                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA


 JOSE G. APOLLO SR.,

            Plaintiff,

      v.                             Civil Action No. 17-1775

 CVS PHARMACY; ALI
 ABDULKAREEM,

           Defendants.



                         MEMORANDUM OPINION

     Plaintiff Jose Apollo, Sr., brings this action against CVS

Pharmacy (“CVS”) and Ali Abdulkareem, a manager at CVS,

alleging, inter alia, discrimination in violation of 42 U.S.C.

§ 1981, and a claim of intentional infliction of emotional

distress under District of Columbia law. Pending before the

Court is defendants’ motion to dismiss for failure to state a

claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For

the reasons that follow, defendants’ motion to dismiss is

GRANTED.

I. Background

     As this case is before the Court on the defendants’ motion

to dismiss, the Court takes the following facts alleged in Mr.

Apollo’s complaint to be true and grants Mr. Apollo “the benefit

of all inferences that can be derived from the facts alleged.”
See Kowal v. MCI Comm'cns Corp., 16 F.3d 1271, 1276 (D.C. Cir.

1994).

     Mr. Apollo, an Afro-Latino man, walked into CVS in the

summer of 2017 to purchase some items and decided that he would

avail himself of the restroom. Compl., ECF No. 20 at 3. 1 He had

to wait approximately ten minutes because a sanitation worker

was ensuring that the restroom was clean. Id. The sanitation

worker finished his job, apologized to Mr. Apollo for the delay,

and Mr. Apollo was able to use the restroom. Id. Prior to

entering the restroom, however, there was a man watching Mr.

Apollo while Mr. Apollo waited for those ten minutes it took to

get the restroom in usable condition. Id. That man was the store

manager, Mr. Abdulkareem.

     No more than five minutes after entering the restroom, Mr.

Apollo heard loud knocking on the door. Id. Someone was

“viciously pulling and knocking” on the door and yelling “come

on, you have been in there more than 15 minutes already.” Id. To

which Mr. Apollo “calmly replied . . . ‘I just got in here, not

even a good five minutes.’” Id. Unable to use the restroom after

this encounter, Mr. Apollo quickly left to determine the

identity of “the person that cause[d] him such embarrassment and

emotional distress.” Id. To his surprise, he discovered it was

1 When citing electronic filings throughout this Memorandum
Opinion, the Court cites to the ECF header page number, not the
original page number of the filed document.
                                2
the store manager Mr. Abdulkareem. Id.

     Mr. Abdulkareem continued to yell at Mr. Apollo once the

latter exited the restroom. Mr. Abdulkareem shouted “you have

been in there more than [fifteen] minutes[,] this is not a

public restroom.” Id. at 3. Mr. Apollo responded by producing

his CVS membership cards to prove that he was a client of the

store and by requesting Mr. Abdulkareem provide the name of his

supervisor. Id. at 4. Mr. Abdulkareem complied. Id. Ultimately,

Mr. Apollo received a written apology from the district manager

of the store. Id.

     Dissatisfied with just an apology, Mr. Apollo filed this

law suit, pro se, alleging violations of federal and state law

and stating that “he was discriminated when he was denied

services, outrageously denied access to the CVS customers

restrooms, and basically exited out of the store.” Id. at 5. He

requests five million dollars in damages and a declaratory

judgment that CVS and Mr. Abdulkareem violated the law. Id.

Defendants moved to dismiss the complaint for failure to state a

claim. See Defs.’ Mot., ECF No. 21. Mr. Apollo responded to the

motion, ECF No. 22, and the defendants have filed their reply,

ECF No. 24. The motion is ripe for adjudication.

II. Legal Standard

     Defendants move to dismiss the complaint on the ground that

the complaint “fail[s] to state a claim upon which relief can be

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granted.” Fed. R. Civ. P. 12(b)(6). A motion under Rule 12(b)(6)

tests the sufficiency of the complaint. See Browning v. Clinton,

292 F.3d 235, 242 (D.C. Cir. 2002). “[T]he complaint is

construed liberally in the plaintiff['s] favor, and [the Court]

grant[s the] plaintiff[ ] the benefit of all inferences that can

be derived from the facts alleged.” Kowal, 16 F.3d at 1276.

However, the Court is “not bound to accept as true a legal

conclusion couched as a factual allegation.” Papasan v. Allain,

478 U.S. 265, 286 (1986).

     A complaint survives a motion under Rule 12(b)(6) only if

it “contain[s] 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) (citation omitted).

A claim is facially plausible “when the plaintiff pleads factual

content that allows the court to draw [a] reasonable inference

that the defendant is liable for the misconduct alleged.” Id.

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, (2007)).

A complaint alleging facts which are “merely consistent with a

defendant's liability . . . stops short of the line between

possibility and plausibility of entitlement to relief.” Id.

(citing Twombly, 550 U.S. at 557, (internal quotation marks

omitted)).

     A pro se complaint “must be held to less stringent

standards than formal pleadings drafted by lawyers,” Erickson v.

                                4
Pardus, 551 U.S. 89, 94 (2007) (citation and internal quotation

marks omitted), but it, too, “must plead ‘factual matter’ that

permits the court to infer ‘more than the mere possibility of

misconduct.’” Atherton v. District of Columbia Off. of the

Mayor, 567 F.3d 672, 681–82 (D.C. Cir. 2009) (quoting Iqbal, 556

U.S. at 679). Although detailed factual allegations are not

required at the pleading stage, a complaint must offer more than

“unadorned, the-defendant-unlawfully-harmed-me accusation[s].”

Iqbal, 556 U.S. at 678 (citations omitted). “A pleading that

offers ‘labels and conclusions’ or ‘a formulaic recitation of

the elements of a cause of action will not do,’” id. (quoting

Twombly, 550 U.S. at 555), and a complaint which merely “tenders

‘naked assertion[s]’ devoid of ‘further factual enhancement,’”

id. (quoting Twombly, 550 U.S. at 557), is equally unavailing.

III. Discussion

     Mr. Apollo sues under two theories of liability. His first

claim, under federal law, is that the defendants discriminated

against him when they allegedly forced him out of the store

while he was trying to use the restroom in violation of 42

U.S.C. § 1981. Compl., ECF No. 20 at 5. His second claim, under

District of Columbia (“D.C.”) law, is that the defendants

inflicted extreme emotional distress, pain, and mental anguish

when Mr. Abdulkareem allegedly berated him as he attempted to

use the bathroom. Id. at 4–5. The Court discusses each claim in

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turn.

     A. Mr. Apollo Fails to State a Claim Under Federal Law

     Mr. Apollo’s first claim is for discrimination under 42

U.S.C. § 1981. Section 1981 states in relevant part “[a]ll

persons within the jurisdiction of the United States shall have

the same right . . . to make and enforce contracts . . . as is

enjoyed by white citizens.” 42 U.S.C. § 1981(a). To state a

claim under Section 1981, a plaintiff not only “must initially

identify an impaired contractual relationship . . . under which

[he or she] has rights,” Domino's Pizza, Inc. v. McDonald, 546

U.S. 470, 476, (2006) (citation and internal quotation marks

omitted), but also must allege “some facts that demonstrate that

[his or her] race was the reason for the defendant's actions.”

Ridley v. VMT Long Term Care Mgmt., Inc., 68 F. Supp. 3d 88, 90

(D.D.C. 2014) (citations omitted). A “plaintiff cannot merely

invoke [his or her] race in the course of a claim's narrative

and automatically be entitled to pursue relief.” Bray v. RHT,

Inc., 748 F. Supp. 3, 5 (D.D.C. 1990). Rather, the complaint

must allege a racially discriminatory purpose for the

defendant’s misconduct. Ridley, 68 F. Supp. 3d at 90.

     Mr. Apollo fails to state a claim because he has not

alleged any facts that show he was denied the right to enter

into or to enforce a contract as required by Section 1981. The

parties agree that Section 1981 protects the right to make and

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enforce contracts free from discrimination. See Defs.’ Mot., ECF

No. 21-1, at 4; Pl.’s Opp’n., ECF No. 22 at 4 (conceding Section

1981 “only applies to the making of contracts”). Here, Mr.

Apollo has not alleged a loss of a contractual interest or the

ability to form a contract, but rather states he was denied

“services and benefits offered to customers and clients of CVS”

and “ordinary common privileges and services normally guaranteed

to all of CVS Pharmacy customers and clients.” Pl.’s Opp’n., ECF

No. 22, 11–12, 14. The facts Mr. Apollo alleges in his complaint

are that Mr. Abdulkareem shouted at him and knocked on the

restroom door when Mr. Apollo was using the facilities. Compl.,

ECF No. 20 at 3–4. Even accepting these allegations as true,

nothing about these facts give rise to a claim that CVS impeded

Mr. Apollo from enforcing or making a contract such that there

is an inference that the defendants could be liable under

Section 1981. 2

     Mr. Apollo’s complaint fails to state a claim for a second,

independent, reason. Mr. Apollo does not provide any factual

2 In his opposition, Mr. Apollo claims the defendants owed him a
fiduciary duty and violated that duty. Pl.’s Opp’n., ECF No. 22
at 11 (stating defendants “outrageously and callously” violated
a fiduciary duty). There is no claim for a breach of a fiduciary
duty in Mr. Apollo’s complaint. But even if there was, the case
law is clear that ordinary business transactions do not create a
fiduciary duty between a customer and a business. See, e.g.,
Magee v. AICPA, 245 F. Supp. 3d 106, 115 (D.D.C. 2017) (stating
a fiduciary relationship exists where there “is a special
confidential relationship that transcends an ordinary business
transaction.”).
                                7
allegations that would lead to an inference that the defendants’

actions were motivated by his race. Rather he states in passing

that Mr. Abdulkareem was “without a doubt conducting some type

of racial profiling . . . where the restrooms [were] located.”

Compl., ECF No. 20 at 3. Nowhere in the complaint does Mr.

Apollo allege that Mr. Abdulkareem treated him differently

because of his race. Without a factual basis “to support an

inference of discrimination by [CVS] based on plaintiff’s race,

the complaint asserts nothing more than a ‘mere possibility of

misconduct.’” Ridley, 68 F. Supp. 3d at 90 (citing Iqbal, 556

U.S. at 679).

     Mr. Apollo has failed to identify rights under a

contractual relationship he wishes to make or enforce, or

“injuries flowing from a racially motivated breach” of that

contractual relationship. Domino's Pizza, 546 U.S. at 479.

Accordingly, Mr. Apollo has failed to state a claim under 42

U.S.C. § 1981. 3

     B. Mr. Apollo Fails to State a Claim Under D.C. Law

     Mr. Apollo’s second claim is for intentional infliction of

emotional distress under D.C. law. To maintain a cause of action


3 Mr. Apollo cites the Fourteenth Amendment in his opposition to
defendants’ motion for summary judgment, but this claim clearly
fails because CVS is not a state actor. See Alridge v. Rite Aid
of Wash., D.C., Inc., 146 F. Supp. 3d 242, 251 (D.D.C. 2015)
(stating the Fourteenth Amendment “only applies to actions taken
by state actors, not by private entities”).
                                8
for intentional infliction of emotional distress, District of

Columbia law “requires the plaintiff to show (1) extreme and

outrageous conduct by the defendant which (2) intentionally or

recklessly (3) cause[d] the plaintiff severe emotional

distress.” Ben-Kotel v. Howard Univ., 156 F. Supp. 2d 8, 14

(D.D.C. 2001) (citations and quotation marks omitted).

“Liability will be imposed only for conduct so outrageous in

character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious, and

utterly intolerable in a civilized community.” Thompson v. Jasas

Corp., 212 F. Supp. 2d 21, 27-28 (D.D.C. 2002) (citing Homan v.

Goyal, 711 A. 2d 812, 818 (D.C. 1998)) (internal quotation marks

omitted).

     The conduct alleged by Mr. Apollo does not rise to the

level of “atrocious, and utterly intolerable in a civilized

community.” Id. Taken in the light most favorable to Mr. Apollo,

Mr. Abdulkareem banged and pulled on the restroom door, and

shouted at Mr. Apollo when he was inside and outside the

restroom. Compl., ECF No. 20 at 3. Mr. Abdulkareem continued to

chastise Mr. Apollo for using the restroom for more than fifteen

minutes, although Mr. Apollo was allegedly only in the bathroom

for no more than five. Id. Even if proven, Mr. Abdulkareem’s

actions do not approach the “extreme and outrageous” conduct

required to support an intentional infliction of emotional

                                9
distress claim. See Hollis v. Rosa Mexicano DC, LLC, 582 F.

Supp. 2d 22, 23 (D.D.C. 2008) (stating that defendants’ alleged

conduct in ignoring a black patron, denying her equal service at

restaurant and speaking to her in an abrasive and sharp-toned

manner was not sufficiently extreme and outrageous to state a

claim of intentional infliction of emotional distress).

Accordingly, the intentional infliction of emotional distress

claim is dismissed for failure to state a claim upon which

relief may be granted.

IV. Conclusion

      For the foregoing reasons, the defendants’ motion to

dismiss is GRANTED. An appropriate Order of dismissal

accompanies this Memorandum Opinion.

SO ORDERED.

Signed:   Emmet G. Sullivan
          United States District Judge
          January 9, 2019




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