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Harden v. Johnson & Johnson

United States District Court, D. Delaware

March 14, 2018

DA'RIUS OLIVER HARDEN, Plaintiff,
v.
JOHNSON & JOHNSON, et al., Defendants.

          Da'Rius Oliver Harden, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro Se Plaintiff.

          MEMORANDUM OPINION

          ANDREWS, U.S. District Judge.

         Plaintiff 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.[1] (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).

         BACKGROUND

         In 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 for gynecomastia.

         SCREENING OF COMPLAINT

         A 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).

         An 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).

         The 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).

         A 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.

         A court 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 sense." Id.

         DISCUSSION

         The 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 & ...


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