Stephens v. United States of America

Filing 76

ORDER AND OPINION adopting as modified the 70 Report and Recommendation, granting the Defendant's 45 motion to dismiss as to all Plaintiff's claims, and dismissing the action. IT IS FURTHER ORDERED that Defendant's 72 motion to conduct settlement negotiations and Plaintiff's 73 motion to appoint counsel are denied as moot. Signed by Honorable Bruce Howe Hendricks on 1/19/2017. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Lorenzo Deshon Stephens,
Plaintiff,
vs.
United States of America,
Defendant.
________________________________

) Civil Action No. 0:16-cv-149-BHH
)
)
)
)
)
ORDER AND OPINION
)
)
)
)

Plaintiff Lorenzo Deshon Stephens (“Plaintiff”), proceeding pro se and in forma
pauperis, brought this civil action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§
2671-80 (“FTCA”). (ECF No. 1.) In accordance with 28 U.S.C. § 636(b)(1)(B) and Local
Rule 73.02 for the District of South Carolina, this matter was referred to United States
Magistrate Judge Paige J. Gossett for pretrial handling. The matter is now before this
Court for review of the Report and Recommendation (“Report”) issued by the Magistrate
Judge on December 9, 2016. (ECF No. 70.) In her Report, the Magistrate Judge
recommends that Defendant’s motion to dismiss (ECF No. 45) be granted as to Plaintiff’s
claims for breach of duty of confidentiality and wrongful disclosure, but denied as to
Plaintiff’s claim for negligence under the FTCA. Objections to the Report were due by
January 3, 2017. Neither Defendant nor Plaintiff has filed any Objections.
The Magistrate Judge makes only a recommendation to this Court. The
recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination of any portion of the Report of the
Magistrate Judge to which a specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit

the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). In the
absence of a timely filed Objection, a district court need not conduct a de novo review, but
instead must “only satisfy itself that there is no clear error on the face of the record in order
to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005).
In reviewing these pleadings, the Court is mindful of Plaintiff’s pro se status. When
dealing with a pro se litigant, the Court is charged with liberal construction of the pleadings.
See, e.g., De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). The requirement of a
liberal construction, however, does not mean that the Court can ignore a plaintiff’s clear
failure to allege facts that set forth a cognizable claim, or that the Court must assume the
existence of a genuine issue of material fact where none exists. See United States v.
Wilson, 699 F.3d 789, 797 (4th Cir. 2012).
After a careful review of the record, the applicable law, and the Report of the
Magistrate Judge, the Court adopts the Report in large part, but modifies it as follows.1 The
Court agrees with the Magistrate Judge’s conclusions that: (1) Defendant did not establish
that Plaintiff’s FTCA claims are preempted by the Privacy Act of 1974 (see ECF No. 70 at
4-6); (2) Plaintiff’s breach of duty of confidentiality claim fails because the underlying South
Carolina tort is recognized only against physicians and Plaintiff has not alleged facts
showing that the person who erroneously released his medical records is a physician (see
id. at 6-7); (3) Plaintiff’s “wrongful disclosure” claim fails because, to the Court’s knowledge,
there is no South Carolina tort for wrongful disclosure and Plaintiff has not cited any

1

As always, the Court says only what is necessary to address this matter against the already meaningful
backdrop of a thorough Report of the Magistrate Judge. Comprehensive recitation of law and fact exists there.

2

authority that establishes the existence of such a cause of action (see id. at 10 n.6); and
(4) the standards in the Privacy Act could arguably be relevant to determining whether a
prison health department administrator owes a duty of care to inmates in the maintenance
and release of their medical records (see id. at 8-10).
Nevertheless, the Court disagrees with the Report on the point that Plaintiff has
adequately pled a negligence claim. To establish a cause of action for negligence in South
Carolina, Plaintiff must prove: (1) a duty of care owed by Defendant to Plaintiff; (2) breach
of that duty by a negligent act or omission; and (3) damage proximately resulting from the
breach of duty. Bishop v. S.C. Dep’t of Mental Health, 502 S.E.2d 78, 82-83 (S.C. 1998)
(citing Rickborn v. Liberty Life Ins. Co., 468 S.E.2d 292 (1996)). Even accepting all of
Plaintiff’s factual allegations in the amended complaint as true, as the Court must when
ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (see
Erickson v. Pardus, 551 U.S. 89, 94 (2007)), the Court finds that Plaintiff has not sufficiently
pled damages that rise above speculation and conclusory assertions of mental distress and
embarrassment.
In his amended complaint, Plaintiff asserts that the accidental disclosure of thirteen
pages of his medical record revealing an “abnormal image on Plaintiff’s lung(s)” has caused
him to suffer:
(a). Mental and Emotional distress; (b). Harm simply from knowing that
intimate details of his body’s condition have been frivolously disclosed to an
uninvited viewer; (c). Humiliation, (d). Deprivation of his expectation of
secrecy of his private patient records to those not privileged to that
information, (e). Extreme embarrasment, fear and harassment all to Plaintiff’s
damage;
(ECF No. 60 at 10) (copied verbatim, including grammatical and spelling errors). Assuming
the negligent disclosure of a small portion of Plaintiff’s medical record constitutes an
3

actionable FTCA claim, and assuming that the government, through the Privacy Act and
its attendant regulations, has adopted duties analogous to local tort law duties (see Art
Metal-U.S.A., Inc. v. United States, 753 F.2d 1151, 1157-58 (D.C. Cir. 1985)),2 Plaintiff
must still plausibly show that he has suffered actual damages from the disclosure in order
to survive a Rule 12(b)(6) motion. The face of Plaintiff’s amended complaint fails to do so,
and it is dismissed accordingly.
A plaintiff’s complaint should set forth “a short and plain statement . . . showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 8 “does not require ‘detailed
factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Id. (quoting Twombly, 550 U.S. 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. 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. at 678 (quoting Twombly, 550 U.S. at 557). Stated differently,
“where the well-pleaded facts do not permit the court to infer more than the mere possibility
of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is
entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

2

“If the pertinent regulations are found to have imposed a duty analogous to a local tort law duty, the
regulations may also provide the standard of care against which the government’s conduct should be
assessed. Moreover, depending on the jurisdiction and the law violated, the latter inquiry may result in the
conclusion that violation of the relevant law constituted negligence per se.” Art Metal-U.S.A., 753 F.2d at 115758 (internal footnote and citations omitted).

4

The Court finds that Plaintiff has alleged, but not “shown,” that he has suffered
actual damages that entitle him to relief for the negligent disclosure in question. If
embarrassment or subjective humiliation alone were sufficient to sustain a negligence
action stemming from administrative copying and filing errors such as that which occurred
here, a moral hazard would result in the prison litigation system. Namely, every time an
administrator accidentally placed a confidential paper in the wrong file, and that paper was
seen by an unentitled viewer, however inadvertently, the prisoner could claim
unmeasurable and unverifiable emotional damages and recover monetary relief. Such a
rule would incentivize frivolous lawsuits seeking monetary relief where no real damages
existed. Of course, the Court is not saying that emotional distress is somehow excluded
from the panoply of potential damages that a tort plaintiff may suffer, including tort plaintiffs
who are prisoners. However, South Carolina tort law is carefully crafted to ensure that a
plaintiff cannot recover for embarrassment, humiliation, or other similar forms of emotional
distress alone in the absence of intentional or recklessly indifferent conduct by a defendant.
Plaintiff has not pled the tort of intentional infliction of emotional distress in the
instant case; however, a brief glance at the elements for that tort is instructive regarding
the type of emotional distress for which South Carolina law permits recovery. In South
Carolina, in order to recover damages for the tort of intentional infliction of emotional
distress a plaintiff must establish: (1) the defendant intentionally or recklessly inflicted
severe emotional distress or was certain or substantially certain that such distress would
result from his conduct; (2) the conduct was so extreme and outrageous as to exceed all
possible bounds of decency and must be regarded as atrocious and utterly intolerable in
a civilized community; (3) the defendant’s actions caused the plaintiff’s emotional distress;

5

and (4) the emotional distress suffered by the plaintiff was so severe that no reasonable
man could be expected to endure it. Doe v. North Greenville Hosp., 458 S.E.2d 439, 465
(S.C. Ct. App. 1995) (citing Ford v. Hutson, 276 S.E.2d 776 (S.C. 1981)). What is
immediately apparent from these elements is that intentional or recklessly indifferent
conduct is the touchstone for recovery for emotional damages, and only where both the
conduct and the emotional injury is extreme.
South Carolina law does permit recovery for negligent infliction of emotional distress,
but only in the very limited context of situations involving bystander trauma, specifically:
(a) the negligence of the defendant must cause death or serious physical
injury to another;
(b) the plaintiff bystander must be in close proximity to the accident;
(c) the plaintiff and the victim must be closely related;
(d) the plaintiff must contemporaneously perceive the accident; and
(e) the emotional distress must both manifest itself by physical symptoms
capable of objective diagnosis and be established by expert testimony.
Kinard v. August Sash & Door Co., 336 S.E.2d 465, 467 (S.C. 1985). Again, Plaintiff has
not pled the tort of negligent infliction of emotional distress, but the manner in which the
South Carolina Supreme Court crafted the elements of that cause of action is indicative of
an obvious effort to limit recovery for emotional injuries. In other words, where a South
Carolina plaintiff seeks damages for emotional distress resulting from negligent conduct,
that conduct must have resulted in serious injury or death, and the emotional distress must
be objectively verifiable.
With regard to damages in negligence actions generally, the South Carolina
Supreme Court has stated:
[U]nder South Carolina law, the damages element requires a plaintiff to
establish physical injury or property damage. Damages for emotional or
mental suffering are typically not recoverable, unless there is some physical
manifestation of the emotional distress. See Dooley v. Richland Memorial
6

Hosp., 322 S.E.2d 669 (S.C. 1984) (declining to recognize a negligent
infliction of emotional distress cause of action and holding that damages for
emotional distress are generally not recoverable in a negligence action
absent some physical manifestation).
Babb v. Lee Cty. Landfill SC, LLC, 747 S.E.2d 468, 481 (2013). In the instant case, Plaintiff
has not plausibly shown that he suffered any damages recoverable under a South Carolina
negligence claim. Certainly, Plaintiff has not alleged any physical injury or property
damage, or the threat thereof. The closest Plaintiff comes to pleading any actual effect of
the negligent disclosure is in paragraph eighteen of his Amended Complaint, which states:
Plaintiff is informed and believes, and alleges upon information and belief that
after reading the information contained in Plaintiff’s private patient records
Mr. Shannon Johnson then subsequently discussed not only their previous
meeting [to discuss the negligent disclosure], but also the cause of that
meeting, the health information contained inside Plaintiff [sic] records and his
assumed cause of Plaintiff’s lung condition with other inmates as well as staff
member(s).
(ECF No. 60 at 6.) But even this effect, assumed to be true, says nothing about damages
to Plaintiff. In the end, Plaintiff’s allegations of mental and emotional distress, humiliation,
extreme embarrassment, and fear are legally insufficient to support the damages element
of a general negligence claim in light of the Rule 8 pleading standard. Plaintiff’s allegation
of “harassment” (ECF No. 60 at 10), in the prison context, might conceivably have been
tied to actual damages from the negligent disclosure. But the substance of Plaintiff’s
Amended Complaint and the documents he has submitted as exhibits show this allegation
to be merely speculative, conclusory, and wholly uncorroborated. Plaintiff failed to plead
any specific instance in which he was harassed, or otherwise subjected to threats or fear
for his safety. In other words, while prison gossip might lead to actual damages, the gossip
itself does not constitute damages. See Gamble v. Dept. of Army, 567 F. Supp. 2d 150, 156
(D.D.C. 2008) (stating, in the context of a Privacy Act claim, “while gossip may cause an
7

adverse effect, it does not constitute actual damages”).3
Accordingly, the Court ADOPTS and incorporates the Report (ECF No. 70) to the
degree not inconsistent with the Court’s analysis above. To the degree the Report is
inconsistent with the Court’s analysis of Plaintiff’s negligence claim, it is hereby MODIFIED
accordingly. It is therefore
ORDERED that Defendant's motion to dismiss (ECF No. 45) is GRANTED as to all
of Plaintiff’s claims, and the action is dismissed. It is further
ORDERED that Defendant’s motion to conduct settlement negotiations (ECF No.
72) is DENIED as moot, and Plaintiff’s motion to appoint counsel (ECF No. 73) is DENIED
as moot.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
January 19, 2017
Greenville, South Carolina
*****
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified that any right to appeal this Order is governed by
Rules 3 and 4 of the Federal Rules of Appellate Procedure.

3

In his response to the motion for summary judgment, Plaintiff indicated that he intentionally did not bring a
Privacy Act claim, and elected to proceed under the FTCA, because he was aware that a Privacy Act claim
would require proof that the disclosure in question was willful or intentional. (ECF No. 51 at 6.) The Court is
not confused by Plaintiff’s pleading scheme. Nonetheless, it is helpful to note that even in the context of
willful or intentional unlawful disclosure of sensitive records, speculative claims of emotional distress resulting
from others gossiping about the disclosure are not enough to substantiate actual damages. See Gamble, 567
F. Supp. 2d at 156; 5 U.S.C. § 552a(g)(1)(D) (requiring an “adverse effect” on the individual as a predicate
to an actionable civil claim for unlawful disclosure under the Privacy Act).

8