Opinion
Civil Action 2:23-cv-1636
09-26-2023
NATHAN HOYE, Plaintiff, v. JOHNSON & JOHNSON, Risperdal, Defendant.
Nora Barry Fischer, United States District Judge
REPORT AND RECOMMENDATION
Cynthia Reed Eddy, United States Magistrate Judge
I. RECOMMENDATION
Plaintiff Nathan Hoye, a pro se non-prisoner, seeks permission to proceed in forma pauperis to file a civil action against “Johnson & Johnson,” the manufacturer of Risperdal. It is recommended that Plaintiff be granted leave to proceed in forma pauperis; however, pursuant to the screening provisions of 28 U.S.C. § 1915(e)(2)(ii), it is recommended that the Complaint be dismissed preservice for failure to state a claim upon which relief can be granted. It is also recommended that the dismissal be with prejudice as amendment would be futile.
Also pending are seven additional motions filed by Mr. Hoye. The following four were filed on September 22, 2023: Motion for discovery/motion for demurrer (ECF No. 3); Motion for Service by U.S. Marshall (ECF No. 4); Motion to Settle (ECF No. 5), and Motion for Leave to File Amended Complaint (ECF No. 9). And the following three were filed on September 25, 2023: Motion for Preliminary Injunction (ECF No. 6), Motion to Rush and Answer IFP and Civil Complaint (ECF No. 7), and Motion to have all documents certified and copied due to mail tampering (ECF No. 8). It is recommended that each of these motions be denied as moot.
II. REPORT
A. Background
Mr. Hoye, a former prisoner, claims that from May 2, 2013 through May 7, 2015, while incarcerated in the Allegheny County Jail, he was prescribed Risperdal which resulted in him developing gynecomastia in his left breast, heart failure, and kidney failure. Through his Complaint, he claims that Johnson & Johnson created a “dangerous” medication for which he seeks $90,000,00 in damages.
The Court notes that on at least two prior occasions, Mr. Hoye brought lawsuits against the manufacturer of Risperdal. See Civil Action Nos. 18-cv-1013 and 18-cv-1255.In both cases, Mr. Hoye's applications for in forma pauperis status were denied under the three-strikes provision of the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g), as it was determined that Mr. Hoye was not under the “imminent danger” exception to the three strikes rule. Both cases were dismissed without prejudice to Mr. Hoye reopening the cases by paying the full statutory and administrative filing fees, which he did not do. As Mr. Hoye is no longer incarcerated, the PLRA is no longer applicable to him. Accordingly, his motion for leave to proceed in forma pauperis (“IFP motion”) is governed by § 1915(a)(1) - the “general provision” of the IFP statute.
The instant complaint follows a similar pattern to that presented in his prior cases and raises similar, if not identical, claims to those he raised in his prior lawsuits.
Before the Court can consider the merits of Mr. Hoye's claims, it must first determine whether his IFP motion should be granted in the first instance. Only after leave to proceed IFP is granted may a court undertake an analysis under 28 U.S.C. § 1915(e)(2). See Deutsch v. United States, 67 F.3d 1080, 1084 n.5 (3d Cir. 1995).
B. Motion for Leave to Proceed In Forma Pauperis
Pursuant to 28 U.S.C. § 1915(a), Mr. Hoye has requested leave to proceed in forma pauperis. “The decision to grant ifp status turns on whether an applicant is ‘economically eligible' for such status.” Taylor v. Supreme Court of New Jersey, 261 Fed.Appx. 399, 400 (3d Cir. 2008) (quoting Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir. 1976)). “A person need not be ‘absolutely destitute' to proceed ifp, Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948); however, an affiant must show the inability to pay the filing and docketing fees, see Walker v. People Express Airlines, Inc., 886 F.2d 598, 601 (3d Cir. 1989).” Taylor, 261 Fed.Appx. at 400-01.
In his IFP motion, Mr. Hoye indicates that he is unemployed and has no source of income. The Court finds Mr. Hoye is indigent and has made the required showing of an inability to pay the fees. Therefore, it is recommended that the IFP motion be granted and the Complaint be filed. Because it is recommended that the IFP motion be granted, the screening provisions of 28 U.S.C. § 1915(e) apply to the instant complaint.
C. Standards for Sua Sponte Dismissal
Section 1915(e)(2) requires the federal courts to review complaints filed by persons who are proceeding in forma pauperis and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
See Douris v. Middletown Twp., 293 Fed.Appx. 10, 132 (3d Cir. 2008) (non-precedential) (noting that the statute's reference to prisoners in § 1915(a)(1) “appears to be a mistake” because. IFP status is “afforded to all indigent persons, not just prisoners.”); Atamian v. Burns, 236 Fed.Appx. 753, 754 (3d Cir. 2007) (non-precedential) (“the provisions of § 1915(e) apply to all in forma pauperis complaints, not simply those filed by prisoners.). Although the Court of Appeals for the Third Circuit has not ruled on the issue in a precedential opinion, several district courts in the Third Circuit have considered the question of whether the in forma pauperis statute applies only to prisoners and have concluded that it does not. Rose v. Maggio, No. 22-0992, 2022 WL 17252088, at *1, n.1 (W.D.Pa. 2022) (Colville, J); Leatherman v. Obama, No. 12-1486, 2012 WL 5398912 (W.D. Pa. 2012) (Fisher, J.), adopting R&R, 2012 WL 5398856 (W.D. Pa. October 22, 2012); Harrison v. Shapiro, No, 97-2133, 1997 WL 197950, at * 1 (E.D. Pa. 1997) (Van Artsdalen, J.); Jones v. North Atlantic Treaty Organization, No. 98-1185, 1998 WL 136511, at *1 n. 1 (E.D. Pa. 1998) (Padova, J.); McAllen v. Attic Away From Home, No. 00-941, 2000 WL 1752618, at *2 n. 7 (D. Del. 2000) (Sleet, J). Each of these courts has found the mention of the word “prisoner” to be a typographical error, and that Congress meant the statute to read “person.”
In determining the sufficiency of a pro se complaint, the Court must be mindful to construe it liberally in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court must “accept as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff.” Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). To that end, the Court can sua sponte dismiss IFP cases “to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11.” Neitzke v. Williams, 490 U.S. 319, 327 (1989).
In performing a court's mandated function of sua sponte reviewing complaints under 28 U.S.C. § 1915(e) to determine if they fail to state a claim upon which relief can be granted, 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)). The complaint must be read in the light most favorable to the plaintiff and all well-pleaded, material allegations of fact in the complaint must be taken as true. See Estelle v. Gamble, 429 U.S. 97 (1976). In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.2 (3d Cir. 1994).
The question to be resolved is: whether, taking the factual allegations of the complaint, which are not contradicted by exhibits and matters of which judicial notice may be had, and taking all reasonable inferences to be drawn from those contradicted factual allegations of the complaint, are the “factual allegations . . . enough to raise a right to relief above the speculative level, . . . on the assumption that all the allegations in the complaint are true even if doubtful in fact[.]” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Or put another way, a complaint may be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.
D. The Claims in the Complaint are Time-Barred
On the Complaint form, Mr. Hoye indicates the basis of jurisdiction is “federal question” under 28 U.S.C. § 1331. Complaint, Paragraph II - Basis for Jurisdiction. However, it appears the correct basis of jurisdiction is 28 U.S.C. § 1332, as the case involves diversity of citizenship of parties, and the claim alleged does not arise under the United States Constitution or federal laws or treaties. Regardless of how Mr. Hoye's claims are construed, the claims are barred by the applicable two-year statute of limitations.
The applicable statute of limitations for personal injury and product liability claims in Pennsylvania is two years. 42 Pa. Cons.Stat. Ann. § 5524(2). Under Pennsylvania law, the limitations period begins to run “when the cause of action accrues, meaning the date the injury is sustained.” Gwaltney v. Stone, 564 A.32d 498, 50 (Pa. Super. 1989). Similarly, in Pennsylvania, the applicable statute of limitations for claims under 42 U.S.C. §1983 is two years. Lake v. Arnold, 232 F.3d 360 (3d Cir. 2000).
Mr. Hoye initiated this case on September 13, 2023. ECF No. 1. The only time frame mentioned in his Complaint is “May 2, 2013 through May 7, 2015.” Based on the allegations contained in the Complaint, it is clear that the allegations against the Defendant are time barred by the applicable two-year statute of limitations. Therefore, the Complaint fails to state a claim and it is recommended that the Complaint be dismissed preservice under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.
E. Leave to Amend is Not Warranted
Ordinarily, a plaintiff may be granted “leave [to amend] . . . when justice so requires.” See Foman v. Davis, 371 U.S. 178, 182 (1962); Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993). However,”[a]llowing leave to amend where ‘there is a stark absence of any suggestion by the plaintiffs that they [might] develop any new facts since the action was commenced, which would, if true, cure the defects in the pleadings . . ., would frustrate Congress's objective in enacting this statute of ‘provid[ing] a filter at the earliest stage (the pleading stage) to screen out lawsuits that have no factual basis'.” Cal. Pub. Emples'. Ret. Sys. v. Chubb Corp., 394 F.3d 126, 164 (3d Cir. 2004). 164 (3d Cir. 2004). As discussed supra, Mr. Hoye's claims are time barred. He cannot change that by re-pleading. Therefore, granting him leave to amend would necessarily be futile.
F. Motions Filed at ECF Nos. 3, 4, 5, 6, 7, 8 and 9
As noted above, between September 22, 2023 and September 25, 2023, Mr. Hoye filed seven motions: Motion for Discovery/Motion for Demurrer (ECF No. 3), Motion for Service by U.S. Marshal (ECF No. 4), Motion to Settle (ECF No. 5), Motion for Preliminary Injunction (ECF No. 6), Motion to Rush and Answer IFP and Civil Complaint (ECF No. 7); Motion to have all documents certified and copied due to mail tampering (ECF No. 8), and Motion for Leave to File Amended Complaint (ECF No. 9). Because it is recommended that the Complaint be dismissed, it is recommended that each of these motions be denied as moot.
III. CONCLUSION
It is recommended that Plaintiff be granted leave to proceed in forma pauperis (ECF No. 1); however, because the claims in the Complaint are time barred, it is recommended that the Complaint be dismissed preservice pursuant to 28 U.S.C. § 1915(e)(2).
It is further recommended that each of the following motions be denied as moot: Motion for Discovery/Motion for Demurrer (ECF No. 3), Motion for Service by U.S. Marshal (ECF No. 4), Motion to Settle (ECF No. 5), Motion for Preliminary Injunction (ECF No. 6), Motion to Rush and Answer IFP and Civil Complaint (ECF No. 7); Motion to have all documents certified and copied due to mail tampering (ECF No. 8), and Motion for Leave to File Amended Complaint (ECF No. 9).
Mr. Hoye is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Mr. Hoye may file written objections to this Report and 7 Recommendation by October 16, 2023. He is cautioned that failure to file Objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). See also EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).