The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF'S COMPLAINT BE DISMISSED WITHOUT LEAVE TO AMEND OBJECTIONS DUE: 28 DAYS
On October 7, 2010, Plaintiff, LaMar Singleton ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this action against Eli Lilly, Co. ("Defendant"). Plaintiff claims that taking Zyprexa caused him to develop diabetes, severe obesity, and severe metabolic complications. (Doc. 17, p. 3.) Zyprexa is a prescription medication used to treat mental conditions such as schizophrenia and bipolar disorder. See generally UFCW Local 1776 v. Eli Lilly & Co., 620 F.3d 121, 124 (2d Cir. 2010).
For the following reasons, the Court RECOMMENDS that Plaintiff's complaint be DISMISSED WITHOUT LEAVE TO AMEND.
Plaintiff filed his complaint on October 27, 2010. (Doc. 1.) The complaint was dismissed on January 28, 2011, with leave to amend. (Doc. 7.) Plaintiff failed to file timely an amended complaint, and it was recommended that Plaintiff's complaint be dismissed with prejudice for failure to comply with the Court's January 28, 2011, order. (Doc. 8.) During the objection period, Plaintiff filed a motion for a 60-day extension of time to file an amended complaint. (Doc. 9.) The Findings and Recommendations were withdrawn, and Plaintiff was permitted 60 days to file a First Amended Complaint. (Doc. 10.)
On June 6, 2011, Plaintiff filed a First Amended Complaint, which was dismissed with 30-days leave to amend.(Doc. 12.) After numerous extensions of time to file an amended complaint, Plaintiff filed a Second Amended Complaint on January 9, 2012. (Doc. 17.)
In cases where the plaintiff is a prisoner proceeding in forma pauperis, the Court is required to screen each case and shall dismiss the case at any time if the Court determines that the allegation of poverty is untrue or the action or appeal is frivolous or malicious, fails to state a claim upon 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). If the Court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).
In determining whether a complaint fails to state a claim, the Court uses the same pleading standard as that pursuant to Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 557). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
D. No Cognizable Federal Claim Under 42 U.S.C. § 1983 To the extent that Plaintiff alleges civil rights causes of action pursuant to 42 U.S.C. § 1983 for violation of the Eighth and Fourteenth Amendments, those claims are not viable. Section 1983 provides:
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action ...