Opinion
C. A. 2:22-03758-BHH-MHC
05-22-2023
C. Holmes, M.D.; also known as C. Holmes; also known as Cynthia Holmes; also known as Cynthia Colie Holmes, Plaintiff, v. Anne Milgram, Administrator of DEA, Defendant,
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
This is a civil action filed by Plaintiff C. Holmes, M.D., a pro se litigant. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge. Plaintiff has filed a motion for a temporary restraining order (TRO) and preliminary injunction. ECF No. 5.
I. BACKGROUND
In her Complaint, Plaintiff asserts that her basis for federal court jurisdiction is federal question pursuant to 28 U.S.C. § 1331. In response to the question on the complaint form (Complaint for Civil Case form) asking her to list the specific federal statutes, federal treaties, and/or provisions of the United States Constitution that are in issue in this case, she writes:
Jurisdiction is based on the Constitution including generally and privacy rights therein, equal protection and Amendments I through 10. Claims include wrongful refusal to accept legal tender in U.S. Currency, interference with doctor-patient relationships and continuity of care as well as violation of the ACA, HIPAA, and PHI (privileged healthcare information) confidentiality laws, deprivation of privacy rights and other substantial individual and property rights and unreasonable interference with one's ability to practice one's profession.ECF No. 1 at 3 (errors in original).
It is presumed that ACA is a reference to the Affordable Care Act and HIPAA is a reference to the Health Insurance Portability Act and Accountability Act. It is unclear to what statute PHI refers.
In her statement of the claim, Plaintiff alleges:
Specifically, plaintiff timely submitted renewal application for DEA license in the usual and customary manner and proffered payment of the renewal fee by legal tender of U.S. currency which was wrongfully refused without just cause. Plaintiff's DEA license is effective through October 31, 2022, and plaintiff requests preservation of the status quo by TRO and PI with renewal of the DEA license. The renewal fee of $888.00 is placed in escrow with this Honorable Court. Claims include interference with doctor-patient relationships and continuity of care as well as violation of the ACA, HIPAA, and PHI (privileged healthcare information) confidentiality laws, deprivation of privacy rights and other substantial individual and property rights and unreasonable interference with one's ability to practice one's profession.ECF No. 1 at 4. As relief, Plaintiff requests that this Court:
Grant the attached Emergency Motion for TRO and PI to preserve the status quo with acceptance of the Escrow amount of $888.00 for renewal of the DEA license and requests actual damages, special damages, exemplary, and/or punitive damages as determined by the trier of fact according to law as well as attorneys fees and costs and such other and further relief as may be just and proper.Id.
In her motion (Motion) for TRO and preliminary injunction, Plaintiff writes:
The plaintiff respectfully submits this emergency motion for TRO and PI in order to preserve the status quo pending a determination on the merits of the matter herein. Specifically, plaintiff timely submitted renewal application for DEA license in the usual and customary manner and proffered payment of the renewal fee by legal tender of U.S. currency which was wrongfully refused without just cause. As a small practitioner who is authorized by law and certified by the Federal government as a small provider, plaintiff is disproportionately affected by defendant's wrongdoing. Plaintiff's DEA license is effective through October 31, 2022, and plaintiff requests preservation of the status quo with renewal of the DEA license. The renewal fee of $888.00 is placed in escrow with this Honorable Court. In the alternative, plaintiff requests a TRO and PI enjoining expiration of the current DEA license pending resolution.
For substantial justice affecting substantial rights, the plaintiff respectfully requests this Court grant this motion.ECF No. 5 at 2.
II. DISCUSSION
Pursuant to Rule 65 of the Federal Rules of Civil Procedure, the court may issue a TRO without notice to the adverse party or the party's attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.Fed. R. Civ. P. 65(b)(1). A TRO “expires at the time after entry-not to exceed 14 days-that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension.” Fed.R.Civ.P. 65(b)(2). “The stringent restrictions imposed ... by Rule 65 on the availability of ex parte temporary restraining orders reflect the fact that our entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been granted both sides of a dispute.” Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70 of Alameda Cnty., 415 U.S. 423, 438-39 (1974).
Plaintiff's request for a TRO should be denied because Plaintiff has not complied with Fed.R.Civ.P. 65(b)(1) by providing specific facts in an affidavit or a verified complaint to clearly show that immediate and irreparable injury will result to her before the Defendant can be heard in opposition. Additionally, Plaintiff does not explain why an injunction is being requested without notice, and she appears to be requesting relief exceeding fourteen days. See Fed.R.Civ.P. 65(b)(1)-(2).
It also does not appear that Plaintiff can satisfy the “attorney certification” requirement for a TRO as required under Rule 65(b)(1)(B). See Demorcy v. Cook, No. CA 8:13-1494-JFA-JDA, 2013 WL 5332146 (D.S.C. Sept. 23, 2013) (noting that the plaintiff could not satisfy the “attorney certification” requirement for a TRO under Rule 65(b)(1)(B) because he was not an attorney admitted to practice before the court). Although it appears that Plaintiff is an attorney admitted to practice in the state courts of South Carolina (see https://www.scbar.org (search for “Cynthia Collie”)), she has not asserted that she is currently admitted to practice in this Court.
A preliminary injunction is “an extraordinary remedy involving the exercise of a very far-reaching power, which is to be applied only in the limited circumstances which clearly demand it.” Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 188 (4th Cir. 2013) (quoting Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir. 1991)) (internal quotation marks omitted). The decision whether to grant a preliminary injunction is committed to the equitable discretion of the district court. See Salazar v. Buono, 559 U.S. 700, 714 (2010); Christopher Phelps & Assocs., LLC v. Galloway, 492 F.3d 532, 543 (4th Cir. 2007).
Plaintiff's request for a preliminary injunction should be denied because the motion is premature as this action has not yet been served. “The court may issue a preliminary injunction only on notice to the adverse party.” Fed.R.Civ.P. 65(a)(1).
This case is not in proper form because Plaintiff has not provided all necessary proposed summons forms (she has not submitted summons forms for the United States Attorney General and the United States Attorney for South Carolina). Therefore, in a separate order, the undersigned has directed Plaintiff, within twenty-one days, to submit the above-mentioned documents. As such, the undersigned has not determined yet whether service of process should be authorized on Defendant.
Additionally, the Motion should be denied because Plaintiff has not made a clear showing for relief. A party seeking a preliminary injunction or TRO must establish all four of the following elements: (1) she is likely to succeed on the merits; (2) she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in her favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A plaintiff must make a clear showing that she is likely to succeed on the merits of his claim. Winter, 555 U.S. at 22. Similarly, she must make a clear showing that she is likely to be irreparably harmed absent injunctive relief. Id. at 20-23. Only then may the court consider whether the balance of equities tips in the plaintiff's favor. Finally, the court must pay particular regard to the public consequences of employing the extraordinary relief of injunction. Id. at 24. Here, Plaintiff has not demonstrated that she meets these four elements.
The standard for obtaining a TRO is the same as a preliminary injunction. Maages Auditorium v. Prince George's County, Md., 4 F.Supp.3d 752, 760 n.1 (D. Md. 2014).
Plaintiff has advanced no argument that she is likely to succeed on the merits. In her Complaint she generally alleges constitutional violations but has not specifically argued how the DEA's alleged refusal to accept “U.S. currency” violates her constitutional rights, the ACA, HIPAA, the PHI, or another federal statute.
Moreover, HIPAA does not create a private cause of action. Atkinson-Bush v. Balt. Wash. Med. Ctr., Inc., BEL-10-2350, 2011 WL 2216669, at *3 (D. Md. May 25, 2011), aff'd, 585 Fed.Appx. 161 (4th Cir. 2014) (per curiam); see also Dodd v. Jones, 623 F.3d 563, 569 (8th Cir. 2010) (“HIPAA does not create a private right of action.”); Acara v. Banks, 470 F.3d 569, 571 (5th Cir. 2006). As the Fourth Circuit explained, “HIPAA does not expressly allow for a private cause of action but delegates enforcement authority to the Secretary of the Department of Health and Human Services.” Payne v. Taslimi, 998 F.3d 648, 660 (4th Cir. 2021).
Additionally, Plaintiff has not established that she is irreparably harmed by not being able to pay her fee in U.S. currency and instead having to submit payment in another form. She has not alleged that she is unable to submit her payment in the manner required by the DEA. To establish irreparable harm, the plaintiff must show that she is suffering actual and imminent harm, not just a mere possibility, and that harm is truly irreparable and cannot be remedied at a later time with money damages. See Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir. 1991). Irreparable harm “is suffered when monetary damages are difficult to ascertain or are inadequate.” Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d 546, 551 (4th Cir. 1994) (quoting Danielson v. Local 275, 479 F.2d 1033, 1037 (2nd Cir. 1973)), abrogated on other grounds by Winter, 555 U.S. 7.
Plaintiff has not provided any information as to the form of payment the DEA requires and why she cannot submit her payment in the required form. It appears that “[f]ee payments shall be made in the form of a personal, certified, or cashier's check or money order made payable to the ‘Drug Enforcement Administration'.” 21 C.F.R. § 1301.13(e).
Plaintiff also fails to establish that the balance of equities tips in her favor. Finally, Plaintiff has not established that an injunction is in the public interest.
III. RECOMMENDATION
Based on the foregoing, it is recommended that Plaintiff's motion for a TRO and preliminary injunction (ECF No. 5) be DENIED.
Plaintiff's attention is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. \0 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).