Thomas v. The University of Tennessee Health Science Center, et al

Filing 14

ORDER ADOPTING 12 REPORT AND RECOMMENDATIONS; DENYING 8 Motion to Change Judge; DENYING 9 Motion to Opt-Out of Alternative Dispute Resolution (ADR); DENYING 11 Motion to Disqualify Judge; and DISMISSING the Complaint. Signed by Judge Samuel H. Mays, Jr on 06/14/2017. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

CARROLET THOMAS,

)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
THE UNIVERSITY OF TENNESSEE
HEALTH SCIENCE CENTER, et al.,
Defendant.

No. 2:17-cv-02263-SHM-tmp

ORDER

Before

the

Court

is

the

Magistrate

Judge’s

Report

and

Recommendation, dated May 10, 2017 (the “Report”).

(ECF No.

12.)

Plaintiff

The

Report

recommends

that

the

Court

deny

Carrolet Thomas’s April 24, 2017 “Motion to Change Judge” (ECF
No. 8) and her May 10, 2017 “Motion to Disqualify Judge” (ECF
No. 11) (collectively, the “Recusal Motions”).
recommends

that

Thomas’s

pro

se

complaint

sponte pursuant to 28 U.S.C. § 1915(e)(2)(B).

The Report also
be

dismissed

sua

On May 23, 2017,

Thomas filed her “Objection to Report and Recommendations” (the
“Objections”).

(ECF No. 13.)

Also pending before the Court,

which the Report does not address, is Thomas’s April 28, 2017
“Motion to Opt-Out of Alternative Dispute Resolution (ADR)” (the
“ADR Opt-Out Motion”).

(ECF No. 9.)

For

the

following

reasons,

the

Report

is

ADOPTED,

the

Recusal Motions are DENIED, the complaint is DISMISSED, and the
ADR Opt-Out Motion is DENIED as moot.
I.

Background
On April 17, 2017, Thomas filed a pro se complaint against

The University of Tennessee Health Science Center and 23 other
defendants.
defendants).)

(ECF No. 1; see ECF No. 12 at 1 n.1 (identifying
The complaint’s Statement of Claim recites the

following factual allegations:
My
HIPAA
(Health
[Insurance]
Portability
and
Accountability Act of 1996) [r]ights were violated by
many people, in many places, many times.
I filed
complaints with the Office for Civil Rights in
Washington[,] D.C. but was not given due process.
I
also had Congressman Steve Cohen’s office contact the
Office for Civil Rights on my behalf and did not
receive any response.
Defendants list is attached.
Exhibits
date.

with

(ECF No. 1 at 2.)
monetary

damages

details

will

be

provided

on

a

later

The complaint seeks “personal justice with
included”

and

alleges

that

Thomas

has

been

“under personal illegal surveillance, without cause, for three
years.”

(Id. at 3.)

Thomas subsequently filed the Recusal

Motions and the ADR Opt-Out Motion.1

1

In the ADR Opt-Out Motion, Thomas asks to be excused from
alternative dispute resolution and requests a jury trial. (ECF
No. 9 at 3-4.)
2

On May 10, 2017, the Magistrate Judge entered the Report.
Addressing

the

Recusal

Motions,

the

Report

notes

Thomas’s

request that this case be reassigned to another district court
judge based on a conflict of interest.

(ECF No. 12 at 2.)

The

Report explains that “Thomas has named the State of Tennessee,
which she notes is currently governed by a Republican governor,
and

other

related

parties

as

defendants”

and

that

Thomas’s

argument is that the district judge assigned to her case has a
conflict

of

interest

administration

of

a

because
different

2000.”

(Id. at 2-3.)

Motions

be

reasonable

denied
person

he

“previously

Republican

served

governor

in

from

the
1995-

The Report recommends that the Recusal

because
would

(a) “on

conclude

the

that

facts

the

presented,

presiding

no

District

Judge’s impartiality might reasonably be questioned based on his
prior public service to the State of Tennessee” and (b) “there
is no suggestion that the presiding District Judge ‘participated
as

counsel,

adviser

or

material

witness

concerning

the

proceeding or expressed an opinion concerning the merits of the
particular

case

governmental

in

controversy’

employment.”

(Id.

as
at

part
4

of

his

(quoting

former

28

U.S.C.

§ 455(b)(3)).)
The

Report

also

recommends

that

Thomas’s

complaint

dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B), explaining:

3

be

With regard to Thomas’s HIPAA claims, her
complaint alleges only that there were violations “by
many people, in many places, many times.” (ECF No. 1
at 2.)
Thomas’s complaint does not provide any
factual
basis
that
could
plausibly
suggest
an
entitlement to relief pursuant to HIPAA because “HIPAA
creates neither an express nor an implied cause of
action for private citizens to enforce its terms.”
White v. Stephens, No. 13-cv-2173-JDT-tmp, 2014 WL
726991, at *9 (W.D. Tenn. Jan. 14, 2014) (citing
Wilson v. Memphis Light, Gas & Water, No. 12-2956-STAtmp, 2013 WL 4782379, at *3 (W.D. Tenn. Sept. 5, 2013)
(collecting cases from Courts of Appeals in multiple
circuits)); see also Johnson v. Kuehne & Nagel Inc.,
No. 11-cv-02317-STA-cgc, 2012 WL 1022939, at *5 (W.D.
Tenn. Mar. 26, 2012) (“HIPAA regulations do not confer
a private right of action on an individual.”).
Rather, penalties for HIPAA violations are imposed by
the Secretary of Health and Human Services (the
“Secretary”).
See 42 U.S.C. § 1320d-5(a)(1).
If a
person believes that a covered entity or business
associate is not complying with HIPAA, her only
recourse is to file a complaint with the Secretary.
See 45 C.F.R. § 160.306; see also Kuehne, 2012 WL
1022939, at *5 (“Plaintiff’s only redress for an
alleged HIPAA violation is to lodge a written
complaint with the Secretary of Health and Human
Services[.]”).
In fact, it appears that Thomas has
filed such complaints with the Secretary.
These
complaints and any issues related to their handling
are the subject of a separate lawsuit filed by Thomas
against the Department of Health and Human Services
and other federal government defendants.
(See Thomas
v. Dep’t of Health and Human Servs., 2:17-cv-02264SHM-tmp.)
The present complaint is limited to the
alleged HIPAA violations, and for the reasons stated
above, it is recommended that the HIPAA claims be
dismissed. Therefore, it is recommended that Thomas’s
complaint be dismissed sua sponte pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).
(Id. at 7-8.)
does

not

The Report also concludes that the “complaint

provide

any

factual

details

4

that

would

plausibly

suggest

an

entitlement

to

relief

pursuant

allegations of “personal illegal surveillance.”
II.

to”

Thomas’s

(Id. at 8 n.5.)

Legal Standards
Congress enacted 28 U.S.C. § 636 to relieve the burden on

the federal judiciary by permitting the assignment of districtcourt duties to magistrate judges.
237

F.3d

States,

598,
490

602

U.S.

(6th
858,

Cir.

See United States v. Curtis,

2001)

869-70

(citing

(1989));

Gomez

see

v.

also

Peterson, 67 F. App’x 308, 310 (6th Cir. 2003).

United

Baker

v.

A district

court has the authority to “designate a magistrate judge to
conduct hearings, including evidentiary hearings, and to submit
to

a

judge

of

the

court

proposed

findings

of

fact

and

recommendations for the disposition, by a judge of the court, of
any motion.”

28 U.S.C. § 636(b)(1)(B).

“The district judge may

accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge
with instructions.”
The

district

Fed. R. Civ. P. 72(b)(3).
court

magistrate

has

appellate

judge

issues

jurisdiction

decisions

the

pursuant

referral.

28 U.S.C. § 636(b); Fed. R. Civ. P. 72.

to

over
such

any
a

The standard

of review the district court applies depends on the nature of
the matter considered by the magistrate judge.

“A district

court normally applies a ‘clearly erroneous or contrary to law’
standard of review for nondispositive preliminary measures.
5

A

district court must review dispositive motions under the de novo
standard.”

Baker,

67

F.

App’x

at

310

(internal

citations

omitted).
The district court is not required to review -- under a de
novo or any other standard -- those aspects of the report and
recommendation to which no objection is made.
474 U.S. 140, 150 (1985).

Thomas v. Arn,

The district court should adopt the

magistrate judge’s findings and rulings to which no specific
objection is filed.

Id. at 151.

Arguments made in an objection

to a magistrate judge’s report and recommendation that were not
first presented to the magistrate for consideration are deemed
waived.

See, e.g., Becker v. Clermont Cty. Prosecutor, 450 F.

App’x 438, 439 (6th Cir. 2011); The Glidden Co. v. Kinsella, 386
F. App’x 535, 544 (6th Cir. 2010); Murr v. United States, 200
F.3d 895, 902 n.1 (6th Cir. 2000).2

2

A district court may raise the waiver issue sua sponte.
Numerous district courts in this circuit have done so where
(1) no response was filed to a party’s objection to the report
and recommendation; or (2) a response was filed, but did not
argue waiver.
See, e.g., Tighe v. Berghuis, No. 1:12-CV-1314,
2016 WL 5537287, at *3 (W.D. Mich. Sept. 30, 2016) (no response
to objection); Lewis v. Spitters, No. 1:14-CV-917, 2015 WL
5682405, at *2 (W.D. Mich. Sept. 18, 2015) (response did not
argue waiver); Briggs v. Miles, No. 1:13-CV-228, 2015 WL
1120132, at *2 (W.D. Mich. Mar. 12, 2015) (no response to
various objections); Bauman v. City of Cleveland, No. 1:04-CV1757, 2015 WL 893285, at *8 (N.D. Ohio Mar. 3, 2015) (response
did not argue waiver); Enyart v. Coleman, 29 F. Supp. 3d 1059,
1070 (N.D. Ohio 2014) (response did not argue waiver).
6

III. Analysis
In her Objections, Thomas does not object to the Magistrate
Judge’s recommendation that the Recusal Motions be denied.
generally ECF No. 13.)
the Report.

(See

The Court need not review that aspect of

Adoption of that recommendation is warranted.

See

Arn, 474 U.S. at 150-51.
Thomas

objects

to

complaint be dismissed.

the

Report’s

recommendation

(ECF No. 13 at 3.)

that

her

In her Objections,

Thomas recounts numerous instances of conduct by Defendants that
she contends violated her HIPAA rights.
does

not

Judge’s
action

specifically

conclusion
by

which

violations.
Report.

The

object

that
a

to

HIPAA

need

address

provides

plaintiff

Court

or

(Id. at 3-12.)

may

not

See Arn, 474 U.S. at 150.

no

seek

review

the

private
relief

that

recommendation

that

the

Magistrate
right
for

aspect

of

HIPAA
of

the

Thomas does not identify any

other legal ground that entitles her to relief.
Report’s

Thomas

complaint

Adoption of the
be

dismissed

is

is

ADOPTED,

the

warranted.
IV.

Conclusion
For

Recusal

the

foregoing

Motions

are

reasons,

DENIED,

and

the

Report

the

complaint

is

DISMISSED.

Because the complaint is dismissed, the ADR Opt-Out Motion is
DENIED as moot.

7

So ordered this 14th day of June, 2017.

/s/ Samuel H. Mays, Jr._____
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

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