Ernest M. Daniels v. DOCTOR DELEON, MD of (BOP) Bureau of Prisons

BLD-301 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 07-1443
________________
ERNEST M. DANIELS,
Appellant
v.
DOCTOR DELEON, MD of (BOP) Bureau of Prisons;
ELI LILLY & COMPANY; FOOD AND DRUG ADMINISTRATION;
DR. WILLIAM HUBBARD, His Chair; DR. LESTER CRAWFORD, His Chair;
DR. ROBERT TEMPLE, His Chair; CARL PECK, His Chair;
DR. JANET WOODCOCK; DR. SUSAN BRO, Her Chair;
DR. SANDRA KWEDER, Her Chair; SCOTT GOTTLIEB, His Chair;
DR. ANDREW VON ESCHENBACH, His Chair;
DR. DAVID KESSLER, His Chair
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 07-cv-00018)
District Judge: Honorable James M. Munley
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
Under Third Circuit LAR 27.4 and I.O.P. 10.6
July 12, 2007
Before: MCKEE, FUENTES AND VAN ANTWERPEN, CIRCUIT JUDGES.
(Filed: July 19, 2007)
_______________________
OPINION
_______________________

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The District Court did not abuse its discretion in failing to exercise supplemental1
jurisdiction over any state law claims. Moreover, we note that while Daniels stated that
2
PER CURIAM
Ernest Daniels appeals the District Court’s order dismissing his complaint for
failure to state a claim. In his complaint dated December 18, 2006, Daniels alleged that
in August 1995, he was prescribed Prozac by Dr. Deleon. He claimed that on March 25,
1996, while still taking Prozac, he attacked another prisoner with a hot iron causing
serious injuries. Daniels stated that in January 2005 he learned that Eli Lilly, the maker of
Prozac, concealed reports from physicians who had described instances of Prozac causing
users to become violent. Daniels named as defendants Dr. Deleon, Eli Lilly, the Food and
Drug Administration, and the FDA’s chairpersons. The District Court dismissed the
complaint before service for failure to state a claim. Daniels filed a timely notice of
appeal.
Daniels alleged that the defendants violated his constitutional rights under the
Fifth, Eighth, and Fourteenth Amendments by committing negligence, fraud, and medical
malpractice. We agree with the District Court that Eli Lilly was not a state actor and that
the alleged negligence of the FDA, its members, and Dr. Deleon did not rise to the level
of a constitutional violation. See County of Sacramento v. Lewis, 523 U.S. 833, 849
(1998)(“[L]iability for negligently inflicted harm is categorically beneath the threshold of
constitutional due process”). Moreover, Daniels admitted that his tort claim was rejected
as untimely. See 28 U.S.C. § 2401.1

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he learned of the possible side effects of Prozac in January 2005, several lawsuits
concerning such side effects were consolidated in 1992. See Winkler v. Eli Lilly & Co.,
101 F.3d 1196 (7th Cir. 1996). Thus, his claims were discoverable long before January
2005 and appear to have been filed beyond the two-year statute of limitations for such
actions. See 42 Pa.C.S. § 5542.
3
Summary action is appropriate if there is no substantial question presented in the
appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by
the District Court, we will summarily affirm the District Court’s order. See Third Circuit
I.O.P. 10.6.

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