Hill v. Wilson Smoot

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

GEORGE V. HILL, )
)
Plaintiff, )
)
v. ) Civil Action No. 17-cv-681 (RBW)
)
)
J. PATRICIA WILSON SMOOT et al., )
)
Defendants. )
)

MEMORANDUM OPINION

The plaintiff, appearing pro se, has sued the Chairperson of the United States Parole

Commission (“USPC”), J. Patricia Smoot, and two employees of the Court Services and

Offender Supervision Agency (“CSOSA”), Maria T. Cecala and Akil Walker, for alleged

improper disclosures of his personal information and the wrongful use of such information. See

Complaint (“Compl.”) at 1, ECF No. 1. The plaintiff seeks a total of $200,000 in monetary

damages. See id. at 2. The defendants have moved to dismiss this case under Federal Rule of

Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to

state a claim upon which relief may be granted. See Motion to Dismiss (“Defs.’ Mot.”), ECF

No. 8. The plaintiff has filed an opposition, ECF No. 11, and the defendants have filed a reply to

the opposition, ECF No. 12. Upon consideration of the parties’ submissions, and for the reasons

explained below, the defendants’ motion will be granted.

I. BACKGROUND

Although CSOSA is established “within the executive branch of the Federal

Government,” D.C. Code § 24-133(a) (2001), CSOSA supervises “offenders on probation,

1
parole, and supervised release pursuant to the District of Columbia Official Code,” D.C. Code

§ 24-133(c)(1) (2016). CSOSA’s “supervision officers . . . have and exercise the same powers

and authority as are granted by law to United States Probation and Pretrial Officers.” Id. § 24-

133(d). This action stems from CSOSA’s supervision of the plaintiff, who alleges the

following. 1

On “more than one occasion” between October 2015 and March 2016, Cecala, whom the

plaintiff identifies in the caption of the complaint as a Community Supervision Officer (“CSO”)

for CSOSA, “knowingly and willingly” released information “from the plaintiff’s personal and

confidential file maintained by [ ]CSOSA[ ] without authorization to known and unknown

individuals.” Compl. at 1. According to the plaintiff, Cecala (hereafter “CSO Cecala”): (1)

“used her office to obtain unverified and misleading unsubstantiated information from [his]

former mental health provider (Crawford Consultants), that was wrongfully used against [his]

parole status”; (2) “divulged misleading and unsubstantiated information to [his] former mental

health care providers’ nurse Barney Dank without authorization”; and (3) gave unauthorized and

unsubstantiated information to a pretrial services agent attorney, without authorization[.]” Id.

The “unverified information obtained by . . . [CSO] Cecala was used along with the arrest

information to write a violation report to the USPC, which led to a warrant for [the plaintiff’s]

arrest” and his “commitment to DC jail for approximately one [ ] month of incarceration.”

Plaintiff’s Response to Defendant’s Motion to Dismiss Under the Local Rule of the Court at 2

(“Pl.’s Opp’n”), ECF No. 11. The plaintiff also alleges that in March 2016, CSO Cecala

“divulge[d] information to an attorney representing [him] in the arrest case.” Id.

1
Consistent with Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999), the Court
has read and considered “all of the [pro se] filings together” to complete the factual background.

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 As a result of CSO Cecala’s alleged conduct, the plaintiff concludes that while acting

“under color of law of her office,” CSO Cecala violated his “right to privacy, without

authorization, and without consideration for plaintiff’s equal protection, or civil rights to due

process.” Compl. at 1. He also accuses CSO Cecala “of a HIPPA violation.” Id.

The plaintiff faults CSO Cecala’s supervisor, Akil Walker, for allegedly failing “to take

appropriate action or give proper review under agency regulation to investigate plaintiff’s

complaint after being notified on two or more occasions of agency regulations violations by his

[subordinate] Maria T. Cecala.” Id. at 2. The plaintiff also faults Chairperson Smoot for

allegedly failing “to respond or take any action or make official review of plaintiff’s complaint

of agency regulations violations” by CSO Cecala and Walker, whom the plaintiff mistakenly

describes as “agents of the USPC.” Id. See Memorandum of Points and Authorities in Support

of Defendants’ Motion to Dismiss (“Defs.’ Mem.”) at 10 n.4 (noting that “the USPC and CSOSA

are separate agencies, and Chairman Smoot is not a superior of either Cecala or Walker”); see

also D.C. Code § 23-133(b) (creating within CSOSA “a Director appointed by the President, by

and with the advice and consent of the Senate, for a term of six years”).

II. LEGAL STANDARDS

A. Motion to Dismiss Under Rule 12(b)(1)

A motion for dismissal under 12(b)(1) “presents a threshold challenge to the court's

jurisdiction . . . .” Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987); see also Grand Lodge

Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (noting that “a Rule

12(b)(1) motion imposes on the court an affirmative obligation to ensure that it is acting within

the scope of its jurisdictional authority”). Accordingly, the Court must dismiss a claim if the

Court “lack[s] . . . subject matter jurisdiction [.]” Fed. R. Civ. P. 12(b)(1). Under Rule 12(b)(1),

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“it is to be presumed that a cause lies outside [a federal court’s] limited jurisdiction,” Kokkonen

v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994), and the plaintiff bears the burden of

establishing the Court’s jurisdiction by a preponderance of the evidence, see, e.g., Moore v.

Bush, 535 F. Supp. 2d 46, 47 (D.D.C. 2008). In deciding a motion to dismiss based upon lack of

subject-matter jurisdiction, a Court is not limited to the allegations set forth in the complaint, but

“may consider materials outside the pleadings . . . .” Jerome Stevens Pharms., Inc. v. FDA, 402

F.3d 1249, 1253 (D.C. Cir. 2005). And when reviewing a motion to dismiss pursuant to Rule

12(b)(1), the Court is required to accept as true all factual allegations contained in the complaint.

Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164

(1993).

B. Motion to Dismiss Under Rule 12(b)(6)

A motion to dismiss under Rule 12(b)(6) tests whether the complaint properly “state[s] a

claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Rule 8(a) requires only that a

complaint provide “a short and plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2). Although “detailed factual allegations” are not required,

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007)), a plaintiff must provide “more than an unadorned, the defendant-unlawfully-

harmed-me accusation,” id. Rather, the “complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly,

550 U.S. at 570). A claim is facially plausible “when the plaintiff pleads factual content that

allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct

alleged.” Id. (citing Twombly, 550 U.S. at 556). However, a complaint alleging “facts that are

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‘merely consistent with’ a defendant’s liability . . . ‘stops short of the line between possibility

and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).

“In evaluating a Rule 12(b)(6) motion, the Court must construe the complaint ‘in favor of

the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts

alleged.’” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting Schuler v.

United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). However, conclusory allegations are not

entitled to an assumption of truth, and even those allegations pleaded with factual support need

only be accepted insofar as “they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S.

at 679.

C. Pro Se Filings

In applying the framework above, the Court must be mindful of the fact that the plaintiff

is proceeding in this matter pro se. This appreciation is required because the pleadings of pro se

parties are “to be liberally construed, and a pro se complaint, however inartfully pleaded, must

be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). Furthermore,

all factual allegations by a pro se litigant, whether contained in the complaint or other filings in

the matter, should be read together in considering whether to grant a motion to dismiss.

Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999). Nonetheless, a “pro se

complaint, like any other, must present a claim upon which relief can be granted by the court.”

Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981).

III. ANALYSIS

The defendants contend that they are “left to speculate as to the legal basis” of the

plaintiff’s claims, and they offer various possibilities. Defs.’ Mem. at 4. But, the plaintiff has

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invoked in his complaint the due process and equal protection clauses of the Constitution and the

Health Insurance Portability and Accountability Act (“HIPAA”), see 42 U.S.C. § 1320d–6

(2010). See Compl. at 1. However, neither claim can survive the instant motion to dismiss. 2

A. Sovereign Immunity

Sovereign immunity implicates the court’s subject matter jurisdiction. Thus, “[i]t is

axiomatic that the United States may not be sued without its consent and that the existence of

consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983).

Such consent may not be implied, but must be “unequivocally expressed.” United States v.

Nordic Village, Inc., 503 U.S. 30, 33-34 (1992). In this case, because all of the named

defendants are federal officials being sued as a result of the performance of their official duties,

“the only possible basis for subject matter jurisdiction” over the plaintiff’s claims against the

named individuals in their official capacities “would be the . . . FTCA.” Johnson v. Fenty, No.

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In his opposition, the plaintiff adds “negligence by the defendants in their official, and
individual capacity, while acting under color of law.” Plaintiff’s Response to Defendant’s
Motion to Dismiss Under the Local Rule of the Court at 1 (“Pl.’s Opp’n”), ECF No. 11. The
Federal Tort Claims Act (“FTCA”) waives the United States’ immunity as to certain enumerated
claims for money damages, including negligence. 28 U.S.C. §§ 1346(b), 2671-80, But in order
for this Court to exercise jurisdiction over an FTCA claim, the plaintiff must first exhaust his
administrative remedies under the FTCA by presenting the claim “to the appropriate Federal
agency” and obtaining a final written denial, or allowing six months to elapse without a final
disposition. Id. § 2675(a). See Simpkins v. District of Columbia Gov’t, 108 F.3d 366, 371 (D.C.
Cir. 2007) (finding FTCA’s exhaustion requirement to be “jurisdictional”); Abdurrahman v.
Engstrom, 168 F.App’x 445, 445 (D.C. Cir. 2005) (per curiam) (affirming district court’s
dismissal of unexhausted FTCA claim “for lack of subject matter jurisdiction”). The defendants
have provided a declaration from CSOSA’s Office of General Counsel stating that it has no
record of “an FTCA claim relating to any incident filed by Plaintiff George V. Hill.” Declaration
of Marigold Henderson ¶ 4, ECF No. 8-1. In his opposition, the plaintiff has pointed to exhibits
three and four as evidence that he “did [exhaust] his administrative remedies.” Pl.’s Opp’n at 2.
But those exhibits show nothing of the kind. The exhibits are not addressed to the Office of
General Counsel, which “is the entity within CSOSA responsible for processing FTCA claims
relating to CSOSA staff[,]” Henderson Decl. ¶ 3, and they do not present a claim to the agency
for any money damages, let alone for a sum certain. Therefore, to the extent that the Court must
consider the plaintiff’s negligence claim, see Richardson, 193 F.3d at 548, the claim is dismissed
without prejudice.

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10-5105, 2010 WL 4340344, at *1 (D.C. Cir. Oct. 1, 2010) (referring to the Federal Tort Claims

Act, 28 U.S.C. §§ 1346(b), 2671-80); see Defendants’ Reply to Plaintiff’s Response to

Defendants’ Motion to Dismiss at 2 (noting the previous “certification,” pursuant to 28 U.S.C.

§ 2679(d), “that Maria T. Cecala and Akil Walker were acting within the scope of their

employment with respect to the [same] allegations stated against them by Hill”) (citing Hill v.

Cecala, No. 16-cv-0659 (CKK), ECF No. 1-2)); see also Defs.’ Mem. at 1 n.1 (observing that

the instant complaint “is virtually identical” to the plaintiff’s previous complaint removed from

the Superior Court of the District of Columbia).

The United States has not waived its sovereign immunity for constitutional tort claims,

see Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 477 (1994) (stating that sovereign immunity

precludes damage claims against the United States government for constitutional violations

brought under the FTCA), and the United States’ immunity extends to federal agencies and to

federal employees sued in their official capacities, see id. at 483-86; see also Kentucky v.

Graham, 473 U.S. 159, 165-66 (1985) (A suit against a government official in her official

capacity “generally represent[s] only another way of pleading an action against an entity of

which an officer is an agent,” such that “an official capacity suit is, in all respects other than

name, to be treated as a suit against the entity.”) (citations omitted)). Consequently, the Court

concludes that it lacks subject matter jurisdiction over the claims against Chairperson Smoot,

CSO Cecala and Supervisory CSO Walker in their official capacities, see accord Cooper v.

Johnson, 652 F. Supp. 2d 33, 39 (D.D.C. 2009), and it dismisses the constitutional claims filed

against them in their official capacities under Rule 12(b)(1).

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B. Failure to State a Claim

1. Constitutional Violations against the Individual Defendants

Although the plaintiff has not identified the source of his constitutional claims beyond the

Constitution itself, the Supreme Court has recognized in limited circumstances “an implied

private action for damages against federal officers [in their individual capacity] alleged to have

violated a citizen’s constitutional rights.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001)

(discussing Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)). But the

plaintiff’s “allegations that government officials disseminated information that harmed [him]

find an alternative remedy in the Privacy Act,” which “regulate[s] the collection, maintenance,

use, and dissemination of information by [Federal] agencies.” Liff v. Office of Inspector Gen. for

U.S. Dep’t of Labor, 881 F.3d 912, 922 (D.C. Cir. 2018) (citations omitted; alterations in

original). This Circuit has explained: “The Privacy Act represents Congress’s legislative

judgment about the appropriate remedies with respect to the accuracy, fairness, and use of

government information, and the judicial system is not in a position to revise that scheme by

recognizing an additional constitutional remedy for that kind of claim.” Id. at 924. Therefore,

the Privacy Act “inhibits the availability of a Bivens remedy” for the alleged misconduct forming

the basis of this action, id., which, in turn, renders consideration of CSO Cecala’s qualified

immunity defense, see Defs.’ Mem. at 9-10, unnecessary. See Liff, 881 F.3d at 924 (“Because

we have determined that Liff has no viable Bivens action . . . , we need not consider their

qualified-immunity defenses.”) (citation omitted)); see also Armstrong v. Bureau of Prisons, 976

F. Supp. 17, 23 (D.D.C. 1997) (holding that only executive-branch agencies are subject to suit

under the Privacy Act).

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 2. The Privacy Act

As applicable to the allegations in the instant complaint, the Privacy Act prohibits a

federal agency from disclosing “any record . . . contained in a system of records by any means of

communication to any person” without the subject’s permission, save certain exceptions. Hurt v.

D.C. Court Servs. & Offender Supervision Agency, 827 F. Supp. 2d 16, 20 (D.D.C. 2011)

(quoting 5 U.S.C. § 552a(b)). An individual who has suffered injury from an improper

disclosure may recover monetary damages under 5 U.S.C. § 552a(g)(1)(D), if he can show that

“‘the agency acted in a manner which was intentional or willful[.]’” Sussman v. U.S. Marshals

Serv., 494 F.3d 1106, 1122 (D.C. Cir. 2007) (quoting 5 U.S.C. § 552a(g)(4)). The Circuit has

interpreted “§ 552a(g)(1)(D) to permit claims predicated on § 552a(b) violations only by a

person whose records are actually disclosed.” Id. at 1123. Further, the records must be “about”

that person and “retrieved by his name.” Id. (emphasis omitted).

Although the plaintiff has not invoked the Privacy Act in his complaint, the defendants

argue that no such claim can survive a motion to dismiss because (1) the plaintiff is still in

custody and therefore required to apply for habeas corpus relief, and (2) the plaintiff has not

“identif[ied] or describe[d] the documents that he alleges were illegally disclosed and . . .

allege[d] that any such documents were part of a record contained within a system of records.” 3

3
In their reply, the defendants change course and raise a jurisdictional argument that CSOSA
is not subject to the Privacy Act because it “is a unit of the court.” Defendants’ Reply to
Plaintiff’s Response to Defendants’ Motion to Dismiss at 3-4, ECF No. 12. This argument is
unfounded. Although the Privacy Act “specifically excludes the courts of the United States from
the definition of “agency[,]” Callwood v. Dep't of Prob. of the Virgin Islands, 982 F. Supp. 341,
343 (D.V.I. 1997) (citing 5 U.S.C. § 551(1)(B)), CSOSA, by its enacting language, is not a
Probation Department within the federal judiciary; it is an “executive branch” agency. D.C.
Code § 24-133(a); see Johnson v. Williams, 699 F. Supp. 2d 159, 166 (D.D.C. 2010), aff'd sub
nom. Johnson v. Fenty, No. 10-5105, 2010 WL 4340344 (D.C. Cir. Oct. 1, 2010) (“Because the
suit against the defendants in their official capacities is treated as if it were brought against
CSOSA directly, and because CSOSA is a federal government agency, § 1983 does not apply . . .
(continued . . .)

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Defs.’ Mem. at 6. Since the disposition of this case is without prejudice, the door remains open

for the plaintiff to plead anew. Therefore, the Court will address the defendants’ arguments.

The defendants’ first argument is based on nothing more than an assumption that the

plaintiff remains in custody. 4 See id. at 7. However, the plaintiff’s address of record is a

residence in the District of Columbia, and he has countered that “he is no longer incarcerated, or

on parole, and cannot use the writ of habeas corpus as a remedy.” 5 Pl.’s Opp’n at 2. Even if the

plaintiff was in custody when he filed this action, the defendants are only partially correct.

In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held:

[I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's issuance of a writ for
habeas corpus.

Id., 512 U.S. at 486-87; see also Skinner v. U.S. Dep’t of Justice & Bureau of Prisons, 584 F.3d

1093, 1101 (D.C. Cir. 2009) (affirming “dismissal of Skinner’s damages claim [under the

Privacy Act] because such a claim is not cognizable unless Skinner first secures relief through a

(. . . continued)
[and] sovereign immunity bars the plaintiff’s claims for damages against [the] defendants in their
official capacities.”). Epps v. U.S. Attorney General, 575 F. Supp. 2d 232, 234 n.1 (D.D.C.
2008) (noting that CSOSA is a federal agency).
4
“The ultimate objective of a habeas petition is release from custody.” Almurbati v. Bush,
366 F. Supp. 2d 72, 78 (D.D.C. 2005). “To meet the ‘in custody’ requirement, a petitioner must
have been in custody at the time the habeas petition was filed.” Banks v. Gonzales, 496 F. Supp.
2d 146, 149 (D.D.C. 2007) (citations omitted). A District of Columbia offender “is deemed ‘in
custody’ so long as he remains on supervised release.” Rahim v. U.S. Parole Comm’n, 77 F.
Supp. 3d 140, 143 (D.D.C. 2015) (citing cases).
5
“A petition for a writ of coram nobis provides a way to collaterally attack a criminal
conviction for a person . . . who is no longer ‘in custody’ and therefore cannot seek habeas relief
under 28 U.S.C. § 2255 or § 2241.” United States v. Newman, 805 F.3d 1143, 1146 (D.C. Cir.
2015) (quoting Chaidez v. U.S., 568 U.S. 342, 345 n. 1 (2013)). But, nothing in the record
suggests that the plaintiff has pursued the coram nobis remedy.

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writ of habeas corpus”). “Thus, absent a showing that the plaintiff’s conviction or sentence has

been invalidated, or in this case, that his parole violator term has been invalidated, . . , the

plaintiff cannot recover damages” for the alleged one-month he spent in custody following his

arrest for a parole violation. Johnson v. United States, 590 F. Supp. 2d 101, 108-09 (D.D.C.

2008).

That said, the Circuit has “read” Heck and its progeny “to require that a . . . prisoner’s . . .

claim must first be brought in habeas only when, if successful, it would ‘necessarily imply,’ or

automatically result in, a speedier release from prison.” Anyanwutaku v. Moore, 151 F.3d 1053,

1056 (D.C. Cir. 1998) (emphasis added). Not all of the alleged disclosures fit the bill. Apart

from the information the plaintiff alleges “was used” to support his arrest for a parole violation,

the plaintiff alleges that CSO Cecala “on more than one occasion did divulge information

maintained in [his] file by CSOSA,” Pl.’s Opp’n at 2, to a nurse practitioner who the plaintiff

“was seeing as [his] therapist,” id at 1. The defendants have not suggested a direct link between

those alleged disclosures and the fact or duration of the challenged custody, nor is one apparent

from the complaint’s allegations. Cf. Anyanwutaku, 151 F.3d at 1056 (finding Heck inapplicable

to claim where success in the district court “would have earned nothing more than a ‘ticket to get

in the door of the parole board’ ”) (quoting Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997)).

Therefore, for present purposes, the Court finds no barrier under Heck to the claim predicated on

CSO Cecala’s alleged disclosures to the nurse.

As noted above, the defendants argue that the plaintiff has not identified a specific record

allegedly disclosed and alleged that it was contained in a system of records. Defs.’ Mem. at 6.

The definition of a record under the Privacy Act “is undeniably expansive” to encompass “any

item, collection, or grouping of information about an individual.” Scarborough v. Harvey, 493

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F. Supp. 2d 1, 15 (D.D.C. 2007) (quoting 5 U.S.C. § 552a(a)(4) (parenthesis and internal

quotation marks omitted))). The plaintiff alleges that Cecala “told” the nurse practitioner “that

the plaintiff had been arrested for selling drugs and using drugs and was in jail,” and that the

information came from his CSOSA file. Pl.’s Opp’n at 1-2. The Circuit “has expressly declined

to adopt the proposition ‘that when a release consists merely of information to which the general

public already has access . . . the Privacy Act is not violated.’” Scarborough, 493 F. Supp. 2d at

16 n.29 (quoting Pilon v. U.S. Dep’t of Justice, 73 F.3d 1111, 1118 (D.C. Cir. 1996)). Therefore,

the Court finds that the plaintiff has at most pleaded facts “consistent with” an improper

disclosure, but that “stops short of the line between possibility and plausibility of entitlement to

relief” under the Privacy Act. Twombly, 550 U.S. at 557 (internal quotation marks and alteration

omitted). Furthermore, the plaintiff has alleged no injury apart from his one-month

incarceration, which, as concluded above, cannot yet support a claim. And a “vague description

of the harms allegedly sustained as a result of [an agency’s] disclosure cannot support a demand

for actual damages that must be ‘limited to proven pecuniary or economic harm.’” Glass v. U.S.

Dep’t of Justice, 279 F. Supp. 3d 279 (D.D.C. 2017) (quoting FAA v. Cooper, 566 U.S. 284, 299

(2012) (emphasis omitted)). Accordingly, the Court agrees with the defendants that any Privacy

Act claim is subject to dismissal under Rule 12(b)(6).

3. HIPAA Violation

The defendants argue that the plaintiff’s claim under the HIPAA fails as a matter of law

because no private right of action exists under the Act. See Defs.’ Mem. at 7. The Court agrees.

“HIPAA does not contain any express language conferring privacy rights upon a specific

class of individuals. Instead, it focuses on regulating persons that have access to individually

identifiable medical information and who conduct certain electronic health care transactions.”

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Acara v. Banks, 470 F.3d 569, 571 (5th Cir. 2006) (citing 42 U.S.C. § 1320d-1 (1996)). “Every

district court that has considered this issue is in agreement that the statute does not support a

private right of action.” Id. (citing cases); see also Brown v. Hill, 174 F. Supp. 3d 66, 71 (D.D.C.

2016) (examining cases); Hudes v. Aetna Life Ins. Co., 806 F. Supp. 2d 180, 195-96 (D.D.C.

2011), aff'd, 493 F.App’x 107 (D.C. Cir. 2012) (“In light of the statutory language of § 1320d-5

and the apparent consensus among the courts that have considered the question, this Court finds

that Plaintiff has no private HIPAA right of action.”); Husain v. Smith, No. 15-cv-708, 2016 WL

4435177, at *7 (D.D.C. Aug. 19, 2016) (“courts have consistently recognized [that HIPAA]

provides no private right of action”) (citing Runkle v. Gonzales, 391 F. Supp. 2d 210, 237

(D.D.C. 2005) (other citations omitted)). “Rather, an individual’s ‘only redress for an alleged

HIPAA violation is to lodge a written complaint with the Secretary of Health and Human

Services, through the Office for Civil Rights, which has the discretion to investigate the

complaint and impose sanctions, both civil and criminal.’” Brown, 174 F. Supp. 3d at 71

(quoting Johnson v. Kuehne & Nagel Inc., No. 11-cv-02317, 2012 WL 1022939, at *5 (W.D.

Tenn. Mar. 26, 2012) (citing 45 C.F.R. § 160.306) (other citations omitted)). Accordingly, the

plaintiff’s HIPAA claim is dismissed under Rule 12(b)(6).

IV. CONCLUSION

For the foregoing reasons, the defendants’ Motion to Dismiss is granted, and the

complaint is dismissed without prejudice. A separate order accompanies this Memorandum

Opinion.

________s/______________
Reggie B. Walton
DATE: March 29, 2018 United States District Judge

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