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 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).
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).
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.).
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.).
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).
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.
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.
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. 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).
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, ...