Espino v. Wallgreens Pharmacy

Filing 14

ORDER signed by Magistrate Judge Allison Claire on 5/20/2015 GRANTING 8 Motion to Dismiss; DISMISSING the 1 Complaint; GRANTING the plaintiff thirty (30) days to file an amended complaint that complies with the requirements of the Federal Rules o f Civil Procedure, the Local Rules of Practice, and this order; CAUTIONING the plaintiff that a failure to file an amended complaint in accordance with this order will result in a recommendation that this action be dismissed for failure to prosecute; DIRECTING the Clerk of Court to correct the docket to reflect Defendant's name Walgreen Co.. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CARLOS ESPINO,

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Plaintiff,

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No. 2:15-cv-00423-MCE-AC

v.

ORDER

WALGREEN CO.,1

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Defendant.

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On May 20, 2015, the court held a hearing on defendant’s April 22, 2015 motion to

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dismiss. Carlos Espino appeared in pro per. Alexandra Asterlin appeared on behalf of defendant.

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On review of the motion and the documents filed in support and opposition, after hearing the

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arguments of the parties, and good cause appearing therefor, THE COURT FINDS AS

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FOLLOWS:

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FACTUAL ALLEGATIONS

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Plaintiff is a long-time customer of Walgreen Co. (“Walgreen”). He alleges that on

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March 1, 2013, he received several phone calls from a Walgreen pharmacy located in Manteca

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stating that his medications were ready for pick up. After driving to the pharmacy in Manteca,

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The complaint misspells defendant’s name. The court here uses the correct name, and directs
the Clerk to correct the docket accordingly.
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plaintiff was told that his medications were not ready and that he should go to a different

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Walgreen pharmacy in Lathrop. Plaintiff visited two other Walgreen pharmacies, one in Lathrop

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and one in Modesto. He was denied his medications at each location.

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Plaintiff subsequently notified his primary treating physician that Walgreen denied him

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his medication. His physician called the Walgreen pharmacy but never received a called back.

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Plaintiff was then referred to another pharmacy to pick up his medications. He did not receive his

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medications until March 18, 2013. As a result of the delay in receiving his medications, plaintiff

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asserts he suffered from uncontrollable high blood pressure and diabetic attacks that eventually

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led to a stroke.

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Plaintiff reported Walgreen to the Better Business Bureau. After an internal investigation,

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he received a phone call from Walgreen stating that the problem arose from plaintiff’s worker’s

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compensation carrier no longer paying for his medication. Plaintiff asserts he has not relied on

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his worker’s compensation to pay for his medication as he is on Medicare part “D.” He contends

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Walgreen’ conduct constitutes wrongful discrimination and intentional infliction of emotional

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distress.

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PROCEDURAL BACKGROUND

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Plaintiff filed his complaint on February 24, 2015. ECF No. 1. On March 19, 2015,

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defendant filed a motion to dismiss but noticed the hearing before Judge Morrison C. England.

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ECF No. 4. Subsequently, this case was assigned to the undersigned for all purposes except for

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the pretrial conference and trial and defendant’s motion to dismiss (ECF No. 4) was vacated.

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ECF No. 7. Defendant filed the instant motion to dismiss and noticed the hearing for April 22,

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2015. ECF No. 8. Plaintiff did not file a timely opposition to defendant’s motion and the hearing

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was vacated. ECF No. 9. On April 17, 2015, the court ordered plaintiff to file an opposition to

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defendant’s motion by May 6, 2015 or risk having the complaint dismissed. ECF No. 9. On

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April 20, 2015, plaintiff filed his opposition to defendant’s motion to dismiss. ECF No. 10.

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Defendant filed its reply on May 12, 2015. ECF No. 11.

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LEGAL STANDARDS

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“A motion to dismiss under Federal Rule of Civil Procedure 12(b) (6) for failure to state a

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claim upon which relief can be granted tests the legal sufficiency of a claim.” Conservation Force

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v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (internal quotation marks omitted), cert. denied,

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132 S. Ct. 1762 (2012). “Dismissal can be based on the lack of a cognizable legal theory or the

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absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police

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Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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In order to survive dismissal for failure to state a claim, a complaint must contain more
than a “formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient to “raise a right to relief above the speculative level.” Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 555 (2007). It is insufficient for the pleading to contain a statement of

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facts that “merely creates a suspicion” that the pleader might have a legally cognizable right of

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action. Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235 35

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(3d ed. 2004)). Rather, the complaint “must contain sufficient factual matter, accepted as true, to

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‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Id.

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In reviewing a complaint under this standard, the court “must accept as true all of the

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factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing

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Twombly, 550 U.S. at 555-56), construe those allegations in the light most favorable to the

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plaintiff, Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir.

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2010) (citing Twombly), and resolve all doubts in the plaintiff's favor. Hebbe v. Pliler, 627 F.3d

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338, 340 (9th Cir. 2010) (citing Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738

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(1976)). The court need not accept as true, legal conclusions “cast in the form of factual

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allegations.” Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

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Moreover, pro se pleadings are held to a less stringent standard than those drafted by

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lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The courts do grant leeway to pro se

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plaintiffs in construing their pleadings. See, e.g., Brazil v. U.S. Dept. of Navy, 66 F.3d 193, 199

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(9th Cir. 1995) ( “[a]lthough a pro se litigant . . . may be entitled to great leeway when the court

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construes his pleadings, those pleadings nonetheless must meet some minimum threshold in

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providing a defendant with notice of what it is that it allegedly did wrong”). Even with leeway

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and liberal construction, however, the complaint must not force the court and the defendant to

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guess at what is being alleged against whom, require the court to spend its time “preparing the

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‘short and plain statement’ which Rule 8 obligated plaintiffs to submit,” or require the court and

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defendants to prepare lengthy outlines “to determine who is being sued for what.” McHenry v.

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Renne, 84 F.3d 1172, 1179 (9th Cir. 1996).

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A key consideration applicable to this complaint is compliance with Rule 8 of the Federal

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Rules of Civil Procedure. Specifically, the complaint must contain a short and plain statement of

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the grounds for the court’s jurisdiction and the claim or claims showing that the pleader is entitled

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to relief. Fed. R. Civ. P. 8(a)(1)-(2); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)

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(“Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus

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litigation on the merits of a claim”). Plaintiff's claims must be set forth simply, concisely and

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directly. Fed. R. Civ. P. 8(d)(1) (“[e]ach allegation must be simple, concise and direct”);

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McHenry, 84 F.3d at 1177 (“[t]he Federal Rules require that averments ‘be simple, concise, and

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direct’”).

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DISCUSSION

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Defendant moves to dismiss all of plaintiff’s claims. Plaintiff asserts five claims. Claims

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1, 2, 3, and 5 revolve around plaintiff’s chief assertion that defendant discriminated against him

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by denying him his medication. At the hearing, plaintiff clarified that his discrimination claims

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are brought under the Americans with Disabilities Act (“ADA”). Claim 4 alleges intentional

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infliction of emotional distress.

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A. Claims 1, 2, 3 and 5

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As noted above, these claims all relate to plaintiff’s chief assertion that defendant

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discriminated against him, a disabled person, by denying plaintiff his medications. Title III of the

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ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the

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full and equal enjoyment of the goods, services, facilities, privileges, advantages, or

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accommodations of any place of public accommodation by any person who owns, leases (or

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leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). “To prevail on a

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Title III discrimination claim, the plaintiff must show that (1) [he] is disabled within the meaning

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of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public

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accommodation; and (3) the plaintiff was denied public accommodations by the defendant

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because of her disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007).

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As to the first element, plaintiff alleges in conclusory terms that he is disabled within the

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meaning of the ADA, but does not plead facts to establish this. “Disability means, with respect to

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an individual, a physical or mental impairment that substantially limits one or more of the major

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life activities of such individual; a record of such an impairment; or being regarded as having

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such an impairment.” 28 C.F.R. § 36.104; see also 42 U.S.C. § 12102. Plaintiff alleges his

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medication regimen consists of high blood pressure, heart, diabetic and controlled substance

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medications, all of which are essential for his survival. ECF No. 1, at 4; ECF No. 10, at 5.

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However, plaintiff does not allege that any of these conditions substantially limits one or more of

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the major life activities. Because the claim must be dismissed for other reasons, plaintiff will

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have the opportunity to specify on amendment that the medical conditions he identifies

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substantially limit his life activities, or to plead other facts establishing disability.

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As to the second element, plaintiff does not allege any facts regarding whether defendant

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is “place of public accommodation” for ADA purposes. Because the ADA specifically provides

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that a pharmacy is a public accommodation, 42 U.S.C. § 12181(7)(f), this omission is not fatal to

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the claim. However, because the claim must be dismissed for other reasons, plaintiff may clarify

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on amendment that defendant is a place of public accommodation.

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The third element, discriminatory intent, is more problematic here. Plaintiff’s disability

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discrimination claim fails to state a claim under Title III of the ADA because it does not include

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any factual allegations that can fairly be interpreted to support the third element of the claim: that

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plaintiff was denied public accommodations because of his disability. “No individual shall be

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discriminated against on the basis of disability in the full and equal enjoyment of the goods,

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services, facilities, privileges, advantages, or accommodations of any place of public

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accommodation by any person who owns, leases, (or leases to), or operates a place of public

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accommodation.” 42 U.S.C. § 12182(a) (emphasis added). Plaintiff alleges he was denied his

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medication. He further alleges that after defendant performed an internal investigation, it notified

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plaintiff that the refusal to distribute his medication was due plaintiff’s workers compensation.

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He states that Medicare is paying for his medications and thus there was no legitimate reason to

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deny plaintiff his medication. These allegations, without more, are insufficient to show that

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defendant denied plaintiff his medication based on plaintiff’s disability. Accordingly, plaintiff’s

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first, second, third, and fifth Claims are dismissed with leave to amend.

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B. Claim 4
Plaintiff’s fourth claim asserts that defendant’s denial of medication was intended to

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inflict emotional distress upon plaintiff. It appears that plaintiff is attempting to assert a claim for

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intentional infliction of emotional distress. The elements of this state law claim are (1) extreme

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and outrageous conduct by the defendant with the intention of causing, or reckless disregard of

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the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme

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emotional distress; and (3) the plaintiff's injuries were actually and proximately caused by the

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defendant's outrageous conduct. Cochran v. Cochran, 65 Cal. App. 4th 488, 494, 76 Cal. Rptr. 2d

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540 (1998) (citation omitted). As the California Supreme Court has explained, this tort imposes

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liability only for “conduct exceeding all bounds usually tolerated by a decent society, of a nature

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which is especially calculated to cause, and does cause, mental distress.” Cole v. Fair Oaks Fire

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Dept., 43 Cal. 3d 148, 155 n. 7 (1987). The complaint fails to allege any conduct by defendant

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that rises to this level. Certainly, the conduct alleged here “did not include threats of physical

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harm, public harassment or other such conduct which the [California] cases require to be deemed
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‘extreme and outrageous.’” Standard Wire & Cable Co. v. Ameritrust Corp., 697 F. Supp. 368,

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372 (C.D. Cal. 1988). Accordingly, this claim must be dismissed, but plaintiff will be provided

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an opportunity to amend.

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Plaintiff is informed that where the federal court’s original jurisdiction is based on

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plaintiff’s presentation of a claim arising under federal law, see 28 U.S.C. § 1331, jurisdiction

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over additional state law claims is considered “supplemental,” § 1367(a). Accordingly, if the

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federal claims are dismissed in the future without leave to amend, the court may decline to

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maintain jurisdiction over the state law claims even if they are adequately pled. See § 1367(c)(3).

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C. Amendment
Plaintiff is informed that if he chooses to file an amended complaint, he must submit a

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short and plain statement in accordance with Federal Rule 8(a). Any amended complaint must

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specify the basis for federal court jurisdiction, show that the action is brought in the right place,

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and allege facts showing that plaintiff is entitled to relief (in other words, facts sufficient to

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establish the elements of each claim). The amended complaint should contain separately

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numbered, clearly identified claims that identify the federal statute(s) or common law cause(s) of

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action that provide for relief.

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In addition, the allegations of the complaint should be set forth in sequentially numbered

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paragraphs, with each paragraph number being one greater than the one before, each paragraph

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having its own number, and no paragraph number being repeated anywhere in the complaint.

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Each paragraph should be limited "to a single set of circumstances" where possible. Fed. R. Civ.

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P. 10(b). Plaintiff must avoid excessive repetition of the same allegations. Plaintiff must avoid

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narrative and storytelling. That is, the complaint should not include every detail of what

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happened, nor recount the details of conversations (unless necessary to establish the claim), nor

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give a running account of plaintiff's hopes and thoughts. Rather, the amended complaint should

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contain only those facts needed to show how the defendant legally wronged the plaintiff.

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Local Rule 15-220 requires that an amended complaint be complete in itself without

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reference to any prior pleading. This is because, as a general rule, an amended complaint

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supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once
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plaintiff files an amended complaint, the original pleading no longer serves any function in the

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case. Therefore, in an amended complaint, as in an original complaint, each claim and the

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involvement of each defendant must be sufficiently alleged.

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CONCLUSION

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For the reasons stated herein, IT IS HEREBY ORDERED that:

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1. Defendant’s motion to dismiss (ECF No. 8) is granted;

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2. The complaint is dismissed; and

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3. Plaintiff is granted thirty (30) days from the date of service of this order to file an

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amended complaint that complies with the requirements of the Federal Rules of Civil Procedure,

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the Local Rules of Practice, and this order; the amended complaint must bear the docket number

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assigned to this case and must be labeled “Amended Complaint”; plaintiff must file an original

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and two copies of the amended complaint; failure to file an amended complaint in accordance

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with this order will result in a recommendation that this action be dismissed for failure to

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prosecute.

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DATED: May 20, 2015

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