Opinion
No. 2:16-cv-2308 AC
10-24-2016
DOMINGO CLEVELAND, Plaintiff, v. JENSSEN PHARMACEUTICALS, INC., Defendant.
ORDER
Plaintiff is a state prisoner proceeding in this action pro se. This matter was accordingly referred to the undersigned by E.D. Cal. R. 302(c)(21) (referral of pro se cases). Plaintiff's complaint does not challenge the conditions of his confinement, however.
I. IN FORMA PAUPERIS
Plaintiff requests leave to proceed in forma pauperis ("IFP") under 28 U.S.C. § 1915(a)(1), and has submitted an affidavit making the showing required by that statute. Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
II. SCREENING
Granting IFP status does not end the court's inquiry. The federal IFP statute requires federal courts to dismiss a case if the action is legally "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. 28 U.S.C. § 1915(e)(2).
Plaintiffs must assist the court in making this determination by drafting their complaint so that it contains a "short and plain statement" of the basis for federal jurisdiction (that is, the reason the case is filed in this court, rather than in a state court), as well as a short and plain statement showing that plaintiffs are entitled to relief (that is, who harmed the plaintiffs, and in what way). Plaintiffs' claims must be set forth simply, concisely and directly. See "Rule 8" of the Federal Rules of Civil Procedure (Fed. R. Civ. P. 8). The Federal Rules of Civil Procedure are available online at www.uscourts.gov/rules-policies/current-rules-practice-procedure/federal-rules-civil-procedure.
Forms are available to help pro se plaintiffs organize their complaint in the proper way. They are available online at www.uscourts.gov/forms/pro-se-forms. A sample complaint form is annexed to this order.
III. ANALYSIS
A. The Complaint
The following allegations are assumed to be true only for purposes of this screening. Defendant is a "provider" of the drug Risperdal. Complaint (ECF No. 1) ¶¶ III(A), IV. After taking Risperdal for years, plaintiff was diagnosed with gynecomastia. Id. ¶ IV. Gynecomastia is a side effect of Risperdal, and plaintiff's disease can be traced directly to his taking Risperdal. Id. ¶ 4. Defendant "never informed its consumer of the side effect of Risperdal which is in direct violation of the FDA rules governing these issues." Id. ¶ IV.
Based upon these facts, the court infers that plaintiff is alleging a state tort claim based upon defendant's alleged duty to warn him of the side-effects he experienced.
B. Federal Jurisdiction
The complaint contains a short and plain statement of plaintiff's claim for relief. However, the complaint does not contain any statement or facts establishing why this federal district court has jurisdiction over plaintiff's claim.
The "diversity" statute authorizes jurisdiction over state claims if the parties are citizens of different states, and if the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a). The complaint alleges that plaintiff seeks $600,000 in damages, well in excess of the jurisdictional amount. However, it does not allege plaintiff's citizenship, nor defendant's citizenship. Therefore, the court cannot determine whether the parties are citizens of different states. The complaint will therefore be dismissed with leave to amend so that plaintiff can include the jurisdictional facts of citizenship.
The complaint does mention "the FDA rules governing these issues." Complaint ¶ IV. If plaintiff means to allege a claim under a federal law or regulation, his amended complaint should advise the court what specific law or regulation he bases his claim on.
The court notes that plaintiff's complaint is written on a form that is best suited for claims under 42 U.S.C. § 1983, and which does not include a space specifically set aside for a statement of jurisdiction. Accordingly, this order will be issued with a form of complaint annexed, which is better suited to this lawsuit.
C. The Merits
There exists a cause of action in California for failure to warn. See, e.g., Carlin v. Superior Court, 13 Cal. 4th 1104, 1116 (1996) (however, "in the case of prescription drugs, the duty to warn runs to the physician, not to the patient"). Accordingly, for screening purposes only, the complaint may state a claim, and is not "frivolous."
D. Amending the Complaint
The amended complaint must include a short and plain statement of the basis for federal jurisdiction (that is, the reason the case is filed in this court, rather than in a state court).
The amended complaint must not refer to a prior pleading in order to make plaintiff's amended complaint complete. An amended complaint must be complete in itself without reference to any prior pleading. Local Rule 220. This is because, as a general rule, an amended complaint supersedes the original complaint. See Pacific Bell Telephone Co. v. Linkline Communications, Inc., 555 U.S. 438, 456 n.4 (2009) ("[n]ormally, an amended complaint supersedes the original complaint") (citing 6 C. Wright & A. Miller, Federal Practice & Procedure § 1476, pp. 556-57 (2d ed. 1990)). Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.
IV. CONCLUSION
For the reasons stated above, IT IS HEREBY ORDERED that:
1. The Clerk of the Court is instructed to randomly assign a district judge to this case.
2. Plaintiff's request for leave to proceed in forma pauperis (ECF No. 2), is GRANTED.
3. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). All fees shall be collected and paid in accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.
4. The complaint is DISMISSED with leave to amend, for failure to allege facts establishing federal jurisdiction. Plaintiff shall have 30 days from the date of this order to file an amended complaint.
5. Failure to comply with this order may result in a recommendation that this action be dismissed for lack of prosecution and failure to comply with a court order. DATED: October 24, 2016
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE
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