1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

 While plaintiff has named three other defendants – Auburn Community Health Center, Ms.

Suzanne Laurel, D.O., and Ms. Debby Roberts – he has failed to provide any proof of service of the

summons and complaint on these defendants. In its Motion for Summary Judgment, Safeway Pharmacy

alerts plaintiff that the Pharmacy is the only defendant that has appeared in the case, and that it also

appears to be the only defendant ever served, albeit improperly. Even having been so informed, plaintiff

failed to provide any proof of service of the summons and complaint on the other defendants in his

response. Accordingly, the Court finds that plaintiff has failed to prosecute his case against Auburn

Community Health Center, Ms. Suzanne Laurel, D.O., and Ms. Debby Roberts.

ORDER

PAGE - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

RICHARD A. LENNSTROM,

 Plaintiff,

 v.

AUBURN COMMUNITY HEALTH

CENTER, et al.,

 Defendants.

CASE NO. C05-1788RSM

ORDER GRANTING DEFENDANT

SAFEWAY PHARMACY’S

MOTION FOR SUMMARY

JUDGMENT

This matter comes before the Court on defendant Safeway Pharmacy’s Motion for

Summary Judgment.1 (Dkt. #5). On September 28, 2005, plaintiff filed the instant lawsuit in

King County Superior Court, apparently attempting to raise claims under the Americans with

Disabilities Act, 42 U.S.C. § 12101, et seq., and alleging that defendant Safeway Pharmacy,

Case 2:05-cv-01788-RSM Document 11 Filed 01/04/06 Page 1 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER

PAGE - 2

along with plaintiff’s treating physicians and health care center, caused $1,750,000.00 of damage

when they failed to refill his prescriptions for a narcotic pain killer called Narco, and for

diazepam, which is commonly know as Valium. (Dkt. #1, Ex. A).

Defendant Safeway Pharmacy removed the action to this Court shortly thereafter, and

followed with the instant motion for summary judgment. Defendant asserts that plaintiff has

failed to support any cause of action for medical negligence or civil rights violations against it. 

(Dkt. #5).

While plaintiff did file a response to the motion for summary judgment, he completely

failed to oppose any of defendant Safeway Pharmacy’s legal arguments or authority. Instead,

plaintiff chose not to respond to what he calls “the Defendant(s) misrepresentations to the

Court,” and takes issue with only two sentences of the Safeway pharmacist’s supporting

declaration to the motion for summary judgment. At the same time, by way of a “Request for

Accomodation [sic],” attached to the declaration of Michael A. Chiofar, a.k.a Bear, a.k.a.

Gummo, plaintiff appears to request court-appointed counsel.

Having reviewed defendant Safeway Pharmacy’s Motion for Summary Judgment, and

the remainder of the record, the Court does hereby find and ORDER:

(1) In so far as plaintiff’s “Request for Accomodation [sic]” has been construed as a

request for court-appointed counsel (Dkt. #8 at 2), that request is DENIED. Plaintiff apparently

believes that the Americans with Disabilities Act mandates that this Court provide him with free

counsel. However, that Act provides no such right. Moreover, because this Court has

determined that summary judgment in favor of defendant is appropriate, as further explained

below, plaintiff’s request for counsel is moot, and his alternative request for a stay of

proceedings is not warranted.

(2) Defendant Safeway Pharmacy’s Motion for Summary Judgment (Dkt. #5) is

GRANTED, and plaintiff’s claims against it are hereby DISMISSED. Defendant argues that

Case 2:05-cv-01788-RSM Document 11 Filed 01/04/06 Page 2 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER

PAGE - 3

when plaintiff’s treating physician revoked any further refills of his Narco prescription, it was

legally prevented from fulfilling his numerous requests for a refill. The Court agrees. Refusing

to dispense controlled substances under circumstances which would violate the law does not

constitute medical negligence as governed by RCW 7.70. Similarly, the refusal to dispense

controlled substances when not authorized by prescription or the patient’s doctor does not

violate either the Americans with Disabilities Act or the Washington Law Against

Discrimination, RCW 49.60. Finally, because Safeway Pharmacy is not a “state actor,” the Civil

Rights Act, 42 U.S.C. § 1983, does not allow for a cause of action against it.

Plaintiff has completely failed to oppose these legal arguments. This District’s local rules

state that “[i]f a party fails to file papers in opposition to a motion, such failure may be

considered by the court as an admission that the motion has merit.” Local Rule CR 7(b)(2). 

Furthermore, plaintiff’s attempt to raise a genuine issue of material fact is misguided. Plaintiff

apparently does not believe that pharmacy personnel contacted his “doctor”, because his

prescribing-physician left Auburn Community Health Center between the time she wrote the

prescription and the time plaintiff attempted to have the prescription refilled, and therefore,

plaintiff reasons that his “doctor” could not have cancelled the prescription. However, as

defendant Safeway Pharmacy points out, plaintiff ignores the fact that the person who originally

prescribed the medication was a physician’s assistant, only authorized to prescribe medicine

under the supervision of a licensed physician. That licensed physician is a member of Auburn

Community Health Center, and it was such licensed physician that advised Safeway Pharmacy to

cancel any further refills, as evidenced by the copies of facsimiles submitted with defendant’s

Reply. Accordingly, plaintiff has failed to raise any issue of genuine material fact, and summary

judgment in favor of defendant Safeway Pharmacy is appropriate. 

In addition, because plaintiff has failed to show any proof of service of the summons and

complaint on the other defendants named in this action, even after being alerted to that failure by

Case 2:05-cv-01788-RSM Document 11 Filed 01/04/06 Page 3 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER

PAGE - 4

defendant Safeway Pharmacy, the Court dismisses his claims against Auburn Community Health

Center, Ms. Suzanne Laurel, D.O., and Ms. Debby Roberts for failure to prosecute. This case is

DISMISSED with prejudice and the action is now CLOSED.

(2) The Clerk is directed to forward a copy of this Order plaintiff and to all counsel of

record.

DATED this 4th day of January, 2006.

A

RICARDO S. MARTINEZ

UNITED STATES DISTRICT JUDGE 

Case 2:05-cv-01788-RSM Document 11 Filed 01/04/06 Page 4 of 4