Harden v. Johnson & Johnson et al
MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 3/14/2018. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DA'RIUS OLIVER HARDEN,
: Civil Action No. 17-982-RGA
JOHNSON & JOHNSON, et al.,
Da'Rius Oliver Harden, James T. Vaughn Correctional Center, Smyrna, Delaware.
Pro Se Plaintiff.
Plaintiff D 'Rius Oliver Harden, 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. 3).
Plaintiff appears prose and has been granted leave to proceed in forma pauperis. (D.I.
6). Upon screening, the Court dismissed the original complaint and gave Plaintiff leave
to file an amended complaint. (D.I. 9). The amended complaint was filed on December
4, 2017. (D.I. 12). The Court proceeds to review and screen the amended complaint
pursuant to 28 U.S.C. § 1915(e)(2).
In 1997, when Plaintiff was 10 years, he was diagnosed with ADD (attentiondeficit disorder) and prescribed Risperdal by Defendant Dr. Khan. Plaintiff took the
medication from 1997 to 2004, at his home, schools, Delaware Guidance, the Terry
Center, the Rockford Center, and at the New Castle County Detention Center. Plaintiff
alleges that Risperdal caused him to develop gynecomastia. He alleges that he has
been living with the condition since 1997. (D.I. 12 at 1).
Plaintiff alleges that Dr. Khan prescribed him medication that was not tested or
approved by the FDA to treat ADD. Plaintiff alleges that Defendants Johnson &
Johnson and Janssen Pharmaceutical manufacture Risperdal and hid the side effects of
Risperdal from the public.
He seeks compensatory damages for pain and suffering and
future corrective surgery for gynecomastia.
When bringing a § 1983 claim, a plaintiff must allege that some person has deprived
him of a federal right, and the person who caused the deprivation acted under color of
state law. West v. Atkins, 487 U.S. 42, 48 (1988).
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)(8) 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 a/so 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 prose 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 amended 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).
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. Rackmil/, 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. 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).
A well-pleaded complaint must contain more than mere labels and conclusions.
See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell At/. 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 dismissed, however, for imperfect statements of the legal theory
supporting the claim asserted. See id. at 346.
A court 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 sense." Id.
The amended complaint alleges that Plaintiff took Risperdal from 1997 until
2004. It alleges a side effect of Risperdal is gynecomastia, that Plaintiff developed the
condition, and he has been living with the condition since 1997. Plaintiff alleges that Dr.
Khan prescribed the drug to him and Johnson & Johnson and Janssen manufactured
and hid the drug's side effects from the public.
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 amended complaint as the Court must, it alleges negligence, breach of
warranty, breach of express warranty, and fraud by concealment. As presented, the
amended complaint reveals no basis for federal question jurisdiction. See 28 U.S.C.
§ 1331. While the amended 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 law.
Nor does jurisdiction exist 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 F.
App'x. 273, 276 (3d Cir. 2012). As alleged, there is no diversity of citizenship because
Plaintiff has named as a defendant Dr. Khan of Delaware Guidance, located in
Delaware and the same state where Plaintiff currently resides.
The Court is mindful that Plaintiff appears prose and, therefore, his Complaint is
held to less stringent standards than formal pleadings drafted by lawyers. Haines v.
Kerner, 404 U.S. 519 (1972). Regardless, the Court discerns no basis for asserting
jurisdiction over this action. The Complaint contains no federal question and there are
no allegations of diversity of citizenship. See 28 U.S.C. §§ 1331, 1332. Thus, the Court
has no jurisdiction over the matter.
In the alternative, dismissal is appropriate because the claims are time-barred.
The statute of limitations is an affirmative defense that generally must be raised by the
defendant, and it is waived if not properly raised. See Benak ex rel. Alliance Premier
Growth Fund v. Alliance Capital Mgmt. L.P., 435 F.3d 396, 400 n.14 (3d Cir. 2006);
Fassett v. Delta Kappa Epsilon, 807 F.2d 1150, 1167 (3d Cir. 1986). "[W]here the
statute of limitations defense is obvious from the face of the complaint and no
development of the factual record is required to determine whether dismissal is
appropriate, sua sponte dismissal under 28 U.S.C. §1915 is permissible." Davis v.
Gauby, 408 F. App'x 524, 526 (3d Cir. 2010) (quoting Fogle v. Pierson, 435 F.3d 1252,
1258 (10th Cir. 2006)).
Here, Plaintiff alleges he took Risperdal from 1997 until 2004 and developed
gynecomastia in 1997. Plaintiff filed this lawsuit in 2017. Based upon the allegations on
the face of the Complaint, the: (1) negligence claims are barred by the two-year statute
of limitations, 10 Del. C. § 8110; (2) breach of warranty claims are barred by the fouryear statute of limitations, 6 Del. C. § 2-275; and (3) the breach of express warranty and
fraud claims are barred by the three-year statute of limitations, 10 Del. C. § 8106.
Because Plaintiff's allegations are time-barred by more than fifteen years, the Court will
dismiss the claims as legally as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
For the above reasons, the Court will dismiss the Complaint for want of
jurisdiction and, in the alternative, as legally frivolous pursuant to U.S.C.
§ 1915(e)(2)(B)(i). Amendment is futile.
An appropriate order will be entered.
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