United States District Court, D. Delaware
Bernard Perkins, FMC Rochester, Rochester, Minnesota, Pro Se
ANDREWS, U.S. DISTRICT JUDGE.
Victor Bernard Perkins, an inmate at FMC Rochester in
Rochester, Minnesota, filed this action pursuant to the
Consumer Product Safety Act ("CPSA"), 15 U.S.C.
§ 2051 to § 2083. (D.I. 1). He appears pro
se and has been granted leave to proceed in forma
pauperis. (D.I. 7). The Court proceeds to review and
screen the matter pursuant to 28 U.S.C. § 1915(e)(2)(B).
alleges that he suffered physical injuries from the "use
of dangerous and harmful pharmaceutical products" of
Defendants Proctor and Gamble Company and AstraZeneca
Manufacturing Co. (D.I. 1 at 2). Plaintiff alleges that he
suffered two massive heart attacks using the Prilosec proton
pump inhibitor. (Id. at 3). Plaintiff alleges that
several years ago the Food and Drug Administration found the
product to be the leading cause of heart attacks, heart
failure, strokes, kidney failure, diabetes, and severe
diarrhea and paralysis in thousands of people of color.
(Id.). Plaintiff also refers to Defendants'
Protonix products. (Id. at 4).
raises his claims under the CPSA. (Id. at 1). He
also seems to attempt to raise a products liability claim and
a claim for violations of his constitutional rights.
(Id. at 1, 6). Plaintiff seeks ten million dollars
in compensatory damages as well as punitive damages.
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 paupehs 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).
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 his complaint unless amendment would be inequitable
or futile. See Grayson v. Mayview State Hosp., 293
F.3d 103, 114 (3d Cir. 2002).
proceeds pro se and, therefore, 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. 89, 94 (2007). Under Rule 12(b)(6),
a motion to dismiss may be granted only if, accepting the
well-pleaded allegations in the complaint as true and viewing
them in the light most favorable to the plaintiff, a court
concludes that those allegations "could not raise a
claim of entitlement to relief." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 558 (2007). "Though
'detailed factual allegations' are not required, a
complaint must do more than simply provide 'labels and
conclusions' or 'a formulaic recitation of the
elements of a cause of action.'" Daw's v.
Abington Mem'l Hosp., 765 F.3d 236, 241 (3d Cir.
2014) (quoting Twombly, 550 U.S. at 555). In
addition, 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
be dismissed, however, for imperfect statements of the legal
theory supporting the claim asserted. See Id. at 10.
reviewing the sufficiency of a complaint, a court should
follow a three-step process: (1) consider the elements
necessary to state a claim; (2) identify allegations that are
merely conclusions are therefore are not well-pleaded factual
allegations; and (3) accept any well-pleaded factual
allegations as true and determine whether they plausibly
state a claim. See Connelly v. Lane Constr. Corp.,809 F.3d 780, 787 (3d Cir. 2016); Williams v. BASF
Catalysts LLC,765 F.3d 306, 315 (3d Cir. 2014).
Deciding whether a claim is plausible ...