United States District Court, W.D. Washington
ORDER TO AMEND
W. Christel United States Magistrate Judge
Floydale Eckles, Sr., proceeding pro se and in
forma pauperis, filed this civil rights complaint under
42 U.S.C. § 1983. On August 30, 2017, the Court
directed Plaintiff to correct deficiencies contained in the
Amended Complaint. Dkt. 10. Plaintiff filed a “Motion
to Show Cause and Correct Errors in Courts Order”
(“Response to Court Order”) on September 25,
2017. Dkt. 11. The Court has reviewed Plaintiff's
Response to Court Order and directs Plaintiff to file a
second amended complaint on or before December 4, 2017.
Leave to Amend
who is incarcerated at Washington Corrections Center, alleges
his HIPAA (Health Insurance Portability and Accountability
Act of 1996) rights were violated when his medical files from
a visit to the Harrison Medical Center's emergency
facility were provided to the Department of Corrections
(“DOC”). Dkt. 8. Plaintiff also contends his
privacy rights were violated when Defendant Kingston
requested his medical records from Harrison Medical Center
and sent the records to Defendant Aspden. Id.
August 30, 2017, the Court found Plaintiff's Amended
Complaint was deficient because: (1) HIPAA does not provide a
private right of action; and (2) Plaintiff failed to allege
Defendants' reason for accessing his medical records was
improper. Dkt. 10. The Court directed Plaintiff to file a
second amended complaint correcting the deficiencies
contained in the Amended Complaint. Id.
did not file a second amended complaint; rather, he filed a
Response to Court Order disputing the Court's Order and
providing additional factual allegations to support his
claims. Dkt. 11. Plaintiff's Response to Court Order is
not a second amended complaint and the Court declines to
incorporate the allegations contained in the Response to
Court Order into the Amended Complaint. Therefore, Plaintiff
is again directed to file a second amended complaint.
Notice of Deficiencies
Court finds it appropriate to once more notify Plaintiff of
the deficiencies of his Amended Complaint.
Amended Complaint, Plaintiff alleges Defendants violated his
rights under HIPAA. Dkt. 8. The Ninth Circuit has
definitively declared “HIPAA itself provides no private
right of action.” Garmon v. County of Los
Angeles, 828 F.3d 837, 847 (9th Cir. 2016) (quoting
Webb v. Smart Document Solutions, LLC, 499 F.3d
1078, 1081 (9th Cir. 2007)). Other circuits have explicitly
found that HIPAA cannot be enforced through Section 1983.
Adams v. Eureka Fire Prot. Dist., 352
Fed.Appx. 137, 139 (8th Cir. 2009) (“Since HIPAA does
not create a private right, it cannot be privately enforced
either via § 1983 or through an implied right of
action”); Sneed v. Pan Am Hosp., 370 Fed.Appx.
47, 50 (11th Cir. 2010) (“We decline to hold that HIPAA
creates a private cause of action or rights that are
enforceable through § 1983”). As HIPAA does not
provide a private right of action, the Court concludes
Plaintiff has failed to state a claim upon which relief can
be granted. See Davenport v. Richards, 2008 WL
2678371, *3 (W.D. Wash. June 30, 2008) (finding the
plaintiff's claims relied solely on alleged violations of
HIPAA, and because HIPAA provides no private right of action,
the claims must be dismissed).
Violation of Privacy Rights
states his constitutional right to privacy was violated when
his medical records were disclosed to DOC correctional
officers, Defendants Kingston and Aspden. Dkt. 8. The Ninth
Circuit has found “[p]risons need access to
prisoners' medical records to protect prison staff and
other prisoners from communicable diseases and violence, and
to manage rehabilitative efforts.” Seaton v.
Mayberg, 610 F.3d 530, 535 (9th Cir. 2010). Here,
Plaintiff alleges Defendant Kingston requested
Plaintiff's medical records after he was arrested and
placed in the Kitsap Jail. Dkt. 8. It is reasonable
Defendants would need Plaintiff's medical records,
medical history, and prescribed medications to continue
Plaintiff's care and protect prison staff and other
prisoners when Plaintiff entered the Kitsap Jail. Plaintiff
has not alleged facts showing Defendants' reason for
requesting the medical records violated his rights.
Therefore, Plaintiff has failed to state a right to privacy
claim because Defendants requested his medical records after
he was placed in the Kitsap Jail. See Seaton, 610
F.3d at 534 (“prisoners do not have a constitutionally
protected expectation of privacy in prison treatment records
when the state has a legitimate penological interest in
access to them”).
Court also notes the DOC and Harrison Medical Center are not
proper Defendants in this action. Section 1983 applies to the
actions of “persons” acting under the color of
state law. The DOC, as an arm of the state of Washington, is
not a “person” for purposes of a § 1983
civil rights action. See Will v. Michigan Dep't. of
State Police, 491 U.S. 58, 65, 71 (1989). Therefore, the
DOC is a state agency which cannot be sued under § 1983.
Plaintiff also does not allege facts showing Harrison Medical
Center was a state actor, acting under color of state law.
Dkt. 8. As such, Harrison Medical Center cannot be liable
under § 1983. See Crumpton v. Gates, 947 F.2d