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Levin v. Board of Education of the City of Chicago

January 8, 2007

JOEL LEVIN, PLAINTIFF,
v.
BOARD OF EDUCATION OF THE CITY OF CHICAGO, A MUNICIPAL CORPORATION, AND CERMAK HEALTH SERVICES, A DIVISION OF COOK COUNTY, A MUNICIPAL CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: John F. Grady, United States District Judge

MEMORANDUM OPINION & ORDER

This case is before the court for ruling on defendants' motions to dismiss the Fourth Amended Complaint. For the following reasons, the motions are granted.

BACKGROUND

Plaintiff Joel Levin is employed by the Board of Education of the City of Chicago (the "Board") as a teacher at Consuella B. York Alternative High School ("York School"), a Chicago public school for inmates at the Cook County Jail.*fn1 In his original complaint filed in state court, Levin sued the Board and Cook County (incorrectly identified as Cermak Health Services)*fn2 alleging that defendants improperly disclosed his personal medical information in violation of the Health Insurance Portability and Accountability Act ("HIPAA"), 42 U.S.C. §§ 1320d et seq., and Illinois common law. Plaintiff's claims were based on two sets of facts, the first relating to a tuberculosis screening in 2004 and the second relating to a memorandum the Board distributed after he contracted meningitis in November 2002. After removing the case to federal court based on federal question jurisdiction, defendants moved for dismissal. The motions to dismiss were granted in part and denied in part.

(12.20.05 Mem. Op. at 1.) Specifically, the court dismissed the HIPAA claims because there is no private right of action for HIPAA violations (id. at 6), but found that plaintiff had raised claims under 42 U.S.C. § 1983.*fn3 (Id. at 7-8.) As for the state law claims, we dismissed the claims that were based on the distribution of the meningitis memorandum because the statute of limitations had expired, but the claims based on the tuberculosis screening survived because defendants presented no argument for dismissal. (Id. at 6-7.)

Levin subsequently amended his complaint several times, resulting in the Fourth Amended Complaint which is presently before the court. In the Fourth Amended Complaint, Levin sues both the Board and Cook County d/b/a Cermak Health Services (the "County"), alleging that defendants improperly disclosed his personal medical information and thus are liable under § 1983 for violating his constitutional right to privacy and under Illinois common law for "public disclosure of private facts," "intrusion upon seclusion" and "loss of privacy." Plaintiff's amended claims stem from two different sets of facts.

Claims Based on Tuberculosis Screenings

In Count I, plaintiff asserts § 1983 and state law claims relating to tuberculosis screenings conducted in 2004 and 2005. Regarding the 2004 screening, according to plaintiff, he received a letter from the Board around February 17, 2004 directing him to attend a mandatory Cook County Department of Corrections "Civilian Inservice Training" at Moraine Valley Community College. On February 23, 2004, plaintiff attended the training, which was conducted by "agents, servants or employees" of the County. There were approximately twenty participants, including ten of plaintiff's fellow employees. As part of the training, participants were informed that they would be subjected to mandatory tuberculosis screening. The participants were given medical forms to complete that sought certain medical information regarding the tuberculosis test that was about to be administered, and they were instructed to put a "plus mark" at the top of the form if they had previously tested positive for tuberculosis. They were then instructed to stand in line to be given the tuberculosis skin test.

Plaintiff had previously tested positive for tuberculosis. It was his understanding that once an individual tests positive for tuberculosis, he or she "does not need and should not have a subsequent test." (Fourth Am. Compl. at 2, ¶ 9.) Plaintiff wrote "Check Your Records" at the top of his medical form, refused to participate in the screening, and left the room.

There was a second tuberculosis screening in February 2005, while this litigation was pending. According to plaintiff, he received a letter around April 20, 2005 directing him to attend another mandatory "Civilian Inservice Training" at Moraine Valley Community College. Like the previous year, the training included mandatory tuberculosis screening. There were approximately 30 participants, including 10-12 of plaintiff's co-workers. Participants were instructed to complete a medical form then stand in line to be given the tuberculosis skin test. This time, Levin completed the medical form and stood in line. When his turn came, he informed the County's personnel that he had previously tested positive for tuberculosis. At that point, he was instructed to sit back down and not participate in the screening.

According to plaintiff, the manner in which both the 2004 and 2005 screenings were conducted disclosed to others (including his fellow employees) that he had previously contracted tuberculosis. Plaintiff further alleges that the manner in which the screenings were conducted constitutes an unconstitutional, widespread practice and custom of the Board and/or the County. Based on the alleged disclosure of his private medical information, plaintiff sues defendants under § 1983 for violating his constitutional right to privacy, and also asserts claims for public disclosure of private facts, intrusion upon seclusion and loss of privacy under Illinois common law.

Claims Relating to Plaintiff's Contraction of Meningitis

In Count II, plaintiff raises § 1983 and state law claims relating to his contraction of meningitis. On November 3, 2002, plaintiff was diagnosed with meningitis and then hospitalized for thirty-six days. On November 4, 2002, the assistant principal of York School wrote and distributed a memorandum regarding "Meningitis" to the staff of York School (approximately ninety people) and to employees of the Cook County Department of Corrections. The memorandum stated in full:

One of our staff members has been diagnosed with meningitis. He is currently hospitalized and undergoing treatment. It is not known at this time whether the meningitis is viral or bacterial. Meningitis is not highly contagious, but to allay concerns among staff ...


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