NEWSUAN v. COLON et al
Filing
28
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JOEL H. SLOMSKY ON 8/5/13. 8/5/13 ENTERED AND COPIES MAILED TO PR SE PETITIONER AND E-MAILED. (jpd)
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MR. MAURICE M.M. NEWSUAN,
Plaintiff,
CIVIL ACTION
NO. 13-1199
v.
MR. COLON, et al.,
Defendants.
OPINION
August 2, 2013
Slomsky, J.
I.
INTRODUCTION
Plaintiff Maurice Newsuan is a state prisoner at the State Correctional Institution ("SCI")
in Chester, Pennsylvania. 1 On March 6, 2013, Plaintiff filed an Application to Proceed In Forma
Pauperis. (Doc. No.1.) On March 11,2013, his Application was granted (Doc. No.2) and a
Complaint (Doc. No.3) was filed. The Complaint alleges various claims related to prison
conditions. It names the following Defendants: Mr. Colon, Medical Nurse Harding, City of
Philadelphia, Lt. Mr. Roth, C/0 Oterlyn, and C/0 Sterling. 2 (Doc. No. 3 at 1.)
On May 8, 2013, Defendants Colon, Roth and Sterling filed their Answer. (Doc. No. 13.)
On May 10, 2013, Defendant Harding filed a Motion to Dismiss. (Doc. No. 14.) On May 21,
1
In a letter filed July 3, 2013, Plaintiff informed the Court that he would be released from SCIChester on July 18, 2013 and scheduled to be moved to a halfway house in Philadelphia,
Pennsylvania.
2
Defendants Colon, Roth, Oterlyn, and Sterling are correctional officers at SCI-Chester. Oterlyn
was never served the Complaint, and no attorney has entered an appearance on this officer's
behalf. On March 11, 2013, Defendant City of Philadelphia waived service of the Complaint,
and an answer was due on May 10, 2013. As of the date of this Opinion, no answer has been
filed and no attorney has entered an appearance on behalf of the City of Philadelphia. However,
as discussed infra, it appears Plaintiff has abandoned his claims against both Oterlyn and the City
of Philadelphia.
1
2013, Plaintiff filed an Amended Complaint. 3 (Doc. No. 18.) In light of the Amended
Complaint, the Court dismissed Defendant Harding's Motion to Dismiss (Doc. No. 14) as moot.
(Doc. No. 19.)
On June 4, 2013, Defendant Harding filed the instant Motion to Dismiss the Amended
Complaint (Doc. No. 20) and Memorandum of Law in Support (Doc. No. 21 ). On June 11,
2013, Plaintiff filed a Response in Opposition. (Doc. No. 23.) For reasons that follow,
Defendant Harding's Motion to Dismiss (Doc. No. 20) will be granted.
II.
STANDARD OF REVIEW
The motion to dismiss standard under Federal Rule of Civil Procedure 12(b)(6) is set
forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009). After Iqbal it is clear that "threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements do not suffice" to
defeat a Rule 12(b)(6) motion to dismiss. Id. at 663; see Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007). Applying the principles oflqbal and Twombly, the Third Circuit in Santiago v.
Warminster Township, 629 F. 3d 121 (3d Cir. 201 0), set forth a three-part analysis that a district
court in this Circuit must conduct in evaluating whether allegations in a complaint survive a
12(b)(6) motion to dismiss:
First, the court must "tak[e] note of the elements a plaintiff must plead to state a
claim." Second, the court should identify allegations that, "because they are no
more than conclusions, are not entitled to the assumption of truth." Finally,
"where there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement for
relief."
Id. at 130 (quoting Iqbal, 556 U.S. at 675, 679). "This means that our inquiry is normally broken
into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike
3
The Amended Complaint was filed on May 21, 2013. As of the date of this Opinion,
Defendants Colon, Roth, and Sterling have not filed an answer to the Amended Complaint. As
discussed infra, it appears Plaintiff has abandoned his claims against Defendants Roth and
Sterling, too. The Court will address Defendant Colon's lack of response in a separate Order.
2
conclusory allegations, and then (3) looking at the well-pleaded components of the complaint
and evaluating whether all of the elements identified in part one of the inquiry are sufficiently
alleged." Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
A complaint must do more than allege a plaintiff's entitlement to relief, it must "show"
such an entitlement with its facts. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (citing
Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008)). "[W]here the wellpleaded facts do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged- but it has not 'shown'- 'that the pleader is entitled to relief."' Iqbal,
556 U.S. at 679. The "plausibility" determination is a "context-specific task that requires the
reviewing court to draw on its judicial experience and common sense." Id.
III.
ANALYSIS
A.
The Amended Complaint Only Alleges Claims Against Defendants Harding
And Colon
In the Amended Complaint (Doc. No. 18), Plaintiff breaks his allegations into two
sections. The first section has the following heading: Newsuan v. Harding Verified First
Amended Complaint. (Id. at 1) (emphasis in original). The paragraph below this heading states:
"Plaintiff Maurice Newsuan, pro se files this Verified First Amended Complaint against Nurse
Harding only ("collectively") one Defendant, and in support thereof avers as follows [sic]." (ld.
(emphasis in original).) After this paragraph are nine paragraphs, numbered one through nine,
alleging conduct by Defendant Harding. (Id. at 1-4.)
The second section has the following heading: Newsuan v. Colon Verified Second
Amended Complaint. (Id. at 4 (emphasis in original).) The paragraph below this heading states:
"Plaintiff Maurice Newsuan, prose files his Second Verified Amended Complaint against c/o
Colon only ("collective") one Defendant No. (2), and in support thereof avers as follows [sic]."
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(ld.) After this paragraph are five paragraphs, numbered ten through fourteen, alleging conduct
by Defendant Colon. (Id. at 4-5.)
Despite the text in the headings, the Court will construe this entire document to be the
Amended Complaint, which alleges various claims against Defendant Harding and Defendant
Colon. From a review of the Amended Complaint, it appears that Plaintiff has abandoned his
claims against the remaining Defendants: City of Philadelphia, Lt. Mr. Roth, C/0 Oterlyn, and
C/0 Sterling. Accordingly, these four Defendants will be dismissed as parties to this lawsuit.
B.
The Health Insurance Portability And Accountability Act Does Not Provide
Plaintiff With A Cause Of Action
Plaintiff alleges:
[W]ithout provocation and without justification, Nurse Harding sadistically and
maliciously applied imminent danger serious physical injury pain and suffering
and denial of proper adequate medical care and Hypa law violation and further
tort and privacy law violations, and fear of lost of life and bodily harm which was
unprovoked, unnecessary and Plaintiff posed no threat to the safety of Nurse
Harding, staff or other inmates [sic]. Nurse Harding violated breach of contract
and total breach of medical protocol and tort claim [sic].
As a direct result of Nurse Harding actions and violating the Hypa law which
Plaintiff endured and will continue to endure as a result of the Defendant Nurse
Harding actions described above [sic].
The sadistic and malicious actions by Nurse Harding was an unnecessary and
wanton infliction of pain, subjected Plaintiff to physical abuse which grossly
exceeded that necessary under the circumstances, and violated the standards of
contemporary society of the privacy law violation [sic].
(Doc. No. 18 at 3.) To the extent Plaintiff's reference to "Hypa law" alleges a violation of the
Health Insurance Portability and Accountability Act ("HIPAA"), his claim will be denied because
HIPAA does not provide a private cause of action.
"[T]he existence of a private cause of action is a 'prerequisite for finding federal question
jurisdiction."' Rigaud v. Garofalo, No. 04-1866,2005 WL 1030196, at *2 (E.D. Pa. May 2,
2005) (quoting Stephen v. High Voltage Maint. Co., 323 F. Supp. 2d 650, 653 (E.D. Pa.2004)).
4
Although the Third Circuit has not addressed whether a private cause of action exists under
HIPAA, several district courts ha'\le held there is no private federal remedy. See Rigaud, 2005
WL 1030196, at *2-3; see also 0' Donnell v. Blue Cross Blue Shield of Wyo., 173 F. Supp. 2d
1176, 1179-80 (D. Wyo. 2001 ); Brock v. Provident Am. Ins. Co., 144 F. Supp. 2d 652, 657 (N.D.
Tex. 2001); Means v. Indep. Life and Accident Ins. Co., 963 F. Supp. 1131, 1135 (M.D. Ala.
1997); Wright v. Combined Ins. Co. of Am., 959 F. Supp. 356,362-63 (N.D. Miss. 1997).
The Court agrees with the reasoning of Rigaud. The Court lacks subject-matter
jurisdiction over Plaintiff's HIPAA claim, and cannot provide him with any relief. Consequently,
his HIPAA claim will be dismissed.
C.
Plaintiff's Claims Under 42 U.S.C. § 1983 Are Barred Because He Has Failed
To Exhaust Administrative Remedies
Plaintiff also alleges:
Throug [sic] the conduct described above, Defendant Nurse Harding, acting under
the color of state law, unlawfully deprived Plaintiff of his rights as guaranteed by
the Eight and Fourteenth Amendments to the United States Constitution,
including the right to be free from cruel and unusual punishment. The right to be
free from denial of his liberty interest without due process of law, and the right to
equal protection of the laws, and entitles Plaintiff to relief under 42 U.S.C. 1983,
Defendant Harding do not fall under PLRA she is not a prison official at SCIChester [sic].
(Doc. No. 18 at 4.) Plaintiff is not entitled to relief on any claim under 42 U.S.C. § 1983 because
he has failed to exhaust his administrative remedies.
Under the Prison Litigation Reform Act ("PLRA"): "No action shall be brought with
respect to prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The U.S. Supreme Court has
held "that the PLRA's exhaustion requirement applies to all inmate suits about prison life,
whether they involve general circumstances or particular episodes, and whether they allege
5
excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion
of all administrative remedies is mandatory. Nyhuis v. Reno, 204 F. 3d 65, 67 (3d Cir. 2000).
Here, Defendant Harding argues in the Motion to Dismiss that Plaintiff has failed to
exhaust his administrative remedies. Plaintiff has neither pled in the Amended Complaint nor
argued in his Memorandum of Law in Opposition that he has exhausted his administrative
remedies. Instead, Plaintiff contends:
[T]he PLRA only apply to the Prison Litigation Reform Act here the Defendant
Medical Nurse Harding works for a private medical corporation and not by the
Pennsylvania State Department and she Nurse Harding is being represented by a
private law firm not the Pennsylvania States Attorney General for the entirety of
the Pennsylvania SCI at Chester [sic].
The Pennsylvania Deputy Attorney General Laurie R. Jubeliner, Esq only
represents c/o Saul Colon, [indecipherable] Roth and Nita Sterling not Medical
Nurse Harding Therefore Nurse Harding is not and does not fall under the
(PLRA) Prison Litigation Reform Act under this 42 U.S.C. 1983 She Medical
Nurse Harding has no administrative remedy to exhaust in the Pennsylvania State
Department of Correction she Nurse Harding works for a private medical
corporation out [indecipherable] the State Department of Correction [sic].
(Doc. No. 23 at 1-2.) Reading this argument in the light most favorable to Plaintiff, it appears he
is arguing that although Defendant Harding is a state actor for the purpose of liability under 42
U.S.C. § 19'83, her alleged employment by a private corporation excuses him from exhausting
his administrative remedies. This argument is unpersuasive.
There is no doubt that Defendant Harding is a state actor under 42 U.S.C. § 1983.
Plaintiff himself alleges so in the Amended Complaint: "Throug [sic] the conduct described
above, Defendant Nurse Harding, acting under the color of state law ...." (Doc. No. 18 at 4.)
Moreover, Defendant Harding's alleged employment by a private corporation does not excuse
Plaintiff from exhausting his administrative remedies in regard to his dispute with Defendant
Harding. "The language ' [n]o action shall be brought ... under section 1983 of this
title ... until such administrative remedies as are available are exhausted' cannot reasonably be
6
read to except private correctional medical services providers. Indeed, even private entities like
[correctional medical services providers] are considered state actors under Section 1983." Baker
v. Allen, No. 03-2600, 2006 WL 2226351, at *6 (D.N.J. Aug. 3, 2006) (citing West v. Atkins, 487
U.S. 42, 54 (1988)). Because Plaintiff has not exhausted his administrative remedies, his claim
under 42 U.S.C. § 1983 will be dismissed.
D.
To The Extent Plaintiff Has Alleged Claims Under State Law, The Court
Declines To Exercise Supplemental Jurisdiction
The basis for federal question jurisdiction here arises from Plaintiff's claims under 42
U.S.C. § 1983 and HIPAA. As discussed above, the claims alleged under both federal statutes
are being dismissed. To the extent the Amended Complaint alleges additional claims under state
law, the Court will not exercise supplemental jurisdiction over those claims, and they too will be
dismissed.
IV.
CONCLUSION
Defendant Harding's Motion to Dismiss will be granted. An appropriate Order follows.
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