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 MOTION TO

10 v.

DISMISS WITH PREJUDICE

11 WALGREENS BOOTS ALLIANCE, INC., et al., 12 Defendants. 13

14 Plaintiff brings a nationwide class action lawsuit against Walgreens, alleging that 15 Walgreens maintains a policy relating to prescription opioid dispensing that discriminates 16 against disabled people. The Court has twice granted Walgreens’ motions to dismiss, and 17 Walgreens now moves to dismiss Plaintiff’s Third Amended Complaint (“TAC”). Motion 18 to Dismiss (dkt. 103) (MTD). The TAC’s allegations generally mirror the allegations in 19 the Second Amended Complaint (“SAC”), and the TAC suffers from similar deficiencies 20 as the SAC. For the reasons discussed below, the Court grants the motion to dismiss the 21 TAC with prejudice. 22 23 I. BACKGROUND 24 In 2016, the Center for Disease Control (“CDC”) published guidelines to provide 25 “better clinician guidance on opioid prescribing.” See TAC ¶ 50. The CDC guidelines 26 recommend that clinicians “prescribe the lowest effective dosage” of opioids and 27 “carefully justify” decisions to prescribe opioid dosages that exceed 90 morphine 1 when “opioids are used for acute pain,” a clinician “should prescribe no greater quantity 2 than needed for the expected duration of pain severe enough to require opioids.” Id. More 3 specifically, the guidelines state that when opioids are prescribed for acute pain: “Three 4 days or less will often be sufficient; more than seven days will rarely be needed.” Id. 5 Plaintiff alleges that in the 2010s, various pharmacies, including Walgreens, faced 6 lawsuits alleging that they “had inadequate policies and procedures in place to ensure that 7 prescriptions they filled were valid prescriptions for legitimate medical purposes.” TAC ¶ 8 48. Plaintiff alleges that in response to the lawsuits, Walgreens improperly used the CDC 9 guidelines to create a policy that discriminates against disabled people. See id. ¶¶ 48–50. 10 In particular, Walgreens allegedly implemented a policy to discourage its pharmacists from 11 filling opioid prescriptions that exceed 90 MMEs and 7 days (the “dose and duration 12 threshold”). Id. ¶ 63. Plaintiff alleges that Walgreens’ policy “incentivizes, pressures 13 and/or instructs, expressly or implicitly, its pharmacists to not fill such prescriptions and/or 14 fill them at lesser amounts which do not exceed the CDC Guideline dose and duration 15 thresholds, treating those thresholds as hard and fast limits.” Id. 16 The alleged policy does not prevent Walgreens pharmacists from filling opioid 17 prescriptions that exceed the dose and duration threshold. TAC ¶ 64 (“[T]he Policy does 18 not mean that prescriptions exceeding the CDC Guideline dosage and duration thresholds 19 will never be filled.”). Instead, the alleged policy “actively discourages and burdens the 20 process of filling valid prescriptions exceeding the Guideline dosage and duration 21 thresholds.” Id. Plaintiff alleges that “Walgreens’ pharmacists are made aware through 22 their managers and their training that by filling such prescriptions, the pharmacists are 23 susceptible to being fired and risk being left on their own in any civil or criminal 24 investigation relating to the filling of the prescription.” Id. To avoid “being fired” and 25 “being left on their own in any civil or criminal investigation,” Walgreens pharmacists 26 allegedly “take steps to avoid having to fill the prescription by imposing obstacles that 27 others whose prescriptions are not for opioids exceeding the CDC Guideline dose and 1 Plaintiff alleges that the dose and duration policy discriminates on the basis of 2 disability because “research has suggested a link between opioid prescriptions and 3 disability program participation.” See TAC ¶ 136; see also id. ¶¶ 135–139. Plaintiff 4 alleges that “persons receiving prescriptions which exceed the higher end of the dosage (90 5 MME) and duration (7 days) thresholds are highly likely to be disabled within the meaning 6 of the ADA.” Id. ¶ 139. 7 II. LEGAL STANDARD 8 Under Rule 12(b)(6), a complaint may be dismissed for failure to state a claim upon 9 which relief may be granted. Fed. R. Civ. P. 12(b)(6). Dismissal under Rule 12(b)(6) is 10 warranted where a complaint lacks “a cognizable legal theory” or “sufficient facts alleged” 11 under such a theory. Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th Cir. 12 2019). Whether a complaint contains sufficient factual allegations depends on whether it 13 pleads enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. 14 Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 15 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the 16 court to draw the reasonable inference that the defendant is liable for the misconduct 17 alleged.” Id. at 678. This is not a “probability requirement,” but it requires more than a 18 “sheer possibility” that the defendant is liable: “Where a complaint pleads facts that are 19 merely consistent with a defendant’s liability, it stops short of the line between possibility 20 and plausibility of entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 557). 21 III. DISCUSSION 22 Plaintiff asserts that (1) Walgreens’ policy facially discriminates against disabled 23 people; (2) Walgreens’ policy disparately impacts disabled people; and (3) Walgreens fails 24 to provide meaningful accommodations.1 See Opp. (dkt. 104) at 12. None of these claims 25 26 1 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, 27 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 under the Unruh act follows the same analysis, but also 1 are plausibly alleged. 2 A. Facial Discrimination 3 Plaintiff does not plausibly allege that Walgreens’ policy facially discriminates 4 against disabled people. Facial discrimination occurs when a policy applies to people 5 based on disability. See Dare v. California, 191 F.3d 1167, 1169–71 (A regulation 6 imposing a “$6 biennial fee for disability parking placards” was facially discriminatory 7 because “surcharges against disabled people constitute facial discrimination.”); see also 8 Ellis v. Hager, No. C 07-00665 SBA (PR), 2009 WL 347138, at *2 (N.D. Cal. Feb. 6, 9 2009). 10 The alleged policy is not facially discriminatory. Plaintiff alleges that the trigger 11 for the alleged policy is opioid prescriptions that exceed the dose and duration threshold. 12 She does not allege that the trigger for the policy is any form of disability, as would be 13 required to state a claim for facial discrimination. Instead, she alleges that the policy 14 applies to any customer—disabled or not—who goes to Walgreens to fill an opioid 15 prescription that exceeds the dose and duration threshold. 16 To the extent that Plaintiff alleges proxy discrimination, that claim also fails. To 17 state a claim for proxy discrimination, Plaintiff must plausibly allege that the policy “treats 18 individuals differently on the basis of seemingly neutral criteria that are so closely 19 associated with the disfavored group that discrimination on the basis of such criteria is, 20 constructively, facial discrimination against the disfavored group.” Davis v. Guam, 932 21 F.3d 822, 837 (9th Cir. 2019) (quoting Pac. Shores Props., LLC v. City of Newport Beach, 22 730 F.3d 1142, 1160 n. 23 (9th Cir. 2013)). 23 Plaintiff has not plausibly alleged that the policy is “so closely associated” with 24 disabled people that it amounts to proxy discrimination. Plaintiff cites a handful of studies 25 that purport to show a link between disability status and opioid prescriptions. See, e.g., 26 TAC ¶ 136 (“A March 2021 study by the University of Michigan notes that preliminary 27 1 research has suggested a link between opioid prescriptions and disability program 2 participation.”). But the studies provide no meaningful detail on the strength of the link 3 between disability and opioid prescriptions that exceed the dose and duration threshold. 4 See id. ¶¶ 135–139. There are no details on the number of disabled versus non-disabled 5 people who receive opioid prescriptions, and there are no details on the correlation 6 between the dose and duration threshold and disability.2 See id. Plaintiff broadly alleges 7 that persons who receive prescriptions that exceed the dose and duration threshold are 8 overwhelmingly disabled. See id. ¶¶ 130–134 (“Opioid prescriptions exceeding these or 9 similar dose and duration thresholds are given to treat severe pain resulting from disabling 10 medical conditions.”). But these are bald assertions, not well-pleaded factual allegations. 11 While there is a “sheer possibility” that most or all people with opioid prescriptions 12 exceeding the dose and duration threshold are disabled, Plaintiff—despite multiple 13 opportunities to amend—has not pleaded enough “factual content” to make this allegation 14 plausible. See Ashcroft, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). 15 B. Disparate Impact 16 Plaintiff does not plausibly allege a claim based on disparate impact. A facially 17 neutral policy may support a “disparate impact claim based on lack of meaningful access” 18 where the “services, programs, and activities remain open and easily accessible to others.” 19 Doe v. CVS Pharmacy, Inc., 982 F.3d 1204, 1211 (9th Cir. 2020) (citing Crowder v. 20 Kitagawa, 81 F.3d 1480, 1484 (9th Cir. 1996)); see also Payan v. Los Angeles Community 21 College District, 11 F.4th 729, 738 (9th Cir. 2021). 22 Here, the service at issue is the ability to fill opioid prescriptions exceeding the dose 23 and duration threshold, and the alleged policy that affects access to that service applies to 24 all customers. Any customer seeking to fill an opioid prescription that exceeds the dose 25 and duration threshold might encounter challenges filling their prescription, regardless of 26 their disability status. Plaintiff does not plausibly allege that the policy imposes any 27 1 unique burdens on disabled people. 2 Plaintiff cites Crowder v. Kitagawa to argue that a policy that affects both disabled 3 and non-disabled people may still support a disparate impact claim. Opp. at 13–14 (citing 4 81 F.3d 1480 (9th Cir. 1996)). But Crowder shows why the claim here fails. In Crowder, 5 Hawai’i implemented a regulation that imposed a 120-day quarantine on carnivorous 6 animals entering the state. Id. at 1481. In that case, the plaintiff alleged that the regulation 7 disparately impacted visually impaired people who use guide dogs. Id. The 120-day 8 quarantine period would not prevent non-visually impaired people from entering Hawai’i 9 (i.e., the state remained “open and easily accessible” to them), but the same was not true 10 for people who used guide dogs to navigate. See id. In contrast to the allegations in 11 Crowder, Walgreens’ alleged policy applies the same to everyone who seeks to fill a 12 prescription exceeding the dose and duration thresholds. Any customer seeking to fill a 13 prescription exceeding the dose and duration threshold may encounter obstacles when they 14 try to do so. No unique burden is placed on disabled people—they do not lack meaningful 15 access to a service that remains open and easily accessible to others.3 16 C. Reasonable Modification 17 Plaintiff’s reasonable modification claim fails for similar reasons. A reasonable 18 modification claim requires a plaintiff to adequately allege that the requested modification 19 is (1) reasonable and (2) necessary to accommodate the plaintiff’s disability. See Fortyune 20 v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1082 (9th Cir. 2004). An accommodation is 21 necessary where failure to provide it would deprive a disabled person from having a “like 22 experience” as a non-disabled person. Baughman v. Walt Disney World Co., 685 F.3d 23 1131, 1135 (9th Cir. 2012). 24 Here, every customer seeking to fill an opioid prescription exceeding the dose and 25 direction threshold may encounter the friction of a pharmacist who is “expected to either 26 27 3 Plaintiff also relies on Doe v. CVS Pharmacy, Inc., 982 F.3d 1204 (9th Cir. 2020), to contend that “[t]he fact that a policy might apply to non-disabled persons as well as disabled persons does 1 || refuse to fill the prescription, only partially fill the prescription, or impose some other 2 || requirement not imposed on other customers.” TAC 4 11. Asa result, both disabled and 3 || non-disabled people have a “like experience” under the alleged policy, and Plaintiff's 4 || reasonable modification claim fails. 5 || IV. CONCLUSION 6 For the foregoing reasons, the Court grants Walgreens’ motion to dismiss. Because 7 || this is Plaintiffs third amended complaint, the motion to dismiss is granted with prejudice. 8 || The Court denies Plaintiff's motion to strike (dkt. 105) as moot because it does not rely on 9 || the Good Faith Dispensing Policies. The Court denies the parties’ motions for sanctions 10 || (dkts. 106, 109) because neither party has established any sanctionable conduct. The Court 11 |} denies Walgreens’ motion to dismiss for lack of personal jurisdiction (dkt. 102) as moot. 12

= 13 IT IS SO ORDERED. a 14 Dated: September 9, 2022 ; kK

15 co

CHARLES R. BREYER

16 United States District Judge

17

1g

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