United States District Court, D. Delaware
McCoy, James T. Vaughn Correctional Center, Smyrna, Delaware.
Pro Se Plaintiff.
ANDREWS, U.S. DISTRICT JUDGE
Leroy McCoy, an inmate at the James T. Vaughn Correctional
Center in Smyrna, Delaware, filed this action pursuant to 42
U.S.C. § 1983. (D.I. 1). Plaintiff appears pro
se and has been granted leave to proceed in forma
pauperis. (D.I. 6). The Court proceeds to review and
screen the complaint pursuant to 28 U.S.C. § 1915(e)(2).
Plaintiff also requests counsel. (D.I. 5).
alleges from September 30, 2010 through July 17, 2012, when
he was housed at Howard R. Young Correctional Institution in
Wilmington, Delaware, and the JTVCC, he was prescribed
Risperdal. Plaintiff alleges that he began to grow breasts as
a result of the medication and suffered emotionally. He seeks
$2.6 million for pain and suffering.
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 (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 be 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
alleges that he was prescribed Risperdal from September 30,
2010 through July 17, 2012. Plaintiff alleges that because he
took the medication, he "started to grow breasts."
(D.I. 1 at 5). Federal 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
using a civil rights complaint form pursuant to 42 U.S.C.
§ 1983. Liberally construing the complaint as the Court
must, it alleges negligence, breach of warranty, breach of
express warranty, and fraud by concealment. As presented, the
complaint 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 violations. Rather, they speak to state
tort claims and suggest Plaintiff may have claims under state
does jurisdiction vest by reason of diversity of citizenship.
Under § 1332, district courts have original jurisdiction
of all civil actions where the matter in controversy exceeds
the sum or value of $75, 000, exclusive of interest and
costs, and is between citizens of different States. 28 U.S.C.
§ 1332(a). To the extent Plaintiff attempts to raise
state law claims, the Court lacks jurisdiction given that
complete diversity is not apparent from the pleadings.
See Mierzwa v. Safe & Secure Self Storage, LLC,493 Fed.Appx. 273, 276 (3d Cir. 2012). As alleged, there is
no diversity of citizenship because Plaintiff has ...