HOUSER v. WIDENOUR et al
MEMORANDUM ORDER granting #99 Motion to Dismiss for Failure to State a Claim. Plaintiff's claims against Major Pharmaceuticals and Rugby Laboratories are dismissed and those Defendants are dismissed from the case. Signed by Judge Arthur J. Schwab on 7/6/17. (eet)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
WETZEL, et al.,
MEMORANDUM ORDER DISMISSING SUA SPONTE
DEFENDANTS MAJOR PHARMACEUTICALS AND
On March 8, 2017, Plaintiff filed an Amended Complaint in which the following two
defendants were named: “manufactures (sic) of Lubrisoft LOTION/ MAJOR
PHARMACEUTICAL” and “Manufacture of Rugby anti dandruff shampoo / Rugby
Laboratories.” (Doc. No. 56.) These defendants promptly filed a Motion to Dismiss (Doc. No.
99) contending that any claims against them should be dismissed because (i) Plaintiff has
suffered no injury-in-fact and his “future harm” claim is insufficient to establish standing and
(ii) a “fear of contracting claim” is not a valid claim under Pennsylvania law.1
Defendants’ arguments are well taken. As such, the Court will not order a response to the
motion to dismiss, but rather will dismiss Major Pharmaceuticals and Rugby Laboratories sua
sponte pursuant to the authority granted courts by 28 U.S.C.§§ 1915(e)(2) and 1915A.
Houser is a state prisoner who has been granted leave to proceed in this case in forma
pauperis (“IFP”) by Order of the Court. (Doc. No. 8.) This Court has a statutory responsibility,
In their motion to dismiss, Defendants explain that both Major Pharmaceuticals and Rugby
Laboratories are names under which The Harvard Drug Group, L.L.C. operates.
given that IFP status and the fact that Houser is a prisoner, to review the Amended Complaint to
determine if it states a valid claim for relief. The Court is required to identify cognizable claims
and to sua sponte dismiss any claim that is frivolous, 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. See 28 U.S.C. §§ 1915(e)(2)(B); 1915A(a).
Moreover, not only is a court permitted to sua sponte dismiss a complaint but it is
required to do so by the mandatory language of “the court shall dismiss” utilized by Section
1915(e)(2); see also 28 U.S.C. § 1915A(b) (“On review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . fails to
state a claim . . . .”). In performing a court’s mandated function of sua sponte reviewing
complaints under 28 U.S.C. §§ 1915(e) and 1915A, a federal district court applies the same
standard as applied to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). See,
e.g., Powell v. Hoover, 956 F. Supp. 565, 568 (M.D. Pa. 1997) (applying Rule 12(b)(6) standard
to claim dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii)).
As has been explained to Houser on two prior occasions, (Doc. No. 53, Doc. No. 92),
Pennsylvania law is quite clear that a fear of contracting cancer is not a valid cause of action.
The Amended Complaint is void of any allegations that Houser has contracted cancer as a result
of his exposure to LUBRISKIN, or any other lotion or shampoo. As such, the allegations in the
Amended Complaint do not rise “above the speculative” level.
Under the pleadings
requirements of Twombly and Iqbal, Plaintiff’s claims against Major Pharmaceuticals and Rugby
Laboratories will be dismissed.
So ORDERED this 6th day of July, 2017.
s/ Arthur J. Schwab
Arthur J. Schwab
United States District Judge
175 Progress Drive
Waynesburg, PA 15370
(via U.S. First Class Mail)
all counsel of record
(via ECF electronic notification)
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