Sethunya v. Monson et al

Filing 47

MEMORANDUM DECISION denying as moot 32 Motion to Stay Discovery ; denying as moot 35 Motion for Joinder; denying as moot 39 Motion to Compel Discovery; granting in part and denying in part 11 Motion to Amend/Correct Complaint; granting 16 Motion to Dismiss ; granting 19 Motion to Dismiss ; denying as moot 22 Motion to Produce. Signed by Judge Ted Stewart on 1/4/13. (ss)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

VICTORIA SETHUNYA,
Plaintiff,

MEMORANDUM DECISION AND
ORDER ON PENDING MOTIONS

v.

HONORABLE PRESIDENT THOMAS
MONSON; KIRTON & McCONKIE, PC;
JOHNSON, RICHARD D JOHNSON, JR;
MICHAEL D. JOHNSTON; VON G.
KEETCH; BRYANT J. KELLER;
RAEBURN G. KENNARD; MICHAEL F.
KRIEGER; KARINA F. LANDWARD; R.
CHET LOFTIS; JARCO R. MARRIOTT;
DANIEL S. MCCONKIE; DAVID M.
MCCONKIE, OSCAR W. MCCONKIE, III;
LYNN C. MCMURRAY; WILLIAM A
MEADERS, JR; THOMAS A MECHAM;
ANTONIO A. MEJIA; BARBARA V.
MELENDEZ; GREGORY S. MOESINGER;
THOMAS L. MONSON; MERRILL F.
NELSON; PAUL K. SAVAGE; ERIC C.
OLSON; R. WILLIS ORTON; ALISSA R.
OWEN; ALLISON POULSEN; ROBERT S.
PRINCE, WILLIAM T. RALSTON;
MATTHEW K. RICHARDS; SHAWN T.
RICHARDS; ERIC B. ROBINSON; C.
GABRIEL SANCHEZ; ANTHONY W.
SCHOFIELD; M. THOMAS A.
SCHOFIELD; PETER C. SCHOFIELD;
DAVID J. SHAW; JUSTIN W STARR;
ADAM D. STEVENS; KAREN E.
TAYLOR; PATRICK J. THURSTON;
DAVID B. TINGEY; JARED S. TURNER;
JON E. WADDOUPS; DAVID M.
WAHLQUIST; THOMAS D. WALK;

Case No. 2:12-CV-454 TS

1

ROBERT D. WALKER; ROBERT R.
WALLACE; NICHOLAS D. WELLS;
STEVEN L. WHITEHEAD; EVAN R.
WITT; MATTHEW D. WRIDE; JOEL D.
WRIGHT; ELAINE C. YOUNG; SEAN P.
YOUNG; TODD E. ZENGER; EUGENE H.
BRAMHALL; MICHAEL CHEN; CRAIG H.
CHRISTENSEN; STEPHEN W. GEARY;
SCOTT E. ISAACSON; JOHN R. PHILLIPS;
LEE WRIGHT; HISAKA YAMAMOTO;
INTERMOUNTAIN HEALTH CARE, INC.;
UNNAMED CLINICIAN;
INTERMOUNTAIN HEALTH CARE, INC.;
CHURCH OF JESUS CHRIST OF
LATTER-DAY SAINTS CORPORATION;
CHURCH OF JESUS CHRIST OF
LATTER-DAY SAINTS HOLLADAY 4TH
WARD; BISHOP REESE; FRED JONES;
DR. MCDONOUGH, et al.,,
Defendants.

This matter is before the Court on Defendants President Thomas Monson; Kirton &
McConkie PC, Johnson (sic), Richard D. Johnson, Jr, Michael D. Johnston, Von G. Keetch,
Bryant J. Keller, Raeburn G. Kennard, Michael F. Krieger, Karina F. Landward, R. Chet Loftis,
Jarco R. Marriott (sic), Daniel S. McConkie, David M. McConkie, Oscar W. McConkie, III,
Lynn C. McMurray, William A. Meaders, Jr, Thomas A. Mecham, Antonio A. Mejia, Barbara V.
Melendez, Gregory S. Moesinger, Thomas L. Monson, Merrill F. Nelson, Paul K. Savage, Eric
C. Olson, R. Willis Orton, Alissa R. Owen, Allison Poulsen, Robert S. Prince, William T.
Ralston, Matthew K. Richards, Shawn T. Richards, Eric B. Robinson, C. Gabriel Sanchez,
Anthony W. Schofield, M. Thomas A. Schofield, Peter C. Schofield, David J. Shaw, Justin W.
2

Starr, Adam D. Stevens, Karen E. Taylor, Patrick J. Thurston, David B. Tingey, Jared S. Turner,
Jon E. Waddoups, David M. Wahlquist, Thomas D. Walk, Robert D. Walker, Robert R. Wallace,
Nicholas D. Wells, Steven L. Whitehead, Evan R. Witt, Matthew D. Wride, Joel D. Wright,
Elaine C. Young, Sean P. Young, Todd E. Zenger, Eugene H. Bramhall, Michael Chen, Craig H.
Christensen, Stephen W. Geary, Scott E. Isaacson, John R. Phillips, Lee Wright, Hisaka
Yamamoto, Church Of Jesus Christ Of Latter-Day Saints Corporation, Church Of Jesus Christ
Of Latter-Day Saints Holladay 4th Ward, Bishop Reese, and Fred Jones’s (collectively referred to
hereinafter as the “Church Defendants”) Motion to Dismiss and Ex Parte Motion to Stay
Discovery.1 Defendant Intermountain Health Care, Inc. (“Intermountain”) has also filed a
Motion to Dismiss and Motion for Joinder in the Church Defendants’ Motion to Stay.2 Also
before the Court are Plaintiff Victoria Sethunya’s Motion to Amend Complaint, Motion to
Produce Documents to Support Answer, and Motion to Compel Discovery.3
For the reasons discussed more fully below, the Court will grant Defendants’ Motions to
Dismiss, grant in part and deny in part Plaintiff’s Motion to Amend, and deny the remaining
motions as moot.

1

Docket Nos. 16, 32.

2

Docket Nos. 19, 35.

3

Docket Nos. 11, 22, 39.
3

I. BACKGROUND
This dispute centers on the alleged unlawful dissemination of Plaintiff’s confidential
health information. The following factual allegations are drawn from Plaintiff’s Second
Amended Complaint.4
Plaintiff was a member of the Holladay Fourth Ward of the Church of Jesus Christ of
Latter Day Saints (“LDS Church”). In May 2008, Plaintiff received a phone call from Richard
Reese, a Bishop in the LDS Church, asking her to meet with him at his office. When she arrived
at Bishop Reese’s office, there was a file on his desk. Bishop Reese indicated that the file was a
medical file for Plaintiff’s daughter that Bishop Reese had obtained from a Dr. McDonough.
Plaintiff informed Bishop Reese that she was unhappy that he had obtained the medical
file without her permission. Bishop Reese responded that Plaintiff was unhappy because she had
health problems that needed to be addressed. Bishop Reese then suggested that Plaintiff see a
counselor at LDS Family Services. Because Bishop Reese indicated that he would discuss her
health information with the counselor, Plaintiff decided to see a different therapist.
Plaintiff went to Intermountain and saw a nurse clinician who prescribed her medication.
Plaintiff began taking the medication; however, Plaintiff began experiencing undesirable side
effects. Plaintiff thereafter discontinued use of the medication.
A few weeks later, Plaintiff was asked to leave LDS Church property by a church
member, Fred Jones. Mr. Jones indicated that Plaintiff should have received a letter from church
lawyers in the mail informing her of the reasons why she was to leave church property. A few
days later, Plaintiff received a letter certified from Kirton and McConkie PC law on behalf of the
4

See Docket No. 12.
4

LDS Church. The letter provided that Plaintiff needed counseling, that she should be on
medication, and that if she were found on church property she would be arrested for her own
safety and that of the public.
Based on the preceding factual allegations, Plaintiff brings the following causes of action:
(1) violation of civil rights for invasion of privacy under the United States Privacy Act and the
Health Insurance Portability and Accountability Act (“HIPAA”), and (2) violation of Plaintiff’s
First Amendment freedom to exercise religion and freedom of association. Plaintiff alleges that
these violations are made actionable under 42 U.S.C. § 1983.
II. JURISDICTION
Pursuant to 28 U.S.C. § 1331 “district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.” Jurisdiction is
therefore proper in this case where Plaintiff has alleged Constitutional violations actionable
under 42 U.S.C. § 1983.
III. STANDARD OF REVIEW
In examining a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
United States Supreme Court in Bell Atlantic Corporation v. Twombly,5 stated that a plaintiff
must provide “enough facts to state a claim to relief that is plausible on its face.”6 This requires
“more than an unadorned, the-defendant-unlawfully harmed-me accusation.”7 The Court in
Twombly also pointed out that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to

5

550 U.S. 544 (2007).

6

Id. at 547.

7

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
5

dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds
of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.”8
“Plaintiff is proceeding pro se and, as a result, the [C]ourt construes [her] pleadings
liberally and holds [her] pleadings to less stringent standards than formal pleadings drafted by
lawyers.”9 However, as a pro se litigant, Plaintiff must still “follow the same rules of procedure
that govern other litigants.”10 “Dismissal of a pro se complaint for failure to state a claim is
proper only where it is obvious that the plaintiff cannot prevail on the facts [s]he has alleged and
it would be futile to give [her] an opportunity to amend.”11 “In determining whether a dismissal
is proper, [the Court] must accept the allegations of the complaint as true and construe those
allegations, and any reasonable inferences that might be drawn from them, in the light most
favorable to the plaintiff.”12
IV. DISCUSSION
A.

MOTIONS TO DISMISS
The Church Defendants and Intermountain move to dismiss Plaintiff’s Second Amended

Complaint on substantially the same grounds. Defendants assert that Plaintiff’s Complaint

8

Twombly, 550 U.S. at 555 (internal punctuation omitted) (citations omitted).

9

Bryner v. Bryner, 2009 WL 2920376, at *3 (D. Utah Sept. 11, 2009) (citing Gaines v.
Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002)).
10

Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

11

Curley v. Perry, 246 F.3d 1278, 1281 (10th Cir. 2001).

12

Gaines, 292 F.3d at 1224.
6

should be dismissed because (1) they are not state actors or governmental agencies subject to
liability under § 1983 or the United States Privacy Act and (2) there is no private right of action
under HIPAA.
1.

STATE ACTION

The United States Privacy Act provides that: “No agency shall disclose any record which
is contained in a system of records by any means of communication to any person, or to another
agency, except pursuant to a written request by, or with the prior written consent of, the
individual to whom the record pertains.”13 The Privacy Act “defines ‘agency’ as including ‘any
executive department, military department, Government corporation, Government controlled
corporation, or other establishment in the executive branch of the Government (including the
Executive Office of the President), or any independent regulatory agency.’”14 This language was
clearly not intended to encompass private individuals or entities, such as the Defendants in this
case.
“Section 1983 applies only to actions performed under color of state law. That
requirement does not mean that all defendants must be officers of the state. If a private defendant
is ‘a willful participant in joint action with the State or its agents,’ that is sufficient.”15 Here,
Plaintiff has not pleaded facts demonstrating that the Defendants participated in a joint action
with governmental actors. Indeed, in her opposition, Plaintiff makes clear that she is bringing no

13

5 U.S.C. § 552a(g)(1)(D).

14

United States v. Miller, 643 F.2d 713, 715 n.1 (10th Cir. 1981) (quoting 5 U.S.C. §

552(e)).
15

Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1270 (10th Cir. 1989) (quoting Dennis
v. Sparks, 449 U.S. 24, 27 (1980)).
7

allegations against state actors.16 Because Plaintiff has failed to allege that the Defendants acted
under color of state law, her § 1983 claims fail as a matter of law.
Plaintiff’s First Amendment cause of action is similarly flawed. “[O]nly the government
can violate First Amendment rights: every First Amendment claim thus requires state action in
some sense.”17 Plaintiff’s Second Amended Complaint contains no allegations that her First
Amendment rights were violated as a result of state action.
In sum, the Court finds that because Plaintiff has failed to plead any action or
involvement of a state actor or agency, Plaintiff has failed to plead facts sufficient to maintain a
claim under the United States Privacy Act, § 1983, or the First Amendment.
2.

HIPAA

HIPAA provides federal protection for personal health information. However, the Tenth
Circuit has made clear that “HIPAA does not create a private right of action for alleged
disclosures of confidential medical information.”18 For this reason, Plaintiff’s HIPAA claim fails
as a matter of law.

16

See Docket No. 28, at 2 (“IHC and Kirton & McConkey [sic] seem to prefer to construe
The Church of Jesus Christ and other defendants as the Government of Utah even though
Plaintiff’s Right to Privacy before this court is clearly a tort action for which defendants, not the
state are liable for damages.”).
17

McGuire v. Reilly, 386 F.3d 45, 60 (1st Cir. 2004); see also Utah Gospel Mission v. Salt
Lake City Corp., 425 F.3d 1249, 1254–55 (10th Cir. 2005) (holding that “to prove a violation of
the First Amendment right to free speech, Plaintiffs must either demonstrate that the Church, as
the sole owner of the Plaza, is a state actor, or that the Plaza is nevertheless a public forum in
spite of its sale to a private owner”).
18

Wilkerson v. Shinseki, 606 F.3d 1256, 1267 (10th Cir. 2010) (citing Acara v. Banks,
470 F.3d 569, 571 (5th Cir. 2006)).
8

B.

MOTION TO AMEND
Prior to the filing of Defendants’ Motions to Dismiss, Plaintiff filed her Motion for Leave

to Amend Complaint. The following day, Plaintiff filed her Second Amended Complaint.
Defendants did not oppose Plaintiff’s Motion to Amend; rather, Defendants’ Motions to Dismiss
address the allegations contained in Plaintiff’s Second Amended Complaint. To the extent
Plaintiff’s Motion for Leave to Amend sought leave for Plaintiff to file her Second Amended
Complaint, the Court will grant Plaintiff’s Motion.
Additionally, Plaintiff’s responses to Defendants’ Motions to Dismiss appear to allege
tort causes of actions not included in her Second Amended Complaint. To the extent Plaintiff
seeks to amend her complaint through these responses to include new, state-law causes of action,
the Court will decline to exercise its supplemental jurisdiction to hear such claims.
In determining whether the Court should exercise supplemental jurisdiction to hear
Plaintiff’s potential state-law claims, the Court notes that it is a court of limited jurisdiction and
that this limitation is based on “important values of federalism and separation of powers.”19 The
Court requires “both constitutional and statutory authority in order to adjudicate a case.”20
“Seeking to vindicate values of economy, convenience, fairness, and comity underlying
the judicially-created doctrine of pendent jurisdiction,”21 Congress has provided:
in any civil action of which the district courts have original jurisdiction, the
district courts shall have supplemental jurisdiction over all other claims that are so

19

Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1164 (10th
Cir. 2004).
20

Id.

21

Id.
9

related to claims in the action within such original jurisdiction that they form part
of the same case or controversy under Article III of the United States
Constitution.22
While 28 U.S.C. § 1367(a) authorizes supplemental jurisdiction, § 1367(c) grants the Court
discretion to “decline to exercise supplemental jurisdiction over a claim” if the claim “raises a
novel or complex issue of State law” or “substantially predominates over the claim or claims
over which the district court has original jurisdiction” or if the Court “has dismissed all claims
over which it has original jurisdiction.”23
Here, because the Court has dismissed the two federal claims, as discussed above, it will
not exercise supplemental jurisdiction at this early stage and will not allow Plaintiff the
opportunity to amend her complaint to include state-law causes of action. Consequently, the
Court will deny Plaintiff’s Motion to Amend without prejudice to the extent its seeks to add such
claims. Plaintiff may seek to bring any state-law causes of action before the state court with
appropriate jurisdiction over such claims.
C.

REMAINING MOTIONS
The parties’ remaining motions pertain to Plaintiff’s ongoing efforts to obtain discovery

from the Defendants to support her claims. In light of the Court’s ruling on Defendants’ Motions
to Dismiss, the parties’ remaining motions are moot.

22

28 U.S.C. § 1367(a).

23

Id. at § 1367(c).
10

V. CONCLUSION
Based on the foregoing, it is hereby
ORDERED that the Church Defendants’ Motion to Dismiss (Docket No. 16) is
GRANTED. It is further
ORDERED that Defendant Intermountain’s Motion to Dismiss (Docket No. 19) is
GRANTED. It is further
ORDERED that Plaintiff’s Motion to Amend Complaint (Docket No. 11) is GRANTED
IN PART AND DENIED IN PART, pursuant to the terms of this Order. It is further
ORDERED that the Church Defendants’ Ex Parte Motion to Stay Discovery (Docket No.
32) is DENIED AS MOOT. It is further
ORDERED that Defendant Intermountain’s Motion for Joinder in the Church
Defendants’ Motion to Stay (Docket No. 35) is DENIED AS MOOT. It is further
ORDERED that Plaintiff’s Motion to Produce Documents to Support Answer (Docket
No. 22) is DENIED AS MOOT. It is further
ORDERED that Plaintiff’s Motion to Compel Discovery (Docket No. 39) is DENIED AS
MOOT. The hearing currently scheduled in this matter for January 24, 2013, at 3:00 pm is
hereby STRICKEN. The Clerk of Court is instructed to close this case forthwith.
DATED January 4, 2013
BY THE COURT:

__________________________
TED STEWART
United States District Judge
11