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Myer v. Northam

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

December 11, 2018

GLENN MYER, Plaintiff,
RALPH NORTHAM, et al., Defendants.



          THIS 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[1], 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) .

         Plaintiff 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 Plaintiff's detention.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Lastly, 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.

         The Defendants now move for dismissal pursuant to Rules 12(b)(1) and 12(b)(6).

         A 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 (2007).

         Numerous 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.

         While 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).

         Here, 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.

         Further, 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.

         The 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 ...

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