Colston v. CVS Pharmacy, Inc.

Filing 20

OPINION and ORDER Granting Defendant's 11 Motion to Dismiss Claims Related to Violations of Constitutional Rights and Claims for Punitive Damages. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSEPH COLSTON,
Plaintiff,

Civil Case No. 15-13321
Honorable Linda V. Parker

v.
CVS PHARMACY, INC.
Defendant.
________________________________/
OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO
DISMISS CLAIMS RELATED TO VIOLATIONS OF CONSTITUTIONAL
RIGHTS AND CLAIMS FOR PUNITIVE DAMAGES
Plaintiff initiated this pro se action against Defendant on September 21,
2015, alleging that Defendant’s pharmacy in Roseville, Michigan, twice filled a
prescription for Plaintiff by giving him the wrong medication. (ECF No. 1 ¶¶ 1,
2.) Plaintiff indicates in his Complaint that while he immediately noticed the
mistake the first time and contacted the pharmacy, he did not realize the mistake
the second time and ingested the wrong medication.1 (Id.) Plaintiff alleges that he
suffered personal injuries, illnesses, and disabilities as a result. (Id. ¶¶ 2, 5, 9.) In

The second time Plaintiff received the wrong medication from Defendant’s
pharmacy was on or after August 12, 2015. (Compl. ¶ 2.) Plaintiff states in his
Complaint that he contacted Defendant on or around August 16, 2015, complaining
that the pharmacy had given him the wrong prescription twice. (Id. ¶ 3.)
Presumably, therefore, Defendant had stopped taking the wrong medication on or
before that date.
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his Complaint, Plaintiff claims a violation of his Eighth and Fourteenth
Amendment rights. (Id. at Pg ID 1.) He seeks inter alia $500,000 in punitive
damages. (Id. at Pg ID 4.)
On November 19, 2015, Defendant filed a motion to dismiss Plaintiff’s
claims alleging constitutional violations and his request for punitive damages.2
(ECF No. 11.) Plaintiff filed a response to the motion on November 30, 2015.
(ECF No. 14.) Finding the facts and legal arguments sufficiently presented in the
parties’ pleadings, the Court is dispensing with oral argument with respect to
Defendant’s motion pursuant to Eastern District of Michigan Local Rule 7.1(f).
For the reasons that follow, the Court is granting Defendant’s motion to dismiss
Plaintiff’s constitutional claims and claim for punitive damages.
To the extent Plaintiff alleges that Defendant violated his constitutional
rights, his claims are based on 42 U.S.C. § 1983. It is well recognized, however,
that the Constitution protects citizens from infringement of their rights by the
government, not by private parties. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156
(1978) (recognizing that “most rights secured by the Constitution are protected
only against infringement by governments”) (citing Jackson v. Metro. Edison Co.,
419 U.S. 345, 349 (1974)). As a result, to establish liability under § 1983, Plaintiff
In the title of its motion, Defendant also seeks dismissal of Plaintiff’s claim for
attorney fees. (ECF No. 1 at Pg ID 25.) Plaintiff, however, does not request an
award of attorney’s fees in his Complaint. In fact, as indicated, Plaintiff is
proceeding pro se in this action.

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must prove that the deprivation of his rights was caused by a person acting under
color of state law. Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir.
2003).
Defendant is a private corporation, not a state actor. While there are
exceptions to the state action requirement, none of those exceptions are applicable
under the facts alleged by Plaintiff.3 Therefore, the Court grants Defendant’s
motion to dismiss Plaintiff’s claims alleging violations of his constitutional rights.
“Punitive damages, which are designed to punish a party for misconduct, are
generally not recoverable in Michigan.” Casey v. Auto Owners Ins. Co., 729
N.W.2d 277, 286 (Mich. Ct. App. 2006) (citing Gilbert v. DaimlerChrysler, 685
N.W.2d 391, 400 (Mich. 2004)). “The exception is if they are expressly authorized
by statute.” Id. Plaintiff’s claim against Defendant is essentially one for

Under the public function exception, a private actor can be held accountable for a
constitutional violation when it exercised “powers traditionally exclusively
reserved to the State.” Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974).
The Supreme Court has found this exception applicable where a private actor
administered elections, Terry v. Adams, 345 U.S. 461 (1953), operated a “company
town”, Marsh v. Alabama, 326 U.S. 501 (1946), and administered private property
used for a public purpose. Evans v. Newton, 382 U.S. 296 (1966). The second
exception, referred to as “the entanglement exception”, applies where the state has
affirmatively authorized, encouraged, or facilitated the unconstitutional conduct of
the private entity, or otherwise permitted a private actor to “exercise[] power
‘possessed by virtue of state law and made possible only because the wrongdoer is
clothed with the authority of state law.’ ” West v. Atkins, 487 U.S. 42, 49 (1988)
(quoting United States v. Classic, 313 U.S. 299, 326 (1941)). For example, in
West, the Court found that a private physician under contract with the State to
provide medical services to prison inmates was a state actor. Id.

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negligence and/or medical malpractice, although in response to Defendant’s
motion, Plaintiff also asserts that Defendant’s action of dispensing the wrong
medication constituted a breach of a contract between himself and Defendant.
(ECF No. 14 at Pg ID 53) Plaintiff has cited no authority in his Complaint or in
response to Defendant’s motion to dismiss that would entitle him to punitive
damages on any of these claims under Michigan law. The Court therefore is also
granting Defendant’s motion to dismiss Plaintiff’s claim for punitive damages.
Accordingly,
IT IS ORDERED, that Defendant’s motion to dismiss is GRANTED and
Plaintiff’s claims alleging constitutional violations and for punitive damages are
dismissed.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: January 27, 2016
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, January 27, 2016, by electronic and/or
U.S. First Class mail.
s/ Richard Loury
Case Manager