United States District Court, District of Columbia
MEMORANDUM OPINION GRANTING DEFENDANTS' MOTION TO
DISMISS AND DENYING AS MOOT PLAINTIFF'S MOTION FOR
RUDOLPH CONTRERAS United States District Judge.
Yasmin Carty (“Ms. Carty”), sued Defendants, CVS
Pharmacy, LLC (“CVS”) and its Chief Executive
Officer (“CEO”), Larry J. Merlo (“Mr.
Merlo”), seeking compensatory and punitive damages for
their alleged negligence stemming from incidents involving a
pharmacist at Ms. Carty's local CVS. See
Notice of Removal at 10, ECF No. 1 (hereinafter
“Complaint” or “Compl.”). Defendants,
CVS and Mr. Merlo, moved to dismiss Ms. Carty's Complaint
under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
See Defs.' Mot. Dismiss (“Defs.'
Mot.”) at 1, ECF No. 3. Thereafter, Ms. Carty opposed
Defendants' Motion and filed her own Motion for Summary
Judgment. See Pl.'s Reply Opp'n Defs.'
Mot. Dismiss and Mot. Summ. J. (“Pl.'s Opp'n
& Mot.”), ECF No. 8. For the reasons stated below,
the Court grants Defendants' Motion to Dismiss and denies
Ms. Carty's Motion for Summary Judgment as moot.
January 13, 2017, Ms. Carty received a text message from CVS
stating that her medication was ready for her to pickup.
Compl. When Ms. Carty went to her local CVS store, the CVS
pharmacist on duty gave Ms. Carty a medication that Ms. Carty
noted was incorrect. Compl.; Pl.'s Opp'n & Mot.
at 1. When Ms. Carty brought this to the pharmacist's
attention, the pharmacist told Ms. Carty that her medication
was actually not ready and threatened that, next time, she
would just give Ms. Carty Advil. Compl.; Pl.'s Opp'n
& Mot. at 1. However, another CVS pharmacy employee
subsequently assisted Ms. Carty, found the correct medication
in stock, and filled her prescription. Compl.; Pl.'s
Opp'n & Mot. at 1.
next day, on January 14, 2017, Ms. Carty commenced this
action against Defendants in the Superior Court of the
District of Columbia alleging negligence. See
Pl.'s Opp'n & Mot. at 1. Ms. Carty demanded a
judgment against Defendants in the amount of $230, 000.00,
plus punitive damages. Pl.'s Opp'n & Mot. at 1.
Defendants removed the action to the United States District
Court for the District of Columbia on February 10, 2017,
invoking the Court's diversity jurisdiction under 28
U.S.C. § 1332. See Notice of Removal at 2, ECF
No. 1. Thereafter, Defendants filed a Motion to Dismiss the
action under Rule 12(b)(6) of the Federal Rules of Civil
Procedure for failure to state a claim. See
Defs.' Mot. Dismiss at 1. In response, Ms. Carty filed,
together with her Opposition to Defendants' Motion to
Dismiss, a Motion for Summary Judgment. See
Pl.'s Opp'n & Mot.
subsequent filings, Ms. Carty sets forth several additional
factual contentions.First, she now claims that she in fact did
not receive the correct medication on January 13, 2017, and
that she had to return to CVS three times before the clerk
gave her the correct medication. Pl.'s Reply Defs.'
Reply Brief Supp. Defs.' Mot. Dismiss (“Pl.'s
Reply”) at 4, ECF No. 10. Ms. Carty also now alleges
that she believes the CVS pharmacist was
“target[ing]” her in various ways and that
“her intention [was] to make sure [that] [Ms. Carty]
[does not] get [her] medicines.” Pl.'s Reply at 2.
For example, she states that the pharmacist, on another
occasion, gave her the incorrect diabetes test strips, a
problem which allegedly went unresolved for three weeks.
Pl.'s Opp'n & Mot. at 2. Ms. Carty also seems to
suggest that the pharmacist had previously withheld her
medications and medical supplies on other occasions and that
the pharmacist regularly encouraged other CVS employees to
withhold medications from Ms. Carty as well. Pl.'s Reply
at 2-3. Finally, Ms. Carty alleges that when the pharmacist
filled her prescriptions, the medicine bottle often
“smell[ed] funny, ” though she does not allege
that the medication was adulterated in any way or that she
has ever suffered any ill effects from that medication.
Pl.'s Reply at 2.
the Federal Rules of Civil Procedure, a complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). A motion to dismiss under Rule 12(b)(6)
does not test a plaintiff's ultimate likelihood of
success on the merits; rather, it tests whether a plaintiff
has properly stated a claim. See Fed. R. Civ. P.
12(b)(6); Scheuer v. Rhodes, 416 U.S. 232, 236
(1974), abrogated on other grounds by Harlow v.
Fitzgerald, 457 U.S. 800 (1982) (“When a federal
court reviews the sufficiency of a complaint . . . . [t]he
issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support
the claims.”). A court considering a motion to dismiss
a pro se plaintiff's complaint should look to
“all filings, including filings responsive to a motion
to dismiss.” Brown, 789 F.3d at 151-52.
Further, a court presumes that the complaint's factual
allegations are true and construes them liberally in the
plaintiff's favor. See, e.g., Shear,
606 F.2d at 1253 (“The complaint must be construed
liberally, with all factual allegations deemed to be true and
with doubts to be resolved in favor of the pleader.”
(internal quotation marks and citation omitted)); United
States v. Philip Morris, Inc., 116 F.Supp.2d 131, 135
(D.D.C. 2000) (same). However, the Court is not required to
accept “a legal conclusion couched as a factual
allegation, ” or “naked assertion[s] devoid of
further factual enhancement.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks and citation omitted).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Id. (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). While the factual allegations need
not be detailed, the plaintiff must still “provide the
‘grounds' of [her] ‘entitle[ment] to
relief', ” Twombly, 550 U.S. at 555
(citations omitted), with more than “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, ” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 555). This means
that “[d]ismissal under Rule 12(b)(6) is proper when a
plaintiff has failed to plead ‘enough facts to state a
claim to relief that is plausible on its face' and to
nudge his claims ‘across the line from conceivable to
plausible.'” Abbas v. Foreign Policy Grp.,
783 F.3d 1328, 1338 (D.C. Cir. 2015) (quoting
Twombly, 550 U.S. at 570).
pro se pleadings are “held to less stringent
standards than formal pleadings drafted by lawyers, ”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal
quotation marks and citation omitted) (per curiam), they too
“must plead ‘factual matter' that permits the
court to infer “more than the mere possibility of
misconduct, ” Atherton v. D.C. Office of the
Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (quoting
Iqbal, 556 U.S. at 678-79), by the defendants.
Accord Brown, 789 F.3d at 150 (quoting
Erickson, 551 U.S. at 94 and Atherton, 567
F.3d at 681-82).
review of Ms. Carty's Complaint and her subsequent
filings, the Court concludes that she has failed to state any
claim against Defendants. First, the Court finds that Ms.
Carty has failed to state a claim for negligence because she
fails to make any allegations regarding Mr. Merlo's
involvement in the incidents with the pharmacist, and she
fails to allege any injury resulting from CVS's alleged
conduct. Second, even construing Ms. Carty's allegations
broadly as an assertion of a claim for intentional infliction
of emotional distress, the Court finds Ms. Carty's
allegations insufficient because she does not allege that
CVS's conduct was either “extreme” or
“outrageous.” Thus, the Court grants
Defendants' Motion to Dismiss.