Thomas v. The University of Tennessee Health Science Center, et al
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
THE UNIVERSITY OF TENNESSEE
HEALTH SCIENCE CENTER, et al.,
Recommendation, dated May 10, 2017 (the “Report”).
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”).
sponte pursuant to 28 U.S.C. § 1915(e)(2)(B).
The Report also
On May 23, 2017,
Thomas filed her “Objection to Report and Recommendations” (the
(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.)
Recusal Motions are DENIED, the complaint is DISMISSED, and the
ADR Opt-Out Motion is DENIED as moot.
On April 17, 2017, Thomas filed a pro se complaint against
The University of Tennessee Health Science Center and 23 other
(ECF No. 1; see ECF No. 12 at 1 n.1 (identifying
The complaint’s Statement of Claim recites the
following factual allegations:
Accountability Act of 1996) [r]ights were violated by
many people, in many places, many times.
complaints with the Office for Civil Rights in
Washington[,] D.C. but was not given due process.
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.
(ECF No. 1 at 2.)
The complaint seeks “personal justice with
“under personal illegal surveillance, without cause, for three
(Id. at 3.)
Thomas subsequently filed the Recusal
Motions and the ADR Opt-Out Motion.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.)
On May 10, 2017, the Magistrate Judge entered the Report.
request that this case be reassigned to another district court
judge based on a conflict of interest.
(ECF No. 12 at 2.)
Report explains that “Thomas has named the State of Tennessee,
which she notes is currently governed by a Republican governor,
argument is that the district judge assigned to her case has a
(Id. at 2-3.)
The Report recommends that the Recusal
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
proceeding or expressed an opinion concerning the merits of the
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B), explaining:
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
Thomas’s complaint does not provide any
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
See 42 U.S.C. § 1320d-5(a)(1).
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
In fact, it appears that Thomas has
filed such complaints with the Secretary.
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.
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.)
The Report also concludes that the “complaint
allegations of “personal illegal surveillance.”
(Id. at 8 n.5.)
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.
See United States v. Curtis,
Peterson, 67 F. App’x 308, 310 (6th Cir. 2003).
court has the authority to “designate a magistrate judge to
conduct hearings, including evidentiary hearings, and to submit
recommendations for the disposition, by a judge of the court, of
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
Fed. R. Civ. P. 72(b)(3).
28 U.S.C. § 636(b); Fed. R. Civ. P. 72.
of review the district court applies depends on the nature of
the matter considered by the magistrate judge.
court normally applies a ‘clearly erroneous or contrary to law’
standard of review for nondispositive preliminary measures.
district court must review dispositive motions under the de novo
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
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
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
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).
In her Objections, Thomas does not object to the Magistrate
Judge’s recommendation that the Recusal Motions be denied.
generally ECF No. 13.)
The Court need not review that aspect of
Adoption of that recommendation is warranted.
Arn, 474 U.S. at 150-51.
complaint be dismissed.
(ECF No. 13 at 3.)
In her Objections,
Thomas recounts numerous instances of conduct by Defendants that
she contends violated her HIPAA rights.
(Id. at 3-12.)
See Arn, 474 U.S. at 150.
Thomas does not identify any
other legal ground that entitles her to relief.
Adoption of the
Because the complaint is dismissed, the ADR Opt-Out Motion is
DENIED as moot.
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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