Franklin, Tony v. Hamblin, Gary et al, No. 3:2012cv00614 - Document 15 (W.D. Wis. 2013)
Court Description: ORDER denying plaintiff's 2 motion for leave to proceed in forma pauperis, denying plaintiff's 4 for court assistance with locating pro bono counsel as moot. This complaint is DISMISSED with prejudice under under 28 U.S.C. § 1915A. The dismissal will count as a strike for purposes of 28 U.S.C. § 1915(g). Signed by District Judge William M. Conley on 4/5/2013. (jef),(ps)
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN TONY C. FR¥\NKLIN, I OPINION AND ORDER Plaintiff, v. 12-cv-614-wmc EDWARD F. WALL, et al., Franklin, Tony v. Hamblin, Gary et al Doc. 15 Defendants. 1 State inmate Tony C. Franklin filed this complaint under 42 U.S.c. § 1983, alleging that Ithe defendants violated his constitutional rights and the Health Insurance ! Portability forwarding ~nd Accountability Act ("HIPAA"), 42 U.S.C. §§ 1320d-l to d-7, by h~S confidential medical records to the prison health services unit without his I i consent. Fr1nklin requested leave to proceed in Jonna pauperis and paid an initial partial i filing fee in Icompliance with 28 U.S.c. § 1915(b)(I). Citing his ~tatus as an indigent inmate, FraJklin also has filed a motion requesting court assistance with recruiting pro I Ito represent him in lhis case. bono counsel (Dkt. # 4). Beca1se Franklin is incarcerated, the court is required screen the proposed complaint t~ determine whether any portion is (1) frivolous, malicious, or fails to state a claim on W~ich relief may be granted; or (2) seeks monetary damages from a defendant who is immfne from such relief. Because Franklin's complaint does not state a claim on II Plaintiff ol'iginally named former Secretary of the Wisconsin Department of Corrections Gary Hamblin as the primary defendant. Edward F. Wall was appointed Secretary of the Wisconsin Department of Corrections in 2012, following Hamblin's retirement. As Hamblin's slIccessor, Wall is automatically substituted in his place under Fed. R. Civ. P. 25(d). 1 Dockets.Justia.com which relief can be granted under 42 U.S.c. § 1983, this case will be dismissed for I, 1 reasons and! his motion for recruitment of counsel will be denied as moot. ALLEGATIONS For purposes of this order, the court accepts Franklin's well-pleaded allegations as ! 1 true and ass~mes the following probative facts: 2 At ~e time he filed his complaint, Franklin was incarcerated in the Wisconsin Departmen~ of Corrections at the Waupun Correctional Institution ("WCI").3 While in custody at '!VCI, Franklin was assigned to the Health Segregation Complex (the "HSC").4 I The defen1ants are Edward F. Wall, Gloria Marquardt, William Pollard, Belinda I Schrubbe, ~ark Jensen, Sergeant Dalhke, and Captain Core. Two of the defendants are I state-level *dministrators with the Wisconsin Department of Corrections. Wall is 1 employed ~s the Department Secretary and Marquardt is the "health information 1 I supervisor." The remaining defendants work at WCI, where Pollard is the unit warden, I In laddressing any pro se litigant's complaint, the court must read the allegations generously. $ee Haines v. Kerner, 404 U.S. 519, 521 (1972). The court draws all facts from the Franklin's onginal complaint and any attached exhibits, which are deemed part of that pleading. See FED. R. P. 10(c); see also Witzke v. Pemal, 376 F.3d 744, 749 (7th Cir. 2004) (explaining that documetjlts attached to the complaint become part of the pleading, meaning that a court may consider thosle documents to determine whether plaintiff has stated a valid claim). The court has also considerfd his proposed amended complaint. 2 qIV. 1 3 In ~ovember 2012, Franklin advised the court that he has been transferred to the state correctional institution located in Kettle Moraine. (Dkt. # 12). 4 Franklin does not take issue with the medical care he received while in the HSC and chooses not to disclose in his complaint the reason for this assignment, which is, of course, his right. 2 Schrubbe is!ia health services manager, and Jensen is a registered nurse. Dalhke and Core are correctiQnal officers who work in the WCI mail room. Franipin's complaint concerns allegations that certain pieces of mail containing I I confidentiali medical records were censored or interfered with by prison personnel. i SpecificallY'!1 Franklin notes that he requested some medical records from Dr. Jesse DeGroat, who Franklin describes as an "outside treatment provider." On February 27, i 2012, Fran~in alleges that Nurse Jensen approached his cell with the requested medical I records and! asked him to sign an authorization for use and disclosure of those records. I I Franklin signed the document, but indicated that he preferred to have the medical I records "co~e straight to [him] in the mail." Fran~in also reports requesting additional medical records that were received in ! the WCI m~il room on May 10, 2012, and forwarded directly to the Health Services I Unit. A1th~ugh these medical records were addressed to him, Franklin alleges that I Sergeant I D~lhke sent this "medical mail" straight to Jensen and Schrubbe in the HSU i without Frafklin's consent. When Franklin filed a grievance concerning the interference with his mak Schrubbe reportedly replied that all medical records received in the prison I mail room vYere sent directly to the HSU for "security reasons." Marquardt responded i. separately tq Franklin's concerns, explaining that mailroom personnel do not review the I I contents of rail received from outside treatment providers. Dkt. # 1, Exh. E. Rather, it i is "routine wractice" for DOC mailroom personnel to forward mail containing medical records to the HSU, where review is permitted under the "treatment provider" exception to state and federal confidentiality rules. 3 By iorwarding his medical records to the HSU without his consent, Franklin alleges that the defendants have violated privacy provisions found in the Health Insurance ~ortability and Accountability Act ("HIPAA"), 42 U.S.c. § 1320d-l, which restrict disqlosure of confidential medical information. Franklin alleges further that the I interferenc~ with his mail violated his constitutional right to keep his medical informatio~ confidential. Franklin seeks declaratory and injunctive relief, as well as compensatqry and punitive damages. OPINION To state a claim under 42 U.S.c. § 1983, a plaintiff must sufficiently allege facts i showing th4t a person acting under color of state law deprived him of a right, privilege, or immunity secured by the Constitution or laws of the United States. See London v. RBS Citizens, N.1., 600 F.3d 742, 745·46 (7th Cir. 2010). Here, Franklin has alleged that the defendants riolated his right to privacy under HIPAA and the United States Constitution by interferi*g with mail that contained confidential medical records. For reasons outlined ! briefly belot', Franklin fails to articulate a valid claim under either theory and, therefore, his complai~t must be dismissed under 28 U.S.C. § 1915A. i i A. IUght to Privacy Under HIPAA I i The privacy provisions found in HIPAA were designed primarily to impose a "wall of confidentiality between an employee's health care decisions (and the [health care] plan's finanfial support for those decisions) and the employer." Grote v. Sebelius, - F.3d 4 vyL -, 2013 362725, *6 (7th Cir. 2013) (citations omitted). To accomplish this, I HIPAA's privacy provisions restrict the use and disclosure of protected health i informationIby covered entities that have access to confidential information and that I I conduct certain electronic health care transactions. See 42 U.S.c. §§ 1320d-l, 1320d-2; 45 C.F.R. §164.502. Assuming that Franklin's allegations are true, he does not i demonstrat~ that protected health information was used or disclosed improperly by a I covered enti~y and does not articulate a violation of HIPAA. , Even i assuming that an improper disclosure occurred, Franklin does not have a ! I cause of action under these circumstances. HIPAA provides both civil and criminal , , penalties fo~ improper disclosures of protected information, but limits enforcement of the statute to te Secretary of Health and Human Services. 42 U.S.c. §§ 1320d-5(a)(I), , , 1320d-6. There is no express language conferring a private right or remedy for disclosure i I of confiden~al medical information. Thus, courts have uniformly held that HIPAA did I not create a 'private cause of action or an enforceable right for purposes of a suit under 42 , U.S.c. § 19'3. See Carpenter v. Phillips, 419 Fed. App'x 658,659 (7th Cir. 2011); see also I Dodd v. lond, 623 F.3d 563, 569 (8th Cir. 2010); Seaton v. Mayherg, 610 F.3d 530, 533 (9th Cir. 20~0); Wilkerson v. Shinseki, 606 F.3d 1256, 1267 n.4 (lOth Cir. 2010); Sneed v. Pan America1 Hosp., 370 F. App'x 47,50 (11th Cir. 2010); Acara v. Banks, 470 F.3d 569, 570-72 (5thICir. 2006) (citations omitted). ! B. Constitutional Right to Privacy Franklin also alleges that prison officials violated his constitutional right to privacy 5 51 by screeniI1lg his mail and forwarding his medical records to the HSU without his consent. The United States Supreme Court has already held that a prisoner has no reasonable. expectation of privacy, at least under the Fourth Amendment, while incarcerate<jl. See Hudson v. Palmer, 468 U.S. 517,527-28 (1984) (holding that the "right of privacy ~n traditional Fourth Amendment terms is fundamentally incompatible with the close Jnd continual surveillance of inmates and their cells required to ensure ! inStitution~1 security and internal order"). Still, the lack of privacy in an inmate's prison cell is disti4guishable from the privilege of confidentiality that may apply to a prisoner's ! correspondttnce or personal medical records. ! Inm~tes have rights under the First Amendment to send and receive mail. See Thornburgh V. Abbott, 490 U.S. 401, 408 (1989); Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999). The right to send and receive mail does not preclude officials from reviewing or censoring inmate mail. See Wolff v. McDonnell, 418 U.S. 539, 575-76 (1974); Rowe, 196 F.3d a~ 782. In that respect, it is well established that inspection of personal mail for contrab~nd is a legitimate prison practice, justified by the important governmental I interest in prison security. See id.; see also Gaines v. Lane, 790 F.2d 1299, 1304-05 (7th I Cir. 1986). An exception exists for "legal mail" between an inmate and his attorney, i. ! which is c04sidered confidential. See Guajardo-Palma v. Martinson, 622 F.3d 80 I, 802·05 (7th Cir. ~O 10) (discussing at length the attorney-client privilege implicated by I inspecting immate legal mail). Because of the attorney-client privilege, legal mail may be opened for inspection only in the presence of the inmate, but may not be read. 5 See Wolff, 5 Wisconsin recognizes that legal mail is privileged and does not inspect correspondence 6 418 U.S. at 577; Olson v. Brown, 284 F.R.D. 398, 404-06 (N.D. Ind. 2012) (discussing the scope·· of First Amendment protections that pertain to inmate mail handling procedures). Althpugh medical treatment information may be subject to an arguably similar doctor-pati¢nt evidentiary privilege, there is no recognized exception for inspection of inmate mail containing communica~ons, medical information comparable to that for legal and no thus no currently recognized constitutional right of privacy that protects inmate medical records. 6 See, e.g., Anderson v. Romero, 72 F.3d 518,523 (7th Cir. i 1995) (n0tlng that the court was unable to find "any appellate holding that prisoners have a con~titutional right to the confidentiality of their medical records"); Franklin v. I District of C';olumbia, 163 F.3d 625, 638-639 n.14 (D.C. Cir. 1999) (concluding that prisoners "~o not have a privacy right, derived from the Constitution," that protects communication of medical information during the course of treatment). Assu~ing that prisoners have a right of privacy, courts have also considered whether di$c1osure of medical information or records could be actionable under the I Eighth Amendment's prohibition of cruel and unusual punishment. See Anderson, 72 F.3d sent by inmates to attorneys, certain public officials or organizations unless there is reason to believe that ~hemail contains contraband. See WIS. ADMIN. CODE DOC § 309.04(3) (listing the governor, members of the Wisconsin legislature or United States congress, federal investigative agencies, and the clerk or judge of any state or federal court, among others, as parties to whom legal mail m.y be sent). Likewise, institution staff may open legal mail in the presence of the inmate, and ,nspect the contents for contraband, but may read the mail only if staff has "reason to believe it is other than a legal document." WIS. ADMIN. CODE DOC § 309.04(3). Franklin argues that correspondence containing medical information should be accorded the same privilege as legal mail. Even if such a privilege were afforded, the Seventh Circuit has held that the mere act of opening privileged legal mail outside of an inmate's presence is not grounds for a federal civil rights lawsuit. See Guajardo-Palma, 622 F.3d at 805. 6 7 at 523. For example, if prison officials disseminated humiliating details of a prisoner's medical history for gratuitous reasons unrelated to a legitimate penological interest, such disclosure qtight constitute the infliction of cruel and unusual punishment. See, e.g., Powell v. Schriver, 175 F.3d 107, 112 (2d Cir. 1999). Franklin's allegations come nowhere close to de$onstrating an Eighth Amendment violation. See Whitley v. Albers, 475 U.S. 312,319 q986) ("To be cruel and unusual punishment, conduct that does not purport to be puni~hment at all must involve more than ordinary lack of due care for the prisoner's interests or safety.... It is obduracy and wantonness, not inadvertence or error in good fai'~h, that characterize the conduct prohibited by the Cruel and Unusual Punishment~ Clause[.]"). Franklin, who was confined to the WCI Health Segregation Complex at the time that his medical records were received in the mail room, does not provide any description of the content or character of his medical condition. For example, he does not allege that the medical jreports at issue contained confidential medical information of a sensitive or embarrassin* nature. Equally deficient, he does not suggest that his medical information was dissemi~ated amongst correctional officers, the inmate population, or others for an improper PUirpose. On the contrary, he alleges only that his medical files were forwarded to the HSU, which was providing him with medical care while incarcerated. Under these circumstances, Franklin fails to demonstrate an impermissible invasion of privacy. See Anderson, 72 F.3d at 523; see also Doe v. Wigginton, 21 F.3d 733, 740 (6th Cir. 1994) (holding that officials did not violate an inmate's right to privacy by disclosing his HIV status to a correctional officer). Accordingly, Franklin's fails to state a 8 claim upon which relief may be granted under 42 U.S.c. § 1983, and his complaint will be dismissed. ORDER IT IS ORDERED that: 1. Plaintiff Tony C. Franklin's request for leave to proceed is DENIED and his c«>mplaint is DISMISSED with prejudice under 28 U.S.c. § 1915A 2. l1he dismissal will count as a strike for purposes of 28 U.S.c. § 1915(g). 3. Franklin's motion for court assistance with locating pro bono counsel (dkt. # 4) is DENIED as moot. 4. Plaintiff is obligated to pay the unpaid balance of his filing fee in monthly installments as described in 28 U.S.C. § 1915(b)(2). The clerk of court is directed to send a letter to the state prison where plaintiff is in custody, advising the warden of his obligation to deduct payments from plaintiffs inmate trust fund account until the filing fee has been paid in full. Entered this 5th day of April, 2013. BY THE COURT: /s/ WILLIAM M. CONLEY District Judge 9
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