United States District Court, D. South Carolina, Charleston Division
Timothy M. Cain United States District Judge
Jerome Curry (“Plaintiff”), proceeding pro
se and in forma pauperis, brought this action
seeking damages against Defendants Employers Preferred
Insurance Company, Sesame II Inc., St. Francis Hospital, Wood
Law Group, and attorneys Kathryn F. Walton and Chip Alexander
(“Defendants”) for alleged violations of the
Health Insurance Portability and Accountability Act of 1996
(“HIPAA”),  the Occupational Safety and Health
Administration (“OSHA”) regulations,
right to privacy, and his due process rights. (ECF No. 1 at
3, 5). The case was referred to a magistrate judge for all
pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1)
and Local Civil Rule 73.02(B)(2)(b), (e) (D.S.C.). Before
this court is the magistrate judge's Report and
Recommendation (“Report”), recommending that the
court dismiss the action without prejudice and without
issuance and service of process. (ECF No. 12). In the Report,
the magistrate judge sets forth the relevant facts and legal
standards, which are incorporated herein by reference.
See id. Plaintiff filed objections to the Report,
(ECF No. 19), and subsequently moved to amend his Complaint
and for summary judgment on the pleadings, (ECF Nos. 33, 34).
This matter is now ripe for review.
November 1, 2018, while working at a restaurant owned by
Defendant Sesame II, Inc., Plaintiff suffered nerve damage to
his right middle finger when his right hand became caught in
a meat grinder. See (ECF No. 1-1 at 3). As a result
of this injury, Plaintiff initiated proceedings before the
South Carolina Workers' Compensation Commission and was
represented in those proceedings by attorney Chip Alexander.
See id. at 1. In his Complaint, Plaintiff alleges
that his employer's attorney in the workers'
compensation case, Defendant Kathryn F. Walton, improperly
obtained Plaintiff's mental health records from Defendant
St. Francis Hospital without Plaintiff's consent or
permission for the records to be released. Id. at 1,
8. Plaintiff alleges Walton then used his medical records
against him in the workers' compensation case.
Id. at 1. Plaintiff asserts that when he confronted
his attorney, Alexander, about the medical records, Alexander
indicated that an employer's counsel was entitled by law
to obtain a claimant's medical records in a workers'
compensation matter. Id. at 2.
now brings this action claiming that the defendants violated
HIPAA as well as his rights to privacy and due process by
obtaining his mental health records without his consent, and
seeking damages. (ECF No. 1 at 3, 5). Additionally, Plaintiff
claims that his employer, Defendant Sesame II, violated OSHA
regulations by failing to train him on the proper use of the
meat grinder in the first place. See id.; see
also (ECF No. 1-1 at 3-6). Plaintiff asserts that, as a
result of all the defendants' actions, he has endured
pain and suffering, lost wages, and incurred out-of-pocket
medical expenses. (ECF Nos. 1 at 5; 1-1 at 4-7). Therefore,
Plaintiff seeks a total award of $300, 000.00 for both
compensatory and punitive damages. (ECF No. 1-1 at 7).
recommendations set forth in the Report have no presumptive
weight, and this court remains responsible for making a final
determination in this matter. See Matthews v. Weber,
423 U.S. 261, 270-71 (1976). The court is charged with making
a de novo determination of those portions of a
magistrate judge's report to which a specific objection
is made, and the court may accept, reject, modify, in whole
or in part, the recommendation of the magistrate judge or
recommit the matter with instructions. 28 U.S.C. §
636(b)(1). However, the court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the court to a
specific error in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of a timely filed,
specific objection, the magistrate judge's conclusions
are reviewed only for clear error, see Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005), and the court is not required to provide an
explanation for adopting the Report, see Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983).
Plaintiff is proceeding pro se, this court is
charged with construing his pleadings liberally in order to
allow for the development of a potentially meritorious case.
See Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal
citations omitted); Gordon v. Leeke, 574 F.2d 1147,
1151 (4th Cir. 1978). However, this does not mean that the
court can ignore the Plaintiff's failure to allege facts
that set forth a claim currently cognizable in a federal
district court. See Weller v. Dep't of Soc.
Servs., 901 F.2d 387, 391 (4th Cir. 1990).
magistrate judge's Report recommends that Plaintiff's
Complaint be dismissed for lack of jurisdiction without
prejudice and without service on the Defendants because the
Complaint fails to establish a valid basis for jurisdiction,
either in diversity or federal question. (ECF No. 12 at 3);
see also Fed. R. Civ. P. 12(h)(3) (“If the
court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”). As
noted above, Plaintiff filed objections to the Report which
the court has carefully reviewed. However, rather than
containing specific objections to the magistrate judge's
findings, Plaintiff's objections merely restate his
claims and fail to identify any error in the magistrate
judge's analysis or conclusions. See (ECF No.
19). Nevertheless, the court is able to glean that
Plaintiff's objection to the Report is the magistrate
judge's finding that there is no federal question
jurisdiction over his claims. See id. at 3-4.
is a fundamental precept that federal courts are courts of
limited jurisdiction,' constrained to exercise only the
authority conferred by Article III of the Constitution and
affirmatively granted by federal statute.” In re
Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir.
1998) (quoting Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 374 (1978)). Accordingly, federal
courts must, sua sponte, inquire into whether there
exists a valid basis for jurisdiction and “dismiss the
action if no such ground appears.” Id.
Furthermore, there is no presumption that a federal court has
jurisdiction over any given matter and “the facts
providing the court jurisdiction must be affirmatively
alleged in the complaint.” Pinkley, Inc. v. City of
Frederick, Md., 191 F.3d 394, 399 (4th Cir. 1999)
(citing McNutt v. Gen. Motors Acceptance Corp., 298
U.S. 178, 189 (1936)); see also Fed. R. Civ. P.
8(a)(1) (requiring that a complaint set forth “a short
and plaint statement of the grounds for the court's
question jurisdiction exists if the claims “aris[e]
under the Constitution, law, or treaties of the United
States.” 28 U.S.C. § 1331. In this case, Plaintiff
attempts to assert causes of action pursuant to HIPAA and
OSHA regulations, as well as general claims for violations of
his due process and privacy rights. However, the HIPAA
statute does not provide a private right of action for
damages to individuals. See, e.g., Wilkerson v.
Shinseki, 606 F.3d 1256, 1267 n.4 (10th Cir. 2010)
(“Any HIPAA claim fails as HIPAA does not create a
private right of action for alleged disclosures of
confidential medical information.”); Acara v.
Banks, 470 F.3d 569, 571-72 (5th Cir. 2006)
(“Every district court that has considered this issue
is in agreement that the statute does not support a private
right of action.”). Similarly, Plaintiff fails to
identify, nor is the court aware of, any OSHA regulation
creating a federal cause of action imposing civil liability
for disclosure of medical records. See Burgess v.
Charlottesville Sav. & Loan Ass'n, 477 F.2d 40,
43-44 (4th Cir. 1973) (quoting Shulthis v. McDougal,
225 U.S. 561, 569 (1912)) (noting that “the mere
assertion in a pleading that the case is one involving the
construction or application of the federal laws does not
authorize [a] District Court to entertain the suit nor does
federal jurisdiction attach on the bare assertion that a
federal right or law has been infringed or violated or that
the suit takes its origin in the laws of the United
States” (internal quotation marks and alterations
omitted)). Finally, with respect to Plaintiff's claims
that his rights to privacy and due process have been
violated, Plaintiff has provided no plausible allegation that
the Defendants' actions in any way interfered with or
implicated his rights conferred by the United States
Constitution. See Holloway v. Pagan River Dockside
Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012) (noting
that subject-matter jurisdiction does not exist over claims
that are “so insubstantial, implausible, foreclosed by
prior decisions of [the United States Supreme Court], or
otherwise completely devoid of merit as to not involve a
federal controversy” (internal quotation marks
omitted)). Accordingly, Plaintiff's Complaint fails to
establish federal question jurisdiction over any of his
alleged causes of action.
with respect to Plaintiff's motion to amend or correct
his Complaint, (ECF No. 33), Plaintiff raises no
additional allegations in support of his claims which would
establish federal subject-matter jurisdiction. Additionally,
to the extent Plaintiff attempts to assert a § 1983
claim against Defendants, see (ECF No. 33 at 2),
this also fails to save the Complaint as a matter of law
because all Defendants are private actors and are, therefore,
not amenable to suit under § 1983. See Cox v. Duke
Energy, Inc., 876 F.3d 625, 632 (4th Cir. 2017); see
also Marcantoni v. Bealefeld, 734 Fed. App'x 198,
199-200 (4th Cir. 2018) (noting that private companies and
“private attorneys do not act under color of state law
and a § 1983 suit may not be maintained against
after a thorough review of the Report and the record in this
case pursuant to the standard set forth above, the court
finds Plaintiff's objections to the Report (ECF No. 19),
as well as his subsequent motion to amend his Complaint (ECF
No. 33), to be without merit. Accordingly, the court adopts
the Report of the magistrate judge (ECF No. 12) and
incorporates it herein. It is therefore