance policy
from a state small group market did not
"establish rules for eligibility" within the
meaning of an ERISA section prohibiting
insurers from establishing eligibility criteria
based on health status or claims experience;
examples in regulations suggested that a "rule
for eligibility" presupposed the existence of a
policy and attendant coverage, and interpreting

Warren Pearl Const. Corp. v. Guardian Life Ins. Co. of America, 639 F.Supp.2d 371 (2009)

47 Employee 8er1etit5-ca5-:l"i3T~rthe phrase to apply to the insurer's decision
to withdraw the policy from the market would
have been at odds with the statute as a whole.
Employee Retirement Income Security Act of
1974, § 702(a){l), 29 U.S.C.A.

administrator of an ERISA plan, could not be
treated as the de facto administrator, so as to
render it liable for failure to furnish a summary
plan description (SPD), even though it allegedly
controlled all aspects of plan administration.

*1182(a)(l).

Employee Retirement Income Security Act of
1974, §§ 3(16)(A, B), 104(b), 502{a)(l)(B), 29
U.S.C.A. §§ 1002(16)(A, B), 1024(b), 1132(a)

Cases that cite this headnote

(41

(l)(B).

Statul"es
-v•• Language

3 Cases that cite this headnote

Construction of a statute begins with the words
of the text.

[9)
Cases that cite this headnote

[5[

Plaintiff may pursue an equitable claim against
a de facto ERISA plan administrator who
fails to provide adequate disclosures. Employee
Retirement Income Security Act of 1974, §
502(a)(3), 29 U.S.C.A. § 1132(a)(3).

Statutes
V"" Design. structure, or scheme
Statutes
~ Context
Statutory construction is a holistic endeavor; the
meaning of a particular section in a statute can be
understood in context with and by reference to
the whole statutory scheme, by appreciating how
sections relate to one another.

3 Cases that cite this headnote

1101

Statutes
~ Context
Cardinal rule of statutory construction is that a
statute is to be read as a whole, since the meaning
of statutory language, plain or not depends on
context.
Cases that cite this headnote

[7)

Cases that cite this headnote

Statutes
~· Liberal or strict construction
Remedial legislation should be
broadly to effectuate its purposes.

construed

Cases that cite this headnote
[8)

Labor and Employment
~ Summary Plan Description
Assuming that an insurer's certificate of coverage
was a summary plan description (SPD) within
the meaning of ERISA, it adequately set
forth the circumstances which could result in
disqualification, ineligibility, or denial or loss
of benefits, despite claim that the insurer did
not provide any document disclosing its ability
to terminate a medical policy, as opposed to
the plan; the plan operated entirely through the
policy. Employee Retirement Income Security
Act of 1974, § 2 et seq., 29 U.S.C.A. § 1001 et
seq.

Cases that cite this headnote

[6)

l,abor and Employment
iF• Equitable relief; injunction

Labor and Employment
\r• Summary Plan Description
Insurer under a small group medical insurance
policy, who was not designated as the

[11 [

Labor and Employment
~ Welti1re Plans
Company may establish an employee welfare
benefit plan, within the meaning of ERISA,
merely by purchasing a group policy for its
employees, and the plan may consist of nothing
but the purchased policy document. Employee
Retirement Income Security Act of 1974, § 2 et
seq., 29 U.S.C.A. § 1001 et seq.

Warren Pearl Const. Corp. v. Guardian Life Ins. Co. of America, 639 F.Supp.2d 371 (2009)
4'7"NEmploye9-Eie~nefitS"Cas. 16~19~~=nmmmmmmm""""
N

Cases that cite this headnote

1121

Insurance
~ Undctwriting
Insurance
%'= Right or Obligation to Renew
Insurance
;;.- Operation and effect
New York statute providing that, where an
insurer decides to discontinue a particular type of
group health insurance coverage, it must offer to
each policyholder the option to purchase all other
hospital, surgical and medical expense coverage
"currently being offered" by the insurer permits
an insurer to continue to renew policies without
accepting any new applicants for such policies.
N.Y.McKinney's Insurance Law § 322l<p)(3)
(A)(ii); 11 NYCRR 360.4(a), (f)(l, 2).
Cases that cite this headnote

fl3]

Labor and Employment
IF• Result or outcome of litigation
Although success on the merits is not, in theory,
indispensable to an award of attorneys' fees
under ERISA, rarely will a losing party be
entitled to fees. Employee Retirement Income
Security Act of 1974, § 502(g)(l), 29 U.S.C.A.
§ ll32(g)(l).
Cases that cite this headnote

w~=-~~--'

Plaintiffs Warren Pearl Construction Corporation ("WPC"),
Warren Pearl, Susan Pearl, and Warren Pearl and Susan
Pearl as next friend of Ian Pearl (collectively "Plaintiffs"),
bring this action pursuant to the Employee Retirement
Income Security Act of 1974, as amended, 29 U.S.C.
§ I 001, et seq. ("ERISA"), against Defendant Guardian
Life Insurance Company of America ("Guardian") seeking
to prevent Guardian from terminating coverage under a
Guardian small group supplemental major medical insurance
policy (the "WPC Policy"). On December 9, 2008, *374
2008 WL 5329962. this Court denied Plaintiffs a preliminary
injunction on their ERISA, HIPAA, and estoppel claims
(the "December 2008 Memorandum & Order"). Defendant
moves for summary judgment dismissing this action. For the
following reasons, Defendant's motion is granted.

BACKGROUND
From December 1, 1981 to December I, 2008, the
WPC Policy insured the major medical expense portion
of the employee welfare benefit plan (the "Plan") of
Swim Construction Company, its successor, Courbette
Construction, and its successor, WPC. (Plaintiffs Local
Rule 56.1 Counterstatement of Material Facts dated June
24, 2009 ("Pl. Counterstatement") 11 1.) The Certificate of
Coverage outlines the Plan's insurance benefits. It provides
that "coverage ends ... on the date [eligible employees]
stop being a member of a class of employees eligible for
insurance under this plan, or when this plan ends for all
employees." (Declaration of John W. Fried dated June 24,
2009 ("Fried Decl.") Ex. 12: Certificate of Coverage at
WPC-0457.) (emphasis in original). It also defines "Plan"
as "the Guardian plan of group insurance purchased by
your employer." (Certificate of Coverage at WPC-0444.)
(emphasis in original).

Attorneys and Law Firms
*373 John Walter Fried, Esq., Fried and Epstein, New York,
NY, for Plaintiffs.
Paul Kenneth Stecker, Esq., Phillips Lytle LLP, New York,
NY, for Defendant.

MEMORANDUM & ORDER
WILLIAM H. PAULEY Ill, District Judge:

The WPC Policy covered Warren Pearl, his wife Susan Pearl,
and their son Ian Pearl. (Pl. Counterstatement 114.) Ian Pearl
suffers from Type II Spinal Muscular Atrophy, a form of
muscular dystrophy. (Pl. Counterstatement 11 5.) In 1991, Ian
Pearl suffered full respiratory arrest that left him entirely
ventilator-dependent. (Pl. Counterstatement 116.) As a result,
Ian Pearl receives 24-hour nursing care in his parents' home
in Florida. (Pl. Counterstatement 11 6.) The WPC Policy has
provided WPC employees and their dependents with nursing
and home health care benefits without any lifetime or annual
benefit limitations. (Pl. Counterstatement 117.)

The WPC Policy, designated fonn "RO," was the first
medical contract sold by Guardian in New York. (Pl.
Counterstatement ~ 2.) As of August 1, 1987, Guardian
stopped selling health insurance policies designated "RO" to
1

new policyholders in the New York small group market,
but continued to renew extant "RO" policies like WPC's.
(Pl. Counterstatement ~~ II-12.) Guardian's second medical
contract was designated "R I." Guardian also ceased offering
that newer "RI" policy to new policyholders in New York
as of August I, I987, but continued to renew "RI" fonn
policies for existing policyholders. (Fried Dec!. Ex. 9: Email from Ariel Fernando to Deborah Connolly dated June
8, 2007 ("Fernando E-mail") at GLIC08083.) In May I992,
Guardian discontinued marketing its third small group policy
fonn known as "R2," but continued to renew "R2" fonn
policies for existing policyholder groups. (Fernando E-mail
at GLIC08083.) Since I992, Guardian's "R3" policy fonn is
the only policy it markets to prospective policyholder groups.
(Fernando E-mail at GLIC08083.) While the "RI" and "R2"
policy fonns offer some private duty nursing coverage, the
"R3" policy fonn does not. (Pl. Counterstatement ~ 76.)
The small group market consists of employers with
between 2 and 50 employees.
In 2006, Guardian commenced an initiative referred to
as "Moving Forward," which was designed to increase
Guardian's competitive position by reducing what it paid
out in claims. (Pl. Counterstatement ~ 29.) As part of its
"Risk Management Initiative," Guardian sought to eliminate
products or groups of products with high claims experience.
(Deposition transcript *375 of Ariel Fernando dated Feb.
20, 2009 ("Fernando Dep. Tr.") at I7.) "Moving Forward"
also included the "Discontinuation Project," an evaluation of
medical insurance products and health insurance policies to
detennine whether they should be discontinued to achieve the
corporate goals of"Moving Forward." (Pl. Counterstatement
~ 31.) The "Discontinuation Project" involved a state-bystate examination of premiums, claims, and loss ratios of
Guardian's older medical policies-the "RO," "RI ,"and "R2"
fonns, among others. (Pl. Counterstatement ~ 36.) The loss
ratio is the ratio of incurred claims to earned premiums. (Pl.
Counterstatement ~ 37.)
In November 2006, Guardian began studying its older policy
fonns in those states where Guardian's loss ratios were high.
(Pl. Counterstatement ~ 41.) Guardian examined specific
plans and groups by claims experience. (Pl. Counterstatement
~ 84.) That analysis identified incurred claims and loss

F\euters,

i'~o

ratios on a policy-by-policy basis. (Pl. Counterstatement ~
50.) Guardian considered such factors as to whether each
policy's claims were based on an ongoing medical condition,
which was likely to continue, or a tenninal illness. (Pl.
Counterstatement ~ 55; Affidavit of Ariel Fernando dated
June 10, 2009 ~ 6.) The WPC Policy was identified as
one with significant losses as part of that examination. (Pl.
Counterstatement~ 58.) Guardian identified New York, New
Jersey, and South Carolina as the states with the greatest
losses. (Pl. Counterstatement ~ 49.) Guardian detennined that
29.9% of all medical claims paid in New York under the "RO"
policy were for private duty nursing. In New Jersey, 53.3% of
all medical claims paid under the "RO" policy were for private
duty nursing. (Pl. Counterstatement ~ 69.)
In January 2007, Guardian decided to discontinue the older
policy fonns in New York, New Jersey, and South Carolina
because policyholders in those states were generating the
highest claims. (Pl. Counterstatement ~ 79.) Subsequently,
Guardian also decided to discontinue those policies in
Colorado. (Pl. Counterstatement ~ 80.)
By letter dated July 2, 2007, Guardian alerted the New
York State Insurance Department ("DOl") that it would
discontinue all "RO" policies offered to small groups and
"offer [them] the option to purchase one of our actively
marketed plans under our R3 contract." (Fried Dec!. Ex.
46: Guardian notice of intent of policy discontinuance to
DOl dated July 2, 2007 ("Discontinuation Letter") at 1.)
Guardian cited three "Reasons for Discontinuance": (I)
"[t]hese plans were written under our oldest generation of
contract under which the language is vague and obsolete";
(2) "these plans are complex to administer and we hope
this discontinuation will reduce the amount of complexity in
administering similar plans"; and (3) "the very high loss ratios
we've experienced over the last two years." (Discontinuation
Letter at 2-3.) In the Discontinuation Letter, Guardian also
infonned DOl that it "will offer these small employers
affected by the discontinuation the option to purchase all other
hospital, surgical and medical expense coverage currently
being offered," and that "[a]ll new plans sold since I992 has
[sic ] been under the R3 contract." (Discontinuation Letter
at 1.) At the time, Guardian had approximately 54 "RO"
policyholders in New York, including WPC. (Plaintiffs' Local
Rule 56.1 Statement ~ 3.) On September 13, 2007, DOl
infonned Guardian that "[t]he letters and supporting material
regarding your company's product discontinuance are now
acceptable." (Affidavit of PaulK. Stecker dated July 2, 2009
Ex. A at 330: E-mail from Stephen Rings to Ariel Fernando.)

Gcvurnmenl \/Vorks_

Warren Pearl Const. Corp. v. Guardian Life Ins. Co. of America, 639 F.Supp.2d 371 (2009)
47 Employee Benefits Cas. 16'1'9#'"
Nm--------~---~~-

*376 On August 20, 2008, Guardian advised WPC that it
was discontinuing the WPC Policy effective December l,
2008 because it was withdrawing "RO" policies from the
market. (Pl. Counterstatement ~ 29.) Guardian did not inform
WPC that it could opt to replace the WPC Policy with either
the "RI" or "R2" form policies. (Pl. Counterstatement ~ I 03.)
With respect to Ian Pearl, Guardian agreed to a year-long
extension of benefits provided for disabled dependents under
the WPC Policy, which is scheduled to end on December I,
2009. (Pl. Counterstatement 1[ I22.)
By letter dated August 25, 2008, WPC lodged its objection to
Guardian's discontinuation of the WPC Policy with DO I. (Pl.
Counterstatement 1[ II4.) In September 2008, DOl responded,
concluding that it "found no evidence that [Guardian] violated
New York State Insurance Laws or Regulations." (Fried Decl.
Ex. 56: DOl response to WPC complaint dated September I9,
2008.) DOl's State Health Bureau representative testified:
I believe we have read [N.Y. Ins. Law
§ 322l(p)] ... to mean that so long
as all insureds covered by the plan are
being treated in the same manner as
opposed to being selectively treated
so that some insureds would not be
terminated and other insureds would
be, that that not being the case here,
we would not have proceeded to look
into that matter under our reading of
our authority in the statute.
(Deposition transcript of Stephen Rings dated Jan. 23, 2009
at 38-39.)

DISCUSSION

I. Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby. Inc.,
477 U.S. 242, 247, 106 S.Ct. 2505. 91 L.Ed.2d 202 (1986);
Davis v. Blige, 505 F.3d 90, 97 (2d Cir.2007). The burden
of demonstrating the absence of any genuine dispute as to
a material fact rests with the moving party. Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d
142 (1970 ). In determining whether there is a genuine issue

as to any material fact, "[t]he evidence of the non-movant is
to be believed, and all justifiable inferences are to be drawn in
[its] favor." Liberzv Lobl~v. 477 U.S. at 255, 106 S.Ct. 2505;
Jejji·eys v. Ciry 11(N. Y., 426 F.3d 549, 553 (2d Cir.2005).

II.HIPAA
[1)
Plaintiffs allege that Guardian violated the Health
Insurance Portability and Accountability Act ("HIPAA") and
its state law counterpart by terminating the WPC Policy based
on Ian Pearl's adverse claims experience.
HIPAA provides that "if a health insurance issuer offers
health insurance coverage in the small or large group market
in connection with a group health plan, the issuer must
renew or continue in force such coverage at the option ofthe
sponsoroftheplan." 42 U.S.C. § 300gg-12(a). One exception
permits an insurer to terminate a particular type of coverage
in the small group market where "the issuer acts uniformly
without regard to the claims experience of those sponsors or
any health status-related factor relating to any participants
or beneficiaries covered .... " 42 U.S.C. § 300gg-12(c)( 1)(C).
HIP AA provides that only the Secretary ofHealth and Human
Services or other authorized state authorities may bring a
HIPAA enforcement action. See 42 U.S.C. § 300gg-22.
*377 [2] "Without a showing of congressional intent, a
cause of action does not exist and courts may not create
one, no matter how desirable that might be as a policy
matter, or how compatible with the statute." Bellikoff v.
Eaton Vance Cmp., 481 F .3d 110, 116 (2d Cir.2007 ). As
a result, courts have held that HIPAA does not provide
for either an express or implied private right of action.
See Acara v. Banks, 470 F.3d 569, 571 (5th Cir.2006)
("[W]e are not alone in our conclusion that Congress did
not intend for private enforcement of HIPAA."); Webb
v. Smart Document Solutions, LLC: 499 F.3d 1078, l 081
(9th Cir.2007) ("HIP AA itself provides no private right of
action."); accord Runkle v. Gonzales, 391 F.Supp.2d 210,
237 (D.D.C.2005); Valentin Munoz v. Island Finance Corp.,
364 F.Supp.2d 131, 136 (D.Puerto Rico 2005); O'Donnell v.
Blue Cross Blue Shield of Wyo., 173 F.Supp.2d 1176, 1180
(D.Wyo.2001); Royce v. Veteran Affairs Regional Office,
No. 08 Civ. 01993(KMT)(KLM), 2009 WL 1904332, at *6
(D.Colo. July I, 2009); Hines v. N. W Va. Operations, No.
08 Civ. 144(FPS), 2009 WL 1228305, at *3 (N.D.W.Va.
May 1, 2009). Accordingly, Defendant's motion for summary
judgment dismissing Plaintiffs' HIP AA claim is granted. 2

Warren Pearl Const. Corp. v. Guardian Life Ins. Co. of America, 639 F.Supp.2d 371 (2009)
47 Employee Benefits Cas. 1619~~~~--~~~-~~~-~"~"-"'"--"-·~--~~'"~-,

2

Plaintiffs also invoke a nearly identical provision of
state insurance law as part of its claim that Defendant
violated HIPAA. See N.Y. Ins. Law § 322i(p}(3)(A).
Since§ 322l(p)(3)(A)(iii) reflects the state's efforts to
comply with HIPAA, see 42 lJ.S.C. § 300gg22(a)
(I), but similarly contains no private right of action,
Plaintiffs' state law claim is also dismissed.

III. ERISA

A. Discrimination
Section § ll82(a)(l) of ERISA provides, "Subject to
paragraph (2), a group health plan, and a health insurance
issuer offering group health insurance coverage in connection
with a group health plan, may not establish rules for eligibility
(including continued eligibility) of any individual to enroll
under the terms of the plan based on ... [h]ealth status
[and, or] ... [c]laims experience." 29 U.S.C. § ll82(a)(l).
Subsection (2) provides that (a)(l) shall not be construed
"to require a group health plan, or group health insurance
coverage, to provide particular benefits other than those
provided under the terms of such plan or coverage." 29
U.S.C. § 1182(a)(2). Section 1182 "may be enforced by an
ERISA participant's claim 'to enjoin any act or practice which
violates any provision of this subchapter.'" Werdehausen v.
Benicmp Ins. Co., 487 F.3d 660, 668 (8th Cir.2007) (quoting
29 U.S.C. § 1132(a)); see also Stang v. Clifion Gunderson
Health Care Plan, 71 F.Supp.2d 926, 933 (W.D.Wis.l999)
(permitting plaintiff to bring an action under § 1182 based on
the private right of action available under§ 1132(a)).

[3] No court has addressed the meaning of the phrase
"establish rules for eligibility." Thus, the question-whether
Guardian's decision to withdraw the "RO" form policy from
the New York small group market "establish[ed] rules for
eligibility" within the meaning of 29 U.S.C. § 1182(a)(l)is an issue of first impression.
[4]

[5]

[6]

[7]

Agria Corp .. 613 F.Supp.2d 419, 421-22 (S.D.N.Y.2009)
(quoting Auburn Housing Auth. v. Martine:::, 277 F.3d 138,
144 (2d Cir.2002)). The "cardinal rule [is] that a statute is to
be read as a whole, ... since the meaning of statutory language,
plain or not depends on context." King v. St. Vincenr:s Hosp.,

502 U.S. 215. 221, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991).
It is also a " 'familiar canon of statutory construction that
remedial legislation should be construed broadly to effectuate
its purposes.' "Henrietta D. l'. Bloomberg, 331 F.3d 261, 279
(2d Cir.2003) (quoting Tcherepnin v. Knight, 389 U.S. 332,
336, 88 S.ct. 548. 19 L.Ed.2d 564 ( 1967)).
The phrase "establish rules for eligibility" does not appear on
its face to address an insurer's decision to withdraw a policy
form from the market. The regulations promulgated under
HIPAA interpreting the phrase provide examples of rules for
eligibility that violate the statute. See 29 C.F.R. § 2590. 702(b)
(])(iii); see also Ames v. Group Health Inc., 553 F.Supp.2d
187. 193 (E.D.N.Y.2008) (turning to the HIPAA regulations
to determine whether Defendant's rules for eligibility violated
§ ll82(a)). In one example in the regulations, an employer
sponsors a group health plan available to all employees who
enroll within the first 30 days of employment, but those
who enroll later are required to pass a physical examination.
The HIPAA regulations instruct that "the requirement to
pass a physical examination in order to enroll in the plan
is a rule for eligibility that discriminates based on one or
more health factors .... " 29 C.F.R. § 2590.702(b)(l)(iii). In
another example, an employer's group health plan permits
employees who enroll during the first 30 days of employment
to choose between two benefit packages, while those who
enroll later are offered only one option conditioned on
their good health. Again, the regulations instruct that "the
requirement to provide evidence of good health in order
to be eligible for late enrollment ... is a rule for eligibility
that discriminates based on one or more health factors .... "
29 C.F.R. § 2590.702(b)(l)(iii). Two other examples in the

HIPAA regulations describe similar scenarios.
Construction of a statute begins with

the words of the text. Ala!lard v. U11ited States Dist. Court,
490 U.S. 296. 300, l 09 S.Ct. 1814, l 04 L.Ed.2d 318 ( 1989);
Cal. Pub. Employees' Ret. Sys. v. Work/Com. bu:., 368 F.3d
86, 101 (2d Cir.2004) (quoting Saks v. Franklin Covey Co.,
316 F.3d 337, 345 (2d Cir.2003)). "Statutory construction...
is a holistic endeavor." *378 United Sav. Ass'n of TeY.
v. Timbers (~(Inwood Forest Assoc., 484 U.S. 365, 371,
108 S.Ct. 626, 98 L.Ed.2d 740 (1988). "The meaning of a
particular section in a statute can be understood in context
with and by reference to the whole statutory scheme, by
appreciating how sections relate to one another,'' Knox v.

The examples in the HIP AA regulations suggest that a
"rule for eligibility" presupposes the existence of a policy
and attendant coverage. In such circumstances, the statute
prohibits insurers from establishing eligibility criteria based
on health status or claims experience. However, rules for
eligibility lose their raison d'etre when an insurer withdraws
its policy from the market because eligibility determinations
no longer need to be made. It would be counterintuitive to
establish eligibility rules for a policy that no longer exists.

VV:vks,

Warren Pearl Const. Corp. v. Guardian Life Ins. Co. of America, 639 F.Supp.2d 371 (2009)
:rn~mpfoyee

Benefits cas.

1619-~~m,~~,,-""'""'~-,---

Second, interpreting "establish rules for eligibility" to apply
to Guardian's decision to withdraw the "RO" policy from the
market is at odds with the statute as a whole. Subsection
(a)(2) provides that (a)(l) shall not be construed "to require
a group health plan, or group health insurance coverage, to
provide particular benefits other than those provided under
the terms of such plan or coverage." 29 U.S.C § 1182(a)(2)
(A). Guardian is no longer providing any benefits under the
"RO" policy, other than the one-year extension for disabled
dependents. Thus, construing the phrase "establish rules for
eligibility" as operating to prohibit withdrawal of the "RO"
policy from the market would require Guardian to provide
benefits it no longer offers.
*379 Finally, the statute's legislative history buttresses the
conclusion that Guardian's decision to withdraw the "RO"
policy from the New York small group market did not
"establish rules for eligibility." In enacting § 1182, Congress
noted:
It is the intent of the conferees that
a plan or coverage cannot single out
an individual based on the health
status or health status related factors of
that individual for denial of a benefit
otherwise provided other individuals
covered under the plan or coverage.
For example, the plan or coverage may
not deny coverage for prescription
drugs to a particular beneficiary
or dependent if such coverage is
available to other similarly situated
individual [sic ] covered under the
plan or coverage. However, the plan
or coverage could deny coverage for
prescription drugs to all beneficiaries
and dependents. The term "similarly
situated" means that a plan or
coverage would be permitted to vary
benefits available to different groups
of employees, such as ... employees in
different geographic locations.

1-l.R. Conf. Rep. No. 104,--736, at 187 (1996), U.S.Code Cong.
& Admin.News 1996, at 1865, 2000. This legislative history

suggests that Congress was concerned with the disparate
treatment of individuals
Plaintiffs point to C.F .R. § 2590. 702(b )(1 )(ii)(H) which
provides that, "rules for eligibility include ... rules relating

""''""""~~---,,-~,,,

_ _ _ _ _,

to ... [t]erminating coverage (including disenrollment) of
any individual under the plan." However, consistent with 29
U.S.C. § 1182(a)(l ), and its legislative history, the regulation
specifically refers to terminating an individual's coverage, not
an entire policy. Here, Guardian terminated all 54 employer
groups in New York with plans covered by the "RO" policy.
Accordingly, Guardian's decision to withdraw the "RO"
policy from the New York small group market did not
"establish rules for eligibility" within the meaning of 29
U.S.C. § 1182(a)(l). Defendant's motion for summary
judgment dismissing Plaintiffs' ERISA discrimination claim
is granted.

B. Disclosure Obligations
181 ERISA provides that "[t]he administrator [of any
employee benefit plan] shall furnish to each participant, and
each beneficiary receiving benefits under the plan, a copy of
the summary plan description [ ("SPD") ]. ... " 29 U.S.C. §
I 024(b). The SPD "shall be written in a manner calculated
to be understood by the average plan participant, and shall
be sufficiently accurate and comprehensive to reasonably
apprise such participants and beneficiaries of their rights and
obligations under the plan." 29 U.S.C. § 1022(a). It shall
set forth, inter alia, "circumstances which may result in
disqualification, ineligibility, or denial or loss of benefits." 29
U .S.C. § 1022(b ). "ERISA contemplates that the [SPD] will
be an employee's primary source of information regarding
employment benefits, and employees are entitled to rely on
the descriptions contained in the summary." Layaou v. Xerox
Corp., 238 F.3d 205, 209 (2d Cir.2001) (internal quotation
marks and citation omitted).
The administrator is defined as "the person specifically so
designated by the terms of the instrument under which the
plan is operated" or, "if an administrator is not so designated,
the plan sponsor." 29 U.S.C. §§ 1002(16)(A), (B). "Plan
sponsor" is defined as "the employer in the case of an
employee benefit plan established or maintained by a single
employer." 29 U.S.C. § 1002(16)(B). To establish liability
under 29 U.S.C. § ll32(a)(l )(B) for failure to provide an
adequate SPD, Plaintiffs must demonstrate that Guardian
was designated the plan administrator. See Lee v. Burkhart,
*380 991 F.2d 1004, 1010 (2d Cir.1993) (obligation to
furnish each participant with an SPD "is placed on the person
designated under ERISA as the 'administrator' of the plan,
not every fiduciary."); Krauss v. Oxjhrd Health Plans. Inc.,
418 F.Supp.2d 416, 434 (S.D.N.Y.2005) ("Absent a specific
declaration in Plan documents that an insurance company

47 Empioyee Benefits Cas. 1619
is the administrator, this Court cannot infer [administrator]
status."), ajj'd, 517 F.3d 614 (2d Cir.2008 ); see also
Coleman v. Nationwide L(le Ins. Co., 969 F.2d 54, 62 (4th
Cir.l992) ("While it is true that an insurer will usually have
administrative responsibilities with respect to the review of
claims under the policy, that does not give this court license
to ignore the statute's definition of plan administrator and to
impose on [the insurer] the plan administrator's notification
duties.").
Plaintiffs cannot point to any document designating Guardian
as the plan administrator. Rather, relying on cases outside this
circuit, Plaintiffs argue that Guardian may be treated as the
de facto administrator because it controls all aspects of plan
administration. However, the Second Circuit has rejected the
holding by sister circuits "that under certain circumstances
a party not designated as an administrator may be liable for
failing to furnish a plan description." See Lee, 991 F.2d at
1010 n. 5; Law v. Ernst & Young, 956 F.2d 364, 372 (1st
Cir.1992).
Plaintiffs' attempt to distinguish Lee is unavailing. While
Lee involved a self-funded plan and an insurer's narrow
responsibilities regarding claims administration, the Second
Circuit's reasoning did not tum on those characteristics.
See also Schnur v. CTC Comm'cns Corp. Group Disahili~y
Plan, 621 F.Supp.2d 96, 110-11 (S.D.N.Y.2008) (internal
citations omitted). Rather, the Court of Appeals focused on
the language of the statute, which defines an administrator
as "the person specifically so designated by the terms of
the instrument under which the plan is operated." 29 U.S.C.
§§ 1002(16)(A) (emphasis added); Lee, 991 F.2d at 1010 n.
5; see also Schnur, 621 F.Supp.2d at 110-11. Accordingly,
because Guardian was not specifically designated as the
administrator, it may not be held liable for inadequate
disclosures under 29 U.S.C. § ll32(a)(l)(B).
[9] Nevertheless, to the extent Plaintiffs seek equitable
relief under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3),
their claims remain viable. See Crocco v. Xerox Cmp., 13 7
F.3d 105, 107 n. 2 (2d Cir.l998) (distinguishing between
actions to recover benefits under§ 502(a)(1)(B), which can be
brought only against a plan or plan administrator, and claims
for injunctive or other equitable relief under § 502(a)(3)). A
plaintiff may pursue an equitable claim against a de facto
administrator that failed to provide adequate disclosures. 3
See Amara v. Cigna Cmp .. 534 F.Supp.2d 288, 333-34
(D.Conn.2008); see also Richards v. FleetBoston Fin. Cmp.,
427 F.Supp.2d 150, 181 (D.Conn.2006), overruled on other

grounds by flirt v. Equitable Ret. Plan for Employees,
Managers, & Agents, 533 F.3d 102, 104 (2d Cir.2008).

3

Because this Court finds the purported SPD sufficient, it
does not address whether Guardian should be treated as
the de facto plan administrator.

(10] The parties disagree over whether the Certificate of
Coverage constituted an SPD. Assuming the Certificate of
Coverage is an SPD, it adequately sets forth "circumstances
which may result in disqualification, ineligibility, or denial
or loss of benefits." 29 U.S.C. § l022(b). "Section 1022(b)
relates to an individual employee's eligibility under then
existing, current terms of the Plan and not to the *381
possibility that those terms might later be changed, as ERISA
undeniably permits." Wise v. El Paso Natural Gas Co., 986
F.2d 929, 935 (5th Cir.l993); Gable v. Sweetheart Cup Co.,
35 F.3d 851. 858 (4th Cir.1994 ). Under the section titled
"When Your Coverage Ends," the Certificate of Coverage
clearly states, "Your coverage ends ... when this plan ends
for all employees. And it ends when this plan is changed so
that benefits for the class of employees to which you belong
ends." That provision is repeated several times throughout
the Certificate of Coverage. "Plan" is defined on the first
page of the Certificate to mean "the Guardian plan of group
insurance purchased by your employer." Thus, the Certificate
of Coverage sufficiently informed Plaintiffs that coverage
would end when Guardian's WPC Policy no longer funded
the Plan.

(11) Plaintiffs argue that Guardian did not provide Plaintiffs
with any document disclosing Guardian's ability to terminate
the WPC Policy as opposed to the Plan. "A company
may establish an employee welfare benefit plan merely by
purchasing a group policy for its employees, and the plan
may consist of nothing but the purchased policy document."
Gable, 35 F.3d at 856. As a result, the reservation of the
right to modify the Plan is equivalent to a reservation of the
right to modify the WPC Policy. Cf Gable, 35 F.3d at 856
(reservation of right to modify the policy was tantamount to a
reservation of rights to modify plan benefits generally, where
the "master policy constituted the entirety of the company's
welfare benefit plan"). That is exactly the situation here-the
Plan operates entirely through the WPC Policy.
Accordingly, Defendant's motion for summary judgment
dismissing Plaintiffs' SPD claim is granted.

C. Breach of Fiduciary Duty

C~overnment VYork~:;,

8

Warren Pearl Const. Corp. v. Guardian Life Ins. Co. of America, 639 F.Supp.2d 371 (2009)

47 Employee Benefits Cas~"fg~-An ERISA fiduciary must discharge its duties with "the care,
skill, prudence, and diligence under the circumstances then
prevailing that a prudent man acting in a like capacity and
familiar with such matters would use." 29 U.S.C. § 1104(a)
(l)(B); Devlin v. Empire Blue Cross & Blue Shield. 274
F .3d 76, 87 (2d Cir.200 l ). The fiduciary should act "solely
in the interest of the participants and beneficiaries," and
its overarching purpose should be to "provid[e] benefits to
the participants and their beneficiaries" and to "defray [ ]
reasonable expenses of administering the plan." Beddall v.
State Street Bank & Tntst Co., 137 F.3d .12, 18 (I st Cir.l998)
(alterations in original); see also 29 U.S.C. § ll04(a)(l).
[12) N.Y. Ins. Law§ 322l(p)(3)(A)(ii) provides that where
an issuer decides to discontinue a particular type of group
health insurance coverage, the issuer must offer to each
policyholder "the option to purchase all ... other hospital,
surgical and medical expense coverage currently being
offeredby the insurer." (emphasis added). Plaintiffs argue that
Guardian breached its fiduciary duty by failing to disclose
the availability of, and to offer, its "Rl" and "R2" form
policies as options for replacement of the discontinued "RO"
form coverage. Guardian argues that policies "currently being
offered" do not include the "Rl" and "R2" form policies
because they were only available on a renewal basis to
existing "Rl" and "R2" policyholder groups.

Construction of the phrase "currently being offered" is an
issue of first impression under New York law that affects
the outcome of this case. 4 *382 N.Y. Ins. Law§ 3231(a)
governs the manner in which insurers conduct business in
New York and provides that "any small group ... applying for
individual health insurance coverage ... must be accepted at
all times throughout the year for any hospital and/or medical
coverage offered by the insurer to individuals or small
groups in this state." (emphasis added). The implementing
regulations allow insurers to continue a policy form in
accordance with the statute's community rating requirements,
or to withdraw it from the New York market. First United
Am. Life Ins. Co. v. Curiale, 200 A.D.2d 243, 613 N.Y.S.2d
494,495 (3d Dep't 1994) ("[I]f[an insurer] feels that it cannot
generate acceptable revenue under the new rate mechanism or
for any reason is unwilling to accept community rating, it is
entitled to withdraw from the New York market by ceasing to
issue new policies."); see also Coan v. State Farm i\1ut. Auto.
Ins. Co., 911 F.Supp. 81,85 (E.D.N.Y.1996). Section 3231(a)
provides that "once accepted for coverage ... [t]ermination of
an individual or small group shall be based only on one or

more of the reasons set forth in[§ 322l(p) ]."N.Y. Ins. Law
§ 3231(a).
4

Section 3221(p)(3)(A)(ii), the statute at issue in this case,
provides that where an issuer decides to discontinue a
particular type of group health insurance coverage, the issuer
must offer to each policyholder "the option to purchase
all ... other hospital, surgical and medical expense coverage
currently being offered by the insurer." (emphasis added).
Thus, section 322l(p)(3)(A)(ii) governs withdrawal from the
New York market. Accordingly, the term "offered by the
insurer" should be interpreted consistently. See Puello v.
Bureau l?(Citizenship and Immigration Servs., 511 F.3d 324,
329 (2d Cir.2007) ("[T]he preferred meaning of a statutory
provision is one that is consonant with the rest of the statute.")
(quoting Auburn Hous. Auth. v. I'vlartinez, 277 F.3d 138, 144
(2d Cir.2002)); Schneider v. Feinberg, 345 F.3d 135, 146 (2d
Cir.2003) ("The canons of statutory construction favor the
consistent use of terms throughout a statute.").
DOl regulations under § 323l(a) were "designed to
protect insurers writing policies from claim fluctuations
and unexpected significant shifts in the number of persons
insured." Colonial L[fe Ins. Co. ofAm. v. Curiale, 205 A.D.2d
58, 617N.Y.S.2d 377,379 (3d Dep't 1994). Those regulations
provide that "the department believes that insurers should
be permitted to continue to serve certain previously issued
policies without having to accept new applicants for older
policies on an open enrollment basis," and "an insurer may
continue to renew the policies without accepting any new
applicants for such policies." II N.Y. Comp.Codes R. &
Regs. tit. 11, § 360.4(a)(f)(l )-(2): see also Council (!(the City
<?{N.Y. v. Pub. Serv. Comm'n l!f' State l!l N.Y., 99 N.Y.2d
64, 74, 751 N.Y.S.2d 822. 781 N.E.2d 886 (2002) ("[T]he
interpretation given to a regulation by the agency which
promulgated it and is responsible for its administration is
entitled to deference if that interpretation is not irrational

---~·-~--~"""""-'""---~---·---~------·-----· ~~~~-

\,\,'-::>-:,tl;h' ~Next

201

T hon"'lson

This may present an appropriate opportunity for
certification to the New York Court of Appeals. See
Runner v. N.Y. Stock Exch., Inc., 568 F.3d 383, 388 89
(2d Cir.2009) ("Where authorized by state law, this Court
may certify to the highest court of a state an unsettled
and significant question of state law that will control the
outcome of a case pending before this Court.") (citation
omitted); Regatos v. North Fork Bank. 396 F.3d 493,
498 (2d Cir.2005) (certifying an unsettled and significant
issue of state law that will control the outcome of the
case).

Warren Pearl Const. Corp. v. Guardian Life Ins. Co. of America, 639 F.Supp.2d 371 (2009)
47 Effiployee BenefitS-Cas.1619
,,w,~~~----"-------,~~-=

Plan, 698 F.2d 593, 602 (2d Cir.l983)) (alterations m
original).

or unreasonable.") (citation and internal quotation marks
omitted).

Since Plaintiffs have not prevailed on their claims and neither
side has exhibited bad faith or culpability, this Court declines

DOl's interpretation of the term "offered by the insurer"
is reasonable. It permits an insurer to "continue to renew
*383 [its] policies without accepting any new applicants for
such policies." DOl's regulation harmonizes with § 3221 (p)
(3)(A)(ii), which requires insurers to present the option to
purchase coverage currently being offered-recognizing that
some coverage options may no longer be offered to new
applicants. This reading is supported by DOl's acceptance
of Guardian's proposal to discontinue plans under the "RO"
contract and offer small groups the option to purchase plans
under the "R3" form, the only contract Guardian actively
marketed in New York. It also recognizes that sponsors of
welfare benefit plans are accorded "flexibility to make future
modifications of such plans as inflation, changes in medical
practice and technology, and the costs of treatment dictate."
Gable, 35 F.3d at 859 (citation and internal quotation marks
omitted).

to award fees. 5
5

IV. Remaining Claims
Plaintiffs also assert claims for promissory and equitable
estoppel, breach of contract, and unconstitutional impairment
of contract rights. Plaintiffs did not respond to Defendant's
summary judgment motion seeking dismissal of these claims.
Accordingly, they are deemed abandoned and Plaintiffs
estoppel and contract claims are dismissed. See Babcock r.
N. Y State Office of Mental Health, No. 04 Civ. 2261(PGG),
2009 WL 1598796, at *I n. 3 (S.D.N.Y. June 8, 2009)
(citations omitted).

Because this Court concludes that the "R1" and "R2" policies
were not "currently being offered" within the meaning
of N.Y. Ins. Law § 322l(p)(3)(A)(ii), Guardian was not
obliged to offer WPC its "R1" and "R2" form policies as
replacement options. Accordingly, Guardian's motion for
summary judgment dismissing Plaintiffs ERISA breach of
fiduciary duty claim is granted.

CONCLUSION

D. Attorney's Fees
(13) "In any action under [ERISA],
the court in its
discretion may allow a reasonable attorney's fee and costs
of action to either party." 29 U.S.C. § 1132(g). "Although
success on the merits is not, in theory, indispensable to
an award of attorneys' fees under 29 U.S.C. § ll32(g)(l),
rarely will a losing party
be entitled to fees." Krauss,
418 F.Supp.2d at 435 (quoting Miles v. N.Y. State Teamsters
000

Some courts have held that a request for fees under
ERISA is not a separate cause of action. See Cerasoli
v. Xomed, Inc., 972 F.Supp. 175, 183 (W.D.N.Y.l997).
In any event, since Defendants move for summary
judgment dismissing Plaintiffs' complaint in its entirety,
Plaintiffs' separate cause of action seeking attorneys' fees
and costs is also dismissed.

For the foregoing reasons, Defendant's motion for summary
judgment dismissing Plaintiffs' claims in their entirety is
granted. The Clerk of the Court is directed to terminate all
motions pending and mark this case closed.
SO ORDERED:

000

Cm(ference Pension & Ret. Fund Employee Pension Ben.

All Citations

639 F.Supp.2d 371, 47 Employee Benefits Cas. 1619
End of Document

!9 2015 Thomson Reuters. No claim to original U.S. Government Works.