661 F.Supp.3d 277
S.D.N.Y.2023Background
- Pro se plaintiff Brian Burke alleges Kenmore defendants (owners/managers of his building) orchestrated a wellness check that produced a false mental-health report labeling him as having a delusional disorder and that this information was shared with his employer; he also alleges improper entry/‘swatting’ related to smoke-detector work.
- Kenmore Defendants moved for summary judgment; Magistrate Judge Gorenstein issued an R&R recommending grant; Burke filed objections; District Judge Gardephe reviewed and adopted the R&R in full.
- The court analyzed Burke’s federal claims: § 1983 (state-action), civil RICO (predicate acts, mail/wire fraud), False Claims Act (qui tam), HIPAA (private right), and ADA (public-accommodation), plus pendent state-law claims.
- Court held there was no evidence the Kenmore Defendants acted under color of state law or that they communicated Burke’s medical information to his employer or NYCERS; no RICO predicate acts proved; alleged burglaries and OATH transcript did not support RICO predicates.
- Court ruled HIPAA supplies no private right of action and dismissed the False Claims Act claim because a pro se plaintiff may not bring qui tam claims; ADA claims failed because an apartment building is not a public accommodation; the court declined supplemental jurisdiction over state-law claims and closed the case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| § 1983: whether Kenmore acted under color of state law | Burke says entanglement/delegation (sale/regulatory agreement; involvement of Bellevue social worker) suffices | No sufficient state entanglement, delegation, or joint action to satisfy § 1983 | Dismissed for lack of state action |
| RICO: whether predicate acts and causation exist | Kenmore fabricated and transmitted false medical documents (mail/wire fraud); burglaries and forged permits constitute predicates | No evidence of mail/wire fraud or other RICO predicates by Kenmore; code violations are not RICO predicates | Dismissed—no RICO predicate acts or proof |
| HIPAA: private right to sue | Burke contends Kenmore disseminated medical information | Kenmore denies dissemination; HIPAA enforcement is federal agency’s, not private | Dismissed—HIPAA provides no private cause of action |
| ADA: whether Kenmore is a public accommodation | Burke claims disability discrimination re: smoke-alarm work | Kenmore is a private residential building, not a public accommodation | Dismissed—ADA inapplicable to residential apartment building |
| False Claims Act (qui tam) | Burke asserts government-fraud theories tied to ownership/escrow transfers | FCA requires qui tam actions to be brought by relators represented by counsel; pro se qui tam not permitted | Dismissed—pro se plaintiff cannot bring qui tam FCA claims |
Key Cases Cited
- West v. Atkins, 487 U.S. 42 (1988) (§ 1983 requires state action)
- Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255 (2d Cir. 2008) (tests for private-party action under color of state law)
- UFCW Local 1776 v. Eli Lilly & Co., 620 F.3d 121 (2d Cir. 2010) (elements required for civil RICO claim)
- United States v. Carrillo, 229 F.3d 177 (2d Cir. 2000) (RICO predicate offense definition)
- Spinelli v. City of New York, 579 F.3d 160 (2d Cir. 2009) (summary-judgment evidence construed in nonmovant’s favor)
- Hicks v. Baines, 593 F.3d 159 (2d Cir. 2010) (conclusory allegations insufficient to defeat summary judgment)
- Meadows v. United Servs., Inc., 963 F.3d 240 (2d Cir. 2020) (HIPAA confers no private right of action)
- Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (1988) (factors for declining supplemental jurisdiction)