United States District Court, D. Delaware
RA'QUAN T. DAVIS, Plaintiff,
JANSSEN PHARMACEUTICALS, INC., et al., Defendants.
Ra'Quan T. Davis, James T. Vaughn Correctional Center,
Smyrna, Delaware. Pro Se Plaintiff.
ANDREWS, U.S. DISTRICT JUDGE.
Ra'Quan T. Davis, an inmate at the James T. Vaughn
Correctional Center in Smyrna, Delaware, commenced this
action on September 11, 2017. (D.I. 3). Plaintiff appears
pro se and has been granted leave to proceed in
forma pauperis. (D.I. 5). The Court proceeds to review
and screen the complaint pursuant to 28 U.S.C. §
was housed at the New Castle County Detention Center in 2013
and alleges he was administered Risperdal by Defendant
treating doctor Jane/John Doe. Soon after, he began to
develop lumps and enlarged nipples with discharge. In 2016,
Plaintiff discovered he has a form of gynecomastia and needs
surgery to reduce the growth in his chest. Plaintiff
discovered Defendants knew of the risks of unwanted growth in
the chests of young males, did not disclose the side effects,
and continued to market and promote the drug as safe.
alleges: (1) negligence in Defendants' duty of care in
marketing, distributing and sale of Risperdal including the
duty to warn physicians and users of potential side effects;
(2) breach of warranty when Plaintiff relied upon
doctors' skill and judgment that Risperdal was safe; (3)
breach of express warranty because Risperdal does not conform
to express representations as it is not safe and causes
adverse side effects; and (4) fraud by concealment when
Defendants knowingly and intentionally concealed important
information as to the safety of Risperdal to physicians and
consumers. Plaintiff alleges the use of Risperdal/Risperidon
is the proximate cause of his injuries and seeks compensatory
and punitive damages.
federal court may properly dismiss an action sua
sponte under the screening provisions of 28 U.S.C.
§ 1915(e)(2)(B) if "the action 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." Ball v. Famiglio, 726
F.3d 448, 452 (3d Cir. 2013). See also 28 U.S.C.
§ 1915(e)(2) (in forma pauperis actions). The
Court must accept all factual allegations in a complaint as
true and take them in the light most favorable to a pro
se plaintiff. Phillips v. County of Allegheny,
515 F.3d 224, 229 (3d Cir. 2008); Erickson v.
Pardus, 551 U.S. 89, 93 (2007). Because Plaintiff
proceeds pro se, his pleading is liberally construed
and his complaint, "however inartfully pleaded, must be
held to less stringent standards than formal pleadings
drafted by lawyers." Erickson v. Pardus, 551
U.S. at 94.
action is frivolous if it "lacks an arguable basis
either in law or in fact." Neitzke v. Williams,
490 U.S. 319, 325 (1989). Under 28 U.S.C. §
1915(e)(2)(B)(i), a court may dismiss a complaint as
frivolous if it is "based on an indisputably meritless
legal theory" or a "clearly baseless" or
"fantastic or delusional" factual scenario.
Neitzke, 490 U.S. at 327-28; Wilson v.
Rackmill, 878 F.2d 772, 774 (3d Cir. 1989).
legal standard for dismissing a complaint for failure to
state a claim pursuant to § 1915(e)(2)(B)(ii) is
identical to the legal standard used when ruling on Rule
12(b)(6) motions. Tourscher v. McCullough, 184 F.3d
236, 240 (3d Cir. 1999). However, before dismissing a
complaint or claims for failure to state a claim upon which
relief may be granted pursuant to the screening provisions of
28 U.S.C. §1915, the Court must grant Plaintiff leave to
amend his complaint unless amendment would be inequitable or
futile. See Grayson v. Mayview State Hosp., 293 F.3d
103, 114 (3d Cir. 2002).
well-pleaded complaint must contain more than mere labels and
conclusions. See Ashcroft v. Iqbal, 556 U.S. 662
(2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007). A plaintiff must plead facts sufficient to show that
a claim has substantive plausibility. See Johnson v. City
of Shelby, ___ U.S. ___, 135 S.Ct. 346, 347 (2014). A
complaint may not dismissed, however, for imperfect
statements of the legal theory supporting the claim asserted.
See Id. at 346.
reviewing the sufficiency of a complaint must take three
steps: (1) take note of the elements the plaintiff must plead
to state a claim; (2) identify allegations that, because they
are no more than conclusions, are not entitled to the
assumption of truth; and (3) when there are well-pleaded
factual allegations, assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.
Connelly v. Lane Constr. Corp., 809 F.3d 780, 787
(3d Cir. 2016). Elements are sufficiently alleged when the
facts in the complaint "show" that the plaintiff is
entitled to relief. Iqbal, 556 U.S. at 679 (quoting
Fed.R.Civ.P. 8(a)(2)). Deciding whether a claim is plausible
will be a "context-specific task that requires the
reviewing court to draw on its judicial experience and common
courts have an independent obligation to address issues of
subject matter jurisdiction sua sponte and may do so
at any stage of the litigation. See, e.g., U.S. Express
Lines Ltd. v. Higgins,281 F.3d 383, 388-89 (3d Cir.
2002). Plaintiff filed this matter as a civil rights action
pursuant to 42 U.S.C. § 1983 and a tort action. The
Complaint alleges negligence, breach of warranty, breach of
express warranty, and fraud by concealment and, as presented,
reveals no basis for federal question jurisdiction.
See 28 U.S.C. § 1331. While the Complaint
invokes 42 U.S.C. § 1983, the allegations do not speak
to constitutional ...