# Clark v. CVS Health Pharmacy, Inc.

> District Court, S.D. Ohio · January 25, 2024

URL: https://www.frixlaw.com/law-library/cases/10383915

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** January 25, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10383915

## How later opinions describe it (automated extraction)

- noting that when all federal claims are dismissed before trial, state law claims “generally should be dismissed as well”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10383915. Public record. Not legal advice.