United States District Court, D. New Hampshire
William Phillips, pro se
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge
the court is plaintiff William Phillips's complaint (Doc.
No. 1). Phillips seeks a preliminary injunction
ordering the Governor of New Hampshire to cease and desist
from releasing Phillips's private prescription
information to MITRE Corporation, an entity conducting
research on opioids for the State. The complaint is here for
preliminary review under LR 4.3(d)(1) and 28 U.S.C. §
1915(e)(2), and the request for preliminary injunctive relief
has been referred to the magistrate judge for a report and
recommendation (“R&R”). See Jan. 28, 2019
Order (denying request for a temporary restraining order
and referring complaint to magistrate judge for further
this action, Phillips challenges Governor Chris Sununu's
January 10, 2019 Executive Order (“EO
2019-01”) which, Phillips believes, effected the
release of his personal medical records to a private
non-profit entity, MITRE Corporation, in connection with
research MITRE is undertaking in collaboration with the State
and the federal Centers for Medicare and Medicaid Services
(“CMS”). EO 2019-01 establishes the
“New Hampshire Opioid Overprescribing and Misuse
Project Advisory Council” as part of the state's
response to the high rate of opioid overdose deaths in New
Hampshire. EO 2019-01 states that MITRE Corporation
is working in cooperation with CMS and the State to conduct
research relating to New Hampshire provider practices in
prescribing opioids. MITRE's research is expected to
identify abnormal patterns of opioid prescribing. The
Advisory Council established by EO 2019-01 is
charged with making recommendations regarding the questions
to be answered by MITRE, monitoring the results of
MITRE's research, and issuing recommendations for policy
changes “to bolster efforts to curb opioid misuse and
prescription abuse or fraud.” EO 2019-01.
in EO 2019-01 describes the type or time frame of
opioid prescription information to which MITRE Corporation
will have access. Nor does EO 2019-01 indicate
whether that information will contain any personally
identifiable health information. Phillips specifically
alleges that the State has claimed that the data to be given
to MITRE will be stripped of identifying information.
Phillips remains skeptical of that claim, however, as he
further asserts that “they also claim to be able to
track you for the rest of your life, ” and plaintiff
believes that if there were no identifiers, the
“information would not be useful in the first
place.” Doc. No. 1. Phillips fears that his
personal medical records relating to his opioid prescriptions
could be used to track him and could “end up in the
wrong hands.” Doc. No. 1.
has requested immediate injunctive relief in the Complaint
(Doc. No. 1). The district judge denied that
request, to the extent Phillips sought the a temporary
restraining order. See Jan. 28, 2019 Order. The
district judge then referred the underlying complaint to the
undersigned magistrate judge for further action. See
court may dismiss claims asserted in a complaint filed in
forma pauperis, if the court lacks jurisdiction, a defendant
is immune from the relief sought, the complaint fails to
state a claim, or the action is frivolous or malicious.
See 28 U.S.C. § 1915(e)(2); LR 4.3(d)(1). In
determining whether a pro se complaint states a claim, the
court must construe the complaint liberally. See Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). To
survive preliminary review, the complaint must contain
“sufficient factual matter, accepted as true, to
‘state a claim to relief.'” See 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).
Claims and Bases for Federal Jurisdiction
Phillips seeks damages and injunctive relief, in alleging
that the disclosure of opioid prescription information
violates United States laws prohibiting unfair and deceptive
trade practices and violates his state constitutional right
to privacy. The court construes Phillips's pleadings
liberally as further intending to assert that the disclosures
violate his federal right to privacy. Liberally construed,
the Complaint invokes this court's original jurisdiction
over federal questions and federal civil rights actions,
pursuant to 28 U.S.C. §§ 1331 & 1343.
Federal Law Prohibiting Unfair ...