United States District Court, D. Vermont
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION (DOCS. 54 & 61)
Christina Reiss, United States District Court Chief Judge
matter came before the court for a review of the Magistrate
Judge's April 4, 2017 Report and Recommendation ("R
& R") (Doc. 61). In his Complaint filed pursuant to
42 U.S.C. § 1982, Plaintiff Brian Leon Roberts, an
inmate in the custody of the Vermont Department of
Corrections ("DOC"), alleges that Defendants DOC,
Centurion of Vermont, LLC, Linda Roberts, Jeremy Cornwall,
Mindy Connor, Mark Potanas, Michelle Beattie, and Dr.
Mitchell Miller (collectively, "Defendants")
violated the Health Insurance Portability and Accountability
Act ("HIPAA"), engaged in deliberately indifferent
behavior by failing to provide adequate medical care in
violation of the Eighth Amendment, and committed medical
malpractice. Plaintiff seeks $25 million in damages,
immediate release from custody, dismissal of the criminal
charges against him, and placement in a hospital so that he
can recover from his alleged injuries.
is self-represented. Defendants are represented by Pamela
L.P. Eaton, Esq. and Stephen J. Soule, Esq.
Magistrate Judge recommended that the court grant
Defendants' unopposed motion for summary judgment. (Doc.
With respect to Plaintiffs HIPAA claims, the Magistrate Judge
opined that there is no private right of action under HIPAA,
and an alleged HIPAA violation cannot form the basis of a
§ 1983 claim. The Magistrate Judge properly concluded
that sovereign immunity precluded Plaintiffs Eighth Amendment
claims for proper medical care to the extent he asserted such
claims against Defendants in their official capacities. He
carefully analyzed Plaintiffs claims against Defendants in
their individual capacities, as well as his claims against
non-DOC employees and determined that Plaintiff is unable to
establish the essential elements of either prong of the
deliberate indifference test. Finally, the Magistrate Judge
concluded that Plaintiffs medical malpractice claims fail as
a matter of law because Plaintiff failed to comply with 12
V.S.A. § 1042.  Plaintiffs request for release from
custody under the Prison Litigation Reform Act likewise fails
because such relief is not available in a § 1983 action.
Neither party has filed an objection to the R & R, and
the time period to do so has expired.
district judge must make a de novo determination of
those portions of a magistrate judge's report and
recommendation to which an objection is made. Fed. R Civ. P.
72(b); 28 U.S.C. § 636(b)(1); Cullen v. United
States, 194 F.3d 401, 405 (2d Cir.1999). The district
judge may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28
U.S.C. § 636(b)(1); accord Cullen, 194 F.3d at
405. A district judge, however, is not required to review the
factual or legal conclusions of the magistrate judge as to
those portions of a report and recommendation to which no
objections are addressed. Thomas v. Am, 474 U.S.
twenty page R & R, the Magistrate Judge carefully
reviewed the factual and legal claims in Plaintiffs Complaint
and Defendants' motion, and properly recommended that the
court grant summary judgment in Defendants' favor and
dismiss all claims against them. The court agrees with the
Magistrate Judge's well-reasoned decision.
foregoing reasons, the court hereby ADOPTS the Magistrate
Judge's R & R as the court's Opinion and Order
(Doc. 61), and GRANTS Defendants' motion for summary
judgment. (Doc. 54.) Having dismissed Plaintiffs federal
claims, the court refrains from exercising supplemental
jurisdiction over Plaintiffs medical malpractice claim.
Plaintiffs Complaint is therefore DISMISSED WITHOUT
PREJUDICE. (Doc. 5.) The court agrees with the Magistrate
Judge that leave to amend should not be granted sua
sponte as it appears unlikely that Plaintiff can cure
the deficiencies in his Complaint.
 On December 1, 2016,
Defendants filed their motion for summary judgment and
informed Plaintiff of the consequences of failing to respond
to their motion as required by Local Rule 56 and the
Magistrate Judge's December 2, 2016 Order. Plaintiff did
not respond to Defendants' motion.
A plaintiff asserting a medical malpractice claim must file a
certificate of merit simultaneously with the complaint
showing that he or she consulted with a qualified health care