United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER REGARDING VARIOUS MOTIONS
PAGE HOOD, CHIEF UNITED STATES DISTRICT JUDGE
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)
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.
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.
to the Court's Order (Doc # 27), all defendants were
categorized into several groups. 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
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
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.
dispositive motions have been filed and they are all before
the Court. A hearing on these motions was held on April 12,
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
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)
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.
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)
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.
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)
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)
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
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
Motions to Dismiss
Standard of Review
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).
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
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).
Absolute Prosecutorial Immunity
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.
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.
No Private Cause of Action under HIPAA
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
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
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].” 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)).
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.
Proper Disclosures under HIPAA
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
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. §
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 ...