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McCoy v. Johnson

United States District Court, D. Delaware

December 28, 2018

LEROY MCCOY, Plaintiff,
v.
JOHNSON & JOHNSON, et al., Defendants.

          Leroy McCoy, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro Se Plaintiff.

          MEMORANDUM OPINION

          ANDREWS, U.S. district Judge.

         Plaintiff Leroy McCoy, 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. 1). Plaintiff appears pro se and has been granted leave to proceed in forma pauperis. (D.I. 6). The Court reviewed and screened the original complaint pursuant to 28 U.S.C. § 1915(e)(2) and gave Plaintiff leave to amend. (D.I. 8, 9). Plaintiff filed an amended complaint on October 8, 2018. (D.I. 10). The Court proceeds to screen the Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(a).

         BACKGROUND

         The original complaint named as Defendants Johnson & Johnson Company and Janssen Pharmaceuticals. It was dismissed for want of jurisdiction and, in the alternative, as legally frivolous. Upon amendment Plaintiff added Defendants Correct Care Solutions LLC, Commissioner Robert Coupe, Perry Phelps, Warden Phil Morgan, and James Welch. (D.I. 10 at 2-3). Plaintiff now raises claims under 42 U.S.C. §§ 1983, 1985, and 1986. (Id. at 2).

         He alleges that from 2010 through 2012, while housed at Howard R. Young Correctional Institution in Wilmington, Delaware, he was prescribed Risperdal by personnel working for Correct Care. (Id. at 4). The Court takes judicial notice that the general healthcare contract for Correct Care to provide medical care to the Delaware Department of Correction expired on June 30, 2014. See http://doc.delaware.gov/ news/pdfs/14press0625.pdf (Sept. 10, 2016). Plaintiff alleges that he was prescribed the medication without notification of its potential side-effects. (D.I. 10 at 4). Plaintiff alleges that the medication is manufactured by Janssen Pharmaceuticals, distributed by Johnson & Johnson, and issued by Correct Care. (Id.). Plaintiff alleges Defendants (presumably Janssen, Johnson & Johnson, and Correct Care) knew or reasonably should have known of the risks and side effects of the medication. (Id.).

         Plaintiff alleges that, after an extended period of taking Risperdal, his mental health deteriorated and he began to experience breast pain. (Id. at 5). He complained repeatedly to "Mental Health," was told that the condition was not permanent, and it had nothing to do with the medication. (Id. at 5-6). He alleges that by 2016 he realized that despite medical assurances to the contrary, the breasts he had grown due to Risperdal were not going away and that by late 2016 or 2017 the condition was permanent. (Id.). Plaintiff alleges that because he is incarcerated, his condition subjects him to increased danger of ridicule and sexual attack. (Id.).

         Plaintiff also alleges that State Defendants Coupe, Welch, and Phelps negotiated, approved and/or contracted with Correct Care and, with Defendant Morgan, failed to properly monitor and supervise the treatment Correct Care provided. (Id. at 4, 6-7).

         Plaintiff alleges that all Defendants were deliberately indifferent and subjected him to cruel and unusual punishment in violation of the Eighth Amendment. (D.I. 10 at Counts 1-7). He seeks $2.6 million for pain and suffering.

         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). 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.

         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. Tourscherv. 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 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 be dismissed, ...


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