United States District Court, D. Arizona
G. Campbell Senior United States District Judge
Christopher Montoya, who is currently confined in the Arizona
State Prison (ASP)-Kingman, brought this civil rights action
pursuant to 42 U.S.C. § 1983. Defendant moves for
summary judgment. (Doc. 28.) Plaintiff was informed of his
rights and obligations to respond pursuant to Rand v.
Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc)
(Doc. 30), and he opposes the Motion. (Doc. 38.)
Additionally, Plaintiff filed a Motion to Suppress
Defendant's Material Evidence. (Doc. 43.)
filed a three-count First Amended Complaint against three
Defendants regarding the medical care he received for a skin
condition. (Doc. 9.) On screening under 28 U.S.C. §
1915A(a), the Court determined that Plaintiff stated an
Eighth Amendment claim based on deliberate indifference to
serious medical needs in Count Three against Defendant
Herrick. (Doc. 10.) The Court dismissed the remaining claims
and Defendants. (Id.)
Plaintiff's Motion to Suppress Defendant's Material
asserts that Defendant committed theft of Plaintiff's
medical records without obtaining consent from Plaintiff.
(Doc. 43.) As relief, Plaintiff requests that the Court
suppress his medical records. (Id.) In response,
Defendant asserts that she has never been in possession of
Plaintiff's medical records, but that her counsel
obtained them directly from Defendant's employer, Correct
Care Solutions (CCS). (Doc. 44.) Defendant argues that
Plaintiff waived any physician/patient privilege and there is
no private right of action under the Health Insurance
Portability and Accountability Act of 1996 (HIPAA) even
though Plaintiff's protected health information was
disclosed without the required waiver to release such
Plaintiff put his medical information at issue in this
lawsuit, he does not automatically waive his privacy interest
in his protected health information or any required waiver to
release of that information. See, e.g., 45 C.F.R.
§ 164.512(e)(1); Evans v. Tilton, No.
1:07-CV-01814, 2010 WL 3745648, at *3 (E.D. Cal. Sept. 16,
2010) (finding “blatant noncompliance” with HIPAA
where prison disclosed the plaintiff's medical records
without a waiver even though they were directly at issue in
the lawsuit). HIPAA provisions provide for disclosure of
medical information in the course of a judicial proceeding,
but certain requirements are placed on the provider and the
party seeking the information. See 45 C.F.R. §
164.512(e)(1). HIPAA does not address how to treat a
violation that occurs during discovery or trial. See
Crenshaw v. MONY Life Ins. Co., 318 F.Supp.2d 1015, 1030
(S.D. Cal. 2004).
have held that the exclusive remedy available for HIPAA
violations is through the United States Department of Health
and Human Services. See Demoruelle v. United States,
No. 15-00208 LEK-KSC, 2015 WL 6478610, at *4 n.4 (D.
Hawai'i Oct. 26, 2015) (citing Acara v. Banks,
470 F.3d 569, 571 (5th Cir. 2006)). The statute limits
enforcement of HIPAA to the Secretary of Health and Human
Services. See 42 U.S.C. §§ 1320d-5 and d-6.
Therefore, the Court cannot provide Plaintiff the relief he
seeks and his Motion to Suppress will be denied.
Defendant's Motion for Summary Judgment
Herrick moves for summary judgment on the basis that she was
not deliberately indifferent to Plaintiff's serious
must grant summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The movant bears
the initial responsibility of presenting the basis for its
motion and identifying those portions of the record, together
with affidavits, if any, that it believes demonstrate the
absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323.
movant fails to carry its initial burden of production, the
nonmovant need not produce anything. Nissan Fire &
Marine Ins. Co., Ltd. v. Fritz Co.,
Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if
the movant meets its initial responsibility, the burden
shifts to the nonmovant to demonstrate the existence of a
factual dispute and that the fact in contention is material,
i.e., a fact that might affect the outcome of the suit under
the governing law, and that the dispute is genuine, i.e., the
evidence is such that a reasonable jury could return a
verdict for the nonmovant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 250 (1986);
see Triton Energy Corp. v. Square D. Co., 68 F.3d
1216, 1221 (9th Cir. 1995). The nonmovant need not establish
a material issue of fact conclusively in its favor, First
Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S.
253, 288-89 (1968); however, it must “come forward with
specific facts showing that there is a genuine issue for
trial.” Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(internal citation omitted); see Fed. R. Civ. P.
summary judgment, the judge's function is not to weigh
the evidence and determine the truth but to determine whether
there is a genuine issue for trial. Anderson, 477
U.S. at 249. In its analysis, the court must believe the
nonmovant's evidence and draw all inferences in the
nonmovant's favor. Id. at 255. The court need