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Ashelman v. Evangelical Community Hospital

United States District Court, M.D. Pennsylvania

April 9, 2019

SEAN ANTHONY AHSELMAN, Plaintiff
v.
EVANGELICAL COMMUNITY HOSPITAL ET AL., Defendants

          BRANN, D.J.

          REPORT AND RECOMMENDATION

          William I. Arbuckle, U.S. Magistrate Judge.

         I. Introduction

         In this action brought primarily pursuant to 42 U.S.C. § 1983, Plaintiff, Sean Anthony Ashelman, alleges that Defendants, Evangelical Community Hospital and its staff, Bradley Mayer, M.D., Heather Smith, R.N., Beverly Lloyd, R.N, Susan Snook, R.N., Patricia Cox, Rose Edwards, and Diane Zimmerman (the Hospital Defendants) violated his civil rights by allegedly forcibly medicating him against his will and drawing blood without his permission. Plaintiff further alleges that Evangelical Community Hospital (the Hospital) released his medical records without authorization from a warrant in violation of the Health Insurance Portability and Accountability Act (HIPPA), which he contends constitutes medical malpractice. For the reasons discussed below, Plaintiff has failed to state a claim against the Hospital Defendants upon which relief may be granted. Therefore, the Hospital Defendants' Motion to Dismiss should be granted, and the claims against the Hospital Defendants should be dismissed in their entirety.

         II. Background and Procedural History

         Plaintiff is a former prisoner, who filed a civil rights complaint under 42 U.S.C. § 1983 along with an application to proceed in forma pauperis. (Doc. 2). I granted Plaintiff's application to proceed in forma pauperis. On June 22, 2018, Plaintiff filed an Amended Complaint. The Amended Complaint named the following two Defendants: (1) Buffalo Valley Regional Police Department, and its officer Corporal Sean Burns and (2) Evangelical Community Hospital and its staff members, including Bradley Mayer, M.D., Heather Smith, R.N., Beverly Lloyd, R.N, Susan Snook, R.N., Patricia Cox, Rose Edwards, and Diane Zimmerman.

         Pursuant to my order (Doc. 24) dated July 13, 2018, I granted Plaintiff the opportunity to provide the clerk the correct address of Cpl. Sean Burns. Plaintiff failed to do so, and Defendant Burns has not been served. He should be dismissed as a party from this lawsuit. The discussion in this Report and Recommendation will focus solely on the Hospital Defendants.

         On December 26, 2017, Plaintiff filed a Complaint (Doc. 1) against the Defendants. Plaintiff filed the Amendment Complaint (Doc. 10) on June 22, 2018. According to the Amended Complaint, Plaintiff was taken to the Evangelical Community Hospital by the Buffalo Valley Regional Police on October 23, 2016. Plaintiff asserts that he was forcibly medicated against his will when the hospital staff sedated him with ketamine and subsequently drew his blood while he was unconscious.

         Additionally, Plaintiff alleges that three days later, on October 26, 2016, the Hospital released his medical records without his permission and without a warrant. He contends releasing the medical records is a violation of HIPPA. Plaintiff further asserts that releasing the medical records constitutes medical malpractice.

         On July 12, 2018, the Hospital Defendants served upon Plaintiff notice for his failure to file a Certificate of Merit and a written statement from a licensed professional to substantiate his medical professional negligence claims. To date, Plaintiff has filed neither. Furthermore, Plaintiff does not allege that any of the individuals within the Hospital is a state actor, nor does Plaintiff specify the personal involvement of any of the individual Defendants. Neither the Complaint nor the Amended Complaint stated that any of the individual Defendants was negligent as to Plaintiff's care and treatment while at the Hospital.

         On September 7, 2018, the Hospital Defendants filed a Motion to Dismiss all claims. I agree with Hospital Defendants and recommend granting the Motion to Dismiss.

         III. Discussion

         A. Under the Rules of This Court, Plaintiff Should Be Deemed Not to Oppose the Motion to Dismiss

         The Hospital Defendants have argued that:

(1) Plaintiff's claim regarding an alleged violation of HIPAA fails to state a private cause of action,
(2) Plaintiff has failed to state a claim under Section 1983 against the Hospital Defendants because they are not state actors,
(3) Plaintiff has failed to state a claim against the Hospital Defendants because vicarious liability does not apply in a Section 1983 Suit, and
(4) Plaintiff has failed to state a claim for medical professional negligence.

         However, Plaintiff has not responded. Because Plaintiff has not responded, I will analyze this case on its merits as well through a consideration of the Poulis factors, At the outset, under the Local Rules of this Court, Plaintiff should be deemed not to oppose the pending motion to dismiss since he has failed to timely oppose that motion. Local Rule 7.6 imposes an affirmative duty on a litigant to respond to motions and provides that “[a]ny party who fails to comply with this rule shall be deemed not to oppose such motion.” At the time that he filed his Complaint, Plaintiff received a copy of the Court's Standing Practice Order (Doc. 5), which set forth his obligations with respect to responding to a motion.

         In this case, Plaintiff has not complied with Local Rule 7.6 or this Court's orders (Docs. 40, 41) to file a brief in opposition to the motion to dismiss. ...


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