United States District Court, D. Utah, Northern Division
DONALD K. MOORE, Plaintiff,
UNITED STATES POSTAL SERVICE, Defendant.
N. Parrish District Judge
MEMORANDUM DECISION AND ORDER
B. PEAD United States Magistrate Judge
Judge Jill N. Parrish referred this case to Magistrate Judge
Dustin B. Pead pursuant to 28 U.S.C. § 636(b)(1)(B).
(ECF No. 6.) On December 1, 2017, the court granted Donald K.
Moore's (“Plaintiff”) application for leave
to proceed in forma pauperis and waived the
prepayment of filing fees pursuant to 28 U.S.C. § 1915
(“IFP Statute”). (ECF No. 2.) Accordingly, the
court will screen Plaintiff's action as required under
the IFP Statute. See, e.g., Lister v. Dep't
of the Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005).
Because Plaintiff is proceeding pro se in this case, the
court will construe his pleadings liberally. See,
e.g., Ledbetter v. City of Topeka, 318 F.3d
1183, 1187 (10th Cir. 2003).
the court authorizes a party to proceed without payment of
fees under the IFP statute, the court is required to
“dismiss the case at any time if the court determines
that . . . the action . . . fails to state a claim on which
relief may be granted.” 28 U.S.C. §
1915(e)(2)(B)(ii). In determining whether a complaint fails
to state a claim for relief under the IFP Statute, the court
employs the same standard used for analyzing motions to
dismiss for failure to state a claim under rule 12(b)(6) of
the Federal Rules of Civil Procedure. See Kay v.
Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007). Under
that standard, the court “look[s] for plausibility in
th[e] complaint.” Id. at 1218 (quotations and
citations omitted) (second alteration in original). More
specifically, the court “look[s] to the specific
allegations in the complaint to determine whether they
plausibly support a legal claim for relief. Rather than
adjudging whether a claim is ‘improbable, '
‘[f]actual allegations [in a complaint] must be enough
to raise a right to relief above the speculative
level.'” Id. (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555-56 (2007)) (other
quotations and citation omitted) (second and third
alterations in original).
undertaking this analysis, the court is mindful that
Plaintiff proceeds pro se and that “[a] pro se
litigant's pleadings are to be construed liberally and
held to a less stringent standard than formal pleadings
drafted by lawyers.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991); see also, e.g.,
Ledbetter, 318 F.3d at 1187. At the same time,
however, it is not “the proper function of the district
court to assume the role of advocate for the pro se litigant,
” Bellmon, 935 F.2d at 1110, and the court
“will not supply additional facts, nor will [it]
construct a legal theory for [a pro se] plaintiff that
assumes facts that have not been pleaded.” Dunn v.
White, 880 F.2d 1188, 1197 (10th Cir. 1989) (per
[t]he broad reading of [a pro se] plaintiff's complaint
does not relieve the plaintiff of the burden of alleging
sufficient facts on which a recognized legal claim could be
based. . . . [C]onclusory allegations without supporting
factual averments are insufficient to state a claim on which
relief can be based. This is so because a pro se plaintiff
requires no special legal training to recount the facts
surrounding his alleged injury, and he must provide such
facts if the court is to determine whether he makes out a
claim on which relief can be granted. Moreover, in analyzing
the sufficiency of the plaintiff's complaint, the court
need accept as true only the plaintiff's well-pleaded
factual contentions, not his conclusory allegations.
Bellmon, 935 F.2d at 1110 (citations omitted). With
the foregoing standards in mind, the court will now address
the sufficiency of Plaintiff's complaint under the IFP
Review of Plaintiff's complaint
complaint is comprised of a few paragraphs and an attached
letter from a coworker. Plaintiff asserts that on September
6, 2017, he was on his route delivering mail for the United
States Postal Service (“USPS”) when a manager who
was observing him that day questioned his need to stop for a
“sip of water.” (ECF No. 3 at 1.) Plaintiff then
states that on October 13, 2017, his USPS supervisors
“debated on the workroom floor out loud about [his]
work restrictions while [he] was getting ready to deliver
[his] route.” (ECF No. 3 at 1.) The attached letter
provides some additional details regarding this incident. The
letter states that Plaintiff was “getting
bullied” by the USPS supervisors as they were
aggressively questioning him about his medical restrictions.
(ECF No. 3, Ex. 1.) The author of the letter further notes
that the commotion could be heard from 50 to 75 feet away.
argues that these actions violate “42 U.S.C.
1320-6.” (ECF No. 3 at 1.) Because no United States
Code section exists at 42 U.S.C. § 1320-6, the court
construes Plaintiff's citation as one to 42 U.S.C. §
1320d-6. Section 1320d-6 governs wrongful disclosure of
individually identifiable health information, under the
Health Insurance Portability and Accountability Act
(“HIPAA”). However, as noted by the Tenth
Circuit, “HIPAA does not create a private right or
action for alleged disclosures of confidential medical
information.” Wilkerson v. Shinseki,
606 F.3d 1256, 1267 n.4 (10th Cir. 2010) (citing Acara v.
Banks, 470 F.3d 569, 571 (5th Cir. 2006)). Therefore,
Plaintiff's claim for a violation of HIPAA fails as a
matter of law.
construing Plaintiff's complaint liberally, it appears
that Plaintiff may be attempting to assert some type of
employment discrimination claim under Title VII of the Civil
Rights Act of 1964 (“Title VII”), see 42
U.S.C. §§ 2000e-1 to 2000e-17, the Americans with
Disabilities Act (“ADA”), see 42 U.S.C.
§§ 12101 to 12213, and/or the Rehabilitation Act,
see 29 U.S.C. § 791. However, while Plaintiff
alleges that his supervisors have engaged in callous and
objectionable behavior, he has not identified any adverse
employment action taken against him, which is a required
element of such claims. Moreover, even assuming Plaintiff
suffered some adverse employment action, he does not alleges
sufficient facts to show he exhausted his administrative