Moore v. Garner

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

BRENDA MOORE,

Plaintiff,

Case No. 2:19-cv-4032

v. Judge Edmund A. Sargus, Jr.

Chief Magistrate Judge Elizabeth P. Deavers

KELLY GARNER, et al.,

Defendants.

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION

On September 13, 2019, Plaintiff filed her Complaint. (ECF No. 1.) Because Plaintiff

failed to pay the requisite $400.00 filing fee or to file an application for leave to proceed in

forma pauperis, the Court issued a Notice of Deficiency, setting forth this deficiency and

directing her to submit the required application for leave to proceed in forma pauperis, or

alternatively, the filing fee within thirty (30) days. (ECF No. 2.) After additional Orders and

Notices of Deficiency (ECF Nos. 6, 12), Plaintiff submitted a properly completed amended

application for leave to proceed in forma pauperis (ECF No. 13), which is GRANTED. All

judicial officers who render services in this action shall do so as if the costs had been prepaid. 28

U.S.C. § 1915(a). Plaintiff’s first motion to proceed in forma pauperis (ECF No. 11) is

therefore MOOT. The Clerk is DIRECTED to remove that motion from the Court’s pending

motions list.

This matter is also before the Court for an initial screen of Plaintiff’s Complaint as

required by 28 U.S.C. § 1915(e)(2) to identify cognizable claims and to recommend dismissal of

Plaintiff’s Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim

upon which relief may be granted, or seeks monetary relief from a defendant who is immune

from such relief. 28 U.S.C. § 1915(e)(2). Having performed the initial screen, for the reasons

that follow, it is RECOMMENDED that the Court DISMISS this action for lack of subject

matter jurisdiction and for failure to state a claim.

I.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the

statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid,

the court shall dismiss the case at any time if the court determines that--

* * *

(B) the action or appeal--

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from such

relief.

1Formerly 28 U.S.C. § 1915(d).

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted.

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the basic

federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also Hill v.

Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule

8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual

demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on

its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on

a host of considerations, including common sense and the strength of competing explanations for

the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court

holds pro se ain complaints “‘to less stringent standards than formal pleadings drafted by

lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th

Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient

treatment, however, has limits; “‘courts should not have to guess at the nature of the claim

asserted.’” Frengler v. Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v.

Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

In addition, a federal court has limited subject matter jurisdiction. “The basic statutory

grants of federal court subject-matter jurisdiction are contained in 28 U.S.C. § 1331, which

provides for ‘[f]ederal-question’ jurisdiction, and § 1332, which provides for ‘[d]iversity of

citizenship’ jurisdiction.” Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006). Federal-question

jurisdiction is invoked when a plaintiff pleads a claim “arising under” the federal laws, the

Constitution, or treaties of the United States. Id. (citation omitted). For a federal court to have

diversity jurisdiction pursuant to Section 1332(a), there must be complete diversity, which means

that each plaintiff must be a citizen of a different state than each defendant, and the amount in

controversy must exceed $75,000. Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996).

II.

Plaintiff, an individual apparently residing in California, names as Defendants

Nationwide AMCO Insurance SA Food Services (“Nationwide”) with a Columbus, Ohio

address, Kelly Garner, an individual apparently employed by Nationwide with a Columbus, Ohio

address, and Complex Legal Services, Inc. (“Complex Legal”) with a Florance, California

address. (ECF No. 1 at PAGEID # 2.) Plaintiff alleges as follows:

Plaintiff while visiting Defendants [sic] insured Restaurant Plaintiff opened the

Ladies Room door immediately stepped into a River of water on the Ladies Room

floor Plaintiff lost footing from the very large amount of water covering the entire

floor Plaintiff fall a number of times while trying too [sic] regain footing for

standing was unable, was not able to stand-up [sic] from the severe pain that could

be felt in Plaintiff’s body after the very hard fall on the very hard, very wet floor

while laying in the River of water Plaintiff could see Toilet Sewage water running

very forcefully from the Toilet into the Ladies Room floor. Plaintiff could also see

at the point sink water running very forcefully from the Ladies room’s sink Plaintiff

was exposed to Dangerous Bacterial / Sewage waste and water, plus suffered

serious bodily injuries.

(Id. at PAGEID # 3.) Plaintiff goes on to allege that Defendants violated her rights under Health

Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub. L. No. 104–191, 110

Stat. 1936 (1996); The Privacy Act of 1974, 5 U.S.C. § 552(a) (“Privacy Act”); and 18 U.S.C. §

1028(a)(1) through the unauthorized dissemination of her Social Security number and other

private information. (See generally id.) Plaintiff specifically alleges that this unauthorized

dissemination “exposed Plaintiff to Identity Theft, Identity Fraud, Forgery everything, Theft by

Deception.” (Id. at PAGEID # 4; see also id. at PAGEID # 5 (alleging that such dissemination

creates “the very potential for fraud, identity theft”).)

Plaintiff asserts that this Court has subject matter jurisdiction over this action on the bases

of 28 U.S.C. §§ 1331, 1332, 1343(3) and 18 U.S.C. § 1028(a)(1) (fraud and related activity in

connection with identification documents). (Id. at PAGEID # 2.) The undersigned disagrees.

First, Plaintiff fails to state a claim arising under federal law. “To proceed on a claim under 42

U.S.C. § 1983, a plaintiff must show that a person acting under color of state law deprived the

plaintiff of a right secured by the Constitution or laws of the United States.” Vistein v. Am.

Registry of Radiologic Technologists, 342 F. App’x 113, 127 (6th Cir. 2009); see also Rubin v.

Fannie Mae, 587 F. App’x 273, 275 (6th Cir. 2014) (concluding that due process claim failed as

a matter of law where the defendant was not a state actor); Horen v. Bd. of Educ. of Toledo City

Sch. Dist., 594 F. Supp. 2d 833, 843 (N.D. Ohio 2009) (“Because defendants are not state actors,

they cannot be held liable under the Fourteenth Amendment.”) (citing Jackson v. Metro. Edison

Co., 419 U.S. 345, 349 (1974) (“‘[P]rivate conduct, however discriminatory or wrongful,’ falls

outside the scope of the Fourteenth Amendment[.]”)). “The principal inquiry to be undertaken in

determining whether a private party’s actions constitute ‘state action’ under the Fourteenth

Amendment to the United States Constitution is whether the party’s actions may be ‘fairly

attributable to the State.’” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).

Here, Plaintiff has not, and cannot, based on her factual allegations, allege that the

Defendants are state actors or that their conduct constitutes state action. Plaintiff therefore has

failed to state a federal claim based on an alleged violation of her rights under Section 1983. See

Lugar, 457 U.S. at 937; Al-Bari v. Schofield, No. 1:12-cv-00111, 2013 WL 1943016, at *2 (M.D.

Tenn. May 9, 2013) (“Regardless, the insurance company is not a state actor that may be sued for

constitutional violations under § 1983.”); Horen, 594 F. Supp. 2d at 843.

Plaintiff’s invocation of the Privacy Act does not save her claims. “Under the Privacy

Act, ‘[a] civil damage action may be brought solely against an ‘agency.’’” Smallwood v. A & G

Mgmt., No. 2:19-cv-11245, LLC, 2019 WL 6339841, at *2 (E.D. Mich. Nov. 27, 2019) (quoting

Windson v. The Tennessean, 719 F.2d 155, 160 (1983)); see also Schmitt v. City of Detroit, 395

F.3d 327, 331 (6th Cir. 2005) (stating that the Privacy Act applies to only federal agencies). The

Privacy Act defines an “agency” as “any executive department, military department,

Government corporation, Government controlled corporation, or other establishment in the

executive branch of the government (including Executive Office of the President), or any

independent regulatory agency.” 5 U.S.C. § 552(f)(1). Because Defendants, an insurance

company, an individual, and a private corporation, therefore do not fall within the statutory

definition of an “agency,” Plaintiff fails to state a claim as a matter of law. See id.; Smallwood,

2019 WL 6339841, at *2 (finding that claim failed as a matter of law where the defendant, a

private limited liability corporation, did not fall within the statutory definition of agency); Ervin

v. S. Cent. Kentucky Cmty. Coll., No. 1:13CV–P104, 2013 WL 5522670, at *3 (W.D. Ky. Oct. 3,

2013) (“Plaintiff fails to state a claim under the Privacy Act, 5 U.S.C. § 552a, because the Sixth

Circuit has held that the Privacy Act only applies to federal agencies.”) (citing Schmitt, 395 F.3d

at 331); Thomas v. Ohio, No. 2:12-cv-00271, 2012 WL 12887939, at *2 (S.D. Ohio Apr. 27,

2012) (“An agency, however, is the only proper defendant under the Privacy Act. . . . The civil

remedy provisions of the statute do not apply against private individuals, state agencies, private

entities, or state and local officials.”) (citations omitted), report and recommendation adopted by

2012 WL 12888336 (S.D. Ohio June 19, 2012).

In addition, the federal criminal statute addressing fraud and related activity in

connection with identification documents, 18 U.S.C. § 1028, does not create a private civil cause

of action or provide a basis for civil liability. Shannon v. Thor Real Estate, LLC, No. 16-cv-

12904, 2016 WL 6216006, at *2 n.1 (E.D. Mich. Oct. 25, 2016) (“18 U.S.C. 1028 is a federal

criminal statute that does not create a private cause of action.”); Anders v. Purifoy, No. 16-cv-

2321, 2016 WL 11479290, at *2 (W.D. Tenn. May 18, 2016) (finding that 18 U.S.C. § 1028,

inter alia, is a criminal statute that does not provide a private right of action), report and

recommendation adopted by 2016 WL 3102229 (W.D. Tenn. June 2, 2016) (certifying that an

appeal would not be taken in good faith and denying leave to appeal in forma pauperis the

dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)); Cunningham v. Duke Energy, No. 1:11-cv-

390, 2011 WL 2894623, at *2 (S.D. Ohio June 22, 2011) (finding, inter alia, that 18 U.S.C. §

1028 is a criminal statute that does not provide a private right of action and recommending that

the plaintiff’s complaint be dismissed with prejudice), report and recommendation adopted by

2011 WL 2894163 (S.D. Ohio July 19, 2011) (certifying that an appeal would not be taken in

good faith and denying leave to appeal in forma pauperis).

Moreover, Plaintiff’s invocation of HIPAA does not serve as a basis of jurisdiction as

there is no private right of action under HIPAA. Crockett v. Core Civic, No. 3:17-cv-00746,

2017 WL 3888352, at *4 (M.D. Tenn. Sept. 5, 2017) (“Federal ‘[c]ourts have repeatedly held

that HIPAA does not create a private right’ and ‘cannot be privately enforced . . . via § 1983.’”)

(citations omitted); Bonds v. Univ. of Cincinnati Med. Ctr., No. 1:15-cv-641, 2016 WL 6893846,

at *3 (S.D. Ohio Nov. 23, 2016) (“However, plaintiff has no private cause of action under the

Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub. L. No. 104–191,

110 Stat. 1936 (1996) (codified as amended in scattered sections of 18, 26, 29, 42 U.S.C.)[.]”)

(citations omitted); Robinette v. Lazzerini, No. 5:15-cv-2726, 2016 WL 931061, at *2 (N.D.

Ohio Mar. 11, 2016) (“HIPAA, however, does not afford individuals a private right of action.

Rather, penalties for HIPAA violations are imposed by the Secretary of Health and Human

Services.”) (citations omitted); Cottman v. Horizon Healcare, No. 1:15–cv–68, 2015 WL

959913, at *3 (S.D. Ohio Mar. 4, 2015) (adopting recommendation to dismiss action with

prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) that concluded, inter alia, “this Court lacks

jurisdiction because there is no private right of action under HIPPA”) (citations omitted).

Having concluded that Plaintiff has not established subject matter jurisdiction by

asserting a civil rights lawsuit, a lawsuit arising under the Constitution, laws, or treaties of the

United States, or through another federal statute giving rise to subject matter jurisdiction, the

undersigned next considers Plaintiff’s assertion of subject matter jurisdiction based on diversity

jurisdiction. (See ECF No. 1 at PAGEID # 2.) Plaintiff has not alleged that there is complete

diversity among the parties and, therefore, the undersigned cannot discern a basis for diversity

jurisdiction. (See id. at PAGEID ## 1–2 (listing Plaintiff’s address in Carlsbad, California;

listing Columbus, Ohio as the address for Nationwide and Kelly Garner; and listing a Florance,

California address for Complex Legal).) See Caterpillar, Inc., 519 U.S. at 68 (requiring

complete diversity, i.e., each plaintiff must be a citizen of a different state than each defendant,

for a federal court to have diversity jurisdiction pursuant to Section 1332(a)); Novick v. Frank,

No. 16–4189, 2017 WL 4863168, at *1 (6th Cir. 2017) (“For jurisdiction to be proper under §

1332(a), there must be complete diversity of citizenship among the parties—'no party [can] share

citizenship with any opposing party.’”) (quoting Safeco Ins. Co. of Am. v. City of White House,

Tenn., 36 F.3d 540, 545 (6th Cir. 1994)). This Court therefore does not have subject matter over

this action, which must be dismissed. Fed. R. Civ. P. 12(h)(3).

III.

For the reasons set forth above, it is RECOMMENDED that the Complaint in its

entirety be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B). It is FURTHER

RECOMMENDED that Plaintiff’s Motion to Separate (ECF No. 14) be DENIED and that the

Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of any

Order adopting this Report and Recommendation would not be taken in good faith and therefore,

if Plaintiff moves for leave to appeal in forma pauperis, that such request be denied. See

Callihan v. Schneider, 178 F.3d 800, 803 (6th Cir. 1999), overruling in part Floyd v. United

States Postal Serv., 105 F.3d 274, 277 (6th Cir. 1997).

In light of this posture, the deadline for any Defendant to respond to the Complaint is

SUSPENDED pending the presiding District Judge’s final ruling on this Report and

Recommendation.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Natl Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation

omitted)).

IT IS SO ORDERED.

Date: December 23, 2019 /s/ Elizabeth A. Preston Deavers

ELIZABETH A. PRESTON DEAVERS

CHIEF UNITED STATES MAGISTRATE JUDGE