Pratt v. Pitt County Department of Social Services et al

Filing 11

ORDER regarding 5 Memorandum and Recommendations. Plaintiff's objection to the M&R is SUSTAINED IN PART and OVERRULED IN PART. Signed by Senior Judge W. Earl Britt on 12/2/2016. Order to plaintiff via US Mail at PO Box General Mail, Winston-Salem, NC 27102. (Marsh, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO: 4:16-CV-198-BR
CONSTANCE PRATT,
Plaintiff,
v.
PITT COUNTY DEPARTMENT OF SOCIAL
SERVICES, et al.,
Defendants.

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ORDER

This matter is before the court on the 24 October 2016 Memorandum and
Recommendation (AM&R@) of U.S. Magistrate Judge Robert T. Numbers, II. (DE # 5.) In the
M&R, Judge Numbers recommends that plaintiff’s amended complaint be dismissed without
prejudice, in part, because she has failed to state a claim upon which relief may be granted. He
also recommends that some of plaintiff’s claims against defendants Keisha Adams, Retha
Albriton, Jane Dawson, Margaret Dixon, and Sofia Ellis in their individual capacities be allowed
to proceed. Plaintiff filed an objection to the M&R. (DE # 10.) As such, the court conducts a
de novo review of those portions of the M&R to which plaintiff has lodged an objection. See 28
U.S.C. ' 636(b)(1).
In her objection to the M&R, plaintiff first takes issue with the recommendation to
dismiss her claim for intentional infliction of emotional distress. Judge Numbers recommends
dismissal because plaintiff has not alleged in her amended complaint how she suffered
emotionally. In her objection, plaintiff claims that due to defendants’ actions she has been
diagnosed with “bipolar depression”; hospitalized; suffered flashbacks, nightmares,
sleeplessness, weight loss, and uncontrollable crying; taken medication; and remains under a

doctor’s care. (DE # 10, at 1-2.) These allegations satisfy plaintiff’s burden of pleading facts
sufficient to show she has an emotional or mental disorder. The court will deem plaintiff’s
amended complaint amended to allege this emotional distress, and accordingly, she has stated a
claim for intentional infliction of emotional distress. Judge Numbers further recommends that
plaintiff’s claim for negligent infliction of emotional distress be dismissed for the same reason.
Because the court finds, with amendment of her amended complaint by virtue of the allegations
in the objection, plaintiff has sufficiently alleged emotional distress, the claim for negligent
infliction of emotional distress shall also be allowed to proceed.
Second, plaintiff objects to Judge Numbers’s recommendation that her defamation claim
be dismissed because she has only alleged in her amended complaint “that she suffered
‘defamation of character,’ ‘slander of [her] name,’ and being ‘falsely accused’ by [Child
Protective Services (“CPS”)] workers,” (M&R, DE # 5, at 16). In her objection, plaintiff
contends that defendant Albriton told plaintiff’s father that plaintiff did not pass a hair analysis
test (presumably meaning controlled substances were detected) and that a counselor had said
plaintiff was not cooperating. According to plaintiff, this information was not true, and her
father and family “reacted” and “treated [her] differently.” (DE # 10, at 3-4.) Based on these
additional allegations and given the early stage of the proceedings, the court will allow a claim
for defamation to proceed but only against Albriton.
Third, plaintiff objects to dismissal of her claim for violation of privacy based on
disclosure of personal confidential information. Plaintiff claims Albriton released personal
confidential information without plaintiff having signed a release form in violation of “Hippa,”
(id. at 6), i.e., the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. §§

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1320d–1320d9 (“HIPPA”). As Judge Numbers correctly stated, “North Carolina has not
recognized a privacy tort that would address her claims.” (M&R, DE # 5, at 16 (citations
omitted).) Also, HIPPA does not provide a private right of action to individuals. Moore v. TriCity Hosp. Found., 623 F. Appx. 500, 501 (9th Cir. 2015); White v. Brand, No. 2:08-CV-255,
2009 WL 2105993, at *2 (W.D. Tenn. July 13, 2009).
In the final portion of her objection, plaintiff appears to claim that Albriton engaged in
acts of corruption and retaliation (1) by threatening to put plaintiff’s children in a dangerous
situation because plaintiff had reported to Albriton’s supervisor that Albriton had engaged in
case neglect and (2) by conducting a home study on unapproved homes. There is no
freestanding claim for corruption or retaliation. Plaintiff’s claims for violation of her Fourteenth
Amendment rights and negligence, which Judge Numbers recommends proceed, encompass
these allegations.
For the foregoing reasons, plaintiff=s objection to the M&R is SUSTAINED IN PART
and OVERRULED IN PART. The court ADOPTS the M&R as its own, except those portions
addressing plaintiff’s failure to specify how she has suffered emotionally and plaintiff’s failure to
sufficiently allege a defamation claim. The following claims against Adams, Albriton, Dawson,
Dixon, and Ellis in their individual capacities remain:
1. A § 1983 claim for a violation of plaintiff’s Fourth Amendment right to be free
from unreasonable searches;
2. A § 1983 claim for a violation of plaintiff’s Fourteenth Amendment substantive
and procedural due process rights due to CPS employees’ alleged removal of her
children under threats, false accusations, and lack of evidence;
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3. A § 1983 claim for supervisory liability due to plaintiff’s allegations that CPS
supervisors were aware of and ignored the constitutional violations of their
employees;
4. A claim for negligence under North Carolina law for their actions in connection
with the CPS investigation and related proceedings in state court;
5. A claim for defamation under North Carolina law against Albriton only;
6. A claim for intentional infliction of emotional distress under North Carolina law;
and
7. A claim for negligent infliction of emotional distress under North Carolina law.
Plaintiff’s other claims are DISMISSED WITHOUT PREJUDICE for failure to state a claim
upon which relief may be granted. Defendant Pitt County Department of Social Services is
DISMISSED from the action. The Clerk is DIRECTED to issue the summonses plaintiff
provided for defendants Ellis and Albriton. Within 20 days, plaintiff shall submit to the Clerk
for issuance summonses for defendants Adams, Dawson, and Dixon. The U.S. Marshal is
DIRECTED to serve the summonses and complaint on defendants.
This 2 December 2016.

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W. Earl Britt
Senior U.S. District Judge

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