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Garry L. Mccue v. Fda

July 11, 2012

GARRY L. MCCUE,
PLAINTIFF,
v.
FDA, DEFENDANT.



The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge

ORDER:

(1) GRANTING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS; [Doc. No. 2]

(2) SUA SPONTE DISMISSING COMPLAINT; AND [Doc. No. 1]

(3) DENYING WITHOUT PREJUDICE AS MOOT MOTION FOR APPOINTMENT OF COUNSEL [Doc. No. 3]

Plaintiff Garry L. McCue ("Plaintiff") commenced this action on April 6, 2012 against the United States Food and Drug Administration ("FDA"). [Doc. No. 1.] Along with his complaint, Plaintiff submitted a motion to proceed in forma pauperis ("IFP") and a motion for the appointment of counsel. [Doc. Nos. 2-3.] Having considered Plaintiff's submissions, the Court GRANTS Plaintiff leave to proceed in forma pauperis, but DISMISSES WITHOUT PREJUDICE Plaintiff's complaint, and DENIES WITHOUT PREJUDICE as moot Plaintiff's motion for the appointment of counsel.

DISCUSSION

I. MOTION TO PROCEED IN FORMA PAUPERIS

All parties instituting any civil action, suit, or proceeding in a district court, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C. § 1914(a). However, an action may proceed despite failure to pay the filing fee if the party is granted in forma pauperis ("IFP") status. See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The Court may grant IFP status to any party who demonstrates that he or she is unable to pay such fees or give security therefor. 28 U.S.C. § 1915(a).

In the present case, having reviewed Plaintiff's motion and declaration in support of the motion, the Court finds that Plaintiff has made a sufficient showing of inability to pay the required filing fees. See Rodriguez, 169 F.3d at 1177. Accordingly, good cause appearing, the Court GRANTS Plaintiff leave to proceed in forma pauperis.

II. INITIAL SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)

A. Legal Standards

After granting IFP status, the Court must dismiss the case if the complaint "fails to state a claim on which relief may be granted" or is "frivolous." 28 U.S.C. § 1915(e)(2)(B); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim). In order to properly state a claim for relief, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal,--U.S.--, 129 S. Ct. 1937, 1949 (2009). A complaint must contain more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "'The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.'" Id.

B. Analysis

As currently pleaded, Plaintiff's complaint fails to state a cognizable claim against the FDA. Although the allegations in Plaintiff's complaint are difficult to follow, it appears that Plaintiff is attempting to bring a claim against the FDA for products liability based on its failure to satisfy its duty to warn Plaintiff with respect to Plaintiff's pacemaker. [Doc. No. 1, at 1-2.] Plaintiff alleges that his pacemaker has been malfunctioning since 2002. [Id.] However, Plaintiff fails to allege any facts showing that the FDA had a duty to warn Plaintiff about his pacemaker. In the complaint, Plaintiff cites to a Nevada Supreme Court decision stating that "a drug manufacturer is responsible for the content of its drug label and ensuring that the warning remains adequate as long as the drug is on the market." [Id. (citing Wyeth v. Rowatt, 244 P.3d 765, 780 (Nev. 2010).] See also Stevens v. Parke, Davis & Co., 9 Cal. 3d 51, 65 (1973) (stating that similar duty to warn exists under California law). Even assuming this duty to warn applies to Plaintiff's pacemaker, Plaintiff does not allege that the FDA was the manufacturer of his pacemaker. To the contrary, an exhibit attached to the complaint lists "Boston Scientific" as the manufacturer of Plaintiff's pacemaker. [Doc. No. 1-5, Ex. 5 at 2.] Therefore, Plaintiff has failed to properly plead a cause of action for ...


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