United States District Court, D. Delaware
Da'Rius Oliver Harden, James T. Vaughn Correctional
Center, Smyrna, Delaware. Pro Se Plaintiff.
ANDREWS, U.S. District Judge.
Da'Rius Oliver Harden, an inmate at the James T. Vaughn
Correctional Center in Smyrna, Delaware, filed this action
pursuant to 42 U.S.C. § 1983. (D.I. 3). Plaintiff appears
pro se and has been granted leave to proceed in
forma pauperis. (D.I. 6). Upon screening, the Court
dismissed the original complaint and gave Plaintiff leave to
file an amended complaint. (D.I. 9). The amended complaint
was filed on December 4, 2017. (D.I. 12). The Court proceeds
to review and screen the amended complaint f pursuant to 28
U.S.C. § 1915(e)(2).
1997, when Plaintiff was 10 years, he was diagnosed with ADD
(attention- deficit disorder) and prescribed Risperdal by
Defendant Dr. Khan. Plaintiff took the medication from 1997
to 2004, at his home, schools, Delaware Guidance, the Terry
Center, the Rockford Center, and at the New Castle County
Detention Center. Plaintiff alleges that Risperdal caused him
to develop gynecomastia. He alleges that he has (been living
with the condition since 1997. (D.I. 12 at 1).
Plaintiff alleges that Dr. Khan prescribed him medication
that was not tested or approved by the FDA to treat ADD.
Plaintiff alleges that Defendants Johnson & Johnson and
Janssen Pharmaceutical manufacture Risperdal and hid the side
effects of Risperdal from the public. He seeks compensatory
damages for pain and suffering and future corrective surgery
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 amended 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 (citations omitted).
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 Const. 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
amended complaint alleges that Plaintiff took Risperdal from
1997 until 2004. It alleges a side effect of Risperdal is
gynecomastia, that Plaintiff developed the condition, and he
has been living with the condition since 1997. Plaintiff
alleges that Dr. Khan prescribed the drug to him and Johnson