Davis v. Wal-Mart Stores East L.P. et al
Filing
168
MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 04/13/2016. (tjoh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
EVE M. DAVIS,
Plaintiff,
Civil Action No. 3:15cv387-HEH
V.
WAL-MART STORES
EAST, L.P., etal
Defendants.
MEMORANDUM OPINION
(Granting Motions to Dismiss by Defendants Wal-Mart and Greer)
This matter arises from the arrest of Plaintiff Eve M. Davis ("Plaintiff or
"Davis") on October 5, 2013, following her attempt to fill a prescription at a Wal-Mart
store. Brenda Greer ("Greer"), the Wal-Mart pharmacist assisting Davis, suspected the
prescription was fraudulent and notified law enforcement. Spotsylvania County Sheriffs
Deputy James V. Hamey, Jr. ("Deputy Hamey" or "the Deputy") responded to the WalMart store and eventually arrested Davis, who was subsequently prosecuted by Assistant
Commonwealth's Attorney Stephanie C. Fitzgerald ("Fitzgerald") in Spotsylvania
County CircuitCourt. The charges were ultimately dismissed. Davis now brings this
action against Defendants Wal-Mart Stores East, L.P. ("Wal-Mart"), Greer, and Deputy
Hamey in a thirteen-count Amended Complaint (ECF No. 93),' which includes causes of
' Fitzgerald filed a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, which this Court granted by Memorandum Opinion and Order entered August 31,
2015. (ECF Nos. 22,23.) Accordingly, Fitzgerald is no longer a party-defendant in the abovecaptioned matter.
action under 42 U.S.C. § 1983 for violations of her Fourth Amendment rights and various
state law claims.^
The matter is presently before the Court on Motions to Dismiss filed by
Defendants Greer and Wal-Mart (ECF Nos. 96, 100) pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. For the reasons stated herein, the Motions to Dismiss
will be granted.
L
BACKGROUND
As required by Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court
assumes Plaintiffs well-pleaded allegations to be true, and views all facts in the light
most favorable to her. T.G. Slater & Son v. Donald P. & Patricia A. Brennan, LLC, 385
F.3d 836, 841 (4th Cir. 2004) (citing Mylan Labs, Inc. v. Matkari, 1 F.3d 1130, 1134 (4th
Cir. 1993)). Viewed through this lens, the essential allegations in the Amended
Complaint are as follows.
Davis, a former government contractor with a security clearance, suffers from
attention-deficit/hyperactivity disorder and mild depression, for which she is prescribed
and takes Adderall pills. (Am. Compl.
9-10.) Because Davis did not have medical
insurance, her prescribing physician. Dr. Syed Ahmed ("Dr. Ahmed"), agreed to provide
Davis with two one-month prescriptions every other month to reduce the frequency of
^Because Plaintiff's Amended Complaint includes causes of action under 42 U.S.C. § 1983
against Defendants Wal-Martand Greer (CountVIII) and Deputy Hamey (Count XI), 28 U.S.C.
§ 1331 vests the Court with federal questionjurisdiction. Pursuant to 28 U.S.C. § 1367(a),this
Court will exercise supplementaljurisdiction over Plaintiffs state law claims, as no exception
enumerated in § 1367(c) arises. Virginia law governs the state law claims in Plaintiffs
Amended Complaint.
Davis's office visits and ultimately save Davis money. {Id.
11-14.) At approximately
9:15 a.m. on Saturday, October 5, 2013, Davis visited a Wal-Mart store to fill her
prescription. {Id. ^15.) Davis presented her prescription to a pharmacy technician, who
informed Davis that it would take approximately an hour to fill the prescription. {Id.
17-18.) The technician then gave the prescription to Greer, the Wal-Mart pharmacist.
{Id. H20.) Davis remained in Wal-Mart, waiting for the prescription to be filled. {Id. H
19.) Allegedly, the prescription appeared facially valid to Greer. (M 1123.) Greer ran
Davis's prescription through the Prescription Monitoring Program ("PMP"), administered
by the Commonwealth of Virginia, which allows various medical professionals to record
and view an individual's prescription history, as well as the date and location of a
transaction. {Id. Hlj 24-27.) Greer determined that Davis had filled an Adderall
prescription for the same amount on October 1, 2013, only four days prior. {Id. H28.)
But Greer allegedly also observed a pattern of Davis filling two prescriptions for a one
month supply of Adderall within a few days of each other, followed by a hiatus of
approximately two months before filling any other Adderall prescriptions. The pattern
never exceeded a frequency of one prescription per month from April of 2013 to October
of 2013. {Id. 1129-30.)
Davis alleges that Greer apparently concluded that Davis had a proper patientprovider relationship with Dr. Ahmed and that the prescription was valid, but she was
attempting to fill it too soon. {Id. H 31-33.) Therefore, Greer "called Dr. Ahmed's
office and left a voicemail inquiring whether [he] approved of [Davis] filling the
prescription at that time"; she also faxed a copy of the prescription to his office. {Id. 1
34.) Around the same time, the technician calledDavis's cell phone and left her a
voicemail noting that Wal-Mart would be unable to fill the prescription until Monday.
{Id. H35.)
At 11:14 a.m., Greer called the non-emergency number for the Spotsylvania
Sheriffs Office and spoke to a dispatcher, expressing her concern over the prescription,
stating: "I have a patient that is turning in prescriptions with the same date on it for the
same medicine at two pharmacies, she tried to give me one and she just got it filled at
CVS." {Id.
36-39.) Davis alleges that Greer made knowingly untrue statements when
she described the prescription as a "fake," a "duplicate," and said the signature "looked
funny," while not questioning that it appeared to be a facially valid prescription. {Id.
39-47.) Greer told the dispatcher that she could get Davis to "come in" but "wanted to
wait and see what the deputy wanted to do." {Id. T[ 49.) Greer provided the dispatcher
with Davis's name, date of birth, and address. {Id. f 52.) The dispatcher told Greer that a
deputy was on his way and that the deputy would have Greer summon Davis to the
pharmacy upon his arrival. {Id. T] 53.) Greer never discussed her concerns as to the
timing of the prescription with Davis. {Id. ^ 54.)
Deputy Harney was under the impression that Davis was "one of the ones [he had]
been looking for." {Id. 167.) He asked the dispatcher to have Wal-Mart locate Davis by
using their store cameras, but a Wal-Mart employee was unable to do so. {Id.
69-70.)
He then called Greer to discuss the situation. {Id. 171.) During the conversation, Greer
told Deputy Hamey that the pharmacy needed more time to verify the prescription with
Dr. Ahmed. {Id. ^ 72.) Further, Greer did not tell Deputy Hamey the prescription was
fraudulent, but did say that the PMP history was raising some "red flags" and "maybe we
should check it out." {Id. HTl 73-75.) The Amended Complaint also alleges that, during
this conversation. Deputy Harney asked Greerto call Davis back to Wal-Mart, to stall her
at thepharmacy, to have someone meet him upon his arrival on one particular side of the
building, and to assist him in arresting Davis by identifying her at the pharmacy counter.
{Id. in 79-81, 83-85.)
Greer sent a pharmacy technician to meet Deputy Hamey. {Id. ^ 91.) However,
Greer apparently never called Davis back to the pharmacy. {Id., Ex. A, Greer Dep.
105:14-15, Nov. 3, 2015, EOF No. 93-1.) Shortly thereafter, Davis returned to the
pharmacy unprompted and Greer asked her to wait a few minutes because purportedly,
Greer didn't know if her prescription was ready yet. {Id.
to stall Davis until Deputy Hamey arrived at the store. {Id.
101-02.) This was intended
107-08.) Once Deputy
Hamey arrived, he got in the pharmacy line behind Davis. {Id. H 113.) Greer then
announced Davis's name loudly and nodded at Deputy Hamey. {Id. ^ 114.) Deputy
Hamey then handcuffed Davis, "escorted [her] to the loss prevention room at Wal-Mart
with the assistance of another Wal-Mart employee," and interviewed her conceming the
prescription. {Id. ^ 116.) Before the arrest. DeputyHamey did not confer with Greer in
person, examine the prescription, speak with Davis, speak with Dr. Ahmed, or perform
any other independent analysis of the PMP information. {Id. H120.)
Following his interview of Davis, Deputy Hamey took her to the Sheriffs Office
where she was "booked for violating Virginia Code Section 18.2-258.1(A) and,
specifically, attempting to obtain Adderall by fraud." {Id. ^ 128.) Plaintiff alleges that
Deputy Harney did not perform any independent investigation before arresting her and
made false statements concerning his purported knowledge of other criminal matters
involving Plaintiff. {Id.
122, 127.)
On Monday, October 7, 2013, two days afterDavis's arrest. Dr. Ahmed informed
Wal-Mart pharmacy staff by phone and fax thatDavis's prescription was valid and that
he approved of it being filled at that time. {Id. TI136.) Greer did not attempt to contact
the Sheriffs Office after receiving this information from Dr. Ahmed. {Id. ^ 137.)
However, about two weeks later, Greer apparently did bring "all that information" to the
attention of the Commonwealth's Attorney handling the case. (Greer Dep. 86:1-11.)
After being denied bond, Davis spent sixteen days in jail and suffered from
medication withdrawal, allegedly causing her to attempt suicide. (Am. Compl.
141-43.) Deputy Harney allegedly misinformed the Assistant Commonwealth's
Attorney ("ACA") that the Deputy had intelligence suggesting that Davis had been
involved in other prescription fraud activity, which the ACA allegedly relied upon. {Id.
144-47.) The Spotsylvania County Commonwealth's Attorney initiated prosecution
of Davis for prescription fraud in the Spotsylvania County Circuit Court, but the charges
were ultimately dismissed. {Id. TlH 148-50.) Plaintiff alleges that before the charges were
dismissed, the circuit court judge stated that he had "no doubt that... [Ms. Davis's]
constitutional rights were violated by the precipitous arrest." {Id. ^ 150.) These events
caused Davis to lose her security clearance and the government contracts she had been
working on. {Id.
151.)
Davis now brings this civil action against Wal-Mart, Greer, and Deputy Hamey
for alleged violations of her Fourth Amendment rights resulting from this incident.
Plaintiffalleges that Deputy Hamey failed to conduct an adequate investigation of the
prescription's validity before placing her under arrest. (Jd. T] 120.)
In her Amended Complaint, Plaintiffbrings thirteen claims, the following seven of
which are against Wal-Mart and Greer jointly: (1) Count I: False Imprisonment; (2)
Count II: Intentional Infliction of Emotional Distress; (3) Count III: Negligence, Gross
Negligence, and Willful and Wanton Negligence; (4) Count VII: Malicious Prosecution;
(5) Count VIII: 42 U.S.C. § 1983 Civil Conspiracy; (6) Count IX: Medical Malpractice;
and (7) Count X: Negligence Per Se. Count IV is a Negligence claim against Wal-Mart.
Counts V and VI assert Assumption of Duty Claims against Greer and Wal-Mart,
respectively. Count XI asserts a 42 U.S.C. § 1983 claim against Deputy Harney. Counts
XII and XIII seek punitive damages against Wal-Mart, Greer, and Deputy Hamey.
Greer and Wal-Mart filed their Motions to Dismiss with briefs in support thereof
on December 23 and 26 of 2015 (ECF Nos. 96, 100). Deputy Hamey has not filed a
motion to dismiss. Plaintiff filed briefs in opposition to the motions on January 4 and 8
of 2016 (ECF Nos. 103, 105), to which Wal-Mart and Greer have replied (ECF Nos. 104,
108). The Court held oral argument on March 22,2016. The Motions to Dismiss are
now ripe for decision.
II.
LEGAL STANDARD
"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;
importantly, it does not resolve contests surrounding the facts, the merits of a claim, or
the applicability of defenses." Republican Party ofN.C. v. Martin, 980 F,2d 943, 952
(4th Cir. 1992) (citation omitted). The Federal Rules of Civil Procedure "require[] only
'a short and plain statement of the claim showing that the pleader is entitled to relief,' in
order to 'give the defendant fair notice of what the ... claim is and the grounds upon
which it rests.'" BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41,47 (1957)). A complaint need not assert "detailed factual
allegations," but must contain "more than labels and conclusions" or a "formulaic
recitation of the elements of a cause of action." Twombly, 550 U.S. at 555 (citations
omitted). The "[f]actual allegations must be enough to raise a right to relief above the
speculative level" to one that is "plausible on its face." Id. at 555, 570 (citation omitted).
To survive Rule 12(b)(6) scrutiny, a complaint only need contain "enough facts to
state a claim to relief that is plausible on its face." Id. at 570. A complaint achieves
facial plausibility when the facts contained therein support a reasonable inference thatthe
defendant is liable for the misconduct alleged. Id. at 556; see also Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). This analysis is context-specific and requires "the reviewing court
to draw on its judicial experience and common sense." Francis v. Giacomelli, 588 F.3d
186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 679). In considering such a motion,
a plaintiffs well-pleaded allegations are taken as true and the complaint is viewed in the
light most favorable to her. T.G. Slater & Son, 385 F.3d at 841 (citation omitted).
III.
DISCUSSION
Initially, the Court notes that with respect to Davis's state law claims, this Court
applies the substantive law of the Commonwealth of Virginia, while employing the
procedural law of the Fourth Circuit to weigh the factual sufficiency of the pleadings.
See BayerAG v. Housey Pharms., Inc., 340 F.3d 1367, 1371 (Fed. Cir. 2003).
A.
Count I; False Imprisonment
"False imprisonment is restraint of one's liberty without any sufficient legal
excuse." Montgomery Ward & Co. v. Wickline, 188 Va. 485,489 (1948); see also S. H.
Kress & Co. v. Roberts, 143 Va. 71, 75 (1925). The Virginia Supreme Court has
"defined false imprisonment as 'the directrestraint by one person of the physical liberty
of anotherwithout adequate legaljustification.'" Jordan v. Shands, 255 Va. 492,497
(1998) (quoting W.T. Grant Co. v. Owens, 149 Va. 906, 921 (1928)). The tort of false
imprisonment is akin to the torts of assault and battery and by definition involves "the
deprivation of an individual's freedom by physical restraint or the threat of such
restraint." Jordan, 255 Va. at 497. It is possible to be liable for false imprisonment even
if one does not apprehend the plaintiff herself, but requests or directs another to do so.
See Kalantar v. Lufthansa German Airlines, 402 F. Supp. 2d 130, 142 (D.D.C. 2005);
Montgomery Ward & Co., 188 Va. at 489-90.
In this case, it is not alleged that Greer or any other Wal-Mart employee touched,
physically restrained, or threatened to physically restrain Davis. No facts indicate that
Greer or Wal-Mart actively directed, procured, or even suggested the arrest of Davis. All
of the actions undertaken by Greer or other Wal-Mart employees, such as meeting
Deputy Hamey, stalling Davis, and identifying Davis, were at the direction or request of
Deputy Hamey. While Greer's phone call certainly put the wheels in motion. Deputy
Hamey is the only person who physically restrained Davis; no one asked or directed him
to do so. In fact, Greer specifically statedthat she "wantedto wait and see what the
Deputy wanted to do." (Am. Compl. ^ 49.) Greer and Wal-Mart did not restrain Davis,
either by physical force or threat.
Further, Wal-Mart is not liable for false imprisonment simply because it
acquiesced to a police officer's request to allow him to use their roomto speak with an
arrestee. If a private company or individual could be liable simply for allowing law
enforcement to question someone on premises, it could seriously inhibit basic
cooperation with police, as private citizens would normally be unable to determine
whether or not probable cause for such action exists. Plaintiff fails to allege facts that
plausibly support a claim of false imprisonment. Accordingly, Count I will be dismissed
without prejudice.
B.
Count II; Intentional Infliction of Emotional Distress
Four elements must be shown to state a claim for intentional infliction of
emotional distress: (I) defendant's conduct must be intentional or reckless, (2)
defendant's conduct must be outrageous and intolerable, (3) defendant's conduct must
cause the emotional distress, and (4) the distress must be severe. Russo v. White, 241 Va.
23, 26 (1991) (citing Womackv. Eldridge, 215 Va. 338, 342 (1974)).
The Amended Complaint states in a conclusory fashion that Greer and Wal-Mart
knowingly made false accusations. (Am. Compl. f 158.) The allegations show that the
PMP clearly revealed consecutive prescriptions filled within a very short time-frame.
This plausibly fostered suspicion on Greer's part, so she contacted law enforcement via a
non-emergency number. In retrospect, Greer may have exercised poor judgment in not
10
simply inquiring about the sequence of prescriptions with Davis or for prematurely
calling the police before hearing back from Dr. Ahmed. Further, one might question
Greer's failure to immediately contact the Sheriffs Office after she had heard from Dr.
Ahmed two days after this incident. But even that failure does not reach the requisite
level of outrageousness or intolerability, especially given that there are no facts indicating
that Greer knew Davis remained in jail. It is not unreasonable to assume that once the
police undertake responsibility for investigating a complaint of suspicious activity, they
would make logical inquiries. Further, it seems that Greer eventually did turn over
information, including what she had heard from Dr. Ahmed, to the Commonwealth's
Attorney handling the case. Simple errors injudgment, such as these by Greer, fall short
of the mark. Accordingly, the other elements of the claim need not be addressed, and
Count II will be dismissed without prejudice.
C.
Count III: Negligence. Gross Negligence, and Willful and Wanton Negligence
Negligence is akin to heedlessness, inattention, or inadvertence. Boward v.
Leftwich, 197 Va. 227, 231 (1955). To plead a viable claim of negligence, one must
allege the existence of a legal duty, a breach of the duty, and causation which leads to
damage of some kind. See McGuire v. Hodges, 273 Va. 199,205-06 (2007).
Gross negligence is such a degree of negligence that it would shock fair minded
people. Koffman v. Garnett, 265 Va. 12, 15 (2003) {c\img Ferguson v. Ferguson, 212
Va. 86, 92 (1971)). It is a degree of negligence that shows an indifference to others, an
utter disregard of prudence that amounts to a complete neglect of the safety of another.
Id.
II
A more aggravated species of negligence, willful and wanton negligence, can be
described as "acting consciously in disregard of another person's rights or acting with
reckless indifference to the consequences, with the defendant aware, from his knowledge
of existing circumstances and conditions, that his conduct probably would cause injury to
another." Cowan v. Hospice Support Care, 268 Va. 482, 487 (2004) (quoting Etherton v.
Doe, 268 Va. 209, 213-14 (2004)).
In essence, the Amended Complaint alleges that, inter alia, Greer made arguably
false statements to law enforcement, disclosed confidential information, played a role in
the arrest of Davis, and failed to timely report additional information. (Am. Compl. ^
170.) After checking the PMP, Greer's suspicions were raised that Davis may be
attempting to prematurely fill a prescription. {Id. H33.) Before calling the nonemergency police line, Greer contacted Dr. Ahmed's office by calling, leaving a
voicemail, and faxing. {Id. T| 34.) She didn't receive a return call from Dr. Ahmed until
two days later. {Id. ^ 136.) Having not heard back from Dr. Ahmed, the pharmacy left a
message for Davis, indicating that they could not fill the prescription that day. {Id. ^ 35.)
Greer then called the non-emergency police number. {Id. ^ 36.) Greer explained the
situation, initially calling the prescription a "fake," but then qualifying that it may be a
"duplicate" when the dispatcher sought clarification. {Id., Ex. D, Tr. Greer Call to NonEmergency Number ("Call Tr.") 1, ECF No. 93-4.) Thereafter, Greer essentially
followed the instructions of Deputy Hamey. Greer clearly stated that her intentions were
to await instructions from the Deputy. {Id. ^ 49.) Thereafter, Greer asked Davis to wait
and later identified her to Deputy Hamey. {Id.
12
102, 114.)
Even taking the alleged facts in the light most favorable to the Plaintiff, they are
insufficient to plead a plausible claim for negligence of any kind, in part because no duty
was breached. While one may certainly question the wisdom or prudence of Greer's
decisions throughout this incident, the allegations do not plausibly amount to negligence,
Greer received a prescription that did not have written instructions from the prescribing
doctor indicating when it should be filled. (Greer Dep. 75:4-10.) Federal regulations
require that when a practitioner is issuing simultaneous multiple prescriptions of a
Schedule II drug, the prescribing doctor mustprovide written instructions on the
prescription indicating the earliest date it can be filled, which apparently was not done in
this case. See21 U.S.C. §§ 821, 871; 21 CFR§ 1306.12. The fact that the prescription
was not in compliance with federal regulations, coupled with the PMP information, was
enough to give Greer legitimate reason to question this prescription and be concerned.
Two days afterthe arrest, Greer learned from Dr. Ahmed that the prescription was
valid and that he approved of it being filled. (Am. Compl. T1136.) At thatpoint, Greer
did notattempt to contact the Sheriffs Office to relay this information. {Id. ^ 137.) Yet,
there are no allegations that Greer knew Davis was still being detained two days afterthe
arrest. Furthermore, it was completely reasonable for Greer to assume that law
enforcement would have been in touch with Dr. Ahmed as part of their follow-up
investigation. Virginia law imposes no duty upon one who reports something suspicious
to the police to do an independent investigation or follow up. The reporting individual
also has no obligation to ensure that the investigating officer has probable causebefore
making an arrest—^this is the duty of law enforcement, not the reporting citizen. While it
13
is possible that one who actively swears out a warrant may assume some duty or that one
who actively supports a knowingly false story could incur liability, neither situation
exists here. See, e.g., Clarke v. Montgomery Ward & Co., 298 F.2d 346, 347-48 (4th
Cir. 1962); Lewis v. Gupta, 54 F. Supp. 2d 611, 613-15 (E.D. Va. 1999); Egan v. Butler,
290 Va. 62, 68-69 (2015).
While the Court does not specifically rely on statutory immunity in dismissing
Count III, it should be noted that Virginia law provides a safe harbor for pharmacists and
other providers in reporting information to law enforcement. For example, Va. Code §
54.1-3408.2 protects reporting pharmacists, stating that if they have
reason to suspect that a person . . . attempted to obtain a controlled
substance or prescription for a controlled substance by fraud or deceit,
[they] may report the activity to the local law-enforcement agency for
investigation. Any person who, in good faith, makes a report or furnishes
information or records to a law-enforcement officer . . . shall not be liable
for civil damages in connection with making such report or flimishing such
information or records.
It seems that this immunity statute would at least protect Greer as far as the initial call to
law enforcement, given the absence of any plausible evidence of bad faith.
Further, 18 Va. Admin. Code § 110-20-270 (E) prevents a pharmacist from
returning a prescription if the "pharmacist determines from a prescriber or by other
means, including the use of h[er] professional judgment, that a prescription presented for
dispensing is a forgery.... The forged prescription may be given to a law-enforcement
official investigating the forgery." Additionally, health care entities may disclose health
records "[t]o law-enforcement officials if the health care entity believes in good faith that
14
the information disclosed constitutes evidence of a crime that occurred on its premises."
Va. Code § 32.1-127.1:03(D)(31).
The sweep of Virginia law would indicate that a reasonable pharmacist is able to
contact law enforcement and report information if faced with a legitimate concern or
suspicion. Greer had reason to suspect the prescription presented by Davis contained a
disturbing irregularity. There are no facts plausibly indicating a lack of good faith.
Because Plaintiff fails to identify any particular duty that Greer or Wal-Mart breached,
and because the actions of Greer could not have foreseeably led to all of Davis's alleged
injuries, Count III will be dismissed without prejudice.
D.
Count IV; Negligence Against Wal-Mart
Plaintiff asserts that Wal-Mart was negligent in their training of Greer. (Am.
Compl.
177.) Yet, after Wal-Mart filed its apparently persuasive response, Plaintiff
concurs with Wal-Mart's position. (Mem. Opp'n Mot. Dismiss 8, ECF No. 105.)
Accordingly, Count IV will be dismissed without prejudice.
E.
Counts V and VI; Assumption of Duty
Plaintiff asserts claims of assumption of duty, separate and apart from her
negligence claims against Defendants. (Am. Compl.
180-89.) Plaintiff alleges that
when the pharmacy technician under Greer's supervision accepted Davis's prescription,
Greer assumed the duty not to harm Davis in filling her prescription. {Id. 11181.)
The Virginia Supreme Court has recognized the common law principle of
assumption of duty, finding in Kellerman v. McDonough that "[i]t is ancient teaming that
one who assumes to act, even though gratuitously, may thereby become subject to the
15
duty of acting carefully, if he acts at all." 278 Va. 478,489 (2009) (quoting Nolde Bros.
V. Wray, 221 Va. 25,28 (1980)). Virginia courts recognize that assumption of duty may
serve as a theory for establishing the requisite legal duty underlying a prima facie claim
of negligence. See Kellerman, 278 Va. at 489; Didato v. Strehler, 262 Va. 617 (2001).
In Kellerman, the Virginia Supreme Court found that plaintiffs allegations properly
established a cause of action against one of the defendants based on an assumption of
duty theory. 278 Va. at 489. However, that cause of action was brought within the
plaintiffs wrongful death suit, and assumption of duty served as a theory for establishing
that defendant had a legal duty to plaintiffs child. Id. at 489-95. Virginia courts have
notrecognized assumption of duty as a freestanding cause of action, as Plaintifftries to
asserthere. Accordingly, Counts V and VI of Plaintiffs Amended Complaint will be
dismissed without prejudice.
F.
Count VII; Malicious Prosecution
"In an action for malicious prosecution, the plaintiff must prove that the
prosecution was: (1) malicious; (2) instituted by or with the cooperation of the defendant;
(3) without probable cause; and (4) terminated in a manner not unfavorable to the
plaintiff." Lewis v. Kei, 281 Va. 715, 722 (2011). Malicious prosecution claims are "not
favored in Virginia" and the requirements are stricter than those applied to other tort
claims. Id. at 722-23.
Malice is any "controlling motive other than a good faith desire to further the ends
of justice, enforce obedience to the criminal laws, suppress crime, or see that the guilty
are punished." Hudson v. Lanier, 255 Va. 330, 333 (1998). The Amended Complaint
16
alleges in a conclusory fashion that Greer and Wal-Mart acted with malice. (Am. Compl.
f 191.) Greer observed a pattern of Davis filling two prescriptions for a one month
supply of Adderall within a few days of each other. {Id.
29-30.) The prescription
lacked the federally-required written instructions from the prescribing physician. After
callingand faxing the prescribing doctor, Greer called the non-emergency line for local
law enforcement to report this activity, which seemed suspicious to her. {Id.
34, 36.)
Even taken in the most favorable light to the Plaintiff, including the allegations of
misstatements and imprudent assistance to law enforcement, the alleged facts do not
plausibly reflect malice on the part of Greer. This is not a case where someone has sworn
out a warrant and then withheld exculpatory information or actively supported a
knowingly false allegation to law enforcement. See, e.g., Clarke, 298 F.2d at 347-48;
Lewis, 54 F. Supp. 2d at 613-15; Egan, 290 Va. at 68-69. Even the fact that Greer did
not immediately contact law enforcement after hearing back from Dr. Ahmed is tempered
by Greer later providing that information to the Commonwealth's Attorney. (GreerDep.•
86:1-11.) Beyond that, there is no indication whatsoever that Greer knew Davis was still
in custody at the time Dr. Ahmed contacted the pharmacy. There are simply no facts that
create a plausible inference that Greer acted out of malice.
A witness who provides incorrect information during a criminal investigation does
not institute or procure the prosecution. See Brice v. Nkani, 220 F.3d 233, 238 (4th Cir.
2000). Further, a witness that honestly provides information to law enforcement may not
"be held responsible for the official's execution of his independent duty to investigate."
Id. at 238-39. The Fourth Circuit has approvingly embraced the proposition that
17
"normally a malicious prosecution plaintiff must show that defendant did more than
merely give information ... e.g., that he requested the initiation of the proceedings,
signed a complaint, or swore out an arrest warrant against a plaintiff." Id. at 239 (citing
66 A.L.R. 3d 10 Summary § 3 (1975)). Likewise, where a defendant merely reported
"events to the police, gave information to the police, and responded to police requests to
verify suspect's identity, then that individual cannot be held liable for malicious
prosecution so long as the information provided was with an honest or good faith belief
of the facts reported." Bennett v. R&L Carriers Shared Servs., LLC, 744 F. Supp. 2d 494,
512(E.D. Va. 2010).
TheAmended Complaint alleges that Greer noticed that a similar prescription had
been filled days before, contacted law enforcement, expressed her desire to wait for
instructions from the Deputy, sent an employee to meet the Deputy, asked Davis to wait a
few minutes, and then identified Davis to the Deputy. (Am. Compl.
28, 36,49, 85, 91,
102, 114, 115.) Even taken as true, these facts neither plausibly indicate malice or illwill, nor that Greer or Wal-Mart instituted the prosecution. Accordingly, Count VII will
be dismissed without prejudice.
G.
Count Vni; 42 U.S.C. S 1983 Civil Conspiracy
Any person acting under color of any statute who "subjects, or causes to be
subjected, any citizen of the United States ... to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable to the party injured in
an action at law ...." 42 U.S.C. § 1983. Private parties can be liable under 42 U.S.C. §
1983 if they conspire to commit, or are jointly engaged in, prohibited actions with state
18
officials. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970). To establish a
conspiracy under 42 U.S.C. § 1983, the non-state actor must act in concert with the state
official and overtly act in furtherance of the conspiracy, resulting in the deprivation of
another's constitutional right. See Hinkle v. CityofClarksburg, 81 F.3d 416, 421 (4th
Cir. 1996).
While the alleged facts may create a plausible inference that Davis's Fourth
Amendment rights were violated if Deputy Hamey arrested her while lacking probable
cause, they fail to credibly suggest Greer or Wal-Mart shared a common objective with
Deputy Hamey to effect Davis's arrest, in violation of her constitutional rights. The
Amended Complaint notes that Greer counseled caution, wanting "to wait and see what
the Deputy wanted to do." (Am. Compl. ^ 49.) Further, Greer advised Deputy Harney
that the pharmacy "needed more time to verify the ... prescription with Dr. Ahmed."
{Id. H72.) While Greer did comply with requests from Deputy Hamey, the Amended
Complaint fails to lend credence to Plaintiffs claim that they were acting in concert to
effect her arrest.
After the initial call, Greer was essentially passive, awaiting information and
instmction. She provided only the cooperation and assistance requested. Deputy Hamey
had told Greer "I need to talk to her, I've been trying to talk to her about something" and
Greer noted that "he seemed pretty eager that he needed to talk to her." (Greer Dep.
105:11-12, 115:18-19.) Further, Greer actually did not comply with one request by
Deputy Hamey, which was to affirmatively call Davis back to the pharmacy.
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Central to a claim of conspiracy is proof of an agreement to pursue a common
objective. The alleged facts fail to show that Greer shared the same objective as Deputy
Hamey, namely to place Davis under arrest as opposed to inquiring about the legitimacy
of the prescription. In fact, Greer and Deputy Hamey had very little substantive
communication, only a brief call in which Deputy Hamey told Greer that he wanted to
talk to Davis about "something" and Greer said "maybe we should check it out." (Am.
Compl.
72-82.) Plaintiffcontends that Greer somehow suggested a course of action
by saying "maybe we should check it out" or indicating that she could call Davis to the
pharmacy counter. {Id. ^ 75; Call Tr. 2.) But she immediately added thatshe wanted to
wait and see what the Deputy wanted to do. (Am. Compl. ^ 49; Call Tr. 2.) Greer was
aware that the Deputy was eager to speak to Davis, suggesting that he had other
infonnation conceming Davis's activities. (Greer Dep. 105:11-12, 108:18-21,
115:18-19; Am. Compl., Ex. C, Danielle Ynoa Dep. 30:1-13, 31:7-1 l,Nov. 12, 2015,
ECF No. 93-3.) Even tipped in Plaintiffs favor, the Amended Complaint presents no
fact plausibly portraying Greer's response to the Deputy's requests or suggestions as the
type of common scheme or plan that would support a claim of conspiracy under 42
U.S.C. § 1983. Accordingly, Count VIII will be dismissed without prejudice.
H.
Count IX: Medical Malpractice
Plaintiff argues that Greer's conduct breached the standard of care for health
professionals and establishes a claim of medical malpractice. Medical malpractice in
Virginia "means any tort action or breach of contract action for personal injuries or
wrongful death, based on healthcare or professional services rendered, or which should
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have been rendered, by a health care provider, to a patient." Va. Code § 8.01-581.1. A
plaintiff must prove that defendant's breach of the applicable standard of care was the
proximate cause of her injuries. Franklin v. K-Mart Corp., 997 F. Supp. 2d 453,457
(W.D. Va. 2014). For medical negligence in Virginia, the applicable standard of care is
"thatdegree of skill and diligence practiced by a reasonably prudent practitioner in the
field of practice or specialty." Va. Code § 8.01-581.20. Thatbeing said, Virginia seems
to recognize only one duty of care for pharmacists: the duty to correctly fill prescriptions.
Goulmamine v. CVS Pharmacy, Inc., 2015 WL 5920009, at *7 (E.D. Va. Oct. 9, 2015)
(citing Franklin, 997 F. Supp. 2d at 461; Nichols v. Kaiser Found. Health Plan ofthe
Mid-Atl. States, Inc., 257 Va. 491 (1999)).
The Amended Complaint states in a conclusory fashion that Defendants breached
the standard of care for health care professionals by knowingly making false statements
to law enforcement, disclosing Plaintiffs confidential PMP data, deceiving Davis to aid
Deputy Hamey's arrest, and failing to contact law enforcement after confirming the
legitimacy of Davis's prescription. (Am. Compl. ^ 203.) However, none of these acts
constitutes a breach of the applicable standard of care for pharmacists. Greer's only duty
within her capacity as a health care professional is to correctly fill prescriptions. Since
Plaintiff has not alleged that Greer failed to correctly fill Davis's prescription, Davis
cannot fit Greer's conduct within the scope of medical malpractice. This being the case,
this Court need not address other arguments related to this claim, such as Plaintiff s
possible failure to obtain certification from an expert finding that the defendant has
deviated from the standard of care. See Va. Code § 8.01-20.1. The assertions concerning
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negligence are not subsumed by Virginia's Medical Malpractice law. Nothing alleged by
Davis plausibly states a claim for medical malpractice. Accordingly, Count IX will be
dismissed without prejudice.
I.
Count X; Negligence Per Se
Negligence per se requires a plaintiff to show that: (1) the tortfeasor owed to
plaintiffa duty of care; (2) a statute set the standard of care for that duty; (3) the
tortfeasor violated the standard set forth by the statute; (4) the statute was enacted for
public health and safety reasons; (5) the plaintiff was a member of the class protected by
the statute; (6) the injury was intended to be covered by the statute; and (7) the violation
of the statute proximately caused plaintiffs injury. Steward v. Holland Family Props.
LLC, 284 Va. 282,287 (2012) (citing McGmre v. Hodges, 273 Va. 199, 206 (2007)).
Plaintiff claims that by disclosing Davis's confidential PMP data to law enforcement,
Greer violated Va. Code § 54.1-2525(A)-(B) and 18 Va. Admin. Code § 110-2025(2),(4).
Under, Va. Code § 54.1-2525(A)-(B) it is unlawful to make disclosures of
confidential information from the PMP to unauthorized persons. Neither party disputes
that Greer disclosed Davis's confidential information from the PMP to law enforcement.
However, Va. Code § 54.1-2525 establishes a standard of conduct designed to protect
individual privacy, not create a duty to safeguard against false arrest. Consequently,
Plaintiff may not use an alleged violation of this statute to establish a claim for
negligence per se with these facts.
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Additionally, Plaintiffcontends that Greerviolated the standard of professional
conduct for pharmacists in subsections 2 and 4 of 18 Va. Admin. Code § 110-20-25,
which refer to a breach of patient confidentiality and disruptive or abusive behavior that
interferes with the quality of patient care, respectively. Greer's actions were neither
disruptive nor abusive. The obvious legislative intent is to safeguard againstthe
unauthorized dissemination or abuse of confidential information. No court has ever
construed these regulations as inhibiting law enforcement fi-om using the information
base to investigate suspicious prescription activity.
Accordingly, Count X will be dismissed without prejudice.
IV.
CONCLUSION
Based on the foregoing analysis, the Motions to Dismiss filed by Wal-Mart and
Greer will be granted. Counts I, II, III, IV, V, VI, VII, VIII, IX, and X will be dismissed
without prejudice. No party has moved to dismiss Count XI, the 42 U.S.C. § 1983 claim
against Deputy Harney, so that claim will proceed on the merits. Greer and Wal-Mart
will be dismissed as party-defendants in the above-captioned matter.
An appropriate Order will accompany this Memorandum Opinion.
/s/
Henry E. Hudson
United States District Judge
Date:4pf;l 13^20/^
Richmond, Virginia
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