Segar v. Barnett

ELLIOT KIM SEGAR, Plaintiff, v. RICHARD THEODOR BARNETT, CARTER INC., JUSTIN GREGORY WICKS,WICKS FINANCE STRATEGIES, DENISE DOW GREEN,PINNACLE ADVISORS, DOUGLAS GEORGE NEWMAN,LPL FINANCIAL, PINNACLE ASSET MANAGEMENT, Defendants.

Case No. 2:20-cv-126

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

November 9, 2020

ORDER GRANTING APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS AND DISMISSING COMPLAINT

(Docs. 1, 1-4, 2)

Plaintiff Elliot Kim Segar, a Massachusetts resident representing himself, seeks to file a civil Complaint alleging violations of his rights under state and federal law against Defendants Richard Theodor Barnett, Carter Inc., Justin Gregory Wicks, Wicks Finance Strategies, Denise Dow Green, Pinnacle Advisors, Douglas George Newman, LPL Financial, and Pinnacle Asset Management (collectively, Defendants). Segar filed a Motion to Proceed without Prepaying Fees or Costs under 28 U.S.C. § 1915 and supported by the court's form Application to Proceed in District Court without Prepaying Fees or Costs. (Docs. 1, 1-1.) Because Plaintiff's application satisfies the requirements of 28 U.S.C. § 1915(a), Plaintiff's request to proceed without paying the filing fee (Doc. 1) is GRANTED; however, for the reasons set forth below, Plaintiff's proposed Complaint (Doc. 1-4) is DISMISSED for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii) and Fed. R. Civ. P. 12(b)(6). I. Allegations of the Proposed Complaint

Plaintiff's proposed Complaint alleges that Defendants violated 13 V.S.A. § 1754 by making false reports to law enforcement authorities, 42 U.S.C. § 1983 by depriving him of his rights, 42 U.S.C. § 1985(3) by conspiring to deprive him of his rights, 13 V.S.A. 1023(3) by assaulting him, 18 U.S.C. § 242 by depriving him of rights under color of law, and 18 U.S.C. § 241 for conspiring against his rights. (Doc. 1-4 at 2, ¶ 1; at 14, ¶ 47-21, ¶ 93.) He further asserts Defendants deprived him of rights protected by the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). (Id. at 3, ¶ 3.) As a result of his claims under federal statutes, Plaintiff asserts that this court has federal question jurisdiction under 18 U.S.C. § 1331.

Plaintiff asserts that he received professional services from Defendant Barnett consisting of a Clinical Evaluation on May 31, 2019. He also received professional services from Defendant Carter Inc., a Vermont non-profit corporation doing business as Center for Addiction Recognition Treatment Education Recovery, consisting of an Intensive Impaired Driver Rehabilitation Program from May 24, 2019 through June 13, 2019. Plaintiff alleges that the majority of Defendants have office locations in the same building in Stowe, Vermont.

Plaintiff alleges that, on June 1, 2019, Defendant Barnett, CEO/Director of Defendant Carter Inc., accessed Plaintiff's protected health information consisting of Plaintiff's telephone number and used the "information to . . . send [Plaintiff] an uninvited, unexpected, and unprompted [text] message." (Doc. 1-4 at 12, ¶ 39 (footnote omitted).) The next day, Defendant Barnett again used Plaintiff's protected health information "to send an additional uninvited [text] message" from a different telephone number. (Id.)

Plaintiff alleges that on June 13, 2019, he twice requested "to exercise his rights as prescribed by 45 C.F.R. § 164.524(a)(1)." The next day, he followed up his request via e-mail. On June 17, Plaintiff hand-delivered a written and notarized demand to view and inspect his protected health information.

Also on June 17, 2019, Plaintiff alleges that Defendant Barnett "knowingly and willfully ma[d]e a materially false statement to law enforcement implicating the plaintiff in the commis[s]ion of a crime." (Id. ¶ 40.) Plaintiff further alleges all Defendants:

act[ed] in a volitional and intentional manner placing the Plaintiff in a state of apprehension of imminent harm or unwanted physical contact. The Plaintiff made a clear declarative statement of such apprehension to which the Defendants continued with their assault unabated.

(Id. ¶ 42.) Defendants then made an additional false statement to a police officer resulting in the issuance of a trespass notification. (Id. ¶ 44.) Plaintiff alleges that "Defendants did on June 17th 2019 under color of state law deprive the Plaintiff rights secured by [HIPAA] and protected by the Constitution and the laws of the [United States.]" (Id. ¶ 45.)

Plaintiff seeks $75,000 in compensatory damages for the false report to law enforcement, $150,000 for the deprivation of rights under the color of state law, $150,000 for the conspiracy to deprive his rights under § 1985, $1 for the assault, $150,000 for the § 1983 violations, and $150,000 for the conspiracy against his rights. (See Doc. 1-4 at 33, ¶¶ 56-61.) He also seeks punitive damages for the year of extreme pain and suffering and mental anguish he has endured. (Id. at 35, ¶ 62.)

ANALYSIS

I. Standard of Review

Under the in forma pauperis statute, the court conducts an initial screening of the complaint. See 28 U.S.C. § 1915(e)(2). The court is required to read a self-represented plaintiff's complaint liberally and to construe it to raise the strongest arguments it suggests. Harris v. Miller, 818 F.3d 49, 56 (2d Cir. 2016) (per curiam); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (requiring a self-represented plaintiff's complaint be held "to less stringent standards than formal pleadings drafted by lawyers") (internal quotation marks and citation omitted). However, the court must dismiss the complaint if it determines that the action "(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." 28 U.S.C. § 1915(e)(2)(B).

In determining whether a complaint states a claim, the court must "accept as true all of the allegations contained in a complaint" and decide whether the complaint states a claim for relief that is "plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). All complaints must contain "sufficient factual matter[] . . . to state a claim" for relief. Id. While "lenity" is required, self-represented litigants nevertheless must satisfy the plausibility standard set forth in Iqbal. Harris v. Mills, 572 F.3d 66, 68, 72 (2d Cir. 2009). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678.

II. Plaintiff's Claims

A. Claims for Which there is No Private Cause of Action

Many of Plaintiff's claims must be dismissed because there is no private cause of action. He seeks to allege violations of 18 U.S.C. §§ 241-42. These alleged violations concern federal criminal statutes for which there is no private cause of action. A private individual may sue under a federal statute only when Congress intended to create a private right of action. See Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002) ("where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit"). Neither § 241 nor 242 provide a private right of action under which Plaintiff may sue. See Storm-Eggink v. Gottfried, 409 F. App'x 426, 427 (2d Cir. 2011) (noting "nothing in the language or structure of § 241 suggests that Congress intended to create a private right of action under that section"); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 511 (2d Cir. 1994) (holding there is no private right of action under § 242). Accordingly, Plaintiff has not stated a plausible claim under 18 U.S.C. §§ 241 or 242 and Counts Five and Six must be dismissed.

Plaintiff also seeks to allege claims based on Defendants' purported violation of Vermont criminal statutes 13 V.S.A. §§ 1023(a)(3) and 1754. There is no explicit private right of action in either state statute. "[I]n the absence of any guidance from state courts, federal courts are hesitant to imply private rights of action from state criminal statutes." Watson v. City of New York, 92 F.3d 31, 36 (2d Cir. 1996) (internal quotation marks omitted). Accordingly, this court will not imply a private right of action under either criminal statute when the Vermont Supreme Court has not already done so. Counts One and Four must be dismissed.

Additionally, Plaintiff's claim for Defendants' alleged violation of HIPAA must be dismissed. HIPAA created national standards to protect sensitive patient health information from being disclosed without the patient's consent or knowledge. See 42 U.S.C. §§ 1320d-20d-9; 42 U.S.C. § 1320d-6(a)(3) (providing it is an offense to "knowingly . . . disclose[] individually identifiable health information to another person"). HIPAA provides for penalties to be imposed by the Secretary of the Department of Health and Human Services. Id. § 1320d-5(a)(1). The Second Circuit has recently held that "HIPAA confers no private cause of action, express or implied[.]" Meadows v. United Servs., Inc., 963 F.3d 240, 244 (2d Cir. 2020). As a matter of law, Plaintiff cannot state a claim on which relief may be granted for Defendants' alleged violations of his rights under HIPAA because there is no private right of action under HIPAA.

B. Whether Plaintiff States a Plausible Claim under 42 U.S.C. § 1983

In support of his claim under § 1983, Plaintiff alleges that Defendants deprived him of his right to view and inspect his protected health information and deprived him of "rights granted and protected by his status" as a citizen of the United States by making a false statement to lawenforcement. (Doc. 1-4 at 15, ¶ 58.) He alleges Defendants¹ "cause[d] the injury to Plaintiff by depriving him of protected rights under color of state law." (Id. ¶ 59.)

Congress enacted 42 U.S.C. § 1983 to provide a statutory remedy for violations of the Constitution and other federal laws. Under §...