Negligence claim against prosecutor dismissed

A federal judge acted swiftly this week to kick out negligence claims against a Virginia prosecutor accused of wrongfully pursuing prescription fraud charges against a Walmart customer.

U.S. District Judge Henry E. Hudson Monday dismissed the claims against Spotsylvania County Assistant Commonwealth’s Attorney Stephanie C. Fitzgerald, ruling that she was protected by “absolute prosecutorial immunity.”

The Walmart customer, Eve Davis, sued the store, a druggist and a sheriff’s deputy June 29, claiming they orchestrated her arrest in 2013 when she tried to fill a valid prescription for Adderall. Davis included Fitzgerald in the lawsuit, alleging negligence and gross negligence in later court proceedings.

Fitzgerald asked the judge to toss the claims against her, saying she acted properly and, moreover, was protected by absolute immunity under Virginia case law.

Davis was trying to blame the prosecutor for persisting with charges after a doctor testified that the prescription was genuine, despite the deputy’s testimony that Davis admitted selling the medication to get gas money, Hudson said.

“Essentially, Davis faults Fitzgerald for what she deems an inadequate investigation, and attempts to hold Fitzgerald liable for what she did not do, rather than what she did do,” Hudson wrote.

“No remedy is available against Fitzgerald, personally, for actions she took in the course of her prosecutorial duties,” Hudson said.

His opinion is Davis v. Wal-Mart Stores East LP (VLW 015-3-434).

Fitzgerald’s dismissal from the suit was no surprise, acknowledged Jonathan E. Halperin of Glen Allen, Davis’ attorney.

“Bringing a claim against a prosecutor in Virginia is a very tough, nearly impossible claim to make,” Halperin said. “At this early stage, we just didn’t have the facts, as most of those necessary to support a potential claim are exclusively in the control of law enforcement and the prosecutor,” he added.

Spotsylvania County Commonwealth’s Attorney William F. Neely said his office has been sued many times, never successfully.

Neely said the U.S. Supreme Court rightly decided years ago that “criminal prosecutors enjoy absolute immunity from such baseless allegations when they stick to doing their jobs – that is diligently and ethically enforcing the criminal law.”

“We are very happy with the outcome,” said William F. Etherington of Richmond, who represented Fitzgerald.

Davis’ $15 million civil rights lawsuit remains pending against Walmart, its pharmacist and the sheriff’s deputy. Davis claims she was arrested without either the store or the deputy checking on whether her prescription was legitimate.

At a preliminary hearing, the deputy testified Davis had told him she would sell Adderall for gas money, the lawsuit said. Davis alleged, however, that she did not need gas money because she had a company gas card and was reimbursed for mileage.

A circuit judge dismissed the criminal charges against Davis after a finding that Davis’ constitutional rights were violated during her arrest. Later, Neely agreed to expungement of the charges.

Walmart and its pharmacist filed a joint motion to dismiss the claims against them. The deputy filed an answer. At a pretrial conference Sept. 3, Hudson denied the Walmart motion to dismiss and set a Feb 1 trial date, Halperin said.