JOHNSON v. SOLCO HEALTH CARE, US

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CHERYL B. JOHNSON,

1:19-cv-8749-NLH-KMW

Plaintiff,

MEMORANDUM

v. OPINION & ORDER

SOLCO HEALTHCARE, US and CVS

PHARMACY,

Defendants.

APPEARANCES:

CHERYL B. JOHNSON

506 SOUTH WHITEHORSE PIKE

APARTMENT H201

STRATFORD, NJ 08084

Appearing pro se.

HILLMAN, District Judge

WHEREAS, Plaintiff Cheryl Johnson (“Plaintiff”), appearing

pro se, has filed a complaint against defendants SOLCO Health

Care, US and CVS Pharmacy (“Defendants”);1 and

WHEREAS, Plaintiff alleges that that she suffered adverse

1 Of note, Plaintiff has filed at least three other actions

raising similar allegations against various other defendants.

See Johnson v. Walgreens, No. 1:19-CV-8388-NLH, 2019 WL 5846660

(D.N.J. Nov. 7, 2019); Johnson v. MacLeods Pharma USA, Inc., No.

1:19-CV-7856-NLH-JS, 2019 WL 5846658 (D.N.J. Nov. 7, 2019);

Johnson v. Cooper Med. Hosp., No. 1:18-CV-16352-NLH-AMD, 2018 WL

6381881 (D.N.J. Dec. 6, 2018).

side effects, namely a stroke, after taking a prescribed

medication called Losartan; and

WHEREAS, Plaintiff further alleges that, as a result, she

is largely disabled; and

WHEREAS, Plaintiff seeks reimbursement for unspecified

medical bills and an award of $800,000; and

WHEREAS, Plaintiff has filed an application to proceed

without prepayment of fees (“in forma pauperis” or “IFP”

application), and pursuant to 28 U.S.C. § 1915(a)(1), a court

may allow a litigant to proceed without prepayment of fees if

she submits a proper IFP application; and

WHEREAS, although § 1915 refers to “prisoners,” federal

courts apply § 1915 to non-prisoner IFP applications, Hickson v.

Mauro, 2011 WL 6001088, *1 (D.N.J. 2011) (citing Lister v. Dept.

of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (“Section

1915(a) applies to all persons applying for IFP status, and not

just to prisoners.”) (other citations omitted); and

WHEREAS, the screening provisions of the IFP statute

require a federal court to dismiss an action sua sponte if,

among other things, the action is frivolous or malicious, or if

it fails to comply with the proper pleading standards, see 28

U.S.C. § 1915(e)(2)(B)(i)-(iii); Ball v. Famiglio, 726 F.3d 448,

452 (3d Cir. 2013); Martin v. U.S. Department of Homeland

Security, 2017 WL 3783702, at *1 (D.N.J. August 30, 2017)

(“Federal law requires this Court to screen Plaintiff’s

Complaint for sua sponte dismissal prior to service, and to

dismiss any claim if that claim fails to state a claim upon

which relief may be granted under Fed. R. Civ. P. 12(b)(6)

and/or to dismiss any defendant who is immune from suit.”); and

WHEREAS, pro se complaints must be construed liberally, and

all reasonable latitude must be afforded the pro se litigant,

Estelle v. Gamble, 429 U.S. 97, 107 (1976), but pro se litigants

“must still plead the essential elements of [their] claim and

[are] not excused from conforming to the standard rules of civil

procedure,” McNeil v. United States, 508 U.S. 106, 113 (1993)

(“[W]e have never suggested that procedural rules in ordinary

civil litigation should be interpreted so as to excuse mistakes

by those who proceed without counsel.”); Sykes v. Blockbuster

Video, 205 F. App’x 961, 963 (3d Cir. 2006) (finding that pro se

plaintiffs are expected to comply with the Federal Rules of

Civil Procedure); and

WHEREAS, the Court finds that Plaintiff’s complaint is

deficient for several reasons; and

WHEREAS, first, and as a threshold matter, the Court is

unable to determine the asserted basis for the Court’s exercise

of subject matter jurisdiction. Federal Rule of Civil Procedure

8(a) provides that “[a] pleading that states a claim for relief

must contain . . . a short and plain statement of the grounds

for the court’s jurisdiction.”; and

WHEREAS, initially, the Court cannot determine whether

Plaintiff seeks to assert diversity jurisdiction pursuant to 28

U.S.C. § 1332. Plaintiff does not identify diversity as a basis

for the Court’s jurisdiction in her complaint. See (ECF No. 1

at 4 (checking box for Federal Question jurisdiction and

suggesting that the United States is a party to this action, but

not checking the box for Diversity of Citizenship)); and

WHEREAS, further, the Court cannot determine whether it may

properly assert diversity jurisdiction as Plaintiff’s complaint

suggests that Defendant CVS Pharmacy is a citizen of New Jersey,

as is Plaintiff. See (ECF No. 1 at 3-4 (listing addresses for

Defendant CVS Pharmacy and Plaintiff in New Jersey)); and

WHEREAS, the complaint suggests that the Court has subject

matter jurisdiction because the Government is both a plaintiff

and defendant in this action, and that the Court otherwise has

federal question jurisdiction because issues of “Federal

Constitutional [and] FDA Law” are at issue. (Id. at 4); and

WHEREAS, the Government is not a party to this action, and

Plaintiff has not identified the basis for asserting that her

claims arise under the Constitution. Moreover, Plaintiff does

not expand upon her purported FDA claim or otherwise explain

what federal law governs her allegations; and

WHEREAS, the complaint is otherwise void of allegations

that would suggest this Court has subject matter jurisdiction;

and

WHEREAS, furthermore, Rule 8(a)(2) requires a complaint

contain “a short and plain statement of the claim showing that

the pleader is entitled to relief”; and

WHEREAS, the civil cover sheet suggests that this matter

brings claims arising from health care product liability and the

Family and Medical Leave Act. (Id.); and

WHEREAS, Plaintiff has not alleged any facts relating to

the Family and Medical Leave Act; and

WHEREAS, Plaintiff has not stated a prima facie case for

product liability, or any other cause of action;2 and

2 In New Jersey, the Product Liability Act (PLA), codified at New

Jersey Statute Annotated 2A:58C, et seq., governs product

liability actions. Three causes of action are established under

the PLA, namely, claims for design defect, manufacturing defect,

or warnings defect. Roberts v. Rich Foods, Inc., 654 A.2d 1365,

1370 (N.J. 1995). The standard of liability is that the product

“was not reasonably fit, suitable or safe for its intended

purpose.” Cornett v. Johnson & Johnson, 998 A.2d 543, 562 (N.J.

Super. Ct. App. Div. 2010).

To prove a defect, a plaintiff must be able to show that: (1)

the product was defective; (2) the defect existed when the

product left the hands of the defendant; and (3) the defect

caused the injury to a reasonably foreseeable user. McGarvey v.

G.I. Joe Septic Service, Inc., 679 A.2d 733, 740 (N.J. Super.

Ct. App. Div. 1996).

The complaint is entirely void of allegations relevant to any of

these factors. Plaintiff has not alleged the drug at issue was

defective, but rather only that she suffered a side effect from

taking it. Moreover, Plaintiff fails to tether Defendant to the

harm she allegedly suffered. In fact, Plaintiff has not

WHEREAS, while Plaintiff has identified Defendants in the

caption of the complaint, Plaintiff fails to explain how they

are connected to this action; and

WHEREAS, the Court will grant Plaintiff an opportunity to

file an amended complaint to correct the above-referenced

deficiencies; and

WHEREAS, in preparing this Opinion and Order, the Court

determined that Plaintiff attached sensitive personal

identifiers to the initial complaint at ECF No. 1-2. As such,

and in light of Plaintiff’s pro se status, the Court will sua

sponte order the documents filed at ECF No. 1-2 temporarily

sealed; and

WHEREAS, to the extent Plaintiff needs to rely upon such

personal and confidential information moving forward, or

otherwise seeks to file such information along with any amended

complaint, Plaintiff should file a motion to seal such documents

pursuant to Local Civil Rule 5.3;3

presented a single allegation against Defendant, but rather

recites various complaints about the drug at issue. Such bare

allegations do not render the complaint actionable and require

its dismissal.

3 This Court previously instructed Plaintiff on the way in which

to properly seek the sealing of confidential documents. The Court

repeats that prior instruction here for Plaintiff’s benefit. Local

Civil Rule 5.3 governs requests to seal documents filed with the

Court. Instructively, the Rule dictates that the party seeking to

seal documents must describe: (a) the nature of the materials at

issue; (b) the legitimate private or public interests which warrant

THEREFORE,

IT IS on this _9th_ day of __December__ , 2019

ORDERED that Plaintiff’s IFP application (ECF No. 1-4) be,

and the same hereby is, GRANTED; and it is further

ORDERED that Plaintiff’s complaint is DISMISSED in its

entirety, WITHOUT PREJUDICE, for failing to state a claim on

which relief can be granted and for want of subject matter

jurisdiction; and it is further

ORDERED that ECF No. 1-2, which contains Plaintiff’s

confidential and private personal identifiers, be, and the same

hereby is, TEMPORARILY SEALED; and it is further

ORDERED that Plaintiff shall have twenty (20) days to amend

her complaint to properly cure the deficiencies noted above, and

to ask this Court to permanently seal ECF No. 1-2 in a manner

described in footnote three above; and it is further

ORDERED that if Plaintiff fails to file an amended

complaint within the timeframe allotted, this case will be

dismissed for lack of subject matter jurisdiction and failure to

state a claim. See Fed. R. Civ. P. 12(h)(3).

s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

the relief sought; (c) the clearly defined and serious injury that

would result if the relief sought is not granted; and (d) why a

less restrictive alternative to the relief sought is not available.

L. Civ. R. 5.3(c)(3).