United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendants Walgreen
Pharmacies (Dkt. 73), Inova Pharmacy and Several Pharmacists
at Inova (Dkt. 79), Governor Northam, the Individual State
Defendants, the Virginia Board of Pharmacy, Virginia
Board of Nursing, Virginia Board of Physical Therapy (Dkt.
76), Bodies in Motion, Michael Mastrostefano (Dkt. 87), Aetna
Insurance (Dkt. 94), Sharon Bulova, Fairfax Adult Detention
Center ("FADC"), Sheriff Stacey Kincaid, and Deputy
Sheriff Omar Mercedes's (Dkt. 91) (collectively
"Defendants") Motions to Dismiss Plaintiff's
Amended Complaint pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6), as well as Plaintiff Glenn
Myer's Motion to Dismiss Walgreen Pharmacies and
Prosperity Pharmacy (Dkt. 98) .
filed this lawsuit on June 15, 2018 naming numerous
defendants and alleging varied unnumbered counts. To begin,
Plaintiff alleged that he experienced torture and violations
of his Fourteenth Amendment rights while jailed at FADC and
named Sheriff Kincaid, Deputy Mercedes, and Sharon Bulova as
defendants in both their personal and official capacities,
was well as FADC as an entity. Plaintiff alleged that he was
jailed at FADC without bond after being charged with
embezzling $200.00 of medical equipment. Plaintiff alleged
that Deputy Mercedes gave the judge his record during this
bond hearing. Plaintiff further alleged that while he was
being processed at FADC he informed a nurse that he had
cognitive dysfunction and required certain medication. While
jailed, Plaintiff alleged that nurses and other correctional
facility staff were hostile towards him, placed him in
solitary confinement to detox from drugs, and prevented him
from receiving necessary medications. This deprivation of
medication allegedly caused Plaintiff to suffer seizures and
other medical issues. Plaintiff also alleged that Deputy
Mercedes manufactured a handicap parking ticket and provided
Plaintiff's criminal record to the judge that ordered
also included in his Amended Complaint allegations related to
insurance fraud. Plaintiff received dry needling therapy from
practitioners at Bodies in Motion. Plaintiff received a bill
for the dry needling he claims he should not have been
responsible for and that is the basis of his insurance fraud
claim against Bodies in Motion and Michael Mastrostefano.
further alleged that Aetna Insurance violated ERISA by
improperly denying his coverage claims in relation to the
care Plaintiff received from Bodies in Motion, as well as
numerous other physicians and pharmacists. Plaintiff also
alleged that Aetna Insurance did not act in good faith in its
dealings with Plaintiff in violation of ERISA.
went on to allege that unnamed pharmacists at three
individual pharmacies, Walgreen Pharmacy, Inova Pharmacy, and
Prosperity Pharmacy, would not provide him with the
prescribed medications he required, or in the amount
required. Further, they would not give him their
pharmaceutical license numbers and failed to give him what he
considers adequate counsel regarding the medications.
Plaintiff alleges that he made numerous complaints to both
Governor Northam and the board and staff members of the
Virginia Boards of Nursing, Pharmacy, and Physical Therapy.
All of his complaints were either allegedly ignored, or no
action was taken because Plaintiff could not provide the
names of the alleged wrongdoers or there was no jurisdiction
by the Board.
Defendants now move for dismissal pursuant to Rules 12(b)(1)
motion to dismiss tests the sufficiency of the complaint.
See Republican Party of N.C. v. Martin, 980 F.2d
943, 952 (4th Cir. 1992). In a Rule 12(b)(6) motion to
dismiss, the court must accept all well-pleaded facts as true
and construe those facts in the light most favorable to the
plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The complaint must provide a short and plain
statement showing that the pleader is entitled to relief,
Fed.R.Civ.P. 8(a)(2), and it must state a plausible claim for
relief to survive a motion to dismiss, Iqbal, 556
U.S. at 679. The court should dismiss the case if the
complaint does not state a plausible claim for relief.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
defendants argued that Plaintiff's Amended Complaint
should be dismissed as frivolous or too insubstantial to be
heard under Rule 12(b)(1). A complaint that contains claims
that are "wholly insubstantial and frivolous" is
outside the subject-matter jurisdiction of the federal
courts. Bell v. Hood, 327 U.S.678, 682-83 (1946). To
reach that standard, however, claims typically involve
defiance of reality such as "little green men, or the
plaintiffs recent trip to Pluto." Iqbal, 556
U.S. at 696 (Souter, J., dissenting). Here, Plaintiff's
claims are dramatically stated, but none of them appear to
defy reality. All of the actions described seem to be
possible on our planet, even if the conclusions made about
them are extreme. As plaintiff's claims are not
"wholly insubstantial and frivolous" this Court is
able to maintain subject-matter jurisdiction for the moment.
Plaintiff's claims may be terrestrially possible, they
are legally implausible. To begin, Plaintiff failed to state
a claim against FADC, Sharon Bulova, Sheriff Kincaid, and
Deputy Mercedes. To plead a Section 1983 action, one must
show on the face of the complaint that a "policy or
custom" of the entity is implicated in the violation of
federal law. Monell v. Dep't of Soc. Servs. of City
of N.Y., 436 U.S. 658, 694 (1978). The same is true when
bringing a suit against an individual in their official
capacity. Kentucky v. Graham, 473 U.S. 159, 165
(1985); Biggs v. Meadows, 66 F.3d 56, 61 (4th Cir.
1995). To state a Section 1983 claim against an individual in
their personal capacity, one must allege that the individual
personally caused the deprivation of a federal right.
Hafer v. Melo, 502 U.S. 21, 25 (1991) (quoting
Graham, 473 U.S. at 166); Vinnedge v.
Gibbs, 550 F.2d 926, 928 (4th Cir. 1971).
Plaintiff has made no allegation of a policy or practice
instituted by FADC, Sharon Bulova, or Sheriff Kincaid that
would cause the deprivation of Plaintiff's federal
rights. Plaintiff attached as Exhibit 5 to his Amended
Complaint a letter from the Fairfax County Police Department
discussing the conclusion of an investigation and finding the
police officers to have followed policy. This is unavailing
for two reasons: 1) the incident described in the letter is
not the basis for this suit, 2) the Fairfax County Police
Department and Fairfax County Sheriff's Office are
separate entities and policies of one are not inherently
policies of the other.
Plaintiff has not made any allegations that either Sharon
Bulova or Sheriff Kincaid interacted with Plaintiff in any
way or personally caused the deprivation of a federal right.
Also, Plaintiff stated that Deputy Mercedes manufactured a
handicap ticket and handed a judge Plaintiff's criminal
history. Neither of these actions by Deputy Mercedes
implicates a federal right of Plaintiff's. As Plaintiff
has not adequately alleged a policy or practice of FADC or
the personal actions of Sharon Bulova, Sheriff Kincaid, or
Deputy Mercedes caused the deprivation of his federal rights,
Plaintiff has not stated a plausible claim for relief under
Section 1983 against these defendants.
Court now turns its attention to the fraud claims against
Bodies in Motion and Mr. Mastrostefano and finds that
Plaintiff failed to state a claim against them. Fraud must be
pleaded with particularity as to the time, place, and manner
of the offense. See Fed.R.Civ.P. 9(b); Lasercomb
America, Inc. v. Reynolds, 911 F.2d 970, 980 (4th Cir.
1990). The elements of a common law fraud claim in Virginia
are: (1) a false representation, (2) of a material fact; (3)
made intentionally and knowingly, (4) with the intent to
mislead, (5) reliance by the misled party, and (6) resulting
damages. See Sales v. Kecoughtan Housing Co., Ltd.,
279 Va. 475, 481 (2010) . Here, Plaintiff has not adequately
pleaded his fraud claim with the particularity required to
survive a Rule 12(b)(6) motion. Plaintiff ...