UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Robert V. Towle

v. Civil No. 08-cv-190-JL

David Gotjen

Dennis MacKey

REPORT AND RECOMMENDATION

Before the Court is Robert Towle’s complaint (document no.

1), alleging that the defendants have violated his rights under

federal and state law by denying him access to his son’s medical

records. The matter is before me for preliminary review to

determine, among other things, whether or not the complaint

states any claims upon which relief might be granted. See United

States District Court District of New Hampshire Local Rule (“LR”)

4.3(d)(2); 28 U.S.C. § 1915A(a).

Standard of Review

Under this Court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

Magistrate Judge is directed to conduct a preliminary review. LR

4.3(d)(2). In conducting the preliminary review, the Court

construes pro se pleadings liberally, however inartfully pleaded. 

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See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976), to

construe pro se pleadings liberally in favor of the pro se

party). “The policy behind affording pro se plaintiffs liberal

interpretation is that if they present sufficient facts, the

court may intuit the correct cause of action, even if it was

imperfectly pled.” Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st

Cir. 1997); see also Castro v. United States, 540 U.S. 375, 381

(2003) (courts may construe pro se pleadings to avoid

inappropriately stringent rules and unnecessary dismissals). 

The court must accept as true the plaintiff’s factual assertions,

see Erickson, 551 U.S. at 94, and any inferences reasonably drawn

therefrom. See Centro Medico del Turabo, Inc. v. Feliciano de

Melecio, 406 F.3d 1, 5-6 (1st Cir. 2005); Ayala Serrano v. Lebron

Gonzalez, 909 F.2d 8, 15 (1st Cir. 1990). This review ensures

that pro se pleadings are given fair and meaningful

consideration. Applying this standard, I find the facts as

follows.

Background

Robert Towle’s son, J.T., received mental health care in

2006 at the Mental Health Center (“MHC”), a mental health

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services provider owned by Northern Human Services (“NHS”). J.T.

was treated by David Gotjen, a mental health counselor who was

employed by NHS to provide services at MHC. Dennis MacKey is the

Chief Executive Officer of NHS.

Between May 2007 and February 2008, Towle requested J.T.’s

records from NHS several times but received no response. On

March 10, 2008, J.T.’s nurse practitioner, Ms. Charest, notified

Towel that she wanted to prescribe an anti-depressant for J.T. to

treat his depression. Towle contacted Charest and determined

that she had not consulted with Gotjen to determine the best

treatment option for J.T. Towle then contacted Gotjen. Gotjen

sent Towle authorizations to sign before Gotjen would release

information to Charest. On March 20, 2008, NHS wrote to Towle,

advising him that he would have to pay $6.00 for a copy of J.T.’s

12-page record at NHS. Towle promptly sent payment.

On April 1, 2008, NHS sent Towle a letter returning his

$6.00 and stated that they could not comply with his request for

information. The letter did not state the reason J.T.’s records

could not be supplied to Towle.

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1Towle’s complaint requests the protection of the First

Amendment for his parental rights to care for his child. In

fact, such protections as are afforded to a parent’s liberty

interest in the care, custody and control of their children arise

under the Fourteenth Amendment’s due process guarantee. See

Traxel v. Granville, 530 U.S. 57, 65-66 (2000).

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Discussion

I. Fourteenth Amendment Claim1

Towle alleges that defendants, by denying him his son’s

medical records, have deprived him of his right to the care,

custody and control of his child, in violation of his federal

constitutional rights. See Traxel v. Granville, 530 U.S. 57, 65-

66 (2000) (Fourteenth Amendment protects parents’ liberty

interest in the care, custody, and control of their children). 

The United States Constitution, however, “erects no shield

against merely private conduct, however discriminatory or

wrongful.” Blum v. Yarketsky, 457 U.S. 991, 1002 (1981). A

plaintiff claiming infringement of a constitutional right by an

individual defendant must establish that (i) the defendant

deprived plaintiff of a right secured by the Constitution or laws

of the United States, and (ii) the defendant acted under “color

of any statute, ordinance, regulation, custom, or usage, of any

State or Territory of the District of Columbia.” 42 U.S.C. §

1983. In relation to the second requirement, a private

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individual can be held to be a state actor under only three

circumstances: “(i) where there is a sufficiently close nexus

between the state and the challenged action of the private party

so that the action of the party may be fairly treated as that of

the state itself, (ii) where the private party has exercised

powers that are ‘traditionally the exclusive prerogative of the

state,’ or (iii) where the state has exercised coercive power or

has provided such significant encouragement, either overt or

covert that the action of the private party must in law be deemed

to be that of the state.” Lewis v. Law-Yone, 813 F. Supp. 1247,

1254 (N.D. Tex. 1993) (quoting Blum, 457 U.S. at 1004); see also

Jackson v. Metro. Edison Co., 419 U.S. 345, 357 (1974). 

Towle alleges a deprivation of a constitutionally protected

liberty interest occurred when defendants failed to provide him

with his son’s medical records. Towle attempts to raise a

federal civil rights claim, pursuant to 42 U.S.C. § 1983 and to

invoke this Court’s federal question jurisdiction, see 28 U.S.C.

§ 1331, as his claim is framed as a federal constitutional

violation. Towle has not stated any facts to allow me to infer

that either named defendant was, at any relevant time, acting

under color of state law or could otherwise be considered to be a

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state actor. Both Gotjen and MacKey are private individuals. 

Neither defendant is alleged to have any connection to the state. 

Further, the provision of medical records by private mental

health providers is not a power traditionally executed by the

state. Here, the state is not alleged to have participated in

any way to effect or encourage the denial to Towle of J.T.’s

mental health records in the possession of NHS or MHC. The

federal constitution does not protect Towle from the actions of

Gotjen or MacKeym, as they are private actors. Accordingly, no §

1983 action lies to protect Towle from defendants’ actions, and I

recommend that the Fourteenth Amendment claim in this action be

dismissed for failure to state a claim upon which relief might be

granted. See LR 4.3(d)(2)(A)(i).

II. HIPAA Claim

Towle alleges that defendants’ failure to provide him with

J.T.’s medical records violated the mandates of the Health

Insurance Portability and Accountability Act of 1996 (“HIPAA”),

42 U.S.C. §§ 1320d - 1320d-8. HIPAA, however, does not provide a

private right of action to individuals protected by that statute. 

See Marquez v. Principi, Civil No. 06-1581 (RLA), 2009 WL 414464,

at *5 (D.P.R. Feb. 18, 2009) (collecting cases). While civil and

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criminal penalties are available for certain violations of it’s

requirements, HIPAA specifically delegates enforcement of those

penalties to the Secretary of Health and Human Services. See 42

U.S.C. § 1320d-5; Acara v. Banks, 470 F.3d 560, 571 (5th cir.

2006); Marquez, 2009 WL 414464, at *5. Accordingly, plaintiff

cannot assert a private action under HIPAA, as this Court lacks

subject matter jurisdiction to entertain such a claim. See

Marquez, 2009 WL 414464, at *5; Johnson v. Quander, 370 F. Supp.

2d 79, 100 (D.D.C. 2005) (“because no private right of action

exists under the HIPAA, this Court does not have subject matter

jurisdiction over this claim”). I recommend that Towle’s HIPAA

claim be dismissed for lack of subject matter jurisdiction. See

LR 4.3(d)(2)(A)(ii).

III. State Law Claims

Towle raises claims arising under the New Hampshire

Constitution’s protection of parental rights. Where, as here,

there is no diversity of the parties, this Court can obtain

jurisdiction over plaintiffs’ state law claims only by exercising

its supplemental or pendant jurisdiction over that state claim

where the claim is part of the same case or controversy as a

federal question claim properly before this Court. See 28 U.S.C.

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§ 1367(a) (allowing court to exercise supplemental jurisdiction

over state law claims that are “so related to the claims in the

action within the original jurisdiction that they form part of

the same case or controversy); see also United Mine Workers v.

Gibbs, 383 U.S. 715, 725 (1966). Plaintiff’s state law claim

arises out of the same facts and circumstances as his asserted

federal claims, however, because I have recommended dismissal of

the federal claims, I recommend that this Court decline to

exercise its pendant jurisdiction over the state law claims and

that they be dismissed. See LR 4.3(d)(2)(A)(ii).

Conclusion

For the foregoing reasons, I recommend that this action be

dismissed in its entirety. Any objections to this report and

recommendation must be filed within ten (10) days of receipt of

this notice. Failure to file objections within the specified

time waives the right to appeal the district court’s order. See

Unauthorized Practice of Law Comm. v. Gordon, 979 F.2d 11, 13-14 

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(1st Cir. 1992); United States v. Valencia-Copete, 792 F.2d 4, 6

(1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: July 2, 2009 

cc: Robert V. Towle, pro se

JM:jba

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