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Fowler v. CVS Health Cvs/Pharmacy

United States District Court, E.D. Pennsylvania

June 23, 2015

NASIR FOWLER, Plaintiff,
v.
CVS HEALTH CVS/PHARMACY, Defendant.

MEMORANDUM

C. DARNELL JONES, II, District Judge.

On March 27, 2015, Nasir Fowler ("Plaintiff") filed a Complaint in this Court against CVS Health CVS/Pharmacy ("Defendant"). (Dkt No. 1.) Plaintiff alleges six counts against Defendant for violations of his constitutional rights, actionable pursuant to 42 U.S.C. § 1983 ("section 1983"), including: (I) false arrest, (Dkt No. 1 [hereinafter Compl.] ¶¶ 37-43); (II) malicious prosecution, (Compl. ¶¶ 44-49); (III) unreasonable seizure, (Compl. ¶¶ 50-56); and Pennsylvania state law claims for (IV) battery, (Compl. ¶¶ 57-60), (V) false imprisonment, (Compl. ¶¶ 61-65), and (VI) intentional infliction of emotional distress. (Compl. ¶¶ 66-70.)

On April 2, 2015, Defendant filed a Motion to Dismiss with a supporting Memorandum of Law. (Dkt No. 2 [hereinafter MTD].) Defendant moves to dismiss Counts I, II, and III under the theory that Defendant is not a state actor, and that, in the alternative, Defendant is insulated from liability by the Pennsylvania Retail Theft Act (the "PRTA"). (MTD at 4.) Defendant moves to dismiss the state law claims for failure to sufficiently plead the components of each claim. (MTD at 8-10.)

Plaintiff filed a Response to Defendant's Motion to Dismiss on April 23, 2015. (Dkt No. 5 [hereinafter Resp.].) Upon consideration of the Complaint, Defendant's Motion to Dismiss, and Plaintiff's Response, it is hereby ordered that said Motion is GRANTED IN PART AND DENIED IN PART.

The Court GRANTS Defendant's Motion to Dismiss as to Counts I-V and dismisses those claims with prejudice. The Court DENIES Defendant's Motion to Dismiss Count VI as to one theory of liability described herein, but GRANTS Defendant's Motion to Dismiss Count VI as to all other theories.

Thus, the only remaining claim is Count VI on a narrow theory of liability described herein.

I. Statement of Review

In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips, 515 F.3d at 233 (internal quotation and citation omitted). After the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678 (citing Twombly, 550 U.S. at 556). This standard, which applies to all civil cases, "asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 378; accord Fowler v. UPMC Shadyside. 578 F.3d 224, 233 (3d Cir. 2009) ("[A]ll civil complaints must contain more than an unadorned, the-defendant-unlawfully-harmed-me-accusation.") (internal quotation marks omitted).

II. Statement of Facts

When deciding a motion to dismiss under 12(b)(6), the "court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents." Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010). "[A] court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Pension Ben Guar. Corp. v. White Consol. Industries, Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). For the purpose of deciding the instant Motion, the Court must take all alleged facts as true. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation and citation omitted).

Plaintiff is an adult citizen and current resident of Pennsylvania. (Compl. ¶ 7.) Defendant is the retail division of CVS Health, with its corporate offices in Rhode Island. (Compl. ¶ 8.)

On Saturday, November 30, 2013, at 11:50 p.m., an officer of the Norristown Police Department identified as "Officer Emrich" was dispatched to the 1200 West Main Street, Norristown CVS location in response to a reported robbery in progress. (Compl. ¶¶ 10-11.) After arriving, Officer Emrich met with CVS employee Michael Deshields and the CVS store manager on duty. (Compl. ¶ 12.) Mr. Deshields told Officer Emrich that Plaintiff bagged $66.93 worth of merchandise, placed the merchandise in a cart and walked out of CVS without making payment. (Compl. ¶¶ 13-14.)

Officer Emrich and CVS management retrieved the store's security footage to gather an accurate account of the incident. (Compl. ¶ 15.) From the security footage, Officer Emrich and CVS management saw Plaintiff provide an ATM card to Mr. Deshields before leaving the store. (Compl. ¶¶ 16-17.) Security footage also showed that Mr. Deshields and Plaintiff spoke for a number of minutes after Plaintiff provided his ATM card and before Plaintiff exited the store. (Compl. ¶¶ 16-17.) Plaintiff was not charged for the items and left the store without paying for the items. (Compl. ¶¶ 17-18.) Plaintiff further contends that Mr. Deshields did not realize that Plaintiff's ATM card was not charged. (Compl. ¶¶ 17-18.) The CVS Manager stated to Officer Emrich that, "we cannot allow [Plaintiff] to get away with theft" and proceeded to file a complaint and press charges against Plaintiff for retail theft.[1] (Compl. ¶¶ 19-20.)

Plaintiff returned to Defendant's store the following morning on Sunday, December 1, 2013, upon learning that the November 31st transaction was not completed. (Compl. ¶ 21.) After providing full payment for the allegedly stolen merchandise, Plaintiff requested that Defendant inform the Norristown Police Department of Mr. Deshields's mistake and of Defendant's receipt of payment. (Compl. ¶ 21-22.) Defendant ...


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