Sabatini v. Price

WILLIAM L. SABATINI Plaintiff, v. HONORABLE THOMAS E. PRICE, M.D.,Secretary of the United States Department of Health and Human Services, Defendant.

Case No.: 17-cv-01597-AJB-JLB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

March 6, 2018

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

(Doc. No. 18)

Pending before the Court is Defendant the Honorable Thomas E. Price's ("Defendant") motion to dismiss, or in the alternative, motion for summary judgment on Plaintiff William Sabatini's ("Plaintiff") Privacy Act lawsuit. (Doc. No. 18.) Plaintiff filed his opposition on January 5, 2018. (Doc. No. 21.) On February 7, 2018, the Court held a motion hearing on the matter. (Doc. No. 27.) As will be explained in more detail below, the Court GRANTS Defendant's motion to dismiss.

I. BACKGROUND

Plaintiff is a Registered Nurse and Certified Registered Nurse Anesthetist licensed to practice nursing in California. (Doc. No. 1 at 3.) He brings this suit against Defendant under the Privacy Act of 1974 arguing that the National Practitioner Data Bank ("NPDB") allegedly maintained and disseminated a false report about him. (Id. at 1, 8.) Plaintiff highlights that the NPDB collects, stores, and distributes records of malpractice settlements, malpractice awards, and adverse disciplinary actions taken against medical professionals throughout the country. (Id. at 5.)

There are currently two reports filed about Plaintiff in the NPDB: (1) a "Title IV Clinical Privileges Action Report" filed on January 11, 2013, by Mountain View Surgery Center, which was reported as a "Voluntary Surrender of Clinical Privilege(s), While Under or to Avoid, Investigation Relating to Professional Competence or Conduct"—Report 5500000081764886; and (2) a November 6, 2013 correction of the preceding report filed by Mountain View—Adverse Action Report 5500000085609213. (Id. at 8.)

The January 2013 report at issue revolved around an incident that occurred while Plaintiff was working at Mountain View ("the Report"). (Doc. No. 18-1 at 11; Doc. No. 18-2 at 5-8.) Specifically, the Report states that Plaintiff showed up to work very sleepy, could not focus, acted confused, and made frequent trips to the restroom. (Doc. No. 18-2 at 6.) During one procedure, Plaintiff allegedly fell over and was unresponsive to voice commands; thus he had to be shaken vigorously awake. (Id.) Subsequently, Plaintiff arrived at the next procedure where he was purportedly pushed away from a patient to prevent him from administering sedation to the patient when he had previously been informed that the patient had already been sedated. (Id.)

Throughout the day, Plaintiff attempted to explain his actions and his slurred speech by stating that he had taken a sleeping pill the night before, had gastrointestinal issues, and that his blood sugar was low. (Id.) Plaintiff was also observed with a saline lock in his arm and after he left a restroom, one of the hospital techs states that he found several drops of blood on the floor near a toilet and a syringe that contained what appeared to be propofol. (Id.) Plaintiff took a drug test the next day and the results were negative for drugs. (Id.) The test apparently did not test for propofol. (Id.)

Plaintiff contests any and all reports submitted by Mountain View. (Doc. No. 1 at 8.) In disputing the Report, Plaintiff's statement in opposition submitted to the NPDB states that on the day in question, Plaintiff was suffering flu-like symptoms. (Doc. No. 18-2 at 7.) Thus, during the day, Plaintiff made several trips to the bathroom and also went to his locker to administer IV fluids to himself. (Id.) Plaintiff alleges that self-administration of IV fluids is an "accepted practice" at Mountain View. (Id.) Further, Plaintiff disputes that he fell over, was unresponsive, and that he had to be shaken awake. (Id.) Additionally, Plaintiff states that it is pure speculation that the fluid in the locker room belonged to him. (Id.) Finally, Plaintiff argues that he took a 10-panel drug test, as well as underwent a specific drug test for propofol, all of which returned negative results. (Id. at 7-8.)

Following these events, Mountain View suspended Plaintiff, Plaintiff offered to relinquish his staff privileges, Mountain View accepted his offer, and then Mountain View submitted its report of the foregoing incident to the NPDB. (Doc. No. 18-1 at 11.) The Report at issue was processed and filed by the NPDB on January 29, 2013. (Doc. No. 18-2 at 5.)

To challenge the report, Plaintiff retained Estelle & Kennedy, APLC who sent the NPDB a letter on February 14, 2013, requesting that the Report be removed or at least corrected. (Doc. No. 18-1 at 12; Doc. No. 18-2 at 10.) Mountain View did not agree to remove or correct the report, thus Plaintiff requested a "Report Review" on March 29, 2013. (Doc. No. 18-1 at 12; Doc. No. 18-2 at 17.)

In response, on October 9, 2013, the Department of Health and Human Services ("DHHS") asked that Mountain View correct the report noting several errors. (Doc. No. 18-2 at 29-32.) Specifically, it found that the "Date Action Was Taken" and "Date Action Became Effective" fields were incorrect and should have been reported as January 11, 2013, and that the description of the act was not factually sufficient. (Id. at 31.) The revised report was filed on November 6, 2013. (Id. at 34-37.) Thereafter, by letter sent on August 12, 2014, DHHS denied Plaintiff's dispute and held that the corrected report would remain in the NPDB. (Id. at 41-50.) Shortly thereafter, on August 26, 2014, Plaintiff requestedreconsideration of DHHS' decision.¹ (Id. at 53-57.) On December 2, 2014, DHHS found that there was "no basis upon which to conclude that the Report should not have been filed in the NPDB or that the Report is not accurate[,]" and thus upheld the decision. (Id. at 59-64.)

Two years later, on December 7, 2016, Plaintiff and his new counsel, the Law Office of Kenneth Joel Haber, P.C., wrote the NPDB a letter again requesting amendment by retraction or removal of the Report. (Id. at 66.) On February 3, 2017, DHHS stated that as Plaintiff had already availed himself of the NPDB dispute resolution process, received a decision, and utilized the reconsideration process and received a decision, Plaintiff had exhausted all of his administrative remedies. (Id. at 82.) Thus, his request for additional review was denied. (Id.)

On August 9, 2017, Plaintiff filed the instant lawsuit alleging violations of the Privacy Act—5 U.S.C. § 552a(g). (Doc. No. 1.) Specifically, Plaintiff asserts that Defendant permitted an organization, Mountain View, to access DHHS' system of records when it was not authorized to do so. (Id. at 29.) Further, Plaintiff alleges that DHHS maintained an inaccurate, irrelevant, and unnecessary report, deprived Plaintiff of his ability to file a statement of agreement, failed to make a reasonable review of Plaintiff's NPDB report under the Privacy Act, and willfully disseminated a report without making sure that it was accurate. (Id. at 29-31.)

On August 30, 2017, Plaintiff then filed a motion for summary judgment, which was denied on October 5, 2017, as premature. (Doc. Nos. 5, 9.) On November 6, 2017, Defendant filed the instant motion, its motion to dismiss or motion for summary judgment. (Doc. No. 18.) Shortly thereafter, on November 9, 2017, after receiving a letter from Plaintiff regarding proper service of his complaint, the Court held a status hearing where itwas determined that the issue of service had been resolved. (Doc. No. 20.) The Court then reset the deadlines for Defendant's motion. (Id.)

On January 12, 2018, Plaintiff filed a motion for a temporary restraining order, which was denied on January 16, 2018. (Doc. Nos. 22, 23.) The next month, Plaintiff filed his own motion for summary judgment. (Doc. No. 30.) Presently, per the ex parte motion filed by Defendant and granted by the Court, briefing on Plaintiff's motion for summary judgment has been suspended in the interests of judicial efficiency. (Doc. Nos. 34, 36.) On February 16, 2018, Plaintiff filed a second motion for a temporary restraining order, which was again denied on February 21, 2018. (Doc. Nos. 33, 37.)

II. LEGAL STANDARDS

A. Motion to Dismiss

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings and allows a court to dismiss a complaint upon a finding that the plaintiff has failed to state a claim upon which relief may be granted. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court may dismiss a complaint as a matter of law for: "(1) lack of a cognizable legal theory or (2) insufficient facts under a cognizable legal claim." SmileCare Dental Grp. v. Delta Dental Plan of Cal., Inc., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). However, a complaint survives a motion to dismiss if it contains "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Notwithstanding this deference, the reviewing court need not accept legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for the court to assume "the [plaintiff] can prove facts that [he or she] has not alleged . . . ." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). On the other hand, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679. The court only reviews the contents of thecomplaint, accepting all factual allegations as true, and drawing all reasonable inferences in favor of the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).

B. Motion for Summary Judgment

Summary judgment is appropriate under Federal Rule of Civil Procedure 56 if the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment...