Clark v. CVS Health Pharmacy, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

APRIL CLARK,

Plaintiff,

Civil Action 2:23-cv-4206

v. Chief Judge Algenon L. Marbley

Magistrate Judge Kimberly A. Jolson

CVS HEALTH PHARMACY, INC., et al.,

Defendants.

ORDER AND REPORT AND RECOMMENDATION

Plaintiff, April Clark, an Ohio resident who is proceeding pro se, brings this action against

Defendants CVS Health Pharmacy, Inc. (“CVS Pharmacy”), CVS Health Corporation (“CVS

Corporation”), Aetna Resources LLC (“Aetna”), and Karen Gaster. This matter is before the

Undersigned for consideration of Plaintiff’s Motion to Leave to Proceed in forma pauperis (Doc. 1)

and the initial screen of Plaintiff’s Complaint (Doc. 1-1) under 28 U.S.C. § 1915(e)(2). Plaintiff’s

request to proceed in forma pauperis is GRANTED. All judicial officers who render services in

this action shall do so as if the costs have been prepaid. 28 U.S.C. § 1915(a). Having performed an

initial screen, the Undersigned RECOMMENDS that Plaintiff’s Complaint (Doc. 1-1) be

DISMISSED.

I. STANDARD

Because Plaintiff is proceeding in forma pauperis, the Court must dismiss the complaint,

or any portion of it, that is frivolous, malicious, fails to state a claim upon which relief can be

granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

§ 1915(e)(2). “A claim is frivolous if it lacks ‘an arguable basis either in law or in fact.’” Flores

v. U.S. Atty. Gen., No. 2:14-CV-84, 2014 WL 358460, at *2 (S.D. Ohio Jan. 31, 2014) (quoting

Neitzke v. Williams, 490 U.S. 319, 325 (1989)). This occurs when “indisputably meritless” legal

theories underlie the complaint, or when a complaint relies on “fantastic or delusional” allegations.

Flores, 2014 WL 358460, at *2 (citing Neitzke, 490 U.S. at 327–28).

In reviewing a complaint, the Court must construe it in Plaintiff's favor, accept all well-

pleaded factual allegations as true, and evaluate whether it contains “enough facts to state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Yet,

a court is not required to accept factual allegations set forth in a complaint as true when such

factual allegations are “clearly irrational or wholly incredible.” Ruiz v. Hofbauer, 325 F. App’x

427, 429–30 (6th Cir. 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at

556). Further, “pro se litigants are not relieved of the duty to develop claims with an appropriate

degree of specificity.” Kafele v. Lerner, Sampson, Rothfuss, L.P.A., 161 F. App’x 487, 491 (6th

Cir. 2005). The complaint must include more than “labels and conclusions” and “formulaic

recitation[s] of the elements of a cause of action . . . .” Id. The role of the court is not to “conjure

allegations on a litigant's behalf.” Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004) (internal

quotation marks and citations omitted). In sum, although pro se complaints are to be construed

liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972), “basic pleading essentials” are still required.

Wells v. Brown, 891 F. 2d 591, 594 (6th Cir. 1989).

II. DISCUSSION

In her Complaint, Plaintiff names CVS Pharmacy, CVS Corporation, Aetna, and Karen

Gaster as defendants. (Doc. 1-1 at 2). Though unclear at times, Plaintiff’s claims seemingly center

on Defendants’ actions relating to a U.S. Equal Employment Opportunity Commission (“EEOC”)

mediated settlement agreement. (Id. at 3). Plaintiff alleges that Aetna, through its counsel

Defendant Gaster, entered into an EEOC mediated settlement agreement with Plaintiff in October

2022. (Id.). But Aetna, along with all the other Defendants, “conspired to conceal and participate

and/or collude . . . to commit criminal conversion and grand theft of property of Plaintiff.” (Id.).

Plaintiff goes on to allege that CVS Pharmacy paid $15,028 owed to her under the EEOC mediated

settlement agreement to CVS Corporation without authorization. (Id. at 4–5). Plaintiff says that

she was coerced into agreeing to the mediated settlement agreement under false pretenses because

she would not have agreed to it had she known that she would not be paid the $15,028 directly.

(Id. at 5). Plaintiff claims that these actions amount to criminal conversion, grand theft of property,

breach of fiduciary duty, and violations of the Fourteenth Amendment of the U.S. Constitution and

the Constitution of Ohio. (Id. at 4–5). As relief, Plaintiff seeks the amount of the “breached

settlement,” which the Undersigned infers to be $15,028. (Id. at 6).

Ultimately, Plaintiff fails to state a claim upon which relief can be granted. Plaintiff alleged

that Defendants violated her rights under the Fourteenth Amendment, Title VI, and Title VII.

(Doc. 1-2). But Plaintiff fails to state any of these claims with the requisite factual specificity.

Plaintiff does not specify a violation of the Fourteenth Amendment, nor does the Undersigned find

a cognizable claim for any constitutional violation. Likewise, Plaintiff does not specify a specific

violation arising under either Title VI or Title VII, nor can the Undersigned infer one merely from

Plaintiff’s allegation that Defendants violated an EEOC mediated settlement agreement. See

Petrie v. Sec’y, Dep’t of Veterans Affs., No. 2:06CV01031 (WOB), 2009 WL 366628, at *2 (S.D.

Ohio Feb. 11, 2009) (citing Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 378

(1994)) (“[I]n the context of private settlement agreements, the Supreme Court has held that

enforcement of a settlement agreement ‘is more than just a continuation or renewal of the

dismissed suit, and hence requires its own basis for jurisdiction’ . . . . Courts cite this holding as

further support for the conclusion that federal jurisdiction to enforce a settlement agreement may

not be found ‘implicitly’ in Title VII.”). And though Plaintiff indicated she was bringing her

claims under 28 U.S.C. § 1343(3), which allows a plaintiff to bring a civil rights action that alleges

a defendant acted under the color of state law to deprive the plaintiff of a right secured by federal

law or the U.S. Constitution, Plaintiff does not allege any Defendant acted under the color of state

law. See Kelly v. City of New Philadelphia, No. 5:11CV474, 2011 WL 3705151, at *3 (N.D. Ohio

Aug. 22, 2011) (citing Simescu v. Emmet County Dep’t of Soc. Services, 942 F.2d 372, 375 (6th

Cir. 1991)) (“If a plaintiff fails to make a showing on any essential element of a § 1983 claim, that

claim must fail.”). Therefore, Plaintiff fails to sufficiently allege any of these claims.

Plaintiff’s remaining claims—conversion, grand theft, conspiracy, and breach of fiduciary

duty—are state law claims. (Doc. 1-2). While Plaintiff says that she is a citizen of Ohio and

Defendants are citizens of Rhode Island (Doc. 1-1 at 2), she does not allege an amount in

controversy exceeding $75,000 that would give the Court diversity jurisdiction over this action.

See 28 U.S.C. § 1332(a); Hunter v. Taylor, No. 2:15-CV-2607, 2015 WL 6506625 (S.D. Ohio Oct.

28, 2015) (adopting a magistrate judge’s decision that the court lacked subject matter jurisdiction

when a plaintiff’s complaint failed to meet the amount in controversy requirement). And because

Plaintiff has not alleged a plausible basis for original jurisdiction, the Court also lacks pendant

jurisdiction for the remaining claims arising under state law. (Doc. 1-2); see 28 U.S.C. § 1367(a);

Brooks v. Rothe, 577 F.3d 701, 709 (6th Cir. 2009) (noting that when all federal claims are

dismissed before trial, state law claims “generally should be dismissed as well”). Moreover, even

were the court to consider the remainder of her claims directly, Plaintiff has failed to provide the

Court with more than “labels and conclusions” that Defendants engaged in these alleged wrongs.

Kafele, 161 F. App’x at 491.

At base, Plaintiff’s Complaint provides insufficient factual content from which the Court

could reasonably infer that Defendants violated her rights. To allow Plaintiff’s claims to proceed

would be to “conjure allegations” on her behalf. Martin, 391 F.3d at 714. In sum, she has failed

to satisfy the basic federal pleading requirements set forth in Rule 8(a), Twombly, 550 U.S. at 555.

Plaintiff’s Complaint should be DISMISSED.

III. CONCLUSION

Plaintiff’s request to proceed in for a pauperis is GRANTED. Based upon the foregoing,

however, it is RECOMMENDED that Plaintiff’s Complaint be DISMISSED.

Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A Judge of this Court shall make a de novo determination of those

portions of the Report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in

part, the findings or recommendations made herein, may receive further evidence, or may

recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

Date: January 25, 2024 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE