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Micks-Harm v. Nichols

United States District Court, E.D. Michigan, Southern Division

September 30, 2019

TRACY CLARE MICKS-HARM, Plaintiff,
v.
WILLIAM PAUL NICHOLS ET AL, Defendants.

          OPINION AND ORDER REGARDING VARIOUS MOTIONS

          DENISE PAGE HOOD, CHIEF UNITED STATES DISTRICT JUDGE

         I. BACKGROUND

         A. Procedural Background

         On August 3, 2018, Plaintiff Tracy Clare Micks-Harm (“Micks-Harm”) commenced this action in the State of Michigan's Monroe County Circuit Court alleging that the defendants she named in her Complaint violated her rights under the Fourth Amendment, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, 42 U.S.C. § 1985 (conspiracy to interfere with civil rights), and 18 U.S.C. § 1347 (health care fraud). (Doc # 1-2) These named defendants include: William Paul Nichols, Blue Cross Blue Shield of Michigan Foundation, Blue Cross Blue Shield of Michigan, Blue Care Network of Michigan, Bluecaid of Michigan, I-Patient Care, Inc., Marc Moore, Brian Bishop, Christine Hicks, John J. Mulroney, Shawn Kotch, James Stewart, Robert Blair, Brent Cathey, Jon Lasota, Sean Street, Mike McLaine, Monroe Police Department, Tina Todd, Jessica Chaffin, Jack Vitale, Daniel White, Carl Christensen, Alan J. Robertson, Diane Silas, Jim Gallagher, Scott Beard, Derek Lindsay, Aaron Oetjens, Mike Merkle, FNU Sproul, Brian Zazadny, William McMullen, Donald Brady, Chris Miller, William Chamulak, Tom Farrell, Mike Guzowski, Timothy Gates, Sarah Buciak, Allison Arnold, Jeffrey Yorkey, Michael G. Roehrig, Dale Malone, Leon Pedell, Vaughn Hafner, Dina Young, Bill Schuette, Jennifer Fritgerald, Timothy C. Erickson, Catherine Waskiewicz, Michael J. St. John, Michigan Administrative Hearing System, Michigan Automated Prescription System, Haley Winans, Matthew Schneider, Wayne F. Pratt, Brandy R. McMillion, and Blue Cross Complete of Michigan. (Id.) Defendants Matthew Schneider (“Schneider”), Wayne F. Pratt (“Pratt”), and Brandy R. McMillion (“McMillion”) removed this action to federal court on August 23, 2018. (Doc # 1)

         On November 30, 2018, Defendants Schneider, Pratt, and McMillion filed a Motion to Consolidate Cases. (Doc # 16) The Court granted this Motion on February 20, 2019 as to the pending cases and any new and related cases filed and reassigned to the undersigned. (Doc # 27) Several defendants from the other cases were consolidated with this Action, and these defendants include: Donna Knierim, Adam Zimmerman, Administrative Hearing System, Assistant U.S. Attorney's Office, Bureau of Licensing and Regulation, Christensen Recovery Services, City of Monroe, City of Monroe and Police Vice Unit, John Does, James Howell, Lt. Marc Moore, MANTIS, Michigan State Police, County of Monroe, Monroe County Sheriff Office, Nichols William, Mike Mclain, Drug Enforcement Administration, Michigan Department of Licensing and Regulatory Affairs, Dana Nessel, Monroe City Police Department, Monroe County Circuit Court, Charles F. McCormick, Attorney General of the United States, U.S. Attorney's Office (DEA), Diane Young, Blue Cross Blue Shield Association, United States of America, Udayan Mandavia, and the State of Michigan.

         The consolidated action effective as of the hearing date of April 12, 2019 includes the following Plaintiffs as of the date of the hearing: Tracy Clare Micks-Harm, Debra A. Nichols, Dennis Helm, Ines Helm, Eric Cook (2 cases), Eric Cook (for Jacob Cook) (2 cases), Raymond Blakesley, Renay Blakesley, Tammy Clark (for Richard Johnson), Janet Berry, Angela Mills, Donna Knierim, Janae Drummonds, Michael Smallwood, Janet Zureki, and Jennifer Smith.[1]

         Pursuant to the Court's Order (Doc # 27), all defendants were categorized into several groups.[2] Each of these groups of defendants were given until February 22, 2019 to file any dispositive motions. According to the dispositive motions that have been filed, these defendants are in the following groups:

Federal Defendants: Brandy R. McMillion, Wayne F. Pratt, Matthew Schneider, Brian Bishop, William Chamulak, Tom Farrell, and John J Mulroney.
Monroe County Defendants: Monroe County, William Paul Nichols, Robert Blair, Jon Lasota, Mike McClain, Tina Todd, Jessica Chaffin, Jack Vitale, Daniel White, Allison Arnold, Jeffrey Yorkey, Michael G. Roehrig, and Dale Malone.
Monroe City Defendants: City of Monroe, Donald Brady, Brent Cathey, Shawn Kotch, Derek Lindsay, Mike Merkle, Chris Miller, Monroe Police Department, and Aaron Oetjens.
State Defendants: Administrative Hearing System, Scott Beard, Bureau of Licensing and regulation, Timothy C. Erickson, Jennifer Fritgerald, Vaughn Hafner, MANTIS, William McMullen, Michigan Administrative Hearing System, Michigan Automated Prescription System, Michigan Department of Licensing and Regulatory Affairs, Michigan State Police, Marc Moore, Marc Moore, Dana Nessel, Bill Schuette, FNU Sproul, Michael J. St. John, Sean Street, Catherine Waskiewicz, Haley Winans, and Dina Young.
Insurance Company and Doctors and Providers Defendants: Blue Care Network of Michigan, Blue Cross Blue Shield of Michigan, Blue Cross Blue Shield of Michigan Foundation, Blue Cross Complete of Michigan, Bluecaid of Michigan, Carl Christensen, MD, Jim Gallagher, James Howell, Alan J Robertson, MD, Diane Silas, James Stewart, and Brian Zazadny.
Miscellaneous Defendant: I-Patient Care, Inc.

         Several dispositive motions have been filed and they are all before the Court. A hearing on these motions was held on April 12, 2019.

         Federal Defendants filed a Motion to Dismiss on October 5, 2018. (Doc # 5) Micks-Harm filed a Response to Federal Defendants' Motion to Dismiss on October 31, 2018. (Doc # 7) Federal Defendants filed their Reply on November 2, 2018. (Doc # 10) Micks-Harm filed a Supplemental Response on March 20, 2019. (Doc # 67) Federal Defendants filed another Motion to Dismiss on February 22, 2019. (Doc # 33) Several Plaintiffs filed Responses to Federal Defendants' second Motion to Dismiss on various dates. (Docs # 59, 62, 74, 77, 81, 82, 100, 101, 104, 105, 109, 110, 144, 148, 168, 170) Federal Defendants filed their Reply to these Responses on March 22, 2019. (Doc # 114)

         On November 29, 2018, Monroe County Defendants filed a Motion to Dismiss or in the Alternative, for Summary Judgment. (Doc # 15) No responses were filed. On February 22, 2019, Monroe County Defendants filed a Motion to Dismiss. (Doc # 36) Several Plaintiffs filed Responses to Monroe County Defendants' second dispositive motion on various dates. (Docs # 52, 76, 83, 86, 87, 89, 91, 94, 96, 102, 107, 111, 135, 145, 150, 151, 152, 153, 154, 173) Monroe County Defendants filed their Reply on March 22, 2019. (Doc # 120)

         Monroe City Defendants filed a Motion to Dismiss on January 9, 2019. (Doc # 21) No responses have been filed. On February 27, 2019, Monroe City Defendants filed several identical Motions to Dismiss. (Docs # 44, 45, 46, 47, 48, 49, 50) Eric Cook (for Jacob Cook) filed a Response to one of the Motions to Dismiss (Doc # 48) on March 21, 2019. (Doc # 73) On March 11, 2019, Monroe City Defendants filed several additional identical Motions to Dismiss. (Docs # 54, 55, 56, 57, 58) No responses have been filed.

         I-Patient Care, Inc. (“I-Patient Care”) filed a Motion to Dismiss on February 22, 2019. (Doc # 32) Several Plaintiffs filed Responses on various dates. (Docs # 79, 84, 88, 92, 98, 103, 112, 121, 122, 127, 128, 132, 149, 172) I-Patient Care, Inc filed its Reply on March 22, 2019. (Doc # 118)

         State Defendants filed a Motion to Dismiss on February 22, 2019. (Doc # 37) Several Plaintiffs filed Responses on various dates. (Docs # 72, 78, 80, 90, 93, 99, 108, 133, 134, 146, 169) No reply has been filed.

         Insurance Company and Doctor and Providers Defendants filed a Motion to Dismiss on February 22, 2019. (Doc # 40) Several Plaintiffs filed Responses on various dates. (Docs # 52, 75, 85, 97, 106, 113, 124, 131, 147, 171) Insurance Company and Doctor and Providers Defendants filed a Reply on March 22, 2019. (Doc # 119)

         B. Factual Background

         On June 28, 2018, Micks-Harm was informed by Dr. Leslie Pompy that all of the named defendants reviewed her medical records as well as the medical records of the other Plaintiffs. (Doc # 1-2, Pg ID 22) Plaintiffs all appear to be patients of Dr. Pompy. Two or more of the named defendants currently continue to possess and/or have access to Plaintiffs' past medical histories. Defendants were able to access Plaintiffs' medical information following the execution of a felony search warrant that resulted in her medical records being seized from Dr. Pompy's office. It is alleged by Plaintiffs that the search warrant occurred without the existence of probable cause and absent any exigent circumstances. The search warrant that Plaintiffs refer to in their Complaints is connected with an ongoing criminal case, United States v. Pompy, 18-cr-20454 (E.D. Mich.)(assigned to Judge Arthur J. Tarnow), in which Dr. Pompy is charged with distributing controlled substances (21 U.S.C. § 841(a)(1)) and health care fraud (18 U.S.C. § 1347). (Doc # 5, Pg ID 45)

         Plaintiffs claim that their HIPAA rights were violated because they were not notified that the Defendants were going to access their medical information. Plaintiffs allude to the fact that their Fourth Amendment rights were violated since the police unreasonably seized their medical records from Dr. Pompy's office. It is additionally asserted by Plaintiffs that two or more Defendants violated their rights by committing computer fraud under 18 U.S.C. § 1030. Plaintiffs also allude to the fact that their rights were violated under 42 U.S.C. § 1985 (conspiracy to interfere with civil rights), and 18 U.S.C. § 1347 (health care fraud).

         Plaintiffs request that the Court award them punitive damages in the amount of $800 million dollars, monetary damages in excess of $1 billion dollars, and an unspecified amount of compensatory damages. Plaintiffs also seek any other damages available, interest, fees, and medical expenses that the Court deems appropriate.

         II. Motions to Dismiss

         A. Standard of Review

         Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for a motion to dismiss for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). This type of motion tests the legal sufficiency of the plaintiff's complaint. Davey v. Tomlinson, 627 F.Supp. 1458, 1463 (E.D. Mich. 1986). When reviewing a motion to dismiss under Rule 12(b)(6), a court must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). A court, however, need not accept as true legal conclusions or unwarranted factual inferences.” Id. (quoting Gregory v. Shelby Cnty., 220 F.3d 443, 446 (6th Cir. 2000)). “[L]egal conclusions masquerading as factual allegations will not suffice.” Edison v. State of Tenn. Dep't of Children's Servs., 510 F.3d 631, 634 (6th Cir. 2007).

         As the Supreme Court has explained, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level . . ..” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted); see LULAC v. Bresdesen, 500 F.3d 523, 527 (6th Cir. 2007). To survive dismissal, the plaintiff must offer sufficient factual allegations to make the asserted claim plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         Federal courts hold the pro se complaint to a “less stringent standard” than those drafted by attorneys. Haines v. Kerner, 404 U.S. 519 (1972). However, pro se litigants are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

         B. Federal Defendants

         1. Absolute Prosecutorial Immunity

         The Federal Defendants in the various cases, namely the United States Attorneys and/or the Assistant United States Attorneys, seek dismissal based on absolute immunity in their role in prosecuting Dr. Pompy and obtaining documents relating to the criminal matter against Dr. Pompy.

         A prosecutor is entitled to absolute immunity for a prosecutor's conduct in initiating a prosecution and in presenting the case before the courts. Lanier v. Bryant, 332 F.3d 999, 1005 (6th Cir. 2003); Buckley v. Fitzsimmons, 509 U.S. 259, 272-73 (1993); Imbler v. Pachtman, 424 U.S. 409, 422 (1976). Liberally construing the allegations in the various complaints, the allegations against the Federal Defendants fail to state a claim upon which relief may be granted under Rules 8(a)(2) and 12(b)(6) of the Rules of Civil Procedure. The Federal Defendants are currently prosecuting a criminal matter against Dr. Pompy. The claims against the federal prosecutors are dismissed with prejudice.

         2. No Private Cause of Action under HIPAA

         The various Plaintiffs allege violations under HIPAA by the Federal Defendants because they obtained, possessed, and disclosed Plaintiffs' medical records in the possession of Dr. Pompy in connection with the criminal matter against Dr. Pompy. The Federal Defendants seek to dismiss the HIPAA claims against them because HIPAA does not provide a private cause of action to be brought by an individual plaintiff and HIPAA permits disclosure of a patient's health information for law enforcement purposes to law enforcement officials.

         HIPAA is designed to protect the privacy of personal medical information by limiting its disclosure, and provides for both civil and criminal penalties for violations of its requirements. 42 U.S.C. §§ 1320d-5, d-6. HIPAA expressly provides the authority to enforce its provisions only to the Secretary of Health and Human Services. Id. The Supreme Court has explained that “the fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of th at person .” Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979). Congress must expressly authorize a private cause of action for a private person to have the right to sue to enforce a federal statute. Alexander v. Sandoval, 532 U.S. 275, 286 (2001). HIPAA provides no express language that allows a private person the right to sue in order to enforce HIPAA.

         The Sixth Circuit Court of Appeals noted that if an individual plaintiff believes his or her HIPAA rights were violated, “the proper avenue for redress is to file a complaint with the DHHS [Department of Health and Human Services].”[3] Thomas v. Univ. of Tenn. Health Science Ctr at Memphis, No. 17-5708, 2017 WL 9672523 at *2 (6th Cir. Dec. 6, 2017) (finding that the district court did not err in dismissing claims under HIPAA where no private right of action existed, citing, Bradley v. Pfizer, Inc., 440 Fed.Appx. 805, 809 (11th Cir. 2011); Carpenter v. Phillips, 419 Fed.Appx. 658, 659 (7th Cir. 2011); Dodd v. Jones, 623 F.3d 563, 569 (8th Cir. 2010); Wilkerson v. Shinseki, 606 F.3d 1256, 1267 n.4 (10th Cir. 2010); Miller v. Nichols, 586 F.3d 53, 59-60 (1st Cir. 2009); Webb v. Smart Document Sols., LLC, 499 F.3d 1078, 1081 (9th Cir. 2007); Acara v. Banks, 470 F.3d 569, 571 (5th Cir. 2006)).

         Because there is no private cause of action by private individuals before the courts for alleged violations of HIPAA, the claims alleging such violations against the Federal Defendants and other Defendants must be dismissed.

         3. Proper Disclosures under HIPAA

         The Federal Defendants also argue that HIPAA permits the disclosure of protected health information, without the authorization of the individuals. In this case, state investigators initially obtained Dr. Pompy's medical records pursuant to a search warrant. The Federal Defendants argue that they were covered under HIPAA to use the materials for law enforcement purposes, such as in a grand jury proceeding.

         The HIPAA regulations provide disclosure of protected health information, “for a law enforcement purpose to a law enforcement official.” 45 C.F.R. § 164.512(f). Such information must be disclosed to comply with a “court order or court-ordered warrant, or a subpoena issued by a judicial officer.” 45 C.F.R. § 164.512(f)(ii)(A) & (B). Disclosure of medical records is also permitted “in the course of any judicial or administrative proceeding.” 45 C.F.R. § 164.512(e)(1).

         The various Complaints fail to state claims under HIPAA because the protected health information was obtained from Dr. Pompy's office by search warrants. The Federal Defendants used the information before a grand jury proceeding related to Dr. Pompy. The allegations under HIPAA alleged in the various complaints ...


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