Keith v. Schuh, Civil Action No. 1:96cv39-D-D (N.D. Miss. 4/__/2001), Civil Action No. 1:96cv39-D-D.

CourtU.S. District Court — Northern District of Mississippi
Docket NumberCivil Action No. 1:96cv39-D-D.
Decision Date01 April 2001

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Civil Action No. 1:96cv39-D-D.
United States District Court, N.D. Mississippi, Eastern Division.
April __, 2001.


Presently before the court is the motion of the defendant Maury Schuh for the entry of summary judgment on his behalf as against the plaintiff's claims in this cause. Finding that the motion is partially well taken, the undersigned shall grant it in part and deny it in part.

Factual Background1

On March 7, 1995, an individual2 called the Wal-Mart Supercenter Pharmacy in Tupelo, Mississippi. The individual spoke to Jeannie Kisner, a Wal-Mart pharmacist, and told Ms. Kisner that they were calling in a refill on a prescription for a generic version of the drug Xanax. Ms. Kisner recognized the name on the refill, Ms. Gladys Welch, and knew Ms. Welch to be an elderly woman. Believing the caller to be a younger woman, Ms. Kisner relayed her concerns to Frank Yeilding, another Wal-Mart pharmacist. Yeilding, in turn, called Ms. Welch to ask her about the Xanax refill.

The substance of the conversation between Yeilding and Ms. Welch is a matter of

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dispute. According to Ms. Welch, very little information, if any, was exchanged:

A: . . . . So that druggist called me, and I was sick anyway, and he wouldn't tell me who — I asked him who he was, and he wouldn't tell me. He was asking all kinds of questions about my drugs. Well, I just kind of figured it was a prank call, and I just hung the phone up.

. . .

A: . . . [H]e should have at least told me who he was and not — because I wasn't going to tell him anything, not about my drugs, because I didn't know who he was. And I just thought, well, this is none of your business.

Exhibit "D" to Plaintiff's Response, Deposition of Gladys Welch, pp. 15-16. Ms. Welch does seem a little unclear, however, as to precisely what was said during this phone call:

Q: Okay. What did this person call you, what did they say to you?

A: They just asked me did I give permission to pick my drugs up, and I said, yes, I did. Pam and Roy was the one I asked to pick them up.

Q: Did you tell them that "I asked Pam and Roy to go pick up them up?"

A: After I called them back the second time. I didn't tell them anything the first time.

. . .

Q: Okay, well, let me ask you this: On the first call, did the person ask you, Mrs. Welch, have you — have you authorized anybody to come pick up your medicine for you?

A: Yeah, now, he asked me that.

Q: And what did you tell him?

A: I told him I had, my daughter and son-in-law.

Q: Okay, that was on the first call?

A: Yeah.

Exhibit "D" to Plaintiff's Response, Deposition of Gladys Welch, pp. 22-23, 25 (emphasis added). Mr. Yeilding, however, remembers this phone call rather differently:

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When I spoke to Ms. Welch, she informed me that no one was authorized to pick up her prescriptions, that she did not have any prescriptions to be picked up that day, that she no longer used Wal-Mart and that no one was to pick up her medicine for her.

Exhibit "B" to Defendant's Motion, Affidavit of Frank Yeilding, unnumbered p. 2. After calling Ms. Welch, Mr. Yeilding then made additional calls:

I then contacted her OB-GYN's office who had proscribed the medication and was informed not to release the medicine to anyone, that the prescription was canceled and was not to be filled, and that their office had been notified that there were some other problems with this prescription that had perhaps been raised by other [pharmacies] and had been noted in the file. I then contacted Maury Schuh at the Lee County Sheriff's Department and informed him of the situation and communicated to him all of the information I had at that time and that someone was attempting to pick up a refill without authorization.

Id. The plaintiff does not dispute the existence of these telephone calls by Yeilding, nor the contents of those conversations, with any admissible evidence. Sometime after these two interim calls were completed, Ms. Welch called the Wal-Mart pharmacy. Again, the content of this call is also disputed. Mr. Yeilding's recollection of the conversation is that:

Shortly after, I received a phone call from Ms. Gladys Welch who attempted to claim that at the time that she had forgotten about the refill. When I challenged her on this contention she stated that she felt she knew who was attempting to pick up her refill and that she did not want to get them into trouble. I informed her that I had a duty to report attempts to obtain prescriptions by fraud, that I had already contacted the Lee County Sheriff's Department and that whoever attempted to pick up the refill would be arrested.

Id. Ms. Welch's recall is only slightly different, but different nonetheless. Again, there appears to be some inconsistency concerning what occurred even within her own testimony:

A: So I called back the drugstore . . . . And [Yeilding] got on the phone, and he — he told me, he said, well, there is no need to call back now, I have already called the law. I said, for what? So he told me. So I knew they went up there and picked them up. I just said all right, and I hung the phone up.

. . .

A: . . . I told him, I said, well, if you don't believe that Dr. Burrus called it in, you call him and ask him.

. . .

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A: So when I called back, he had already called the law.

Q: Okay.

A: And I asked him for what, and he never did say a word.

. . .

Q: Did you tell them that "I asked Pam and Roy to go pick up them up?"

A: After I called them back the second time. I didn't tell them anything the first time.

. . .

Q: Did [Yeilding] ask you again if you had authorized somebody to pick it up?

A: No. He just told me he had already called the law. I just said, well, fine, and hung the phone up.

Exhibit "D" to Plaintiff's Response, Deposition of Gladys Welch, pp. 15-16, 22-24, 30.

In any event, Lee County Deputy Sheriff Maury Schuh and another officer arrived at Wal-Mart and waited for someone to attempt to pick up Ms. Welch's prescription. Schuh discussed the situation with the pharmacists at Wal-Mart:

Q: Okay. All right. Tell me what the conversation was you had with the pharmacists while you were at Wal-Mart on the 7th.

A: That — this is my conversation that I recall. You know, we talked about that there was going to be a somebody — it was a white female, it appeared in the voice, that was going to attempt to pick up a prescription of Gladys Welch and that — excuse me. The pharmacist had called, which I believe was Jeannie Kisner, had called to verify whether anybody was supposed to pick up the medication. Mrs. Welch had told them, no, nobody was supposed to be picking up any medicine for her. Then they told me that they had contacted the doctor involved with this and the doctor had told them not to issue the prescription.

. . .

A: I believe that the pharmacists said that the person had called and told them that they were in town and they'd be coming by just shortly to pick it up. And Ms. Welch had called back to the pharmacy and told the pharmacist that she thought she knew who was going to be trying to pick it up, that they — she didn't want to get them in trouble, but they weren't supposed to get her medication. And the

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pharmacist there told them that they had already notified the law enforcement authorities to meet them when they attempted to pick up the prescription.

But she again told the pharmacist that nobody was supposed to pick up the prescription, but she didn't want to get them in trouble. And I take it that I left because, you know, after a period of time when nobody showed up, with them supposed to be in town, you know, we felt like maybe Mrs. Welch had contacted them and warned them that we would be waiting to meet them.

Exhibit "E" to Plaintiff's Response, Deposition of Maury Schuh, p. 16. After waiting for some period of time, the officers left. Eventually, Roy Moreno arrived at Wal-Mart and tried to retrieve the prescription. When he did so, Wal-Mart employees again called for Deputy Schuh. Schuh arrived at Wal-Mart and confronted Mr. Moreno. After a conversation with Mr. Moreno, Schuh escorted Mr. Moreno back to Moreno's vehicle in the parking lot, where Pamela Keith and her small child were waiting. Schuh asked Mr. Moreno and the plaintiff to follow him back to the sheriff's department, and they did so.

After arriving at the sheriff's department, officers placed Mr. Moreno and the plaintiff in separate rooms and questioned them. Defendant Schuh questioned the plaintiff. During this initial questioning, the conversation reached the following point:

A: He got to saying, you didn't have permission to pick up your mother's medicine up. And I said, my mother asked me to pick the medicine up. He said, no, she didn't. And I said, look, let me tell you something, I would not risk going to jail over 12 half of a milligram nerve pills when I've got 90 that's a lot stronger than the ones she's got. He said, oh, you do? He said, well, I'll tell you what I'll do, I'll call the Welfare on you right now and have your kid took away from you. Now, you want me to tell you the exact words I told him?

Q: Go right ahead.

A: I said, you pick up that mother fucking phone up and you call'em. And I jumped out of that chair, and I said, you don't threaten me to call no Welfare on me because I ain't done a damn thing. I said, I had permission to pick that medicine up and if you don't believe me, that's tough. He said, you're going in the cell. I said, put me in there. Because I didn't care. I ain't scared of none of'em down there.

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Exhibit "B" to Plaintiff's Response, Deposition of Pamela Keith Moreno, p. 44. Following this exchange, Schuh had another officer place the plaintiff in a cell:

A: [Schuh] told'em to lock her up because she won't cooperate with him, because he made her mad about calling the Welfare.

Exhibit "C" to Plaintiff's Response, Deposition...

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