WESTERN DISTRICT OF WASHINGTON CHRISTOPHER BRIGGS, Case No. 3:24-cv-05737-LK Plaintiff, v. REPORT AND UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES AND NOTED FOR APRIL 2, 2025 SCOTT GARRETT, Defendants.
This matter comes before the Court on Plaintiff’s motion to proceed in forma pauperis (IFP) in regard to his amended proposed complaint. Dkts. 1, 12. This matter has been referred for review of the IFP application to the undersigned Magistrate Judge. Mathews, Sec’y of H.E.W. v. Weber, 423 U.S. 261 (1976); 28 U.S.C. § 636(b)(1)(B); Local Rule MJR 4(a). The Court recommends that Plaintiff’s IFP application be DENIED and this case be dismissed for failure to state a claim. The district court may permit indigent litigants to proceed IFP upon completion of a proper affidavit of indigency. See 28 U.S.C. §1915(a). However, the court has broad discretion in denying an application to proceed IFP. Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963). A court should “deny leave to proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit.” Tripati v. First Nat’l Bank & Tr., 821 F.2d 1368, 1369 (9th Cir. 1987) (citations omitted); see also 28 U.S.C. § 1915(e)(2)(B)(i). An in forma pauperis complaint is
frivolous if “it ha[s] no arguable substance in law or fact.” Tripati, 821 F.2d at 1370 (citing Rizzo v. Dawson, 778 F.2d 527, 529 (9th Cir. 1985); see also Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). A pro se plaintiff’s complaint is to be construed liberally, but like any other complaint it must nevertheless contain factual assertions sufficient to support a facially plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim for relief is facially plausible when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Unless it is absolutely clear that no amendment can cure the defects of a complaint, a pro se litigant is entitled to notice of
the complaint’s deficiencies and an opportunity to amend prior to dismissal of the action. See Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir.1995). Leave to amend need not be granted “where the amendment would be futile or where the amended complaint would be subject to dismissal.” Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991). Under Federal Rule of Civil Procedure (FRCP) 8(a), a complaint must contain “a short and plain statement of the claim showing that the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a). Plaintiff must allege a plausible set of facts that would show they are entitled to any relief. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). Mere conclusory statements in a complaint and “formulaic recitation[s] of the elements of a cause of
action” are not sufficient. Id.; Chavez v. United States, 683 F.3d 1102, 1108-09 (9th Cir. 2012). “Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Ballistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).
Here, Plaintiff has not provided sufficient facts to support a claim for relief. Mr. Briggs alleges that the Department of Health and Human Services (DHHS) and Scott Garrett, his “account manager,” violated Health Insurance Portability and Accountability Act (HIPAA) when DHHS would not provide him with his personal health information when he called inquiring about his Medicare information. The HIPAA statute does not include a private right of action. Webb v. Smart Document Solutions, LLC, 499 F.3d 1078, 1081 (9th Cir. 2007). HIPAA was intended “ ‘to recogniz[e] the importance of protecting the privacy of health information in the midst of the rapid evolution of health information systems.’ ” Id. at 1084 (quoting S.C. Med. Ass'n v. Thompson, 327 F.3d 346, 348 (4th Cir. 2003)). Plaintiff does not allege any
other claims besides his claim under HIPPA. Unless it is absolutely clear that no amendment can cure the defect, a pro se litigant is entitled to notice of the complaint’s deficiencies and an opportunity to amend prior to dismissal of the action. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995). In this case, Plaintiff has already filed an amended complaint and has failed to articulate any cognizable legal claims against Defendant. Because the HIPPA statute does not provide a private right of action, any attempt by Plaintiff to amend the proposed complaint would be futile. As such, the Court should deny leave to amend the complaint.
For the reasons discussed above, the Court recommends that Plaintiff’s motion to proceed IFP be denied and this matter be dismissed without prejudice. A proposed Order and proposed Judgment accompany this Report and Recommendation.
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WESTERN DISTRICT OF WASHINGTON CHRISTOPHER BRIGGS, Case No. 3:24-cv-05737-LK Plaintiff, v. REPORT AND UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES AND NOTED FOR APRIL 2, 2025 SCOTT GARRETT, Defendants.
This matter comes before the Court on Plaintiff’s motion to proceed in forma pauperis (IFP) in regard to his amended proposed complaint. Dkts. 1, 12. This matter has been referred for review of the IFP application to the undersigned Magistrate Judge. Mathews, Sec’y of H.E.W. v. Weber, 423 U.S. 261 (1976); 28 U.S.C. § 636(b)(1)(B); Local Rule MJR 4(a). The Court recommends that Plaintiff’s IFP application be DENIED and this case be dismissed for failure to state a claim. The district court may permit indigent litigants to proceed IFP upon completion of a proper affidavit of indigency. See 28 U.S.C. §1915(a). However, the court has broad discretion in denying an application to proceed IFP. Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963). A court should “deny leave to proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit.” Tripati v. First Nat’l Bank & Tr., 821 F.2d 1368, 1369 (9th Cir. 1987) (citations omitted); see also 28 U.S.C. § 1915(e)(2)(B)(i). An in forma pauperis complaint is
frivolous if “it ha[s] no arguable substance in law or fact.” Tripati, 821 F.2d at 1370 (citing Rizzo v. Dawson, 778 F.2d 527, 529 (9th Cir. 1985); see also Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). A pro se plaintiff’s complaint is to be construed liberally, but like any other complaint it must nevertheless contain factual assertions sufficient to support a facially plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim for relief is facially plausible when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Unless it is absolutely clear that no amendment can cure the defects of a complaint, a pro se litigant is entitled to notice of
the complaint’s deficiencies and an opportunity to amend prior to dismissal of the action. See Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir.1995). Leave to amend need not be granted “where the amendment would be futile or where the amended complaint would be subject to dismissal.” Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991). Under Federal Rule of Civil Procedure (FRCP) 8(a), a complaint must contain “a short and plain statement of the claim showing that the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a). Plaintiff must allege a plausible set of facts that would show they are entitled to any relief. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). Mere conclusory statements in a complaint and “formulaic recitation[s] of the elements of a cause of
action” are not sufficient. Id.; Chavez v. United States, 683 F.3d 1102, 1108-09 (9th Cir. 2012). “Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Ballistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).
Here, Plaintiff has not provided sufficient facts to support a claim for relief. Mr. Briggs alleges that the Department of Health and Human Services (DHHS) and Scott Garrett, his “account manager,” violated Health Insurance Portability and Accountability Act (HIPAA) when DHHS would not provide him with his personal health information when he called inquiring about his Medicare information. The HIPAA statute does not include a private right of action. Webb v. Smart Document Solutions, LLC, 499 F.3d 1078, 1081 (9th Cir. 2007). HIPAA was intended “ ‘to recogniz[e] the importance of protecting the privacy of health information in the midst of the rapid evolution of health information systems.’ ” Id. at 1084 (quoting S.C. Med. Ass'n v. Thompson, 327 F.3d 346, 348 (4th Cir. 2003)). Plaintiff does not allege any
other claims besides his claim under HIPPA. Unless it is absolutely clear that no amendment can cure the defect, a pro se litigant is entitled to notice of the complaint’s deficiencies and an opportunity to amend prior to dismissal of the action. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995). In this case, Plaintiff has already filed an amended complaint and has failed to articulate any cognizable legal claims against Defendant. Because the HIPPA statute does not provide a private right of action, any attempt by Plaintiff to amend the proposed complaint would be futile. As such, the Court should deny leave to amend the complaint.
For the reasons discussed above, the Court recommends that Plaintiff’s motion to proceed IFP be denied and this matter be dismissed without prejudice. A proposed Order and proposed Judgment accompany this Report and Recommendation.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days from service of this report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time limit imposed by Fed. R. Civ. P. 72(b), the Clerk is directed to set the matter for consideration on April 2, 2025, as noted in the caption. Dated this 18th day of March, 2025.
A Theresa L. Fricke United States Magistrate Judge