                            UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                            No. 12-1117


CHARLES BENJAMIN DICKERSON, a/k/a Ben, on behalf of himself
and all others similarly situated,

               Plaintiff - Appellant,

         and

JOHN HOLLMAN, on behalf of himself and all others similarly
situated,

               Plaintiff,

         v.

TLC THE LASER EYE CENTER INSTITUTE, INC.; TLC THE LASER
CENTER CAROLINA, INC.; TLC THE LASER CENTER MADISON, INC.;
TLC LASER EYE CENTERS OKLAHOMA CITY; TLC THE LASER CENTER
TRI-CITIES, INC.; TLC THE LASER CENTER MASSACHUSETTS, INC.;
TLC THE LASER CENTER BREA, INC.; TLC LASER EYE CENTERS
CLEVELAND; TLC LASER EYE CENTERS COLUMBUS; TLC THE LASER
CENTER BOCA RATON, INC.; TLC LASER EYE CENTERS PITTSBURGH;
TLC LASER EYE CENTERS FARGO; VALLEY LASER EYE CENTER, LLC;
TLC LASER EYE CENTERS TULSA; TLC LASER EYE CENTERS EDINA;
TLC THE LASER CENTER INDIANA, LLC; TLC THE LASER CENTER
INSTITUTE FT. LAUDERDALE, d/b/a TLC Ft. Lauderdale, a/k/a
TLC The Laser Center Institute; TLC THE LASER CENTER
INSTITUTE, INC.-DENVER, d/b/a TLC Denver, a/k/a TLC The
Laser Center Institute, Inc.; TLC THE LASER CENTER INSTITUTE
INC.-ATLANTA, d/b/a TLC Atlanta, a/k/a TLC The Laser Center
Institute, Inc.; TLC THE LASER CENTER INSTITUTE, INC.-
MANHATTAN, d/b/a TLC Manhattan, a/k/a TLC The Laser Center
Institute, Inc.; TLC THE LASER CENTER INSTITUTE, INC.-GARDEN
CITY, d/b/a TLC Garden City, a/k/a TLC The Laser Center
Institute, Inc.; TLC THE LASER CENTER INSTITUTE, INC.-
TORRANCE, d/b/a TLC Torrance, a/k/a TLC The Laser Center
Institute, Inc.; TLC THE LASER CENTER NORTHEAST, INC.-NORTH
JERSEY, d/b/a TLC North Jersey, a/k/a TLC The Laser Center
Northeast, Inc.; TLC LASER CENTER NORTHEAST, INC.-ROCKVILLE,
d/b/a TLC Rockville, a/k/a TLC Laser Center Northeast, Inc.;
TLC THE LASER CENTER INSTITUTE, INC.-WHITE PLAINS, d/b/a TLC
White Plains, a/k/a TLC The Laser Center Institute, Inc.;
TLC MIDWEST EYE LASER CENTER, INC.-CHICAGOLAND, d/b/a TLC
Chicagoland, a/k/a TLC Midwest Eye Laser Center, Inc.; TLC
THE LASER CENTER NORTHEAST, INC.-BIG SKY, d/b/a TLC Big Sky,
a/k/a TLC The Laser Center Northeast, Inc.; TLC THE LASER
CENTER INSTITUTE, INC.-CHARLESTON, d/b/a TLC Charleston,
a/k/a TLC The Laser Center Institute, Inc.; TLC THE LASER
CENTER INSTITUTE, INC.-SAN ANTONIO, d/b/a TLC San Antonio,
a/k/a TLC The Laser Center Institute, Inc.; TLC THE LASER
INSTITUTE-TAMPA, d/b/a TLC Tampa, a/k/a TLC The Laser
Institute; DAVID KOHLER, OD, Individually and in their
capacity as Clinical Director for TLC The Laser Center
Institute, Inc.; MELISSA MELOTT, OD, Individually and in
their capacity as Clinical Director for TLC The Laser Center
Institute, Inc. ; DEREK VAN VEEN, OD, Individually and in
their capacity as Clinical Director for TLC The Laser Center
Institute, Inc.; CYNTHIA YEAGER, OD, Individually and in
their capacity as Clinical Director for TLC the Laser Center
Institute, Inc.; JODI ABRAMSON, MD; ALBERTO ARAN, MD; ROBERT
ARFFA, MD; DAVID K. AYMOND, MD; DAVID BOES, MD; STAN
BRAVERMAN, MD; ERIC DONNENFELD, MD; MARTIN FOX, MD; DAVID
HUNTER, MD; JEFFREY MACHAT, MD; JOHN OSTER, MD; GEORGE
PARDOS, MD; EDWARD PERRAUT, MD; LOUIS PROBST, MD; RANDALL
RABON, MD; JEFF ROBIN, MD; ROY RUBINFELD, MD; STEPHEN SLADE,
MD; MARK SPEAKER; NANCY TANCHEL, MD; GREGORY TEMAS, MD;
STEWART TERRY, MD; MARK E. WHITTEN, MD; LARRY WOMACK, MD;
WENDELL WONG, MD; JONATHAN WOOLFSON, MD; BRIAN ANDREW, Esq.;
STACEY ANNE LERUM; BOB MAY, Esq.; JOHN POTTER, MD,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.     J. Michelle Childs, District
Judge. (6:10-cv-00685-JMC)


Submitted:   June 20, 2012                Decided:   August 15, 2012


Before GREGORY, WYNN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.

                                 2
Paul S. Landis, FAYSSOUX LAW FIRM, PA, Greenville, South
Carolina; Douglas F. Patrick, Sr., Stephen R. H. Lewis,
COVINGTON, PATRICK, HAGINS, STERN & LEWIS, PA, Greenville, South
Carolina, for Appellant.   W. Howard Boyd, Jr., Ronald G. Tate,
Jr., Luanne Lambert Runge, GALLIVAN, WHITE & BOYD, PA,
Greenville, South Carolina; H. Donald Sellers, Christopher B.
Major, HAYNSWORTH, SINKLER & BOYD, PA, Greenville, South
Carolina; Robert H. Hood, James B. Hood, Deborah H. Sheffield,
HOOD LAW FIRM, Charleston, South Carolina; David H. Batten,
Charles H. Foppiano, BATTEN LEE, PLLC, Cary, North Carolina;
James F. Rogers, Cory E. Manning, NELSON MULLINS RILEY &
SCARBOROUGH, LLP, Columbia, South Carolina; Lee C. Weatherly,
CARLOCK, COPELAND, SEMLER & STAIR, LLP, Charleston, South
Carolina; Jack G. Gresh, HALL, BOOTH, SMITH & SLOVER, PC,
Sullivan's Island, South Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                3
PER CURIAM:

             Charles       Benjamin        Dickerson          appeals     the    district

court’s grant of motions to dismiss the first amended complaint

(“FAC”)   filed      by    Appellees       TLC    Lasik       Centers,    TLC    Clinical

Directors, TLC LASIK Surgeons, and TLC Management (collectively,

“the Providers”).          Dickerson is the class representative in an

action    alleging        violations    of       the    Racketeer       Influenced      and

Corrupt Organization Act (“RICO”) and requesting declaratory and

injunctive relief regarding his and the putative class members’

medical records that were allegedly concealed and converted by

the   Providers.             Dickerson           alleged       that     the      Providers

participated in an elaborate fraudulent scheme to conceal their

medical malpractice.           For the following reasons, we affirm the

district court’s grant of the motions to dismiss.



                                            I.

             Dickerson         challenges               the      district           court’s

determination that his RICO claim is barred by the statute of

limitations.          Generally,      “a    motion       to     dismiss     filed    under

Federal      Rule    of    Civil    Procedure          12(b)(6),      which     tests   the

sufficiency of the complaint, . . . cannot reach the merits of

an affirmative defense, such as the defense that the plaintiff’s

claim is time-barred.”             Goodman v. PraxAir, Inc., 494 F.3d 458,

464   (4th    Cir.    2007).        However,       in     rare     cases,     courts    may

                                             4
determine the merits of an affirmative defense at this stage in

the   litigation       if   “all       facts       necessary    to     the   affirmative

defense clearly appear[] on the face of the complaint.”                                Id.

(quoting Richmond, Fredericksburg & Potomac R.R. v. Forst, 4

F.3d 244, 250 (4th Cir. 1993)) (emphasis in the original).

              The RICO statute does not provide a limitations period

for civil actions, however, the Supreme Court has determined

that a four-year statute of limitations applies.                        Agency Holding

Corp.   v.     Malley-Duff       &    Associates,      Inc.,     483    U.S.    143,   156

(1987).       Further, the Supreme Court has established that the

discovery-of-injury accrual rule applies to civil RICO actions.

Rotella v. Wood, 528 U.S. 549, 556 (2000).                      Under this rule, the

statute of limitations will begin to run from the date when the

plaintiff knew or should have known of the existence of a RICO

injury.      Id.

              Dickerson alleged several RICO injuries, which include

conversion of his medical records and payments for unnecessary

surgeries and treatment.                With respect to the injury arising

from payments for unnecessary surgeries and treatment, the FAC

is    silent       regarding     when        Dickerson’s       first    Lasik    surgery

occurred      and    when   he       sought     additional      treatment       from   the

Providers.         However, the FAC does allege several dates in which

the   Providers       converted        his     medical    records       by   faxing    and

mailing      his     records         between       themselves     as     part    of    the

                                               5
racketeering scheme beginning in February 1999 and continuing

through May 2005.            J.A. 112-13.            The FAC also alleges that the

mail     fraud      was     committed        without          Dickerson’s      knowledge       or

consent and that the Providers continue to conceal and convert

the medical records to date.                  The district court concluded that

based    upon      these    dates     alleged       in    the       FAC,    Dickerson’s      RICO

claim    “certainly        accrued      by    May    2005,”         since    the    action    was

initiated in March 2010, and Dickerson’s claims were not raised

until May 2010.           J.A. 311.

                 That the conversion of the medical records occurred on

those    dates      does    not    clearly     indicate          that      Dickerson    had   or

should have had notice that the conversions were taking place.

On    the    face    of     the    FAC,      there       is    no    indication       from    the

allegations that Dickerson should have known that his medical

records were being converted over this period of time.                                  Indeed,

the FAC is explicit that the conversion of the records was kept

secret      to    conceal    his      true    diagnosis.             See    e.g.,    J.A.    116.

Given that there is no allegation that demonstrates Dickerson

should have known that the Providers were converting his medical

records at a date that would lead to the conclusion that the

limitations         period      has    expired,       the       statute      of     limitations

defense was not clearly present on the face of the FAC, and the

district court erred in rendering that conclusion.                                 As a result,

the    Court      need    not     consider     Dickerson’s           alternative       argument

                                               6
that the limitations period should be equitably tolled due to

the Providers’ fraudulent conduct.



                                          II.

            Next     Dickerson        challenges         the     district          court’s

dismissal of his civil RICO claim.                  To establish a RICO claim,

Dickerson must sufficiently allege facts that if accepted as

true demonstrate that the Providers engaged in “(1) conduct (2)

of   an   enterprise    (3)      through    a     pattern      (4)    of    racketeering

activity.”      Sedima      v.   Imrex     Co.,    473   U.S.        479,   496    (1985).

Dickerson can only recover if he shows that his injury caused by

the RICO violation damaged his business or property.                              Id.    See

also, 18 U.S.C. § 1964(c).                Thus, any allegation of personal

injuries and losses from those injuries will not be considered

injuries to business or property under the act.                         Bast v. Cohen,

Dunn & Sinclair, P.C., 59 F.3d 492, 495 (4th Cir. 1995).                                 The

district court concluded that the FAC sufficiently alleged a

pattern    of   racketeering        activity       and    the        existence      of   an

enterprise.        See J.A. 296-300.            It dismissed the RICO claim,

however,     because   it     found      that     the    FAC    did     not    allege      a

cognizable injury caused by the RICO activity to Dickerson’s

business or property.         J.A. 306.

            In the FAC, Dickerson pled several injuries to his and

the class members’ properties caused by the Providers’ alleged

                                           7
RICO activity.         With respect to the first injury, the district

court    correctly      concluded   that        costs   and    attorney      fees   are

automatically granted in a successful RICO case, and thus these

damages are separate from the damages arising from the injury to

a plaintiff’s business or property.                   See 18 U.S.C. § 1964(c).

Similarly,     the    district    court    correctly         concluded     that,    with

respect   to    the    second    injury,       the   money    spent   on   subsequent

surgeries      and    treatment   were     damages      stemming      from   personal

injuries derived from the Providers’ medical malpractice and not

–- as Dickerson alleged –- damages arising from an injury to his

property. 1




     1
        Relatedly, Dickerson argues that the district court
ignored allegations in the FAC regarding fees he and the class
members had to pay to enter into the LTCs.          In the FAC,
Dickerson alleged that the LTCs were used to induce prospective
patients to the Providers by guaranteeing lifetime vision care
for patients that would cover “any additional LASIK surgery
needed and any treatment for vision related problems associated
with or caused by the LASIK surgery performed under the LTC.”
J.A. 95-96.    Dickerson contends that the LTCs were ultimately
used by the Providers to further their fraudulent scheme and
that these contracts were no longer honored once the Providers
believed that Dickerson and class members’ claims for medical
malpractice had expired.    While these allegations were part of
the “Factual Background” section of the FAC, Dickerson did not
allege that these fees should be considered property for the
RICO claim nor did he list the fees as compensatory damages
stemming from the RICO violation.    Thus, even when reading the
FAC in a light favorable to Dickerson, the FAC simply does not
contain pleadings that suggest that these fees should be
considered an injury to property as required for the RICO claim.



                                           8
             Finally,       with       respect       to    the     third        injury,       the

district      court    concluded         that        under       South       Carolina        law,

Dickerson had an “intangible property interest” in his medical

information, yet conversion of this interest was not a legally

cognizable     action.         J.A.     303.         As    a    result,       it     held    that

Dickerson could not demonstrate any “concrete” or “quantifiable”

injury to his business or property. 2                  J.A 303.

             Under South Carolina law, the crime of conversion “is

the     unauthorized       assumption      and       exercise          of     the    right    of

ownership over goods or person or personal chattels belonging to

another, to the alteration of the condition or the exclusion of

the owner’s rights.          To establish the tort of conversion, it is

essential that the plaintiff establish either title to or right

to the possession of the personal property.”                                Regions Bank v.

Schmauch,     582   S.E.2d     432,      442       (S.C.   Ct.    App.       2003).         South

Carolina     law    does    not       ordinarily      permit       a    conversion          claim

founded on an intangible property interest unless the interest

is “merged in, or identified with, some document.”                                   Gignilliat

v.    Gignilliat,     Savitz      &    Bettis,      L.L.P.,      684        S.E.2d    756,    763

(S.C.      2009)    (dismissing         plaintiff’s            conversion          claim     that


       2
        We assume without deciding, that the district court
correctly determined that Dickerson possesses an intangible
property interest in his medical records under South Carolina
law.



                                               9
alleged the defendants used plaintiff’s name without her consent

because   there   was     no   documentation     evidencing   plaintiff’s

exclusive right to the use of her name).           Under South Carolina

law patients do possess rights in obtaining truthful diagnoses,

see J.A. 302 (citing Hook v. Rothstein, 316 S.E.2d 690, 694-95

(S.C. Ct. App. 1984) overruled in part on other grounds by Linog

v. Yampolsky, 656 S.E.2d 355, 358 (S.C. 2008)), and in accessing

information contained in medical files, although the physician

maintains an ownership right in the actual file, id. (citing

S.C. Code Ann. §§ 44-115-20; 44-115-30 (2009)).

           Although Dickerson contends that his interest in his

medical information was merged in or identified with the medical

records themselves, South Carolina has designated physicians as

the lawful owners of any medical record within their possession.

See S.C. Code. Ann. § 44-115-20.          And as the district court

pointed out in its opinion denying Dickerson’s motion to alter

or amend its previous judgment, those courts that have addressed

this issue have questioned whether a patient’s possessory or

privacy   interest   in    their   information    contained   in   medical

records can form the basis of a conversion claim.              J.A. 336.

Because the medical records belong to the physicians who possess

them and the law merely affords patient’s access to copies of

their records, the district court was correct to conclude that a



                                    10
claim of conversion with respect to the medical records could

not be maintained.



                                       III.

            Finally,       Dickerson     appeals      the       district       court’s

dismissal of his claim for declaratory and injunctive relief.

Dickerson contends that the district court misapprehended the

bases for these claims and that his requests for declaratory and

injunctive relief are based on the RICO violation and not the

Health Insurance Portability and Accountability Act, (“HIPAA”),

Pub.   L.   No.    104-191,    110    Stat.   1936    (1996),         or    any     other

provision of law.

            For     the   following    reasons,      we    affirm     the     district

court’s dismissal of Dickerson’s requests for declaratory and

injunctive relief.         With respect to the request for declaratory

relief, Dickerson’s argument on appeal is not responsive to the

district    court’s       determination      that    the    proper         avenue     for

requesting medical records given the disposition of this case is

through a discovery motion.            It is within the discretion of the

district court to grant declaratory relief and such relief is

appropriate “when the judgment will serve a useful purpose in

clarifying and settling the legal relations in issue, and . . .

when it will terminate and afford relief from the uncertainty,

insecurity,       and   controversy    giving   rise       to   the    proceeding.”

                                        11
Centennial Life Ins. Co. v. Poston, 88 F.3d 255, 256 (4th Cir.

1996) (internal quotation marks omitted).                        Here, the district

court gave a well-reasoned answer for why a declaration was “ill

suited” to determine whether Dickerson and the putative class

members were entitled to the disclosure of the medical records.

Alternatively, dismissal of the claim for declarative relief is

warranted because of the dismissal of Dickerson’s RICO claim.

           With    respect    to    the    request         for   injunctive      relief,

Dickerson now claims that his request for injunctive relief was

only predicated on the RICO violation despite the fact that the

FAC’s    pleadings       explicitly       assert      HIPAA       violations.         As

determined above, Dickerson has not sufficiently pled a RICO

claim,   and   consequently       he     cannot      be    entitled     to    injunctive

relief on this basis.



                                               IV.

             For   the   foregoing       reasons,         we   affirm   the     district

court’s grant of the Providers’ motions to dismiss.                          We dispense

with oral argument because the facts and legal contentions are

adequately     presented     in    the    materials        before     the     Court   and

argument would not aid the decisional process.



                                                                                AFFIRMED




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