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Davis v. Harney

United States District Court, E.D. Virginia, Richmond Division

May 16, 2016

EVE M. DAVIS, Plaintiff,
JAMES V. HARNEY, JR., Defendant.



This civil rights action brought under 42 U.S.C. § 1983 evolved from Plaintiffs attempt to fill a prescription at a Wal-Mart pharmacy in Spotsylvania County, Virginia. Unfortunately, because the Virginia prescription data base reflected what the pharmacist thought to be a pattern of atypical activity, Plaintiff Eve Davis was arrested for prescription fraud. She was denied bail and detained in the local detention center for sixteen days. The charges were subsequently dismissed and this lawsuit followed.

By Memorandum Opinion issued on April 13, 2016 (ECF No. 168), this Court dismissed all claims against Defendants Brenda Greer (the Wal-Mart pharmacist) and Wal-Mart Stores East, L.P. Presently before the Court are Cross Motions for Summary Judgment addressing the single claim against Defendant James V. Harney, Jr., a Spotsylvania County Deputy Sheriff ("Deputy Harney").[1] Deputy Harney contends that Plaintiffs arrest was predicated on probable cause or, alternatively, that he is entitled to qualified immunity because the constitutional standard for arrest under the circumstances at hand is ill-defined.

Plaintiff also seeks summary judgment, maintaining that Deputy Harney clearly lacked probable cause to arrest Plaintiff for prescription fraud and that his pre-arrest investigation was superficial at best. Plaintiff argues that because Deputy Harney's actions violated a clearly-established constitutional right, he is not entitled to qualified immunity.

Both parties have filed memoranda supporting their respective motion for summary judgment accompanied by relevant exhibits. This Court heard oral argument on May 9, 2016.

In reviewing cross motions for summary judgment, a district court must examine each motion separately on its own merits "to determine whether either of the parties deserves judgment as a matter of law." Philip Morris Inc. v. Harshbarger, 122 F.3d 58, 62 n.4 (1st Cir. 1997) (internal citations omitted). Furthermore, when considering each individual motion, the court must take care to "resolve all factual disputes and any competing, rational inferences in the light most favorable" to the party opposing the motion. Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st. Cir. 1996); see also Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003). "Summary judgment is appropriate only if the record shows 'there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.'" Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 156 (4th Cir. 2010) (citing Fed.R.Civ.P. 56(c)).

This Court's initial task is to parse out disputed peripheral facts and focus on the facts and circumstances that guided the actions of Deputy Harney at the time of Plaintiffs arrest. According to the Amended Complaint, the operative circumstances distill as follows.

On Saturday morning October 5, 2013, Deputy Harney of the Spotsylvania County Sheriffs Office was on routine patrol wearing his uniform. At approximately 11:14 a.m. that day, Deputy Harney received a communication from his dispatcher on the computer-aided dispatch system ("CAD") in his vehicle. The communication was as follows: "PRESCRIPTION FRAUD - CALLER TRYING TO FILL DUPLICATE PRESCRIPTION - ALREADY HAD IT FILLED AT CVS - PHARMACIST CHECKED THEIR SYSTEM - HAS BEEN DOING THIS SINCE APRIL." (Am. Compl. ¶ 60, ECF No. 93.) The dispatcher also advised Deputy Harney of the identity of the individual presenting the prescription, that the prescription was for a narcotic, and that she could be called back into the store if the deputy so requested. (Id. at ¶¶ 49-52.) Deputy Harney then advised the dispatcher by radio that he was in route to the Wal-Mart and that he would wait until he arrived at that location before the pharmacist was again contacted. Deputy Harney subsequently advised the dispatcher that he had "just confirmed with the pharmacist it's going to be multiples throughout the county, CVS and Wal-Mart, but I'll take care of it like we talked about." (Id. at ¶¶ 86-87.) The Plaintiff denies that the pharmacist confirmed that Plaintiff was involved in multiple instances of prescription fraud throughout the County. (Id. at ¶ 88.) Deputy Harney also revealed to the dispatcher that "the name they just put in my call now is for this lady ... one of the one's that I've been looking for." (Id. at ¶ 67.)

Prior to his arrival at the Wal-Mart store, he contacted the pharmacist by telephone. During the conversation, the pharmacist advised Deputy Harney that the pharmacy needed more time to verify the prescription with the presenter's prescribing physician, Dr. Syed Ahmed ("Dr. Ahmed"). (Id. at ¶¶ 71-72.) During that conversation, the pharmacist did not tell Deputy Harney that the prescription was fraudulent, but indicated that the Prescription Monitoring Program ("PMP"), a computerized data base, was raising some "red flags" and "maybe we should check it out." (Id. at ¶¶ 73-75.) Deputy Harney relied upon the information provided by the pharmacist and undertook no independent investigation of the PMP data. (Id. at ¶ 77.)

The Amended Complaint also alleges that during this conversation, Deputy Harney asked the pharmacist to call Plaintiff back into the Wal-Mart store, to stall her at the pharmacy, to have someone meet him upon his arrival at a designated location, and to assist him in arresting Plaintiff by identifying her at the pharmacy counter. (Id. ¶¶ 79-81, 83-85.) After meeting a pharmacy technician, [2] Deputy Harney entered the Wal-Mart and proceeded to the pharmacy counter. Plaintiff, without prompting, had returned to the pharmacy to inquire about her prescription and was waiting in line. (Id. ¶¶ 101-102.) Deputy Harney stepped into the pharmacy line behind Plaintiff and engaged her in casual conversation. The pharmacist then announced Plaintiffs name loudly and gestured in Deputy Harney's direction. (Id. ¶¶ 113-114.)

At this point, Deputy Harney advised Plaintiff she was under arrest, handcuffed her and escorted her to the loss prevention room where he interviewed her concerning the prescription. (Id. ¶¶ 115-116.) According to the Amended Complaint, prior to taking Plaintiff into custody, Deputy Harney did not confer with the pharmacist in person, examine the prescription, speak with Plaintiff, nor talk to the prescribing physician. He also failed to personally review information concerning Plaintiffs activities on the PMP computerized history. (Id. ¶ 120.) None of these assertions in the Amended Complaint appear to be in dispute.

Following his interview with Plaintiff, Deputy Harney transported her to the magistrate's office where a warrant was issued for violating Virginia Code § 18.2-258.1(A), namely attempting to obtain Adderall by fraud. (Id. ¶ 128.) Plaintiff was denied bond and remanded to jail where she remained for approximately sixteen days.[3]

On October 7, 2013, two days after Plaintiffs arrest, the Wal-Mart pharmacy staff was advised by Dr. Ahmed that Plaintiffs prescription was valid and that he approved of it being filled at the time it was presented. (Id. ¶ 136.) This information was not conveyed by the pharmacy to the sheriffs office but was presented to the Commonwealth's Attorney handling the case approximately two weeks later. (Am. Compl., Ex. A at 86:1-11.) It does not appear that Wal-Mart personnel were aware that Plaintiff remained in custody during that period.

On motion of the Commonwealth's Attorney, the charge against Plaintiff was amended to attempted possession of a Schedule II controlled substance with intent to distribute, in violation of Virginia Code ยง 18.2-248. A preliminary hearing on the amended charge was held on March 25, 2014 in the Spotsylvania County General District Court. After finding the requisite probable cause, the General District Court Judge certified the charge to the grand ...

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