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Ostermiller v. CVS Pharmacy

United States District Court, D. Montana, Billings Division

July 10, 2019



          John Johnston, United States Magistrate Judge

         Plaintiff Jennifer Ostermiller submitted a motion to proceed in forma pauperis, a proposed Complaint alleging Defendants violated her rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, and a motion for discovery. (Docs. 1, 2, 7.) The motion to proceed in forma pauperis will be granted, the motion for discovery will be denied. Defendants CVS Pharmacy and Haley Reichenbach and Ms. Ostermiller's claims regarding the search of her person on December 13, 2016 at the DUI-Center during which marijuana was found on her person will be recommended for dismissal. Defendants Chief St. John, Steven Gaertner, Cory Kirkpatrick, and Officer Ihde will be required to file a response to the Complaint.


         Ms. Ostermiller's Motion to Proceed in Forma Pauperis is sufficient to make the showing required by 28 U.S.C. §1915(a). (Doc. 1.) The request to proceed in forma pauperis will be granted.


         On December 13, 2016, Ms. Ostermiller was involved in an automobile accident. She contends she suffered injuries to her head, neck, and back and was briefly knocked unconscious. 911 was called and Billings Police Department Officer Cory Kirkpatrick responded. Ms. Ostermiller alleges that Officer Kirkpatrick noted upon arrival that Ms. Ostermiller was not at fault and Ms. Ostermiller exhibited no signs of drug, alcohol or any physical impairment.

         Ms. Ostermiller alleges Defendant Haley Reichenbach, an employee of CVS, called 911 to report the accident and reported that this was a hit and run accident that involved a fourth car that fled the scene.

         Officer Steven Gaertner then arrived at the scene and spoke to the driver of the other car and Ms. Reichenbach. The driver of the other car stated that she had a green light which Ms. Ostermiller alleges Officers Geartner and Kirkpatrick knew was untrue at the time Ms. Ostermiller was arrested. Ms. Ostermiller alleges that Ms. Reichenbach, in violation of Ms. Ostermiller's rights, told the officers that Ms. Ostermiller was prescribed heavy doses of pain medication and other private medical information. According to Ms. Ostermiller, this led the officers to believe that Ms. Ostermiller was under the influence of prescription drugs, that she was responsible for the accident, and that she had been smoking marijuana. Ms. Ostermiller was then searched by Officer Kirkpatrick and placed in the back of Officer Gaertner's vehicle.

         Ms. Ostermiller alleges she was afforded no medical care, treatment or evaluation. She contends she was taken to the Yellowstone County Detention DUI Center where she was compelled to give four test tubes of blood, charged with aggravated DUI per prescription, and taken into a dark room off camera and sexually assaulted by Officer Ihde. She alleges that after she was charged and booked for aggravated DUI, she was searched, and found to be in possession of marijuana. The charge was then amended to DUI-marijuana after the marijuana was found. (Complaint, Doc. 2 at 14-15.)

         Ms. Ostermiller alleges that during these incidents she was wearing only a halter top, a wind jacket, capri jeans and boots without socks. She claims the average temperature was four degrees and her temperature was two degrees above hypothermia when her temperature was taken at the DUI Center. (Complaint, Doc. 2 at 14-15.)

         She claims that Officer Ihde, in an attempt to compel Ms. Ostermiller to remain silent about the sexual assault, told her it was up to him whether or not she would be charged and that he could keep her even though she repeatedly advised him that her children (ages 9 and 10) were home alone. (Complaint, Doc. 2 at 16.)

         Ms. Ostermiller contends that the alleged marijuana was not tested until December 14, 2017 a year later by the police officer whom Ms. Ostermiller had filed numerous complaints against for racial profiling. On January 25, 2017, the blood test results were returned and according to Ms. Ostermiller the tests indicated that she was not under the influence of any prohibited level of any substance. (Complaint, Doc. 2 at 16.)

         Ms. Ostermiller alleges the DUI charge was dismissed on September 26, 2017. (Complaint, Doc. 2 at 22.) According to the documents filed in support of the Complaint, the City of Billings moved to dismiss the DUI charge on September 26, 2017 but the Municipal Court Judge did not sign the Order dismissing that charge until November 1, 2017. (Doc. 11 at 18.)

         She contends Officer Kirkpatrick changed his initial police report from saying that Ms. Ostermiller had the right of way to state that she did not have the right of way. (Complaint, Doc. 2 at 18.) She claims this change was made after she filed a complaint of racial profiling on Officer Gaertner. She claims she made these complaints on May 23, 2017 and June 27, 2017. She filed these complaints with the Chief of Police Rich St. John on July 20, 2017.

         Attached to the Complaint, is a March 11, 2019 Order from Montana state district court affirming Ms. Ostermiller's conviction for possession of dangerous drugs arising out of the incident on December 28, 2016. (Doc. 8-1 at 1-9.)

         III. SCREENING PURSUANT TO 28 U.S.C. § 1915

         A. Standard

         Ms. Ostermiller is proceeding in forma pauperis so the Court must review her Complaint under 28 U.S.C. § 1915 which requires dismissal of a complaint filed in forma pauperis before it is served if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. A complaint is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). “A case is malicious if it was filed with the intention or desire to harm another.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). A complaint fails to state a claim upon which relief may be granted if a plaintiff fails to allege the “grounds” of his “entitlement to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation omitted).

         Rule 8 of the Federal Rules of Civil Procedure provides that a complaint “that states a claim for relief must contain . . . a short and plain statement of the claim showing that the [plaintiff] is entitled to relief.” Fed.R.Civ.P. 8(a)(2). That is, a complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). A complaint's allegations must cross “the line from conceivable to plausible.” Iqbal, 556 U.S. at 680.

         There is a two-step procedure to determine whether a complaint's allegations cross that line. See Twombly, 550 U.S. at 556; Iqbal, 556 U.S. 662. First, the Court must identify “the allegations in the complaint that are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679, 680. Factual allegations are not entitled to the assumption of truth if they are “merely consistent with liability, ” or “amount to nothing more than a ‘formulaic recitation of the elements' of a constitutional” claim. Id. at 679, 681. A complaint stops short of the line between probability and the possibility of relief where the facts pled are merely consistent with a defendant's liability. Id. at 678.

         Second, the Court must determine whether the complaint states a “plausible” claim for relief. Iqbal, 556 U.S. at 679. A claim is “plausible” if the factual allegations, which are accepted as true, “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. This inquiry is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679 (citation omitted). If the factual allegations, which are accepted as true, “do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not “show[n]”-“that the pleader is entitled to relief.” Id. (citing Fed.R.Civ.P. 8(a)(2)).

         “A document filed pro se is ‘to be liberally construed,' and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Erickson v. Pardu, 551 U.S. 89, 94 (2007); cf. Fed. Rule Civ. Proc. 8(e) (“Pleadings must be construed so as to do justice”).

         B. Analysis

         1. CVS Pharmacy and ...

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