CURRY v. HERITAGE HEALTHCARE et al

Filing 4

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 08/20/2014, as set out herein. ORDERED that Plaintiff's Application for Leave to Proceed In Forma Pauperis and Affidavit/Declaration in Support (Docket Entry 1 ) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL. RECOMMENDED that this action be dismissed pursuant to 28U.S.C. § 1915(e)(2)(B)(ii).(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

BARBARA LINDSEY CURRY,
Plaintiff,
v.
HERITAGE HEALTHCARE and
SHERRY BLAKELY,
Defendants.

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1:14CV638

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Plaintiff’s Application
for Leave to Proceed In Forma Pauperis (Docket Entry 1), filed in
conjunction with Plaintiff’s pro se Complaint (Docket Entry 2).
The Court will grant Plaintiff’s request to proceed as a pauper for
the limited purpose of recommending dismissal of this action, under
28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim.
LEGAL BACKGROUND
“The federal in forma pauperis [‘IFP’] statute, first enacted
in 1892 [and now codified at 28 U.S.C. § 1915], is intended to
guarantee that no citizen shall be denied access to the courts
‘solely because his poverty makes it impossible for him to pay or
secure the costs.’”

Nasim v. Warden, Md. House of Corr., 64 F.3d

951, 953 (4th Cir. 1995) (en banc) (quoting Adkins v. E.I. DuPont
de Nemours & Co., 335 U.S. 331, 342 (1948)).

“Dispensing with

filing fees, however, [is] not without its problems.

Parties

proceeding under the statute d[o] not face the same financial
constraints as ordinary litigants.

In particular, litigants suing

[IFP] d[o] not need to balance the prospects of successfully
obtaining relief against the administrative costs of bringing
suit.”

Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 255 (4th

Cir. 2004).
To address this concern, the IFP statute provides, in relevant
part, that “the court shall dismiss the case at any time if the
court determines that – . . . (B) the action or appeal – . . .
fails to state a claim on which relief may be granted . . . .”
U.S.C. § 1915(e)(2).

28

A complaint falls short when it does not

“contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”
Iqbal,

556

U.S.

662,

678

(2009)

(emphasis

Ashcroft v.

added)

(internal

citations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).

This standard “demands more than an unadorned,

the-defendant-unlawfully-harmed-me accusation.”

Id.

In other

words, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal

2

conclusions.

Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”
Id.1

The Court may also anticipate affirmative defenses that

clearly appear on the face of the complaint, such as a claim barred
by the applicable statute of limitations.

Nasim, 64 F.3d at 955.

DISCUSSION
Plaintiff’s

Complaint

appears

to

allege

that

Defendants

breached a confidentiality agreement they had previously entered
into with Plaintiff (see Docket Entry 2 at 1) and that they
provided Plaintiff’s confidential medical information to a third
party

in

violation

of

the

Health

Insurance

Accountability Act (“HIPAA”) (see id. at 1, 3).

Portability

and

The Complaint,

taken in conjunction with the attachments Plaintiff filed in
support, documents apparently connected to an Equal Employment

1

Although “[a] document filed pro se is to be liberally
construed and a pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings drafted
by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal
citations and quotation marks omitted), the United States Court of
Appeals for the Fourth Circuit has “not read Erickson to undermine
Twombly’s requirement that a pleading contain more than labels and
conclusions,” Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th
Cir. 2008) (internal quotation marks omitted) (dismissing pro se
complaint); accord Atherton v. District of Columbia Office of
Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A pro se complaint
. . . ‘must be held to less stringent standards than formal
pleadings drafted by lawyers.’ But even a pro se complainant must
plead ‘factual matter’ that permits the court to infer ‘more than
the mere possibility of misconduct.’” (quoting Erickson, 551 U.S.
at 94, and Iqbal, 556 U.S. at 679, respectively)).
3

Opportunity Commission (“EEOC”) charge (see Docket Entry 2-1),2
alleges the following facts:
1)

Plaintiff

previously

worked

for

Defendant

Heritage

Healthcare (Docket Entry 2 at 3; Docket Entry 2-1 at 2);
2) in 2008, while so employed, Plaintiff suffered an injury on
the

job

and

filed

an

EEOC

charge

of

discrimination

against

Defendant Heritage Healthcare, followed by a lawsuit which the
parties resolved through mediation (Docket Entry 2 at 2; Docket
Entry 2-1 at 3);
3) as a result of the successful mediation, Plaintiff and
Defendant

Heritage

Healthcare

entered

into

an

agreement

that

included a confidentiality provision (Docket Entry 2 at 1-3; Docket
Entry 2-1 at 3);
4) in June of 2013, Plaintiff interviewed for a Medical
Technician position with Westchester Harbour (Docket Entry 2-1 at
2);3

2

Neither the Complaint nor the attached EEOC charge set
forth any facts suggesting that Plaintiff has a plausible federal
statutory claim of discrimination or retaliation arising from the
events described.
3

In an EEOC charge submitted as an attachment to her
Complaint, Plaintiff indicates she interviewed with “Westchester
Harbour” in June of 2013; however, in her Complaint she refers to
“Providence Place.” (Compare Docket Entry 2-1 at 2-3, with Docket
Entry 2 at 2-3.) Plaintiff’s attachments include a letter with a
heading reading “Westchester Harbor Assisted Living Center” and a
footer that reads “A Facility of Providence Place.” (See Docket
Entry 2-1 at 4.) It appears Providence Place is a company that
provides a variety of senior healthcare and housing options in and
(continued...)
4

5) the interviewer, Melissa Crissman, asked Plaintiff if she
knew Defendant Sherry Blakely, who formerly worked for Defendant
Heritage Healthcare, but subsequently joined Westchester Harbour
(id.; see also Docket Entry 2 at 2);
6) because Plaintiff did know Defendant Blakely from work at
Defendant Heritage Healthcare, Plaintiff listed Defendant Blakely
as a reference on the Westchester Harbour application (Docket Entry
2 at 2; Docket Entry 2-1 at 2); and
7) although Plaintiff believed the interview went well, she
received a letter a few days later indicating that Westchester
Harbour would not hire her because she “did not pass [the] drug
screen, reference or criminal background checks” (Docket Entry 2-1
at 4), after which the Human Resources Director confirmed that one
of Plaintiff’s references “did not highly recommend [her] for the
[] position” (id. at 2; see also Docket Entry 2 at 2).
Based on these facts, Plaintiff “believe[s] that [Defendant]
Blakely gave [Plaintiff] an unfavorable reference” and disclosed to
Westchester
subsequent
allegedly

Harbour
EEOC

in

information

claim

violation

against
of

concerning

Defendant

both

3

the

her

Heritage

injury

and

Healthcare,

confidentiality

agreement

(...continued)
around High Point, North Carolina, including Westchester Harbour,
an
assisted
living
facility.
See
http://www.providenceplacenc.com/AboutUs;
http://www.providenceplacenc.com/AssistedLiving (last visited Aug.
13, 2014). For the sake of clarity, this Memorandum Opinion will
refer solely to Westchester Harbour.
5

between Plaintiff and Defendant Heritage Healthcare and HIPAA.
(See Docket Entry 2 at 1, 3; Docket Entry 2-1 at 3.)
As an initial matter, to the extent the Complaint asserts a
claim under HIPAA for unlawful disclosure of confidential medical
information, HIPAA does not provide a private right of action. See
Johnson v. Departments of Army and Air Force, 465 F. App’x 644, 645
(9th Cir. 2012); Bradley v. Pfizer, Inc., 440 F. App’x 805, 809-10
(11th Cir. 2011); Carpenter v. Phillips, 419 F. App’x 658, 659 (7th
Cir. 2011); Dodd v. Jones, 623 F.3d 563, 569 (8th Cir. 2010);
Wilkerson v. Shinseki, 606 F.3d 1256, 1267 n.4 (10th Cir. 2010);
Sweeney v. Department of Homeland Sec., 248 F. App’x 179, 181 (Fed.
Cir. 2007); Acara v. Banks, 470 F.3d 569, 572 (5th Cir. 2006).
As to the claim(s) concerning breach of the confidentiality
agreement between Plaintiff and Defendant Heritage Healthcare,
Plaintiff did not submit a copy of the agreement and the Complaint
neither identifies the parties to the agreement nor the information
the agreement deemed “confidential.”
see also Docket Entry 2-1 at 1-11.)

(See Docket Entry 2 at 1-4;
Furthermore, the attachments

to the Complaint contain a document titled “INTAKE NOTES:” which
appears to relate to Plaintiff’s EEOC charge and which indicates
that “[Plaintiff] sa[id] that [Defendant] Blakely did not sign the
agreement she reached with [Defendant Heritage Healthcare] during
the mediation of her lawsuit.”
addition,

the

Complaint

and

(Docket Entry 2-1 at 7.)

attachments

6

fail

to

allege

In
that

Defendant Heritage Healthcare itself caused any breach of the
agreement or that Defendant Blakely remained an employee or agent
of Defendant Heritage Healthcare at the time of the alleged breach.
(See Docket Entry 2 at 1-4; Docket Entry 2-1 at 1-11.)

To the

contrary, the attachments indicate that Defendant Blakely was an
employee of Westchester Harbour at the time she served as a
reference for Plaintiff.

(Docket Entry 2-1 at 2, 9.)

Moreover, the Complaint presents only conclusory suppositions
that Defendant Blakely disclosed confidential information.

(See

Docket Entry 2 at 2; see also Docket Entry 2-1 at 3.)

Even

crediting Plaintiff’s conclusion that Defendant Blakely provided
the

unfavorable

reference,

neither

the

Complaint

nor

the

attachments allege any facts to support Plaintiff’s suspicions that
the unfavorable reference disclosed confidential information rather
than, for example, Defendant Blakely’s opinions about Plaintiff’s
previous job performance or interpersonal skills.
CONCLUSION
Plaintiff’s Complaint falls short as a matter of law.4

4

The Complaint does not allege facts establishing that
this Court has federal question jurisdiction over any alleged
breach of the confidentiality agreement. (See Docket Entry 2 at 14.) Further, the Complaint appears to identify all parties to this
action as residents of North Carolina.
(See id. at 1.)
Such
circumstances cannot satisfy the diversity jurisdiction statute.
See 28 U.S.C. § 1332(a); Exxon Mobil Corp. V. Allapattah Servs.,
Inc., 545 U.S. 546, 553 (2005).
Accordingly, upon finding the
federal HIPAA claim deficient, the Court simply could decline to
exercise supplemental jurisdiction over the Complaint’s breach of
(continued...)
7

IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave
to Proceed In Forma Pauperis and Affidavit/Declaration in Support
(Docket Entry 1) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE
COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL.
IT IS RECOMMENDED that this action be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 20, 2014

4

(...continued)
confidentiality agreement claim(s), which presumably arise under
state law. See 28 U.S.C. § 1367(c)(3); United Mine Workers of Am.
v. Gibbs, 383 U.S. 715, 726 (1966).
However, in light of the
patent defects in Plaintiff’s state-law claim(s), the interests of
justice and efficiency warrant adjudication of the entire
Complaint.
8