Robinson v. Geisinger Hospital et al

Filing 7

MEMORANDUM (Order to follow as separate docket entry). Plaintiffs Complaint also does not comply with F.R.Civ.P. 10(b) which requires that pleadings must state claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. Should Plaintiff elect to file an amended complaint he should do so by numbering each paragraph and limiting each numbered paragraph to one key fact in order to comply with Rule 10(b). An appropriate Order will follow. See Memorandum for further details.Signed by Magistrate Judge William I. Arbuckle on 11/27/18. (ch1)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL ROBINSON,
Plaintiff
v.
GEISINGER HOSPITAL, et al.,
Defendants

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CIVIL ACTION NO. 4:18-cv-0989
(BRANN, D.J.)
(ARBUCKLE, M.J.)

MEMORANDUM
On May 9, 2018, Plaintiff Michael Robinson (“Plaintiff”) initiated this pro
se civil action against the following Defendants: Dawn Faust (“Defendant Faust”),
formerly a nurse at Geisinger Hospital; Donald Zycoski (“Defendant Zycoski”), an
attorney employed by Geisinger Hospital; and David T. Feinberg (“Defendant
Feinberg”), CEO and President of Geisinger Hospital. (Doc. 1). Plaintiff also filed
a Motion requesting leave of court to proceed in forma pauperis. (Doc. 2).
Having reviewed the Motion to proceed in forma pauperis (Doc. 2) it
appears that Plaintiff qualifies for IFP status and the motion should be granted. In
a case where leave to proceed in forma pauperis is granted the case is then subject
to the screening provisions in 28 U.S.C. § 1915(e). See Atamian v. Burns, 236 F.
App’x 753, 755 (3d Cir. 2007) (“the screening procedures set forth in 28 U.S.C. §
1915(e) apply to in forma pauperis complaints filed by prisoners and non-prisoners
alike.”). Under this statute, the Court is required to dismiss any action that is
frivolous or malicious, fails to state a claim upon which relief can be granted, or
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seeks monetary relief against a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2)(B). See Collins v. Cundy, 603 F.2d 825, 828 (10th Cir. 1979)
(“[T]here is no constitutional right to the expenditure of public funds and the
valuable time of federal courts to prosecute an action which is totally without
merit.”).
After reviewing Plaintiff’s complaint, I conclude that it fails to state a claim
upon which relief may be granted. Although Plaintiff’s Complaint, as written,
would typically be subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), I
will grant Plaintiff an opportunity to cure the deficiencies noted herein before
making a recommendation to the District Court.
I.

FACTUAL ALLEGATIONS
Plaintiff makes the following allegations against Defendant Faust:
When I was confined against my will Nurse Dawn Faust admitted to
me she has accessed my phone without my consent, resulting in her
termination. This is a violation of the HIPAA Privacy Act. Geisinger
and Nurse Dawn Faust then conspired to cover up the act.
....
Nurse for Geisinger Hospital which invaded my privacy by accessing
my personal cellphone; showing pictures and emails and accessing my
personal numbers. This was an act that she was terminated for, then
conspired with the hospital to cover up the act.

(Doc. 1, pp. 1-2).

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Plaintiff alleges that Defendant Faust is guilty of: invasion of privacy;
conspiracy to cover up the act of invasion of privacy; “harm, mental and physical
stress, and duress”; a violation of the Health Insurance Portability and
Accountability Act (“HIPAA”); and a “DOJ criminal act to be filed.” (Doc. 1, p.
2). As relief, Plaintiff seeks $500,000.00 in damages. Id.
Plaintiff makes the following allegations against Defendant Zycoski:
Attorney for Geisinger Hospital. Mr. Zycoski in a conversation with
myself admitted that he was aware of nurse Faust and the Invasion of
privacy thus he was in a conspiracy with the hospital to cover up the
HIPAA and Civil Rights Violations. A criminal act under Department
of Justice rules. I plan to file criminal charges.
(Doc. 1, p. 3). As relief, Plaintiff requests $1,000,000.00 in damages. Id.
Plaintiff alleges that Defendant Feinberg engaged in a conspiracy to cover
up “the act of invasion of privacy” and indicates that there is a “DOJ criminal act
to be filed.” As relief, Plaintiff requests $5,000,000.00. (Doc. 1, p. 4).
II.

STANDARD OF REVIEW FOR SCREENING IN FORMA PAUPERIS
COMPLAINTS
This Court has a statutory obligation to conduct a preliminary review of pro

se complaints brought by litigants given leave to proceed in forma pauperis.
Specifically, we are obliged to review the complaint in accordance with 28 U.S.C.
§ 1915(e)(2), which provides, in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may
have been paid, the court shall dismiss the case at any time if the court
determines that –
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(A) the allegation of poverty is untrue; or
(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted;
or
(iii) seeks monetary relief against a defendant who is
immune from such relief.
In performing this mandatory screening function, the Court applies the same
standard that is used to evaluate motions to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, which provides that a complaint should be
dismissed for “failure to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6). The United States Court of Appeals for the Third Circuit has
observed the evolving standards governing pleading practice in the federal courts,
stating that “pleading standards have seemingly shifted from simple notice
pleading to a more heightened form of pleading, requiring a plaintiff to plead more
than the possibility of relief to survive a motion to dismiss.” Fowler v. UPMC
Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009). “[A] complaint must do more
than allege the plaintiff’s entitlement to relief.” Id. at 211. It also “has to ‘show’
such an entitlement with its facts.” Id.
To test the sufficiency of the complaint under Rule 12(b)(6), the court must
conduct the following three-step inquiry:

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First, the court must “tak[e] note of the elements a plaintiff must plead
to state a claim.” Iqbal, 129 S.Ct. at 1947. Second, the court should
identify allegations that, “because they are no more than conclusions,
are not entitled to the assumption of truth.” Id. at 1950. Finally,
“where there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give
rise to an entitlement for relief.” Id.
Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010).
A complaint filed by a pro se litigant is to be liberally construed and
‘“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)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, “pro se
litigants still must allege sufficient facts in their complaints to support a claim.”
Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). Thus, a wellpleaded complaint must contain more than mere legal labels and conclusions.
Rather, a pro se complaint must recite factual allegations that are sufficient to raise
the Plaintiff’s claimed right to relief beyond the level of mere speculation, set forth
in a “short and plain” statement of a cause of action.
III.

ANALYSIS
I construe Plaintiff’s complaint as alleging two claims: (1) a violation of his

privacy rights under HIPAA, and (2) a general violation of his civil rights.1

1

Plaintiff fails to allege which amendment or statute he is filing his civil rights
claim under.
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A.

PLAINTIFF CANNOT PURSUE A PRIVATE CLAIM UNDER HIPAA

“[T]he existence of a private cause of action is a ‘prerequisite for finding
federal question jurisdiction.’” Rigaud v. Garofalo, No. 04–1866, 2005 WL
1030196, at *2 (E.D. Pa. May 2, 2005) (quoting Stephen v. High Voltage Maint.
Co., 323 F. Supp. 2d 650, 653 (E.D. Pa.2004)). While Plaintiff alleges a “violation
of the HIPAA Privacy Act,” his claim fails because “HIPAA does not provide a
private cause of action.” Newsuan v. Colon, No. CIV.A. 13-1199, 2013 WL
3989076, at *2 (E.D. Pa. Aug. 5, 2013). Rather, HIPAA creates its own
enforcement mechanism under 42 U.S.C. § 300gg-22, which limits enforcement
actions to the states or the Secretary of Health and Human Services. Polanco v.
Omnicell, Inc., 988 F. Supp. 2d 451, 469 (D. N.J. 2013) (“The ability to bring an
enforcement action to remedy HIPAA violations, and ensure that a healthcare
provider is HIPAA complaint, lies within the exclusive province of the Secretary
of Health and Human Services, not the hands of private citizens.”).
Therefore, Plaintiff cannot state a claim under HIPAA. As such, Plaintiff’s
claim fails.
B.

PLAINTIFF FAILS
VIOLATION

TO STATE A COGNIZABLE

CLAIM

FOR A

CIVIL RIGHTS

A plaintiff stating a claim for an alleged violation of their civil rights may
utilize 42 U.S.C. § 1983 as a vehicle to file said claim. “Section 1983 imposes civil
liability upon any person who, acting under the color of state law, deprives another
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individual of any rights, privileges, or immunities secured by the Constitution or
laws of the United States.” Shuman v. Penn Manor School Dist., 422 F.3d 141, 146
(3d Cir. 2005). To state a cognizable claim under § 1983, Plaintiff must allege facts
demonstrating that (1) a deprivation of a federally protected right has occurred and
(2) this deprivation was committed by a person acting under color of state law.
Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
Plaintiff generally alleges a claim for a civil rights violation (Doc. 1, p. 4),
but does not cite any statutory or constitutional basis for this claim. As such,
Plaintiff fails to allege sufficient facts to support a conclusion that a deprivation of
a federally protected right occurred.
A plaintiff seeking relief under § 1983 bears the burden of proving that the
defendant acted under color of state law. Smith v. Devline, 239 F. App'x 735, 736
(3d Cir. 2007). Additionally, the involuntary commitment of mentally ill patients is
not considered state action under § 1983. See Bodor v. Horsham Clinic Inc., Civ.
A. No. 94–7210, 1995 WL 424906 at *3 (E.D. Pa. July 19, 1995) (holding that the
involuntary commitment of the mentally ill does not constitute state action for the
purposes of § 1983).
Plaintiff fails to allege any facts which could support an allegation that
Defendants were acting under color of state law. Rather, Plaintiff merely alleges
that Defendants were all employees of Geisinger Hospital at the time of the alleged
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civil rights violation. Id. Assuming Plaintiff’s claim he was “confined against [his]
will” indicates he was involuntarily committed, Plaintiff still fails to allege
Defendants acted under color of state law. Bodor, 1995 WL 424906 at *3.
Therefore, Plaintiff fails to allege sufficient facts to support his claim of a
civil rights violation. As such, Plaintiff fails to state a claim under § 1983.
C.

THIS COMPLAINT FAILS TO COMPLY
RULES OF CIVIL PROCEDURE

WITH

RULE 8

OF THE

FEDERAL

Dismissal of this Complaint is also warranted because the Complaint fails to
comply with Rule 8's basic injunction that “[a] pleading that states a claim for
relief must contain . . . a short and plain statement of the claim showing that the
pleader is entitled to relief.” It is well-settled that: “[t]he Federal Rules of Civil
Procedure require that a complaint contain ‘a short and plain statement of the claim
showing that the pleader is entitled to relief,’ Fed. R. Civ. P. 8(a)(2), and that each
averment be ‘concise, and direct,’ Fed. R. Civ. P. 8(e)(1).” Scibelli v. Lebanon
County, 219 F.App’x 221, 222 (3d Cir. 2007). Dismissal under Rule 8 is proper in
“those cases in which the complaint is so confused, ambiguous, vague, or
otherwise unintelligible that its true substance, if any, is well disguised.” Tillio v.
Spiess, 441 F. App'x 109, 110 (3d Cir. 2011) (quoting Simmons v. Abruzzo, 49
F.3d 83, 86 (2d Cir.1995)).
In this case, Plaintiff fails to plead sufficient facts to support his claim for a
civil rights violation. Although a violation of a federally protected civil right may
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invoke the jurisdiction of this Court, Plaintiff fails to allege what federally
protected civil right has been violated by Defendants. Not only did Plaintiff fail to
specify what right was violated by Defendants’ conduct, but he also failed to
specify when or where the violation occurred. As a result, Plaintiff’s bald assertion
that his civil rights have been violated has not been pleaded with sufficient
particularity to state a cognizable claim.
D.

THIS COURT CANNOT EXERCISE SUPPLEMENTAL JURISDICTION
PLAINTIFF’S INVASION OF PRIVACY CLAIM

OVER

It is only proper for a federal court to exercise jurisdiction over a state law
claim if: 1) the federal and state law claims arise out of the same set of
circumstances, and 2) the federal claims are sufficient to grant the court subjectmatter jurisdiction. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725
(1966).
Neither Plaintiff’s HIPAA nor his civil rights claims are sufficient to give
this Court subject-matter jurisdiction. This Court does not determine whether
Plaintiff has a valid state law claim for invasion of privacy. However, such a claim
would fall under the authority of the Commonwealth of Pennsylvania and should
be filed in a state court. Rolax v. Whitman, 53 F. App'x 635, 638 (3d Cir. 2002)
(“An invasion of privacy claim is not a constitutional tort, however, but rather a
creature of state law.”).

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E.

PLAINTIFF’S COMPLAINT FAILS TO COMPLY WITH LOCAL RULE 8.1

Pursuant to Local Rule 8.1, except as necessary to establish minimum
amount in controversy in diversity cases, a plaintiff must not request a specific
amount of unliquidated damages. L.R. 8.1. Plaintiff is only permitted to generally
allege that he or she is entitled to monetary relief. Id. Specific requests for
unliquidated damages are routinely stricken by this Court. See, e.g., Collier v.
Fisher, 2013 WL 955047, at *2 (M.D. Pa. Mar. 12, 2013); Positano v. Dalbalso,
2016 WL 6089865, at *6 (M.D. Pa. Aug. 17, 2016). Therefore, to the extent that
Plaintiff seeks a specific amount of unliquidated damages, his request should be
stricken from the Complaint.
F.

PLAINTIFF’S COMPLAINT FAILS TO COMPLY WITH RULE 10(B)

Plaintiff’s Complaint also does not comply with F.R.Civ.P. 10(b) which
requires that pleadings “must state claims or defenses in numbered paragraphs,
each limited as far as practicable to a single set of circumstances.” Should Plaintiff
elect to file an amended complaint he should do so by numbering each paragraph
and limiting each numbered paragraph to one key fact in order to comply with
Rule 10(b). An appropriate Order will follow.
Date: November 27, 2018

BY THE COURT
s/William I. Arbuckle
William I. Arbuckle
U.S. Magistrate Judge
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