Callum v. CVS Health Corp.

Decision Date29 September 2015
Docket NumberCivil Action No.: 4:14–cv–3481–RBH
Citation137 F.Supp.3d 817
Parties Jimmie Callum, Jr., Plaintiff, v. CVS Health Corporation; South Carolina CVS Pharmacy, LLC; CVS Pharmacy, Inc.; Mark Cosby; Darren Twedell; Renee Edge; David Purdy; Bill Poland; Xio Sosa; Ginny McClure; Jim Keeler; Harris Chisholm; Susan Webb; Joseph Cessna; Travis Combs; John Brescia; Natasha Pendergrass; Ashley Gates ; Paul Anderson; Kevin Elliot; John Robinson; Matt Lesniak; John Does 1–80; and Jane Does 1–50; Defendants.
CourtU.S. District Court — District of South Carolina

David C. Johnston, Law Firm of David C. Johnston, Gold Beach, OR, James Thomas Irvin, Jr., Irvin Law Firm, Myrtle Beach, SC, for Plaintiff.

C. Pierce Campbell, Turner Padget Graham and Laney, Arthur E. Justice, Jr., Florence, SC, Brett Eric Coburn, Charles H. Morgan, Christopher Allen Riley, Alston and Bird, Atlanta, GA, for Defendants.


R. Bryan Harwell, United States District Judge

Three motions to dismiss are before the Court in this case. See ECF Nos. 20, 21, & 22. Defendants CVS Health Corporation,1 South Carolina CVS Pharmacy, LLC, and CVS Pharmacy, Inc. (collectively, "the Corporate Defendants") filed a motion to dismiss for lack of personal jurisdiction as to CVS Health Corporation and for failure to state a claim as to all three defendants, pursuant to Rule 12(b)(2) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 20. Defendants John Brescia, Joseph Cessna, Harris Chisholm, Travis Combs, Ashley Gates, Jim Keeler, Ginny McClure, Ida Pendergrass,2 Bill Poland, Xiomata Sosa,3 Susan Webb, John Doe # 1, Jane Doe # 1, and Jane Doe # 2 (collectively, "the Store–Level Defendants") filed a motion to dismiss for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 21. Defendants Paul Anderson, Mark Cosby, Shelly Edge,4 Ronald Elliot,5 Matt Lesniak, David Purdy, John Robinson, and Darren Twedell (collectively, "the Above–Store Defendants") filed a motion to dismiss for lack of personal jurisdiction as to Mark Cosby and for failure to state a claim as to all eight defendants, pursuant to Rule 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 22. The Court held a hearing on the motions on September 10, 2015. See ECF Nos. 45 & 46.

For the reasons set forth below, the Court grants in part and denies in part the motions to dismiss.


Plaintiff filed his initial complaint on August 28, 2014, and an amended complaint on September 17, 2014. See ECF Nos. 1 & 9. Plaintiff's amended complaint asserted the following claims: violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ; civil rights violations under 42 U.S.C. §§ 1981, 1985, 1986, and 2000d, et seq. ; violation of Section 1557 of the Patient Protection and Affordable Care Act, 42 U.S.C. § 18116 ; and various state common law torts. See Amended Complaint, ECF No. 9. Plaintiff also sought declaratory and injunctive relief. See id. On November 13, 2014, the Corporate Defendants, Store–Level Defendants, and Above–Store Defendants filed motions to dismiss, arguing Plaintiff's amended complaint failed to state claims upon which relief could be granted and that the Court lacked personal jurisdiction over two of the defendants, CVS Health Corporation and Mark Cosby. See ECF Nos. 20, 21, & 22. The facts, as alleged in Plaintiff's amended complaint, are as follows.

I. Plaintiff's Military Service and Related Disabilities

Plaintiff, an African–American male, joined the United States Marine Corps in 2001 after the events of September 11. Amended Complaint at 2; id. at ¶ 45. In 2002, he was diagnosed with Post–Traumatic Stress Disorder (PTSD), and the Marine Corps discharged him with a service-related disability. Id. at ¶ 47. Plaintiff's PTSD symptoms include extreme agoraphobia, for which he wears a sports towel draped over his head as a psychological coping mechanism. Id. at ¶ 47–48. When Plaintiff encounters multiple unknown persons, he experiences anxiety and panic attacks. Id. at ¶ 55. By 2010, circumstances required Plaintiff to accept Veterans Administration benefits for service-connected disabilities. Id. at ¶ 49. He also was diagnosed with major depression, severe anxiety, and suicidal ideation. Id. at ¶ 50.

Plaintiff's medical doctors chose a course of treatment for Plaintiff's conditions that would allow him to "gradually regain his place in society" and "reacquaint him with social interaction and/or improve his social skills." Id. at ¶¶ 52–53. Doctors believed places of public accommodation would allow Plaintiff to enter the establishment during non-business hours so that he could avoid other customers. Id. Doctors chose this course of treatment so that Plaintiff would be able to request modest accommodations under the Americans with Disabilities Act. Id.

II. Initial Requests for Accommodation

In or around February 2012, based on his Veterans Administration diagnosis of PTSD with accompanying extreme agoraphobia, Plaintiff requested reasonable accommodation from the South Carolina Department of Motor Vehicles (SCDMV) so that he could renew his driver's license. Id. at ¶ 56. The SCDMV accommodated Plaintiff and allowed him to renew his driver's license during non-business hours at an office located in Kingstree, South Carolina. Id. at ¶ 57.

Based on the SCDMV's "warm" response to his request for accommodation, Plaintiff and his doctors agreed Plaintiff should request similar accommodations from a "grocery store, clothing store, hardware store, or other sales or rental establishment." Id. at ¶ 59. Sometime between August and September 2013, Plaintiff requested permission to shop after hours at a Best Buy electronics store located in North Charleston, South Carolina. Id. at ¶¶ 60–61. Best Buy permitted Plaintiff to shop after hours, asking that he provide an advance notice of one day to ensure store personnel would be available to fulfill his requested accommodation. Id. at ¶ 61.

Besides the SCDMV and Best Buy, Plaintiff requested and received accommodations from grocery stores and pharmacies located in other parts of South Carolina, including Columbia, Myrtle Beach, Charleston, Summerville, and North Charleston. Id. at ¶ 62. Those retail establishments included Publix Food and Pharmacy, Food Lion, Delta Pharmacy, Costco, Sam's Club, and Family Dollar. Id.

III. Requests for Accommodation at CVS Stores

On or around August 27, 2013, Plaintiff contacted CVS Store # 7159, spoke with store manager Defendant Bill Poland, explained to Poland the nature of his disability and need for reasonable accommodation, and requested permission to shop after hours. Id. at ¶ 65. Plaintiff asked if CVS would lock the door at closing time to prevent other customers from entering the store while he was shopping. Id. He also asked if store employees could divert other customers to a portion of the store so that he could "exit and escape the situation of being around too many customers." Id. Citing store policy, Poland denied Plaintiff's requests. Id.

The next day, August 28, Plaintiff again contacted CVS Store # 7159, spoke to Defendant John Doe # 1, and explained his PTSD diagnosis and related agoraphobia symptoms. Id. at ¶ 66. John Doe # 1 "giggled" and asserted store policy prohibited customers from shopping after hours and required all employees to exit the store at closing. Id. Plaintiff later obtained video evidence showing customers shopping after hours and managers present in various CVS stores for over twenty minutes after closing time. Id.

Also on August 28, Plaintiff contacted CVS Store # 7568 in Goose Creek, South Carolina, spoke with store manager Defendant Travis Combs, explained the nature of his PTSD-related disability, and requested permission to shop and fill his prescriptions after hours. Id. at ¶ 67. Combs denied Plaintiff's request, citing company policy, loss prevention, and safety concerns. Id.

On August 29, 2013, Plaintiff submitted a complaint to CVS Customer Care via a 1–800 telephone number and spoke to a representative named Abby. Id. at 68. Plaintiff explained his disability to Abby and asked her if CVS policy permitted him to shop for approximately ten minutes after the store closed and after the front doors are locked so that other customers could not enter the store while he was shopping. Id. Abby informed Plaintiff that each store manager had the authority to grant his request and that he needed to contact the managers individually to seek reasonable accommodation. Id.

On September 4, 2013, Plaintiff contacted CVS Store # 563, spoke to store manager Defendant Ginny McClure, explained his disability, and requested permission to shop after hours. Id. at ¶ 70. McClure refused the request for accommodation. Id. The same day, Plaintiff contacted CVS Store # 7305 and spoke to store manager Defendant Ashley Gates. Id. at ¶ 71. He informed Gates of his disability, stated he would like to shop in the CVS, and explained he needed prescriptions filled. Id. Defendant Gates denied Plaintiff's request for accommodation, citing " ‘safety reasons' " as the basis for denial. Id.

Also on September 4, Plaintiff contacted CVS Store # 563 for a second time and spoke with Defendant Xio Sosa, who identified herself as the manager. Id. at ¶ 72. He explained his disability and requested accommodation, which Sosa refused. Id. Sosa asserted she could not help Plaintiff and that she would not be paid " ‘to stay here after 10 o'clock.’ " Id. Defendant Sosa asked Plaintiff, " [A]re you the same black guy that contacted us before?’ " Id. After Plaintiff answered in the affirmative, Defendant Sosa stated, " ‘I don't trust you and your request seems suspicious.’ " Id.

On September 5, 2013, Plaintiff and an acquaintance went to CVS Store # 7697 to request accommodations.6 Id. at ¶ 73. Plaintiff and his acquaintance met with Defendant Jane Doe # 1, a shift supervisor, and the acquaintance explained to Jane Doe # 1 the nature of P...

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