United States District Court, W.D. Texas, San Antonio Division
RODRIGUEZ, UNITED STATES DISTRICT JUDGE
day, the court considered Defendant Officer Hector
Arredondo's Motion to Dismiss (Docket no. 28),
Defendant's Motion for alternative Grant of Summary
Judgment (Docket no. 28), and Plaintiff Joe Carpenter's
responses and objections (Docket nos. 35, 37). After careful
consideration, the court will ACCEPT Magistrate Judge
Primomo's recommendation (Docket no. 32), GRANT the
Defendant's Motion to Dismiss (Docket no. 28), and
DISMISS Defendant's Motion for alternative Grant of
Summary Judgment (Docket no. 28) as moot.
Joe Carpenter was arrested on April 8, 2015, and remains in
custody. Docket no. 1. He alleges that the Defendant, SAPD
Officer Hector Arredondo, made the arrest. Id. at 4.
During booking, Plaintiff claims that he discussed his HIV
positive status with a nurse. Plaintiff's affidavit
alleges that Arredondo was outside when Plaintiff was
discussing his medical issues with the nurse and Arredondo
heard or was “eavesdropping, ” and that later two
other officers took him to a back room and told him they knew
he had HIV and wanted him to sign an “Acknowledgement
of Receipt.” Docket no. 22; see also docket
no. 30. Another affidavit asserts that Arredondo violated
Plaintiff's privacy by sharing his HIV status with the
two officers, and that they wrote his status on a
statement/report. Docket no. 31. He further complains that
his court appointed attorney read the statement out loud in
court. Docket no. 30. Plaintiff's pro se
Complaint alleges Defendant Arredondo violated the Health
Insurance Portability and Accountability Act of 1996
(“HIPAA”) by writing on the police report that he
has HIV. Id.
December 19, 2016, Defendant filed a Motion to Dismiss, or
alternatively a Motion for Summary Judgment, arguing that
HIPAA does not provide a private right of action, and that
even if it did, the police report makes no mention of
Plaintiff's medical condition. Docket no. 28, Exhibit A.
On February 1, 2017, Magistrate Judge John W. Primomo issued
his Report and Recommendations, in which he recommends
dismissal of Plaintiff's claims. Docket no. 32. Plaintiff
filed objections to the Magistrate Judge's Report and
Recommendations. Docket no. 37.
Report and Recommendation Review Standard
party objects to the Magistrate Judge's Response and
Recommendation, the court must conduct a de novo
review. 28 U.S.C. § 636 (b)(1). See 28 U.S.C.
§ 636(b)(1) (“A judge of the court shall make a de
novo determination of those portions of the report or
specified proposed findings and recommendations to which
objection is made.”). Such review means that the court
will examine the entire record and make an independent
assessment of the law. See Id. The court need not,
however, conduct a de novo review when the
objections are frivolous, conclusive, or general in nature.
Battle v. United States Parole Commission, 834 F.2d
419, 421 (5th Cir. 1987). Further, where no objections are
filed, the court reviews the recommendation only to determine
whether it is clearly erroneous or contrary to law.
United States v. Wilson, 864 F.2d 1219, 1221 (5th
Cir. 1989). In this case, Carpenter objected to the
Magistrate Judge's recommendation, so the court will
conduct a de novo review. Docket no. 30.
Motion to Dismiss Standard
12(b)(6) requires that a complaint state a claim upon which
relief may be granted. Fed.R.Civ.P. 12(b)(6). In order to
survive a motion to dismiss, “a complaint must contain
sufficient factual matter” that is “plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp v. Twombly, 550
U.S. 544, 570 (2007)). When considering a motion to dismiss
under Rule 12(b)(6), all factual allegations should be taken
as true and the facts are to be construed in the light most
favorable to the plaintiff. Gines v. Horton, 699
F.3d 812, 816 (5th Cir. 2012). “A well pleaded
complaint may proceed even if it appears ‘that a
recovery is very remote and unlikely.'”
Twombly, 550 U.S. at 556 (citing Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974)).
Plaintiff's HIPAA Violation Claim
Judge Primomo recommends this Court dismiss Plaintiff's
HIPAA claims for failure to state a claim upon which relief
can be granted. Fed.R.Civ.P. 12(b)(6). HIPAA “provides
both civil and criminal penalties for improper disclosures of
medical information . . . However, HIPAA limits enforcement
of the statute to the Secretary of Health and Human
Services” and state attorneys general. Acara v.
Banks, 470 F.3d 569, 571 (5th Cir. 2006) (citing 42
U.S.C. §§ 1320(d)(5)-(6)); see also Espinoza v.
Gold Cross Servs., 2010 UT App. 151 (2010) (explaining
that in 2009, the statute changed to allow both Health and
Human Services and state attorneys general to enforce HIPAA).
In other words, private citizens such as Plaintiff in this
case, may not bring suit against a Defendant alleging HIPAA
violations. Acara, 470 F.3d at 572. Therefore,
Plaintiff has not stated a claim under HIPAA upon which
relief may be granted. See Twombly, 550 U.S. at 555.
appears to mistakenly believe that the Magistrate Judge
recommends dismissal based on a lack of factual allegations.
Docket no. 35 at 1. Plaintiff claims that he seeks relief
“under the set of FACTS or possible theory, [and]
evidence [which could be subpoenaed]” that the
Defendant “told and wrote” that the Plaintiff has
H.I.V., in violation of his “confidential
rights.” Id. (emphasis in original). However,
regardless of the sufficiency of the facts pleaded, because
HIPAA may not be enforced by a private citizen-including the
alleged victim- ...