United States District Court, D. South Carolina, Beaufort Division
REPORT AND RECOMMENDATION
WALLACE W. DIXON, Magistrate Judge.
Plaintiff Carlos Kinlaw ("Plaintiff" or "Kinlaw"), proceeding pro se and in forma pauperis, filed the instant suit on or about July 14, 2014. (Dkt. No. 1.) Pursuant to the provisions of 28 U.S.C. §636(b)(1), and Local Rule 73.02(B)(2) (D.S.C.), the undersigned United States Magistrate Judge is authorized to review such complaints for relief and to submit findings and recommendations to the District Court. After careful review, the undersigned finds that the Complaint should be summarily dismissed, without prejudice and without issuance and service of process.
PRO SE AND IN FORMA PAUPERIS REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se complaint pursuant to the procedural provisions of 28 U.S.C. § 1915. The review has been conducted in light of the following precedents: Neitzke v. Williams , 490 U.S. 319, 324-25 (1989); Estelle v. Gamble , 429 U.S. 97 (1976); Haines v. Kerner , 404 U.S. 519 (1972); and Gordon v. Leeke , 574 F.2d 1147 (4th Cir. 1978). The Complaint herein has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action is "frivolous or malicious, " "fails to state a claim on which relief may be granted, " or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. §1915(e)(2)(B)(i), (ii), (iii). Hence, under 28 U.S.C. §1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams , 490 U.S. 319 (1989).
This Court is required to liberally construe pro se documents, Estelle v. Gamble , 429 U.S. 97 (1976), holding them to a less stringent standard than those drafted by attorneys, Hughes v. Rowe , 449 U.S. 5 (1980) (per curiam). Even under this less stringent standard, however, a pro se complaint is subject to summary dismissal.
The mandated liberal construction afforded pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so, but a district court may not rewrite a petition to "conjure up questions never squarely presented" to the court. Beaudett v. City of Hampton , 775 F.2d 1274, 1278 (4th Cir. 1985). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't. of Soc. Servs. , 901 F.2d 387 (4th Cir. 1990).
The instant lawsuit appears to arise out of Plaintiff's dissatisfaction with his workers' compensation case. Plaintiff alleges that Lowes Home Centers, Inc. and Sedgwick CMS, Inc., "committed fraud, collusion, civil RICO, conspiracy, and broke HIPAA in a workers compensation case by using attorneys and doctors to give them reports in their favor." (Dkt. No. 1 at 5 of 7.) Plaintiff alleges that two attorneys (defense attorney at McAngus Brian O'Keefe and Plaintiff's attorney Fletcher M. Johnson) "committed a fraud by using the workers compensation settlement to get a resignation and release from [Plaintiff's] job on March 16, 2011." (Dkt. No. 1 at 5 of 7.) Plaintiff alleges that the attorneys broke the workers' compensation "law in the state of South Carolina, they both never told [Plaintiff] that the law was being broken and the South Carolina Workers Compensation Commission would not enforce the law they help with the fraud." (Id.)
Plaintiff also names three physicians as Defendants (Dr. Tobin, Dr. Hyman, and Dr. Friedman); Plaintiff complains that Dr. Tobin "lied to help them win the case in his workers compensation reports." (Dkt. No. 1 at 5 of 7.) It appears that Plaintiff takes issue with Dr. Tobin's opinion that "there was no pathology in the hip and knee" corresponding with Plaintiff's complaint of "left calf and left leg pain." (Id.) Plaintiff lodges a similar complaint against Dr. Hyman. (See Dkt. No. 1 at 6 of 7.) As to the last two Defendants (Hantske and Friedman), Plaintiff alleges as follows (verbatim): "Erin L. Hantske help with trying to said the fraud was a addendum to a doctor note from Richard Friedman in a appeal to South Carolina Workers Compensation Commission. She also knew about the resignation and how it was got." (Id.) In the "Relief" section of his Complaint, Plaintiff states,
I am seeking relief from the court of $375, 000, 000 in damage for them trying to keep me injured and the fraud the cold heart way they went through to do it. I know that the state of South Carolina help with this fraud but they are immune from any lawsuit. It would be hard to prove that they gave me a unfair trial which violate my Constitutional right to a fair trial.
(Dkt. No. 1 at 7 of 7.)
The undersigned recommends dismissing the instant action without prejudice and without issuance and service of process. To the extent Plaintiff seeks to bring a cause of action pursuant to the Health Insurance Portability and Accountability Act ("HIPAA"), such a claim fails because there is no private cause of action under HIPAA. See Webb v. Smart Document Solutions, LLC , 499 F.3d 1078, 1080 (9th Cir. 2007) (noting that HIPAA provides for no private right of action); Acara v. Banks , 470 F.3d 569, 571-72 (5th Cir. 2006) (same); Treece v. Winston-Wood, Civ. A. No. 3:10-2354-DCN-JRM, 2012 WL 887476, at *8 (D.S.C. Feb. 23, 2012), adopted at 2012 WL 896360 (D.S.C. Mar. 15, 2012).
Plaintiff also seeks to assert a claim pursuant to the Racketeer Influenced and Corrupt Organizations Act ("RICO"). See 18 U.S.C. § 1962; 18 U.S.C. § 1964. RICO "provides a private right of action... to [a]ny person injured in his business or property by reason of a violation' of the Act's criminal prohibitions." Bridge v. Phoenix Bond & Indem. Co. , 553 U.S. 639, 641 (2008) (quoting 18 U.S.C. § 1964(c)). A plaintiff seeking civil damages under RICO must allege and prove four elements: "(1) conduct [causing injury to business or property] (2) of an enterprise (3) through a pattern (4) of racketeering activity." Sedima S.P.R.L. v. Imrex Co. , 473 U.S. 479, 496 (1995). A pattern of racketeering activity "requires at least two acts of racketeering activity." 18 U.S.C. § 1961(5). The RICO Act includes a list of criminal offenses that constitute "racketeering activity" or ...