Williams v. OMES Risk Management

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF OKLAHOMA

GARY LEON WILLIAMS, )

)

Plaintiff, )

)

v. ) Case No. CIV-24-857-SLP

)

OMES RISK MANAGEMENT, et al., )

)

Defendants. )

REPORT AND RECOMMENDATION

Plaintiff Gary Leon Williams, proceeding pro se and in forma pauperis, alleges

violations of multiple federal statutes. Doc. 13. United States District Judge Scott L. Palk

referred this matter to the undersigned Magistrate Judge in accordance with 28 U.S.C.

§ 636(b)(1)(B)-(C). Having reviewed Plaintiff’s operative complaint, the undersigned

recommends that it be dismissed without prejudice to refiling.

I. Relevant Background

Plaintiff filed an initial complaint against four named defendants alleging violations

under an Oklahoma state statute, but he failed to identify a federal cause of action or to

explain which claims were brought against which defendants. Doc. 1. The Court ordered

Plaintiff to file an amended complaint that explained “what each defendant did to [the

plaintiff]; when the defendant did it; how the defendant’s action harmed [the plaintiff]; and,

what specific legal right the plaintiff believes the defendant violated.” Doc. 8 at 2 (quoting

Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007)). The

Court further cautioned Plaintiff that if his amended complaint included multiple

defendants, “it is particularly important . . . that the complaint make clear exactly who is

alleged to have done what to whom, to provide each individual with fair notice as to the

basis of the claims against him or her.” Id. (quoting Robbins v. Oklahoma, 519 F.3d 1242,

1250 (10th Cir. 2008)). Finally, Plaintiff was informed that his amended complaint would

supersede and replace his initial complaint. Plaintiff subsequently filed an Amended

Complaint, Doc. 9, and three supplements to the Amended Complaint, Docs. 10-12.

Plaintiff then filed a Second Amended Complaint—his operative complaint. Doc. 13.

II. Plaintiff’s Claims

Plaintiff brings claims against the following Defendants:

• Shelley Zumwalt,

• Office of Management and Enterprise Services (“OMES”), Risk Management,

• Vicki U. Booth,

• Peter F. Lyle, and

• Integris Baptist Hospital (“Integris”).

Sec. Am. Compl. at 1-2.

Plaintiff attempts to bring suit under the following federal statutes:

• Administrative Procedures Act (“APA”),

• Health Insurance Portability and Accountability Act (“HIPAA”),

• 42 U.S.C. § 1985(3),

• 42 U.S.C. § 1983,

• 42 U.S.C. § 14505,

• 42 U.S.C. § 1981(a), and

• 47 U.S.C. § 230.

Id. at 3. Plaintiff’s claims arise from an incident on July 27, 2021. Plaintiff alleges that,

after the incident, he was detained in the Oklahoma County jail until, on August 23, 2023,

he “was forced to plead to several counts” that he did not commit. Id. at 5.

Plaintiff alleges that on July 27, 2021, he was on his way to the “mental health crisis

center for substance abuse” at Integris when he saw an Oklahoma City Police Department

(“OCPD”) vehicle behind him flashing its lights, but not activating its siren. Id. Plaintiff

continued on his way to the hospital “before [he] had a full on anxiety attack on the road.”

Id. After arriving at the hospital, Plaintiff alleges he “black[ed]-out and wrecked into the

hospital.” Id.

Plaintiff takes issue with the actions by OCPD after he crashed his vehicle into the

hospital. He alleges:

[An] officer got out of his patrol vehicle approached my car and just turned

around without no commands or request in any fashion then in a few minutes

later now returning another officer then I heard the officer on the driver side

tell the officer on the passenger side to shoot him without a justifiable of

reason or lack of not doing any of the [OCPD] officers commands, then to

justify the discharging of the weapon the two officers begin deceitful,

conspiring, and taking confidential patient information as to[] video from the

hospital to forgery the officers[’] false narrative as to[] the wrongful

indictment/information. None of the administrative procedure conduct was

truly honestly in good faith, which Integris Baptist hospital didn’t have the

consent of me the patient or the administrative procedure act to[] release any

forms or video in capacity without the proper procedure of the

Administrative Act.

Id. Plaintiff also alleges:

• OMES committed “crimen falsi,”

• OMES committed “defamation to [his] reputation,” and

• “The OMES did with MENS REA UNAPOLOGETIC CONSPIRE to this

FALSE NARRATIVE.”

Id. at 4-5.

III. Screening

When a plaintiff proceeds in forma pauperis, the Court has a duty to screen the

complaint and dismiss any part that is frivolous or malicious, fails to state a claim upon

which relief may be granted, or seeks monetary relief against a defendant immune from

such relief. 28 U.S.C. § 1915(e)(2)(B). In evaluating whether a complaint adequately

states a claim, the Court “must accept the allegations of the complaint as true and construe

those allegations, and any reasonable inferences that might be drawn from them, in the

light most favorable to the plaintiff.” Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007)

(internal quotation marks omitted) (discussing standard of review for failure to state a claim

under 28 U.S.C. § 1915(e)(2)(B)(ii)). Importantly, a complaint may not offer only “naked

assertions devoid of further factual enhancement,” but it “must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). Given this requirement for well-pled facts,

the Court will not accept legal conclusions unsupported by adequate factual allegations.

Id. Instead, the Court will review a complaint to determine whether a plaintiff pled “factual

content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id.

Finally, “[a] pro se litigant’s pleadings are to be construed liberally and held to a

less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935

F.2d 1106, 1110 (10th Cir. 1991). The Court will not, however, provide a plaintiff with

arguments or act as his advocate. Id.

IV. Analysis

The undersigned liberally construes Plaintiff’s Second Amended Complaint to

allege that after the July 27th incident (1) Integris wrongfully released video to OCPD, and

(2) OMES conspired with OCPD to create a “false narrative” regarding the incident.

A. Defendants Zumwalt, Booth, and Lyle

With respect to Defendants Zumwalt, Booth, and Lyle, Plaintiff does not include

any allegations of actions by these defendants. As the Court previously cautioned Plaintiff,

his complaint must explain “what each defendant did to [him]; when the defendant did it;

how the defendant’s action harmed [him]; and, what specific legal right the plaintiff

believes the defendant violated.” Nasious, 492 F.3d at 1163; see also Robbins, 519 F.3d at

1250. Because Plaintiff fails to provide this information in his Second Amended

Complaint, he fails to state a plausible claim against these defendants. Accordingly, claims

against Defendants Zumwalt, Booth, and Lyle should be dismissed.

B. Defendant OMES, Risk Management

OMES is an Oklahoma state office that includes an Office of Risk Management.

The undersigned construes the Second Amended Complaint to allege that the OMES Office

of Risk Management conspired with OCPD to create a false narrative regarding the July 27,

2021 incident. Plaintiff claims this false narrative was defamation that damaged his

reputation. Sec. Am. Compl. at 4-5. Plaintiff does not, however, include any factual

allegations of actions taken by OMES. A complaint may not offer only “naked assertions

devoid of further factual enhancement,” but it “must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at

678 (cleaned up). Plaintiff’s conclusory allegations against OMES do not meet this

standard and, accordingly, fail to state a cognizable claim.

C. Defendant Integris

As to Defendant Integris, the undersigned understands Plaintiff to allege that the

hospital released “confidential patient information as to[] video” when it lacked Plaintiff’s

consent or authority under the APA. Sec. Am. Compl. at 5. To the extent Plaintiff brings

a claim against Integris under the APA, such claim fails. The APA provides for judicial

review of “[a]gency action made reviewable by statute and final agency action for which

there is no other adequate remedy in a court.” 5 U.S.C. § 704. Integris is not a federal

agency, so its actions are not reviewable under the APA. Thus, to the extent the Second

Amended Complaint could be liberally construed to assert a claim under the APA, Plaintiff

fails to state a claim upon which relief may be granted.

To the extent Plaintiff brings a claim against Integris under HIPAA, such a claim

also fails. As an initial matter, the video Plaintiff challenges is apparently a security video

of Plaintiff crashing into the hospital. See Docs. 13-2, 13-3, 13-4. Such a video is not

“confidential patient information,” as Plaintiff alleges. Sec. Am. Compl. at 5; see 45 C.F.R.

§ 160.103 (defining types of information protected under HIPAA). More importantly,

HIPAA does not give rise to a private right of action. Wilkerson v. Shinseki, 606 F.3d

1256, 1267 n.4 (10th Cir. 2010) (“HIPAA does not create a private right of action for

alleged disclosures of confidential medical information.”); see also Freier v. Colorado,

804 F. App’x 890, 891-92 (10th Cir. 2020) (reiterating the holding in Wilkerson). Thus, to

the extent the Second Amended Complaint could be liberally construed to assert a claim

under HIPAA, Plaintiff fails to state a claim upon which relief may be granted.

Further, to the extent Plaintiff brings claims against Integris under other federal

statutes referenced in his Second Amended Complaint, those claims also fail. Plaintiff first

cites 42 U.S.C. § 1985(3), which is a statute concerning conspiracy to interfere with civil

rights. This statute “requires at least a combination of two or more persons acting in

concert and an allegation of a meeting of the minds, an agreement among the defendants,

or a general conspiratorial objective.” Brooks v. Gaenzle, 614 F.3d 1213, 1227-28 (10th

Cir. 2010), abrogated on other grounds by Torres v. Madrid, 592 U.S. 306 (2021). Any

claim Plaintiff intends to bring under this statute fails, at a minimum, because he alleges

no conspiracy involving Integris.1

Plaintiff next cites 42 U.S.C. § 1983, which is a statute concerning the deprivation

of rights. But to state a valid § 1983 claim, Plaintiff must allege (1) a deprivation of a

federal right and (2) that the person who deprived him of that right acted under color of

state law. West v. Atkins, 487 U.S. 42, 48 (1988). Here, Plaintiff has done neither, thus

failing to state a cognizable § 1983 claim. Plaintiff also cites 42 U.S.C. § 1981(a), which

is a statute prohibiting discrimination based on race. Plaintiff, however, makes no

allegations of discrimination or unequal treatment, and thus, he fails to state a cognizable

§ 1981 claim. See Brown v. Montoya, 662 F.3d 1152, 1173 (10th Cir. 2011) (discussing

1 Though Plaintiff arguably alleges a conspiracy, the undersigned construes the allegation

to be a conspiracy between OCPD officers and OMES. See Sec. Am. Compl. at 5.

the pleading requirement in an equal protection claim “of an allegation that a similarly

situated person was treated differently”).

Additionally, Plaintiff cites 42 U.S.C. § 14505, which sets forth definitions related

to the Volunteer Protection Act and does not provide a basis for any cognizable claim.

Finally, Plaintiff cites 47 U.S.C. § 230, which is a section of the Communications Decency

Act regarding liability of computer service providers. Plaintiff alleges no plausible claim

against Integris under this statute, as he does not allege any facts showing that Integris is a

computer service provider.

Even after liberally construing the Second Amended Complaint, the undersigned

finds Plaintiff fails to state any claim against Integris upon which relief may be granted.

V. Recommendation and Notice of Right to Object

For the foregoing reasons, the undersigned recommends that the Second Amended

Complaint, Doc. 13, be DISMISSED WITHOUT PREJUDICE to refiling.

Plaintiff is advised of his right to object to this Report and Recommendation. See

28 U.S.C. § 636. Any objection must be filed with the Clerk of the Court by December 10,

2024. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to object timely waives

the right to appellate review of the factual and legal issues addressed in this Report and

Recommendation. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).

This Report and Recommendation disposes of all issues referred to the undersigned

Magistrate Judge in this matter.

ENTERED this 19th day of November, 2024.

CHRIS M. STEPHENS

UNITED STATES MAGISTRATE JUDGE