United States District Court, D. Delaware
Clark, James T. Vaughn Correctional Center, Smyrna, Delaware.
Pro Se Plaintiff.
ANDREWS, U.S. DISTRICT JUDGE.
Tylir Clark, 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. 6).
alleges from 2013 through 2015 (he is unsure of the exact
dates) while housed at the Ferris School for Boys and due to
the administration of Risperdal, Plaintiff was "exposed
to the risk of gynecomastia." (D.I. 1 at 5). He seeks
$2.5 million because of the "risk of Risperdal."
(Id. at 8). He also seeks punitive or exemplary
damages. (Id. at 6).
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
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, 574 U.S. 10 (2014). A complaint may not
dismissed, however, for imperfect statements of the legal
theory supporting the claim asserted. See Id . at
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 Constr. 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 due to the use of Risperdal from 2013 through
2015, he was exposed to the risk of gynecomastia. 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. He alleges
negligence, negligent misrepresentation, breach of warranty,
breach of implied warranty of merchantability, breach of
implied warranty of fitness for a particular purpose, breach
of express warranty, and fraud by concealment. All are claims
that arise under state law.
construing the Complaint as the Court must, the Complaint
presents 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 ...