United States District Court, W.D. Michigan, Northern Division
GORDON J. QUIST JUDGE
REPORT AND RECOMMENDATION
TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE
John Jay Johnson, a non-prisoner pro se litigant, filed this
action against Aspirus Corporation. (ECF No. 1). In his
complaint, Plaintiff asserts the following six claims: (1) a
“HIPAA Violation, ” (2) “American
Disabilities Act of 1990, ” (3) “Abuse of
Power” (4) “Fraud and Deception, ” (5)
“Defamation of Character, ” and (6)
“Negligence.” Plaintiff seeks $1, 000, 000 in
statutory damages, $250, 000 in aggravated damages, and $250,
000 “negligence tort damages.” The Court granted
Plaintiff leave to proceed in forma pauperis under 28 U.S.C.
§ 1915. Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii),
the undersigned recommends that several of Plaintiff's
claims be dismissed.
allegations in Plaintiff's complaint are quite confusing.
Plaintiff is currently on disability and has been receiving
disability payments for sixteen years. He apparently has a
history of issues with Aspirus hospitals. Plaintiff alleges
that on July 14, 2016, he went to an Aspirus hospital after
he fell. He received a hip x-ray and claims that an emergency
room doctor misread the x-ray and sent him home. The
following day, Plaintiff was taken by an ambulance back to
the Aspirus hospital and it was determined that Plaintiff had
multiple hip fractures.
claims in this case arise after Plaintiff's family doctor
passed away and he was assigned a new physician at an Aspirus
hospital. Three days before his appointment with a new
physician, someone called to cancel the appointment.
Following the cancellation, Plaintiff made “many
attempts to succeed in trying to figure out why [he was being
denied service].” Ultimately, Plaintiff states that he
was effectively “banned from both hospitals because of
behavioral issues with staff.” Plaintiff also attempted
to resolve the issues in a meeting with supervisors on July
13, 2018. But the meeting was ultimately unproductive. On
July 17, 2018, the clinical director at Aspirus Ironwood
wrote Plaintiff a letter, stating that he could no longer
seek treatment at Aspirus Ironwood or Aspirus Hurley.
further alleges that one of his relatives works at Aspirus as
a “greeter.” Despite being a greeter at the
hospital, Plaintiff states that his relative was able to
obtain information about his mental health. Plaintiff states
that this is a HIPAA violation. After learning about his
mental health status, Plaintiff states that his family
members have “rejected him.” Plaintiff raised
this issue with Aspirus supervisors. In response, Plaintiff
claims that Aspirus supervisors intimidated Plaintiff's
relative so that she no longer had any recollection of the
alleged HIPAA violation. Plaintiff states that the
supervisors' conduct amounted to an abuse of power. After
he was effectively banned from the two hospitals, Plaintiff
continued to contact Aspirus regarding the HIPAA violation.
28 U.S.C. § 1915(e)(2)(B), the court must dismiss any
action brought in forma pauperis if the action is (1)
frivolous or malicious; (2) fails to state a claim on which
relief may be granted; or (3) seeks monetary relief against a
defendant who is immune from such relief. A complaint may be
dismissed for failure to state a claim if it fails
“‘to give the defendant fair notice of what the .
. . claim is and the grounds upon which it rests.'”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
While a complaint need not contain detailed factual
allegations, a plaintiff's allegations must include more
than labels and conclusions. Twombly, 550 U.S. at 555;
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.”). The court must determine whether the
complaint contains “enough facts to state a claim to
relief that is plausible on its face.” Twombly, 550
U.S. at 570. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 679.
Although the plausibility standard is not equivalent to a
“‘probability requirement, . . . it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 556). “[W]here the well-pleaded facts do
not permit the court to infer more than the mere possibility
of misconduct, the complaint has alleged - but it has not
‘show[n]' - that the pleader is entitled to
relief.” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P.
8(a)(2)). The court has a duty to read a pro se
plaintiff's complaint indulgently. See Haines v.
Kerner, 404 U.S. 519 (1972); Kent v. Johnson,
821 F.2d 1220, 1223-24 (6th Cir. 1987).
the undersigned notes that it is unclear whether diversity
jurisdiction exists in this case. “Federal courts are
courts of limited jurisdiction.” Kokkonen v.
Guardian Life Ins., 511 U.S. 375, 377 (1994). A federal
court has diversity jurisdiction if: (1) the controversy is
between “citizens of different States, ” and (2)
the amount in controversy exceeds the sum or value of $75,
000. 28 U.S.C. § 1332(a). Diversity jurisdiction
requires complete diversity, which means that “no
plaintiff and no defendant are citizens of the same
state.” Jerome-Duncan, Inc. v. Auto- By-Tel
LLC, 176 F.3d 904, 907 (6th Cir. 1999). Here, Plaintiff
is a Michigan resident and he states that he is suing Aspirus
Corporation, which is incorporated in Wisconsin. In a section
of the complaint entitled, “Reasons for Requesting
Federal Court Jurisdiction, ” Plaintiff states that
there are three Aspirus hospitals involved in this
case-Ironwood, Michigan; Hurley, Wisconsin; and Wausau,
Wisconsin. Due to the confusing nature of the complaint, the
undersigned cannot properly ascertain whether diversity
jurisdiction exists. This issue is likely better addressed on
a motion to dismiss pursuant to Federal Rule of Civil
first asserts a claim under the Health Insurance Portability
and Accountability Act, 42 U.S.C. §§ 1320a et seq.
(“HIPAA”). The Sixth Circuit has stated that
“although we have not held explicitly that there is no
private right of action under HIPAA, express or implied,
other circuits have so held.” Thomas v. Univ. of
Tenn. Health Sci. Ctr., 2017 WL 9672523, at *2 (6th Cir.
2017) (citations omitted). In Thomas, the Sixth Circuit
upheld a dismissal for failure to state a claim pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii) and determined that
“[i]f [the plaintiff] believes that her HIPAA rights
were violated, the proper avenue for redress is to file a
complaint with the DHHS.” Id. (citing 45
C.F.R. § 160.306). The facts in Thomas are nearly
identical to the facts in this case. If Plaintiff believes
that his HIPAA rights were violated, he should file a
complaint with the DHHS. Therefore, the undersigned
recommends the Plaintiff's HIPAA claim be
addition, Plaintiff asserts an “Abuse of Power”
claim, which appears to be a claim under the American
Disabilities Act of 1990, 42 U.S.C. §§ 12101 et
seq. (“ADA”), because Plaintiff cites 42 U.S.C.
§ 12101. Title III of the ADA prohibits public
accommodations, including privately operated hospitals, from
discriminating against individuals on the basis of disability
in the full and equal enjoyment of goods, services,
facilities, privileges, advantages, or accommodations. 42
U.S.C. §§ 12181(7)(f), 12182(a). However, with
respect to Plaintiff's abuse of power claim, he fails to
articulate the basis for the claim. It appears that Plaintiff
is asserting that the abuse of power occurred when Aspirus
supervisors intimidated Plaintiff's relative following
the alleged HIPAA violation. Plaintiff does not explain how
Aspirus intimidated Plaintiff other than using
“intimidation scare tactics.” Because Plaintiff
fails to articulate the basis of this claim, the undersigned
recommends that the abuse of power claim be dismissed.
next asserts a “Fraud and Deception” claim
pursuant to 18 U.S.C. § 1035. The cited statute is a
criminal provision governing “False statements relating
to health care matters.” Id. In Jones v.
Howard, 2018 WL 6039974, at *4 (D. Del. Nov. 18, 2018),
the district court dismissed as frivolous a claim brought
under this statute (among others). The court stated:
“[t]o the extent that Plaintiff seeks to impose
criminal liability upon Defendants pursuant to the criminal
statutes upon which he relies, he lacks standing to
proceed.” Id. Similar to Jones, Plaintiff does
not have standing to bring this criminal charge.
“Whether to prosecute and what charge to file or bring
before a grand jury are decisions that generally rest in the
prosecutor's discretion.” United States v.
Batchelder, 442 U.S. 114, 124 (1979). Therefore, in the
opinion of the undersigned, Plaintiff's claim pursuant to
18 U.S.C. § 1035 should be dismissed.
next asserts a defamation claim. In his complaint, Plaintiff
cites a definition of “defamation” from the
federal statute on foreign judgments. 28 U.S.C. § 4101.
However, defamation is a state law claim; therefore, Michigan
state law applies. To succeed on a defamation claim under
Michigan law, the plaintiff must prove “a false and
defamatory statement concerning the plaintiff.”
Mitan v. Campbell, 471 Mich. 21, 24, 706 N.W.2d 420,
421 (Mich. 2005). “A plaintiff claiming defamation must
plead a defamation claim with specificity by identifying the
exact language that the plaintiff alleges to be
defamatory[.]” Thomas M. Cooley Law School v.
Doe 1, 300 Mich.App. 245, 262, 833 N.W.2d 331, 341
(Mich. App. 2013). In this case, Plaintiff does not allege
that Aspirus made any false or defamatory statements.
Instead, Plaintiff asserts that Aspirus only “exposed
mental health information.” Because Plaintiff has
failed to allege that Aspirus made any false or defamatory
statements, the undersigned recommends that Plaintiff's
defamation claim be dismissed.
also asserts an ADA claim based on being banned from both
hospitals and a negligence claim stemming from the alleged
HIPAA violation. In the opinion of the undersigned,
Plaintiff's ADA and negligence claims are not clearly
frivolous and are not properly dismissed on initial review.
the undersigned recommends that the following claims be
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii):
“HIPAA Violation, ” “Abuse of Power,
” “Fraud and Deception, ” and
“Defamation of Character.” NOTICE TO PARTIES:
Objections to this Report and Recommendation must be served
on opposing parties and filed with the Clerk of the Court
within fourteen (14) days of receipt of this Report and
Recommendation. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P.
72(b); W.D. Mich. LCivR 72.3(b). Failure to file timely