Phillips v. Guardian Life Insurance Company of America et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
William Phillips
v. 	Civil No. 19-cv-99-SM
Guardian Life Insurance Co.;
Delondria Terry;
N.H. Insurance Dept.;
John Elias, Commissioner,
N.H. Insurance Dept.;
Barbara Anderson
Karen McCallister
REPORT AND RECOMMENDATION
Pro se plaintiff William Phillips filed this action in
forma pauperis, asserting claims against the New Hampshire
Insurance Department (“NHID”), Guardian Life Insurance Co.
(“Guardian”), and individuals associated with each entity in
connection with a long-term disability policy Guardian issued to
Phillips. 	The complaint is before this court for preliminary
review, pursuant to 28 U.S.C. § 1915(e)(2) and LR 4.3(d)(2).
Case 1:19-cv-00099-SM Document 11 Filed 06/18/19 Page 1 of 6

2
Preliminary Review Standard
The magistrate judge conducts a preliminary review of
complaints, like Phillips’s, which are filed in forma pauperis.
See LR 4.3(d). 	The magistrate judge may recommend to the
district judge that one or more claims be dismissed if, among
other things, the court lacks jurisdiction, a defendant is
immune from the relief sought, or the complaint fails to state a
claim upon which relief may be granted. 	See 28 U.S.C. §
1915(e)(2); LR 4.3(d). 	In conducting its preliminary review,
the court construes pro se complaints liberally. 	See Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). 	The complaint
must contain “sufficient factual matter, accepted as true, to
‘state a claim to relief.’” 	Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted). 	The court treats as true all
well-pleaded factual allegations, and construes reasonable
inferences in plaintiff’s favor. 	See Ocasio-Hernández v.
Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011).
Background
Phillips alleges that he has a long-term disability
insurance policy with Guardian and that in approximately January
2019, Guardian, acting through its employee, defendant Terry,
shared private information with Phillips’s former employer that
resulted in an attachment to secure disputed child support
Case 1:19-cv-00099-SM Document 11 Filed 06/18/19 Page 2 of 6

3
payments. 	Phillips further alleges that NHID ignored his
complaints about Guardian’s actions.
Discussion
Phillips contends that Guardian violated the Health
Insurance Portability and Accountability Act of 1996, Pub. L.
No. 104-191, 110 Stat. 1936 (1996) (“HIPAA”). 	He also claims
that Guardian and NHID have discriminated against him, in
violation of the Americans with Disabilities Act and the
Rehabilitation Act of 1973.
I. 	HIPAA
Phillips’s asserts that Guardian and Terry violated HIPAA
by sharing private information about him and by placing
harassing phone calls to him and to his family physician,
allegedly in retaliation for complaining to authorities1 about
Guardian’s actions. 	HIPAA, however, does not provide a private
right of action, and thus Phillips cannot state a claim for
relief under that statute. 	Miller v. Nichols, 586 F.3d 53, 59
(1st Cir. 2009). 	Only the Secretary of Health and Human
Services can enforce its provisions. 	See 42 U.S.C. § 1320d-5.
1 The Complaint states that Phillips complained to “the Office of
Civil Rights,” but does identify whether the complaint was
lodged with state or federal authorities.
Case 1:19-cv-00099-SM Document 11 Filed 06/18/19 Page 3 of 6

4
The district judge should therefore dismiss Phillips’s claims to
the extent they are premised on HIPAA violations.
II. ADA and Rehabilitation Act
Phillips, identifying himself as a disabled person, asserts
that Guardian, NHID, and their respective personnel violated his
rights under the Americans with Disabilities Act (“ADA”) and
Section 504 of the Rehabilitation Act of 1973 by not resolving
his complaints and harassing him.
Title II of the ADA provides that:
no qualified individual with a disability shall, by
reason of such disability, be excluded from
participation in or be denied the benefits of the
services, programs, or activities of a public entity,
or be subjected to discrimination by any such entity.
42 U.S.C. § 12132.
To state a claim for a violation of Title II, a plaintiff
must allege: (1) that he is a qualified individual with a
disability; (2) that he was either excluded from participation
in or denied the benefits of some public entity's services,
programs, or activities or was otherwise discriminated against;
and (3) that such exclusion, denial of benefits or
discrimination was by reason of his disability. 	Toledo v.
Sanchez, 454 F.3d 24, 31 (1st Cir. 2006) (citation omitted).
Phillips makes no specific factual allegations suggesting that
anyone at Guardian or NHID discriminated against him based on
Case 1:19-cv-00099-SM Document 11 Filed 06/18/19 Page 4 of 6

5
his disability, denied him any benefit, service, program, or
activity based on his disability, or that he requested and was
refused reasonable accommodation of his disability.
Accordingly, Phillips’s claims should be dismissed to the extent
they are asserted as violations of his rights under the ADA.
Phillips also claims that the defendants’ actions violated
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.
Section 504(a) provides that no otherwise qualified individual
with a disability “shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program
or activity” receiving federal funds. 	In addition to lacking
any linkage between the defendants’ actions and his disability,
Phillips’s complaint lacks any indicia of any such “program or
activity.” 	Therefore, Phillips’s claims asserted under the
Rehabilitation act should be dismissed.
Conclusion
For the foregoing reasons, the district judge should
dismiss this action in its entirety. Any objections to this
Report and Recommendation must be filed within fourteen days of
receipt of this notice. 	See Fed. R. Civ. P. 72(b)(2). 	The
fourteen-day period may be extended upon motion. Failure to file
objections within the specified time waives the right to appeal
Case 1:19-cv-00099-SM Document 11 Filed 06/18/19 Page 5 of 6

6
the district court’s order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
June 18, 2019
cc: 	All pro se parties and counsel
Case 1:19-cv-00099-SM Document 11 Filed 06/18/19 Page 6 of 6