Shepard v. Byrd
| Citation | 581 F. Supp. 1374 |
| Decision Date | 10 February 1984 |
| Docket Number | Civ. A. No. C81-194R. |
| Parties | Charlotte SHEPARD, as Executrix of the Estate of Cliff E. Shepard, Plaintiff, v. Ronald O. BYRD, Ron C. Bieri, the Georgia State Board of Pharmacy, Eugene L. Argo, Neil Pruitt, Clara H. Axam, Oren Harden, Jr., Peter Mills, Jr., Martin T. Grizzard, Dwight Morrison and Enloe Drug Company, Defendants. |
| Court | U.S. District Court — Northern District of Georgia |
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Alan Herman, Atlanta, Ga., for plaintiff.
Ray Lerer, Warner Currie, Chip Murphy, Atlanta, Ga., for defendants.
The plaintiff in this action has brought both section 1983 and pendent malicious-prosecution claims against the defendants. Presently before the Court are motions to dismiss filed by (1) Van Morrison and the Enloe Drug Company; (2) Ron Byrd and Ron Bieri; and (3) the Georgia State Board of Pharmacy and its members — Eugene Argo, Neil Pruitt, Clara Axam, Oren Harden, Peter Mills and Martin Grizzard. These motions concern both the section 1983 and pendent malicious-prosecution claims brought against the defendants. The motions were brought under Fed.R.Civ.P. 12(b)(6), but will be treated as motions for summary judgment1 (and referred to as such) because matters outside the pleadings have been presented to and considered by this Court. See id. 12(b); see generally Finn v. Gunter, 722 F.2d 711 (11th Cir. 1983).
The Court grants the Enloe Drug Company's motion for summary judgment on the section 1983 claim because the alleged constitutional deprivations the plaintiff suffered were not inflicted pursuant to a policy or custom adopted by Enloe. The motion for summary judgment on the section 1983 claim filed by the State Board of Pharmacy and its members is granted because they are immune from suit. The pendent claims brought against the Enloe Drug Company, the Board and its members are also dismissed. The summary judgment motion filed by Byrd and Bieri concerning the section 1983 claim is granted, but it is denied as it applies to the pendent malicious-prosecution claim. The motion for summary judgment filed by Morrison is denied as to both claims because of his substantial involvement in the arrest of Cliff Shepard. The facts, construed most favorably in the plaintiff's favor, are as follows.
Cliff Shepard, the plaintiff,2 was a licensed pharmacist in the State of Georgia. He owned and operated the Garden Lakes Pharmacy in Rome, Georgia from 1972 until 1978. His health forced him to sell the Garden Lakes Pharmacy in November 1978 to Bud Landers. His health also had led him to hire several pharmacists to aid him in operating the pharmacy before he sold it in November 1978. See Deposition of Shepard at 20.
In January 1979 an accountability audit of some of the Schedule II (controlled substance) drugs at the Garden Lakes Pharmacy was performed by Ron Byrd, an agent of the Georgia Drug and Narcotics Agency ("GDNA").3 These audits are routinely performed when a change-of-ownership occurs at a pharmacy. The audit revealed substantial shortages of Schedule II drugs.4 Shepard was not notified about these shortages. See id. at 48.
On March 19, 1979 Shepard was employed by the Enloe Drug Company ("Enloe") at one of its stores in Rome, Georgia, which will be referred to as "Store No. 7." Van Enloe III owned Store No. 7 and Dwight Morrison was the chief pharmacist there. Shepard and Morrison were the only full-time pharmacists at Store No. 7, although two pharmacists were employed on a part-time basis. See id. at 25. Morrison and Shepard worked on an alternating-shift basis. See Tr. at 5.5 Morrison performed all inventories of drugs at Store No. 7 and ordered all Schedule II drugs for the store. See Affidavit of Morrison at 1-2; Deposition of Shepard at 43. Only Morrison, Shepard and Enloe had keys to the safe in which controlled substances were kept. Morrison felt some personal animosity towards Shepard and felt threatened in his position as chief pharmacist. See id. at 43, 49-50, 53, 74.
Morrison inventoried the Schedule II drugs at Store No. 7 on May 1, 1979. Sometime after this inventory, Morrison noticed a shortage of Schedule II drugs, especially percodan tablets. He notified Van Enloe III about this shortage, who contacted the GDNA. Two GDNA agents — Ron Byrd and Ron Bieri — were assigned to investigate the situation.
Byrd and Bieri set-up an undercover operation. They first persuaded Dr. Gene Davidson to provide them with four false prescriptions for percodan tablets. On June 19, 1979 they inventoried the percodan tablets at Store No. 7, and Morrison assisted them with this inventory. Morrison also showed Byrd and Bieri a prescription for 60 percodan tablets which apparently was brought forward from a past inventory period to the present one and which was logged-in during one of Shepard's shifts. On June 20, 1979 Bieri, acting as a customer named Chris Berry, presented one of the false prescriptions to Shepard. The prescription was for 12 percodan tablets, and Shepard correctly filled it. That night Byrd and Bieri inventoried the percodan tablets at Store No. 7, again with the assistance of Morrison. They noticed that the prescription Bieri had given Shepard was altered to show that 42 percodan tablets had been dispensed. Byrd and Bieri also found that 34 percodan tablets were missing.
Byrd and Bieri staked-out Store No. 7 from 9:00 p.m. until 5:00 a.m. on the night of June 21, 1979, expecting Shepard to visit Store No. 7 after closing. See Tr. at 56. Shepard did not visit the Store. Several days later, Byrd contacted Van Enloe III and asked him to arrange to have Shepard work at Store No. 7 on June 26, 1979. Enloe did so. Byrd also obtained an arrest warrant for Shepard based on the June 20, 1979 incident, after consulting with the assistant district attorney for Floyd County.
On the night of June 25, 1979 Morrison, Byrd and Bieri again took an inventory of the percodan tablets at Store No. 7. After taking this inventory, Byrd and Bieri apparently took Morrison's key to the safe in which the controlled substances were kept. On June 26, 1979 Bieri again presented Shepard with a false prescription for 12 percodan tablets, and Shepard correctly filled it. Shepard was arrested as he exited Store No. 7 at about 10:00 p.m. that night. When he was arrested, Shepard had a bottle of 72 percodan tablets in the pocket of the smock he was wearing.
After Shepard's arrest, Byrd and Bieri conducted another inventory of the percodan tablets at Store No. 7. Ten percodan tablets were missing and the prescription Bieri had presented to Shepard for 12 percodan tablets on June 26, 1979 was altered to show that 42 percodan tablets had been dispensed. Also, a percodan prescription for a person named Linda Shores had apparently been altered from an unintelligible number — possibly the number 18 — to 40.
Shepard was indicted on five counts of obtaining percodan tablets by fraud on September 12, 1979. See Byrd and Bieri's Motion for Summary Judgment, Exhibit A. On July 10, 1979 the State Board of Pharmacy (the "Board") suspended Shepard's license to practice pharmacy pending an evidentiary hearing. A notice of the hearing, which set forth the charges levelled against Shepard and outlined his rights at the hearing, accompanied the notice of suspension. See Board's Motion for Summary Judgment, Exhibits A, B. The hearing was continued until September 11, 1980, due to Shepard's criminal trial.
Shepard's trial began on June 23, 1980 in the Superior Court of Floyd County, Georgia. He was acquitted on June 25, 1980.
On September 4, 1980 Shepard signed a consent order prepared by the Board. This order stated that "Cliff E. Shepard, R. Ph., is charged `with (1) altering a prescription for 12 percodan tablets on June 20, 1979; (2) altering a prescription for 12 percodan tablets on June 26, 1979; (3) having in his possession "a quantity of Percodan tablets" on June 26, 1979; (4) altering a prescription from 18 to 40 percodan tablets on June 26, 1979; and (5) altering the date on a March 27, 1979 prescription for 60 percodan tablets to June 2, 1979.'" See id., Exhibit F at 1-2. The consent order also noted that the accountability audit at the Garden Lakes Pharmacy on January 19, 1979 revealed substantial shortages of Schedule II drugs. The order further contained the condition that "Cliff E. Shepard, R.Ph. ... agrees to bring no legal action whatsoever against the Board, its agents and its representatives." Id. at 3. The order then reinstated Shepard's license to practice pharmacy and placed him on probation for two years. Shepard signed this order because he needed to return to work. See Deposition of Shepard at 35.
Shepard was contacted by the Board during September and November of 1980. He was told that the September 4, 1980 consent order was unacceptable to the Board, and on November 18, 1980 he was furnished with an acceptable consent order.6 This order is identical to the September 4, 1980 order, except that the covenant not to sue was expanded to cover the "Board, its agents, its representatives, or any individual connected whatsoever in the investigation of the matters mentioned in this consent order." Plaintiff's Complaint, Exhibit A at 4. (emphasis added). Shepard refused to sign this order.
An evidentiary hearing was therefore held before one of the Board's hearing officers on December 15, 1980. The officer found Shepard guilty of 1) altering the June 20 and June 26, 1979 prescriptions for percodan tablets, 2) possessing 72 percodan tablets on June 26, 1979, and 3) causing the shortage of Schedule II drugs at the Garden Lakes Pharmacy. The hearing officer therefore held that Shepard violated GA. CODE ANN. § 79A-822(a)(3) (Harrison 1973) and Board Rule 480-11-.01(a) and recommended that Shepard's license to practice pharmacy be revoked. Shepard...
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