UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

DAVID ALLEN THOMPSON, SR.,

Plaintiff - Appellant,

v.

LARNED STATE HOSPITAL, COLENE 

HOLMBURG, and DEBRA 

COLGLAZIER,

Defendants - Appellees.

No. 14-3103

(D.C. No. 5-13-CV-03134-SAC)

 

(D. Kansas)

ORDER AND JUDGMENT*

Before KELLY, LUCERO and McHUGH, Circuit Judges. 

 

After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of this 

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered 

submitted without oral argument. 

 

 

* This order and judgment is not binding precedent, except under the doctrines of 

law of the case, res judicata, and collateral estoppel. It may be cited, however, for its 

persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth 

Circuit Rule 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 3, 2015

Elisabeth A. Shumaker 

Clerk of Court

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Appellant David Allen Thompson, Sr., proceeding pro se, appeals the district 

court’s order dismissing his 42 U.S.C. § 1983 action, in which he alleged prosecutors 

violated his constitutional rights by issuing a subpoena duces tecum for certain medical 

records. Exercising jurisdiction under 18 U.S.C. § 1291, we affirm. 

BACKGROUND 

Mr. Thompson is currently incarcerated in a state correctional facility in 

Sacramento, California, as he was when he filed his complaint in this matter. In October 

and November 2011, the Sacramento County District Attorney’s Office submitted a 

subpoena duces tecum to the custodian of records at the Larned, Kansas, State Hospital 

requesting “all records that indicate when Mr. Thompson was admitted to your facility, 

why he was admitted to your facility, when he left your facility, and why he left your 

facility.” The subpoena indicated the requested records were necessary for the 

prosecution of Mr. Thompson in a criminal matter. Through his appointed California 

counsel, Mr. Thompson moved to quash the subpoenas. He argued the requested records, 

which discussed his treatment at a psychiatric facility, were confidential and were 

protected by California privacy laws and the Fourth Amendment to the U.S. Constitution. 

The California trial court held an in camera hearing and, after reviewing the medical 

records, determined that 5 of the 153 pages produced by the Larned State Hospital could 

be released to the prosecution. The released portion of the record did not discuss 

Mr. Thompson’s psychiatric treatment or condition. 

Mr. Thompson thereafter filed his complaint in this matter. He alleged that the 

release of his confidential medical/psychological records to the Sacramento County 

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District Attorney’s Office violated his rights under the Fourth Amendment and that, 

under 42 U.S.C. § 1983, he is entitled to $250,000 in damages. Mr. Thompson also 

requested that the court order the Larned State Hospital to release all his records to him 

and to issue an injunction preventing the hospital from possessing any copies of the 

records. The district court issued an order to show cause why Mr. Thompson’s action 

should not be dismissed for failure to state a claim for relief. Specifically, the district 

court explained that it found no legal authority supporting the imposition of civil liability 

on government officials who issue or respond to facially valid subpoenas duces tecum. 

Instead, the court explained that the proper vehicle for relief is a motion to quash, which 

Mr. Thompson had already successfully utilized. Mr. Thompson did not respond to the 

order to show cause; accordingly, the district court dismissed the case and entered a 

separate judgment. 

Mr. Thompson filed both a notice of appeal and a motion to reconsider. The 

district court denied the motion to reconsider, and Mr. Thompson did not file a new or 

amended notice of appeal. The scope of our review is therefore limited to the dismissal 

order. See Fed. R. App. P. 4(a)(4)(B)(ii). 

DISCUSSION 

On appeal, Mr. Thompson argues the district court erred in dismissing his § 1983 

action. He claims that the release of his medical records to the Sacramento County 

District Attorney’s office violated his rights under the Fourth, Fifth, and Fourteenth 

Amendments of the U.S. Constitution, Article I of the California Constitution, the 

psychotherapist-patient privilege in the California Rules of Evidence, and the Federal 

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Health Insurance Portability and Accountability Act of 1996 (HIPAA) and its 

corresponding administrative regulations. We review a district court’s dismissal of a 

complaint for failure to state a claim de novo and ask “whether it is plausible that plaintiff 

is entitled to relief.” Gallagher v. Shelton, 587 F.3d 1063, 1067, 1068 (10th Cir. 2009). 

Because Mr. Thompson is appearing pro se, “we construe his pleadings and papers 

liberally.” Id. Nevertheless, Mr. Thompson “must follow the same rules of procedure that 

govern other litigants.” See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). 

Therefore, we will consider only the arguments Mr. Thompson raised in the district court, 

see Dockins v. Hines, 374 F.3d 935, 940 (10th Cir. 2004), which were limited to alleged 

Fourth Amendment violations.1

 

 

1

 We note that Mr. Thompson moved to amend his complaint—well after the 

district court issued its dismissal order—to include his HIPAA and California 

constitutional claims. Although the district court acknowledged Mr. Thompson’s 

proposed amended complaint in its order denying his motion to reconsider, 

Mr. Thompson did not file a new or amended notice of appeal after the district court 

denied reconsideration. Our review is therefore limited to the district court’s dismissal 

order and the arguments presented in the original complaint, which were limited to 

Fourth Amendment claims. See Fed. R. App. P. 4(a)(4)(B)(ii); Breeden v. ABF Freight 

Sys., Inc., 115 F.3d 749, 752 (10th Cir. 1997) (explaining that a party must file a new or 

amended notice of appeal to appeal an order on a postjudgment motion). 

Moreover, even had Mr. Thompson preserved his HIPAA and California claims, 

they would likely fail as a matter of law. As we have previously explained, “HIPAA does 

not create a private right of action for alleged disclosures of confidential medical 

information.” Wilkerson v. Shinseki, 606 F.3d 1256, 1267 n.4 (10th Cir. 2010). Although 

we have not squarely addressed alleged HIPAA violations in the context of a § 1983 

action, at least two of our sister circuits have and have ruled that HIPAA violations 

cannot be remedied through a § 1983 action. See Dodd v. Jones, 623 F.3d 563, 569 (8th 

Cir. 2010) (dismissing a § 1983 claim “because HIPAA does not create a private right of 

action”); Seaton v. Mayberg, 610 F.3d 530, 533 (9th Cir. 2010) (same). Mr. Thompson’s 

state law claims likewise fail because “§ 1983 affords a remedy for violations of federal 

law and does not provide a basis for redressing violations of state law.” D.L. v. Unified 

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As to his Fourth Amendment claim, Mr. Thompson contends that his right to be 

free from governmental intrusion was violated when the Larned State Hospital released a 

portion of his medical records to the Sacramento County District Attorney’s Office. 

Apart from bald citations to U.S. Supreme Court cases addressing the Fourth Amendment 

in contexts entirely different than this one, Mr. Thompson directs us to no legal authority 

supporting his allegations. Contrary to Mr. Thompson’s claims, in the context of an 

administrative subpoena, the Fourth Amendment requires “only that a subpoena ‘be 

sufficiently limited in scope, relevant in purpose, and specific in directive so that 

compliance will not be unreasonably burdensome.’” Becker v. Kroll, 494 F.3d 904, 916 

(10th Cir. 2007) (quoting See v. City of Seattle, 387 U.S. 541, 544 (1967)). In this case, 

Mr. Thompson succeeded, through his motion to quash, in limiting the scope of the 

subpoena to just five pages of his medical record, none of which discussed 

Mr. Thompson’s psychiatric treatment or condition. The pages accessed contained only 

that information relevant to the Sacramento District Attorney’s prosecution against 

Mr. Thompson. Given this factual scenario, we cannot conclude that Mr. Thompson has 

pled sufficient facts that would entitle him to relief. 

 

Sch. Dist. No. 497, 596 F.3d 768, 776 (10th Cir. 2010) (internal quotation marks 

omitted). 

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We AFFIRM the district court’s dismissal of Mr. Thompson’s § 1983 action for 

failure to state a claim for relief. We GRANT Mr. Thompson’s motion to proceed in 

forma pauperis, but remind him of his obligation to make partial payments until the 

district court and appellate filing fees are paid in full. See 28 U.S.C. § 1915(b)(1).

 ENTERED FOR THE COURT 

 Carolyn B. McHugh 

 Circuit Judge 

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