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Phillips v. Sununu

United States District Court, D. New Hampshire

January 28, 2019

William Phillips
v.
Chris Sununu, Governor, State of New Hampshire

          William Phillips, pro se

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge

         Before 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 action).

         Background

          In 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.

         Nothing 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.

         Phillips 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 id.

         Discussion

         I. Preliminary Review

         A. Standard

         The 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).

         B. 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.

         C. Federal Law Prohibiting Unfair ...


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