1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 SUSAN SMITH, Case No. 20-cv-05451-CRB

9 Plaintiff,

ORDER GRANTING MOTIONS TO

10 v. DISMISS

11 WALGREENS BOOTS ALLIANCE, INC., et al., 12 Defendants. 13 Plaintiff Susan Smith filed a putative class action alleging that Defendants Costco 14 and Walgreens implemented opioid prescription fulfillment policies that discriminate 15 against disabled persons. The Court dismissed the First Amended Complaint (“FAC”) 16 without prejudice. Order re FAC (“Order”) (dkt. 61). Plaintiff has now filed a Second 17 Amended Complaint. Second Amended Complaint (“SAC”) (dkt. 71). Defendants have 18 moved to dismiss the SAC. Walgreens MTD SAC (dkt. 74); Costco MTD SAC (dkt. 76). 19 After careful review of the parties’ briefs, the Court concludes that there is no need for oral 20 argument. For the reasons explained below, the Court GRANTS Defendants’ motions to 21 dismiss without prejudice. 22 23 I. BACKGROUND 24 A. FAC Allegations 25 Plaintiff Susan Smith brought the FAC on behalf of a putative class of chronic pain 26 patients, persons in palliative or nursing home care, and individuals suffering from sickle 27 cell anemia or undergoing cancer treatment. FAC (dkt. 13) ¶ 16; Order at 1–2. Plaintiff 1 and together with WBA, “Walgreens”), Costco Wholesale Corporation (“Costco”), and 2 Does 1-10 (“Does”) (collectively, “Defendants”) maintained prescription drug policies that 3 discriminated against the class on the basis of disability in violation of federal and 4 California law. Order at 1–2. 5 Plaintiff’s allegations are set against the backdrop of the ongoing opioid and chronic 6 pain epidemics. Id. In connection with the opioid epidemic, manufacturers, distributers, 7 and dispensers in the opioid supply chain, including Defendants, are facing litigation 8 alleging that they violated state and federal laws and that, as a result, excessive numbers of 9 opioid pills entered the market, contributing to the opioid crisis.1 Id. At the same time, 10 medical professionals have increasingly recognized that many Americans live with chronic 11 pain that reduces their quality of life and that, in certain instances, has been undertreated, 12 resulting in avoidable suffering and a chronic pain epidemic. Id. 13 Against this backdrop, Plaintiff alleged that Defendants’ pharmacies improperly 14 adopted Center for Disease Control (“CDC”) and American Medical Association (“AMA”) 15 public health guidelines that were directed toward clinicians and physicians, not 16 pharmacists. Id. at 4–5. Defendants allegedly adopted these guidelines—which in effect 17 burden or prevent patients from filling opioid prescriptions at Defendants’ pharmacies—to 18 protect themselves from additional opioid-related lawsuits. See id. at 1–2. 19 Plaintiff alleged that Costco and Walgreens implemented distinct policies based on 20 the public health guidelines. Costco allegedly adopted a blanket policy that prohibited the 21 fulfillment of opioid prescriptions. Id. at 5. Walgreens, on the other hand, allegedly 22 adopted a more multi-faceted policy that involved (i) “blacklisting” certain persons with 23 opioid prescriptions, (ii) imposing “dose and duration” limits, (iii) requiring bundling with 24 non-opioid medications, and (iv) requiring “comprehensive medical records.” Id. 25 Plaintiff, who is disabled within the meaning of federal law, alleged that these 26 policies discriminated against disabled persons by preventing them from filling medically 27 1 necessary opioid prescriptions at Defendants’ pharmacies. Id. at 3. Plaintiff sought to 2 represent a putative class of persons injured by the policies. Id. at 4–5. 3 Defendants moved to dismiss the FAC on the ground that Plaintiff failed to state a 4 claim on which relief could be granted.2 5 B. Order Dismissing FAC 6 The Court granted Defendants’ motions to dismiss the FAC, holding that Plaintiff 7 failed to state a claim for disability discrimination under federal or state law. As an initial 8 matter, the Court held that Plaintiff failed to establish that alleged polices apply solely or 9 disproportionately to disabled persons. Id. at 13. In this regard, Plaintiff argued that 10 Defendants’ alleged policies apply to persons with chronic or acute pain and that such 11 persons are disabled within the meaning of federal law. Id. at 8–13. The Court rejected 12 these arguments because Plaintiff failed to plausibly allege that persons with chronic or 13 acute pain are exclusively or overwhelmingly disabled. Id. Accordingly, the Court held 14 that “the class consists of disabled and nondisabled persons at best, and Defendants’ 15 policies apply to both non-disabled persons and the putative class alike.” Id. 13. 16 1. Costco 17 Plaintiff alleged that Costco violated federal and state discrimination laws because 18 it implemented a policy that “operates as a total ban on opioid sales, which discriminates 19 against Plaintiff and members of the putative class.” Id. at 13. Because it found that 20 Costco’s policy applied to both disabled and non-disabled persons, the Court held that 21 Plaintiff failed to state a claim against Costco because “at most she alleges that Costco 22 does not sell opioids to anyone. This is not a cognizable claim for discrimination.” Id. 23 (citing cases). The Court granted Costco’s motion to dismiss.3 24 25 2 WBA also moved to dismiss for lack of jurisdiction. WBA Motion to Dismiss for Lack of 26 Jurisdiction (dkt. 35). Because the Court granted WBA’s motion to dismiss (dkt. 36), it did not reach WBA’s jurisdictional argument. 27 3 The Court dismissed the claims against Costco brought under the UCL and Unruh Act “because 2. Walgreens 1 The Court held that Plaintiff failed to allege any facts supporting a theory of 2 intentional discrimination by Walgreens. Id. at 15. Since she failed to state a claim for 3 intentional discrimination, Plaintiff was left with two cognizable theories: (1) Walgreens’ 4 policy disparately impacted disabled persons by depriving them of meaningful access; or 5 (2) Walgreens failed to provide reasonable and necessary accommodations. Id. The Court 6 held that Plaintiff failed to state a claim under either theory. 7 a. Meaningful Access 8 Plaintiff alleged that Walgreens’ policy failed to provide meaningful access in four 9 separate ways, but the Court found that three of Plaintiff’s theories either lacked “any 10 factual support” or “cannot have an ‘exclusionary effect’ on Plaintiff and the putative class 11 because they impact everyone who seeks to fill an opioid prescription equally, whether 12 disabled or not.” Id. at 17, fn. 11. The Court concluded that the “only cognizable policy 13 alleged by Plaintiff that could possibly violate the ‘meaningful access’ standard is the 14 alleged ‘dose and duration’ restriction policy imposed by Walgreens.” Id. at 17. 15 The Court held that Plaintiff failed to state a plausible claim based on an alleged 16 “dose and duration” policy. Id. at 17–18. While Plaintiff alleged that Walgreens refused 17 to fill her prescription for various reasons, none of the reasons involved a “dose or 18 duration” threshold. Id. While Walgreens’ stated reasons for refusing to fill Plaintiff’s 19 prescription could have been pretextual, Plaintiff did not plead any facts supporting that 20 theory. Id. Accordingly, the Court found that “while it is possible Plaintiff’s prescription 21 rejections were premised on a ‘dose and duration’ policy, that conclusion is implausible 22 given the Walgreens’ pharmacists’ alleged behavior.” Id. at 17 (original emphasis). 23 The Court further observed that Plaintiff “reports taking the same dose of Morphine 24 since 2012” and has “routinely filled prescriptions from Walgreens in the past 8 years.” 25 Id. at 18. The Court noted that these “facts alone make a ‘dose and duration’ policy 26 implausible; if there is a threshold above which Walgreens refuses to fill legitimate opioid 27 prescriptions, it cannot be based on [Plaintiff’s] accounts, as she has procured opioids at 1 Walgreens regularly over the last decade.” Id. 2 b. Reasonable Accommodation 3 The Court held that Plaintiff failed to state a claim based on a reasonable 4 accommodation theory. Id. at 19–20. Specifically, Plaintiff failed to establish that (1) the 5 alleged policies prevent disabled persons from having a “like experience” as similarly 6 situated non-disabled persons and (2) “Defendants’ alleged policies are unreasonable in 7 any sense of the word.” Id. The Court granted Walgreens’ motion to dismiss.4 8 C. SAC Allegations 9 The allegations in the SAC broadly mirror the allegations in the FAC. Compare 10 SAC with FAC (dkt. 13). Plaintiff contends that following several lawsuits alleging that 11 Defendants contributed to the opioid pandemic, Defendants implemented overly restrictive 12 opioid prescription fulfillment policies and practices that discriminate against disabled 13 persons.5 See generally SAC ¶¶ 41–73. 14 While Plaintiff’s general allegations are substantially the same, she has narrowed 15 her specific theory of liability in the SAC. Her theory now centers on CDC Guidelines 5 16 and 6, which were issued in 2016 and provide in relevant part:

17 • Guideline 5 states that clinicians “should carefully reassess evidence of individual 18 benefits and risks when considering increasing dosage to > 50 morphine milligram 19 equivalents (MME)/day, and should avoid increasing dosage to > 90 MME/day or 20 carefully justify a decision to titrate dosage to > 90 MME/day.” Id. ¶ 43. 21 • Guideline 6 states that when opioids are used for acute pain, “[t]hree days or less 22 will often be sufficient; more than seven days will rarely be needed.” Id. 23 24 Plaintiff alleges that both Costco and Walgreens improperly used these guidelines 25 4 Same as with Costco, the Court dismissed all claims against Walgreens because Plaintiff failed 26 to adequately plead discrimination under federal law. Order at 21. 5 Plaintiff also claims that (1) Defendants’ alleged policies interfere with the physician-patient 27 relationship and (2) Defendants did not consistently honor discounts offered with prescription 1 to create policies and practices that discriminate against patients with opioid prescriptions 2 that exceed either the recommended dose (i.e. greater than 50 or 90 MME/day) or 3 recommended duration (i.e. greater than 3 to 7 days) (together, “dose and duration 4 thresholds”).6 SAC ¶¶ 54–73. 5 The policies that Plaintiff alleges Walgreens and Costco adopted are the same or 6 substantially the same. For both, Plaintiff alleges that when a patient presents an opioid 7 prescription that exceeds either the dose or duration threshold, Walgreens or Costco 8 “through its Opioid Dispensing Policy, and related Practices, Procedures and Training, 9 pressures and/or instructs, expressly or implicitly, its pharmacists to not fill such 10 prescriptions and/or fill them at lesser amounts which do not exceed the CDC Guideline 11 dose and duration thresholds.” See SAC ¶ 56 (describing Walgreens’ policy), ¶ 66 12 (describing Costco’s policy verbatim). 13 Neither alleged policy necessarily prohibits Defendants from filling opioid 14 prescriptions exceeding the dose and duration thresholds. Id. at ¶¶ 57, 67. Instead, each 15 policy “actively discourages and burdens the process of filling of prescriptions exceeding 16 the Guidelines dosage or duration thresholds, either at all or as written.” Id. 17 Plaintiff alleges that the “active discouragement” manifests itself in various ways. 18 With respect to Walgreens, Plaintiff alleges, for example, that a pharmacist at the Castro 19 Valley Walgreens refused to fill her prescription because “her MMEs were too high per the 20 Guideline.” Id. ¶ 90. Instead, the pharmacist suggested Plaintiff “try a 24-hour Walgreens 21 store or one near a hospital.” Id. In other instances, Walgreens pharmacists have told 22 Plaintiff “to return in a certain number of hours or days, but when she returns, they will tell 23 her they can’t fill her prescription.” Id. ¶ 93. Other times, Plaintiff has been “required to 24 pull out a calendar and physically count days to satisfy a pharmacist that it has been 30 25 days since her prescription had been filled and she was out of medication, only to be told 26 6 The complaint is ambiguous with respect to when the dose and duration thresholds are triggered. 27 It is not clear whether the dose threshold is triggered by prescriptions greater than 50 MME/day or 1 the computer would not let the pharmacist release the medication.” Id. ¶ 94. In each case, 2 Plaintiff alleges that the pharmacist was acting pursuant to the alleged policy to discourage 3 her from filling her opioid prescription. 4 With respect to Costco, Plaintiff alleges three specific instances where she has 5 attempted to fill a prescription at a Costco pharmacy, but the pharmacist has refused to do 6 so. Id. ¶¶ 109–111. For example, Plaintiff alleges that she tried to fill her prescription at a 7 Costco pharmacy, but “the pharmacist would not entertain filling it, giving it back to her 8 without explanation.” Id. ¶ 109. On another occasion, a Costco pharmacist declined to fill 9 Plaintiff’s prescription, telling her that “a Costco card was necessary to fill her type of 10 prescription” and that she could not fill Plaintiff’s prescription because Plaintiff did not 11 have her Costco card with her. Id. ¶ 110. 12 Plaintiff alleges that Defendants’ policies have harmed her by subjecting her to 13 unnecessary travel and expenses, stress, and anguish stemming from the uncertainty and 14 difficulties that she faces when filling her legitimate opioid prescription. Id. ¶¶ 105–107, 15 113. She further contends that the alleged policies disproportionately apply to persons 16 who are disabled under federal law. See, e.g., id. ¶126. In this regard, Plaintiff alleges that 17 “disabled persons are more likely to require opioid prescriptions which exceed [the dose 18 and duration thresholds] than non-disabled persons.” Id. 19 Based on her allegations, Plaintiff asserts claims under Title III of the Americans 20 with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act, Section 1557 of the 21 Affordable Care Act (“ACA”), and California’s Unruh Civil Rights Act (the “Unruh Act”). 22 She brings her claims on behalf of a putative class consisting of: 23 “All persons residing in the United States suffering from a disabling medical condition 24 for which they were and are issued valid prescriptions for opioid medication by a 25 licensed medical provider as part of medical treatment during the period of March 15, 2016 to the present to treat (i) high impact chronic pain, defined as pain lasting 3 or 26 more months, from any cause and accompanied by at least one major activity restriction, (ii) pain associated with a cancer diagnosis or treatment or (iii) pain 27 associated with palliative or nursing home care and were unable to have, or owned, controlled and/or operated by the Defendants in the United States.”7 1

2 Both Walgreens and Costco have moved to dismiss the SAC for failure to state a 3 claim. See Walgreens MTD SAC: Costco MTD SAC. Walgreens also moves to dismiss 4 for lack of jurisdiction. See Walgreens Motion to Dismiss for Lack of Jurisdiction (dkt. 5 75). 6

II. LEGAL STANDARD

7 Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint may be 8 dismissed for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 9 12(b)(6). Rule 12(b)(6) applies when a complaint lacks either “a cognizable legal theory” 10 or “sufficient facts alleged” under such a theory. Godecke v. Kinetic Concepts, Inc., 937 11 F.3d 1201, 1208 (9th Cir. 2019). Whether a complaint contains sufficient factual 12 allegations depends on whether it pleads enough facts to “state a claim to relief that is 13 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic 14 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff 15 pleads factual content that allows the court to draw the reasonable inference that the 16 defendant is liable for the misconduct alleged.” Id. at 678. This is not a “probability 17 requirement,” but it requires more than a “sheer possibility” that the defendant is liable: 18 “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it 19 stops short of the line between possibility and plausibility of entitlement to relief.” Id. 20 (quoting Twombly, 550 U.S. at 557). 21 Courts should allow a plaintiff leave to amend unless amendment would be futile. 22 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 246–47 (9th 23 Cir. 1990). To determine whether amendment would be futile, courts examine whether the 24 complaint can be amended to cure the defect requiring dismissal “without contradicting 25 any of the allegations of [the] original complaint.” Reddy v. Litton Indus., Inc., 912 F.2d 26 291, 296 (9th Cir. 1990). 27

III. DISCUSSION

1 The SAC fails to state a claim for two independent reasons. First, the SAC fails to 2 plausibly allege that either Defendant maintained the alleged dose and duration policy. 3 Second, all of Plaintiff’s claims rest on the same premise—that Defendants’ policies either 4 exclusively or disproportionately discriminate against disabled persons.8 But Plaintiff has 5 not adequately alleged that the policies treat disabled persons any differently than similarly 6 situated non-disabled persons. She thus fails to state claims for disability discrimination. 7 A. The Alleged Policies 8 Plaintiff has failed to plausibly allege that either Defendant maintains a policy that 9 “pressures and/or instructs, expressly or implicitly, its pharmacists to not fill such 10 prescriptions and/or fill them at lesser amounts which do not exceed the CDC Guideline 11 dose and duration thresholds.” See SAC ¶¶ 56, 66. 12 Plaintiff contends that the policies “must be accepted as true” at the motion to 13 dismiss stage. Pl. Opp. to Walgreens MTD (dkt. 78) at 6; Pl. Opp. to Costco MTD (dkt. 14 79) at 9. But that is not the law. Plaintiff’s factual allegations about the burdens she 15 allegedly faced filling prescriptions at Defendants’ pharmacies are taken as true, but there 16 are multiple possible explanations for those burdens. One possible explanation is that 17 Defendants maintained the alleged policies, but other possible explanations include that 18 Defendants were completing due diligence before dispensing a controlled substance, that 19 they did not have the drugs needed to fill Plaintiff’s prescription, or that they could not fill 20 the prescription without a membership card. 21 To render her explanation plausible, Plaintiff “cannot offer allegations that are 22 ‘merely consistent with’ [her] favored explanation.” In re Century Aluminum Co. Sec. 23 Litig., 729 F.3d 1104, 1108 (9th Cir. 2013); Iqbal, 556 U.S. at 678. Instead, “[s]omething 24

25 8 Plaintiff alleges three federal claims: violation of the ADA, Rehabilitation Act, and ACA. The same analysis applies for each of these claims. See Doe v. CVS Pharm., Inc., 982 F.3d 1204, 26 1209 (9th Cir. 2020); Zukle v. Regents of Univ. of California, 166 F.3d 1041, 1045, n. 11 (9th Cir. 1999). Plaintiff’s one state law claim alleged under the Unruh Act follows the analysis for ADA 27 claims, but also requires allegations of “willful, affirmative misconduct on the part of those who 1 more is needed, such as facts tending to exclude the possibility that [an] alternative 2 explanation is true.” In re Century Aluminum, 729 F.3d at 1108 (citing Twombly, 550 3 U.S. at 554); In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (declining 4 to assume the truth of “allegations that are merely conclusory, unwarranted deductions of 5 facts, or unreasonable inferences”). 6 Here, Plaintiff has not plausibly pled that the alleged policies were the reason for 7 the mistreatment she allegedly experienced at Defendants’ pharmacies. To start, Plaintiff 8 does not allege that the policies prohibit Defendants from filling prescriptions for opioid 9 medications. Rather, Plaintiff alleges that the policies “pressure or instruct” pharmacists to 10 “actively discourage[] and burden[] the process of filling of prescriptions exceeding the 11 Guideline dosage or duration thresholds.” See SAC ¶¶ 57, 67. Yet Plaintiff provides no 12 specifics as to how the alleged policies “pressure or instruct” pharmacists in practice. Nor 13 has Plaintiff herself viewed either of the alleged polices or obtained any specific details 14 about the contents of the alleged policies. See id. ¶¶ 54–55, 65–66. Indeed, the SAC is 15 ambiguous with respect to the trigger for the dose and duration thresholds—it does not 16 make clear whether the dose threshold is triggered by 50 or 90 MME/day or whether the 17 duration threshold is triggered by 3 or 7 days.9 Given the absence of specifics, including 18 what specifically triggers the policies’ application and how they are applied, it is difficult 19 to infer that a given pharmacist’s alleged behavior is the result of the policy, as opposed to 20 situational factors that are unique to a particular customer interaction. 21 Additionally, it is odd to think that Defendants would carry opioid pills in excess of 22 the dose and duration thresholds, but then “actively discourage”—but not outright 23 prohibit—pharmacists from filling such prescriptions. If, as Plaintiff alleges, Defendants 24 were motivated by a desire to avoid liability, it would seem to make more sense to ban 25 such prescriptions outright. This seems especially true given that documents relied on in 26

27 9 In one part, Plaintiff’s Opp. to Walgreens MTD suggests that only prescriptions exceeding 7 1 the SAC state that in 2018, the average opioid prescription was for over 18 days. See SAC 2 ¶ 129, fn. 21 (citing Centers for Disease Control and Prevention, Annual Surveillance 3 Report of Drug-Related Risks and Outcomes—United States, (2019)). In other words, 4 Defendants’ pharmacists are being asked to come up with undefined ways to “actively 5 discourage” the average opioid prescription holder from filling their prescription. This 6 seems unlikely at best. 7 The alleged policies become even less plausible when considered in the context of 8 Plaintiff’s allegations against each Defendant. As to Costco, Plaintiff alleges only three 9 specific instances of alleged discrimination: Costco denied her prescription “without 10 explanation,” told her that “Costco did not sell her medication,” and declined to fill her 11 prescription because she did not have her membership card.10 SAC ¶¶ 109–110. In each 12 instance, Plaintiff either does not provide sufficient detail to conclude the alleged policy 13 was the reason for the denial (e.g. “the pharmacist would not entertain filling it, giving it 14 back to her without explanation” (SAC ¶ 109)) or Costco’s stated reasons seem more 15 plausible than the alleged policy (e.g. “Costco did not sell her medication” (id.)). Indeed, 16 none of the interactions with Costco pharmacists involve a pharmacist referring to a dose 17 or duration policy in any way. The insufficiency of the allegations is particularly striking 18 considering that Plaintiff is asking the Court to infer—on the basis of only three 19 interactions—that Costco maintains a nationwide policy to discourage pharmacists from 20 filling prescriptions that exceed the dose and duration thresholds. The SAC fails to 21 support that inference. 22 With respect to Walgreens, the Court previously observed that Plaintiff “has 23 procured opioids at Walgreens regularly over the last decade.” Order at 18. While 24 Plaintiff’s allegations regarding the burdens and challenges of filling her prescription at 25 Walgreens are more detailed compared to her allegations against Costco, it nonetheless 26

27 10 Plaintiff appears to allege a fourth instance involving Costco, but in a single sentence, she 1 seems implausible that Walgreens pharmacists have followed a policy to actively 2 discourage Plaintiff from filling her prescription, yet they have also regularly filled her 3 prescription for almost a decade. 4 And as with Costco, the interactions that Plaintiff had with Walgreens pharmacists 5 do not support an inference that Walgreens maintained the alleged policy. For example, 6 Plaintiff alleges that, on unspecified occasions, Walgreens was not able to fill her 7 prescription because the pharmacy was out of stock (SAC ¶ 92), it was too early to refill 8 her prescription (id. ¶ 94), and additional medical records were required (id. ¶ 97)). With 9 one exception,11 the interactions with the Walgreens pharmacists also do not involve 10 references to any dose or duration policy. Indeed, many of the pharmacists’ behaviors— 11 which Plaintiff alleges were designed to discourage her from filling her prescriptions— 12 appear to be consistent with the behaviors that a pharmacist would be expected to take 13 before dispensing a controlled substance, namely: checking prescription records, 14 requesting additional information where questions arise, and declining to fill a prescription 15 where questions remain.12 In short, the behaviors more plausibly suggest due diligence 16 than active discouragement. 17 The Court thus concludes that Plaintiff has not alleged sufficient facts to support the 18 inference that either Defendant maintained the alleged policies.13 Cf. Twombly, 550 U.S. 19 at 556 (“Asking for plausible grounds to infer an agreement does not impose a probability 20 requirement at the pleading stage; it simply calls for enough facts to raise a reasonable 21 expectation that discovery will reveal evidence of illegal agreement.”). Dismissal is 22

23 11 Plaintiff alleges one instance where a Walgreens pharmacist refused to fill her prescription, “referring to the new CDC Guideline and telling her that her MMEs were too high per the 24 Guideline,” but the pharmacist then suggested that she fill the prescription at other nearby Walgreens stores, which does not suggest a nationwide—or even a state-wide—policy. SAC ¶ 90 25 12 While Plaintiff claims that the reasons Walgreens’ pharmacists gave for delaying filling her prescriptions were “pretextual,” she provides no specific facts to support this theory. 26 13 Plaintiff’s reliance on Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) and Sheppard v. David Evans and Assoc, 694 F.3d 1045 is misplaced. Pl. Opp. to Walgreens MTD at 5; Pl. Opp. 27 to Costco MTD at 8. Both cases concern the pleading standard for employment discrimination 1 warranted for this reason alone. 2 B. Discriminatory Effect 3 Even assuming that Plaintiff adequately alleged that Defendants maintained the 4 dose and duration policies, Plaintiff’s claims still fail because she has not adequately 5 alleged that the policies treat disabled persons any differently than non-disabled persons. 6 She thus fails to state claims for disability discrimination. 7 1. Scope of the Policies 8 Plaintiff fails to show that the alleged policies exclusively or disproportionately 9 apply to disabled persons. In this regard, Plaintiff alleges that patients with prescriptions 10 exceeding the dose and duration thresholds “are prescribed such medication because they 11 suffer from conditions which render them disabled within the meaning of the ADA.” See, 12 e.g., SAC ¶ 118; Pl. Opp. to Walgreens MTD at 7; Pl. Opp. to Costco MTD at 11. Plaintiff 13 claims that such patients “tend to be either High Impact chronic pain patients, defined as 14 having pain that lasts 3 months or longer accompanied by at least one major activity 15 restriction, cancer patients, or patients receiving palliative care.” SAC ¶ 118. 16 These are conclusory allegations. Plaintiff fails to allege sufficient facts to support 17 the assertion that all or most persons with prescriptions exceeding the dose and duration 18 thresholds are disabled under federal law. The fundamental flaw here is the absence of 19 specifics: Plaintiff provides no specific reasons why it is plausible that persons with 20 prescriptions exceeding the dose and duration thresholds are necessarily disabled. To the 21 contrary, according to the CDC report that the SAC cites and relies on, 108,665,889 opioid 22 prescriptions in 2018 were for seven or more days, making up 65 percent of total 23 prescriptions. SAC ¶ 129, fn. 21 (citing Centers for Disease Control and Prevention, 24 Annual Surveillance Report of Drug-Related Risks and Outcomes—United States, Table 25 1B (2019)). Indeed, the CDC reported that the average duration for an opioid prescription 26 in 2018 was over 18 days. Id. No well-pled facts render plausible the conclusion that the 27 majority of patients who receive opioid prescriptions exceeding the duration threshold are 1 Further, the Court previously rejected the argument that persons with chronic or 2 acute pain are necessarily disabled under federal law. Order at 9–13 (holding that “chronic 3 pain, alone, is not enough to create a disability” and “[n]ot all acute pain patients are 4 ‘disabled’ under federal law”). Plaintiff’s new theory, however, appears to effectively 5 repackage these previously rejected theories by again using an unsupported data point as a 6 proxy for disability. Plaintiff contends that all patients with prescriptions exceeding 50 7 MME/day or 90 MME/day and that all patients with prescriptions exceeding 3 or 7 days 8 are “exclusively” or “tend to be” disabled. But again, Plaintiff fails to allege any facts to 9 support the link between high dosage or multi-day prescriptions and disability. 10 Instead, Plaintiff argues that it is reasonable for the Court to infer at this stage of the 11 litigation that “all persons with such prescriptions are disabled under the ADA.” Pl. Opp. 12 to Walgreens MTD at 8; Pl. Opp. to Costco MTD at 10–11. Plaintiff cites statutes and 13 case law to argue that because “‘disability’ under the ADA is an extremely broad and easy 14 to meet classification,” it is plausible that “persons who have conditions that require opioid 15 prescriptions lasting more than 7 days and/or exceeding 90MME are reasonably likely to 16 be classified as disabled under the ADA.” See, e.g., Pl. Opp. to Walgreens MTD at 8. But 17 this argument begs the very question: Plaintiff makes no specific factual allegations to 18 support the contention that persons with prescriptions exceeding the dose and duration 19 thresholds are disabled under the ADA. Instead, Plaintiff makes only the conclusory 20 assertion that “[a] reasonable inference drawn from the SAC is that people who are given 21 such opioid prescriptions have an underlying condition or conditions that qualifies them as 22 disabled under the ADA.” Pl. Opp. to Costco MTD at 11. But without more, this is not a 23 reasonable inference—it is a bridge too far. 24 Plaintiff also argues that whether the alleged policies apply exclusively or 25 overwhelmingly to disabled persons is “an argument over what the evidence ultimately 26 might or might not prove out.” See Pl. Opp. to Costco MTD at 11–12; Pl. Opp. to 27 Walgreens MTD at 8–9. This puts the cart before the horse. At the motion to dismiss 1 on the SAC’s allegations, Plaintiff has failed to plausibly allege that Defendants’ alleged 2 policies exclusively or disproportionately affect disabled persons. Accordingly, the 3 policies will be treated as applying to both disabled and non-disabled persons alike. 4 2. Policy Effect 5 Plaintiff offers three separate theories as to why Defendants’ policies discriminate 6 against disabled persons: (1) the polices intentionally discriminate against disabled 7 persons; (2) the policies “systematically exclude” disabled persons; and (3) Defendants fail 8 to provide meaningful accommodations. These three theories all fail for the same primary 9 reason: Plaintiff fails to establish that the alleged policies treat disabled persons any 10 differently than similarly situated non-disabled persons. 11 a. Intentional Discrimination 12 Plaintiff alleges no facts supporting a theory of intentional discrimination or 13 deliberate indifference by either Defendant. See Young v. Facebook, Inc., 790 F. Supp. 2d 14 1110, 1116 (N.D. Cal. 2011). Plaintiff’s allegations consist of no more than “threadbare 15 recitals of the elements.” Bain v. Cal. Teachers Ass’n, 891 F.3d 1206, 1211 (9th Cir. 16 2018); see, e.g., SAC ¶ 106 (“Walgreens has acted intentionally and with deliberate 17 indifference to the strong likelihood that a violation of federally protected rights would 18 result from the implementation of their foregoing policies, practices and procedures”); ¶ 19 113 (“Costco acted intentionally and with deliberate indifference to the strong likelihood 20 that a violation of federally protected rights would result from the implementation of their 21 foregoing policies, practices and procedures”). 22 Plaintiff also alleges that Defendants’ policies intentionally discriminate against 23 disabled persons because they draw a distinction based on a characteristic—i.e. a high dose 24 or duration prescription—more likely to be applicable to a disabled person. SAC ¶ 126. 25 This argument fails because Plaintiff has not adequately pled the necessary link between 26 disability and persons subject to the alleged policies. Plaintiff has not shown that 27 prescriptions exceeding the dose and duration thresholds are “almost exclusively indicators 1 Beach, 730 F.3d 1142, 1160, n. 23 (9th Cir. 2013). Therefore, Plaintiff’s “proxy 2 discrimination” theory also fails.14 3 b. Meaningful Access 4 Plaintiff alleges that Defendants’ policies deprive her and the putative class of 5 meaningful access to Walgreens and Costco pharmacies. SAC ¶ 126. Plaintiff claims that 6 she and the putative class “are unable to get their valid prescriptions filled in the same 7 manner as are people with opioid prescriptions that do not exceed the dose and/or duration 8 limits of the CDC Guidelines and people with non-opioid prescriptions.” Id. ¶ 130. 9 Plaintiff fails to state a claim based on lack of meaningful access. A claim based on 10 lack of meaningful access requires showing that disabled persons are “systematically 11 exclude[d]” from the services at issue. See Doe v. CVS Pharmacy, Inc., 982 F.3d 1204, 12 1210 (9th Cir. 2020) (citing Alexander v. Choate, 469 U.S. 287, 302 (1985)); see also 13 K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1102 (9th Cir. 2013). The 14 policies alleged here cannot have an “exclusionary effect” on Plaintiff and the putative 15 class because they apply to everyone with a prescription exceeding the dose and duration 16 thresholds, whether disabled or not. See Choate, 469 U.S. 287 at 302. 17 c. Reasonable Accommodation 18 Plaintiff alleges Defendants must make reasonable accommodations because 19 Plaintiff and the putative class “do not have similar or ‘like’ experience as non-disabled 20 persons presenting prescriptions for non-opioid medication or opioid medication which 21 does not exceed the dosage and/or duration thresholds in the CDC Guideline.” SAC ¶ 132. 22 To state a claim for failure to provide reasonable accommodation, a plaintiff must 23 show that a requested modification is (1) reasonable and (2) necessary. See PGA Tour v. 24 Martin, 532 U.S. 661, 683 n. 38 (2001). Whether an accommodation is “reasonable” is a 25 14 Plaintiff’s over-discrimination theory, raised for the first time in Plaintiff’s opposition motions, 26 fails as well. Pl. Opp. to Costco MTD at 2–3; Pl. Opp. to Walgreens MTD at 2–3. Over- discrimination involves a defendant who enacts a facially neutral policy “knowing (but accepting) 27 that some individuals who are not members of the disfavored group will suffer alongside the 1 “fact-specific, case-by-case inquiry that considers, among other factors, the effectiveness 2 of the modification in light of the nature of the disability in question and the cost to the 3 organization that would implement it.” Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 4 1075, 1083 (9th Cir. 2004) (internal citation and quotation omitted). An accommodation is 5 necessary where failure to provide it would deprive a disabled person from having a “like 6 experience” as a non-disabled person. Baughman v. Walt Disney World Co., 685 F.3d 7 1131, 1135 (9th Cir. 2012). 8 Plaintiff fails to show that Defendants’ policies deprive disabled persons from 9 having a “like experience” as non-disabled persons. To the contrary, all persons with 10 prescriptions exceeding the dose and duration thresholds are subject to the same treatment, 11 whether disabled or not. Plaintiff also fails to allege that the requested modifications are 12 reasonable. Plaintiff seeks a modification so that “valid opioid prescriptions for legitimate 13 medical treatment exceeding the dosage and/or duration thresholds in the CDC Guideline 14 will be filled as written.” SAC ¶ 134. This proposed accommodation is so vague as to be 15 effectively unworkable, and it suffers from other deficiencies as well. For example, it fails 16 to take into account pharmacists’ duties to exercise professional judgment when filling 17 prescriptions for controlled substances, and the liability that they may incur by failing to 18 do so. See e.g. Baughman, 685 F. 3d at 1135. Plaintiff thus fails to state a claim under a 19 reasonable accommodation theory. 20 IV. CONCLUSION 21 For the foregoing reasons, the Court grants Defendants’ motions to dismiss. 22 Because it is not a certainty that Plaintiff cannot allege facts sufficient to support her 23 claims, the Court grants Plaintiff leave to amend her complaint. If she chooses to do so, 24 Plaintiff must file her amended complaint within 30 days of this Order. 25 26 27 1 IT IS SO ORDERED. ao □ 2 Dated: August 30, 2021

CHARLES R. BREYER

3 United States District Judge 4 5 6 7 8 9 10 11 a 12

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