United States District Court, E.D. Missouri, Eastern Division
KENNETH G. CHARRON Plaintiff,
AZTRAZENECA PHARMACEUTICALS LP, et al., Defendants.
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY, UNITED STATES DISTRICT JUDGE.
matter is before the Court upon the motion of Kenneth G.
Charron, an inmate at Northeast Correctional Center
(“NECC”), for leave to commence this action
without payment of the required filing fee. For the following
reasons, the motion will be held in abeyance, and plaintiff
will be given the opportunity to submit an amended complaint.
U.S.C. § 1915(g)
a prisoner and a frequent filer of lawsuits, is subject to 28
U.S.C. § 1915(g), which limits a prisoner's ability
to obtain in forma pauperis status if he has filed at least
three actions that have been dismissed as frivolous,
malicious, or for failure to state a claim. Section 1915(g)
provides in relevant part:
In no event shall a prisoner bring a civil action . . . under
this section if the prisoner has, on three or more prior
occasions, while incarcerated or detained in any facility,
brought an action . . . in a court of the United States that
was dismissed on the grounds that it is frivolous, malicious,
or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious
28 U.S.C. § 1915(g). Section 1915(g) is commonly known
as the “three strikes” rule, and it has withstood
constitutional challenges. See Higgins v. Carpenter,
258 F.3d 797, 799 (8th Cir. 2001).
review of this Court's files and those of the United
States District Court for the Western District of Missouri
indicates that plaintiff previously brought three civil
actions that were dismissed as frivolous. See Charron v.
Groose, No. 2:92-CV-4511 SOW (W.D. Mo. filed Dec. 3,
1992); Charron v. Mitchell, No. 2:92-CV-4567 SOW
(W.D. Mo. filed Jan. 11, 1993); Charron v. Jawade,
No. 4:93-CV-2485 GFG (E.D. Mo. filed Mar. 15, 1994).
Therefore, the Court cannot permit plaintiff to proceed in
forma pauperis unless he “is under imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g).
complaint alleges product liability claims against three drug
manufacturers. Although he does not allege any claims under
42 U.S.C. § 1983, he includes factual allegations that
would likely give rise to a nonfrivolous action against his
treating physicians for violation of his constitutional
rights under the Eighth Amendment. The Court must liberally
construe plaintiff's complaint, and therefore will
address both sets of claims.
Product Liability Claims
brings this action against Astrazeneca Pharmaceuticals LP,
Astrazeneca LP (collectively “Astrazeneca”),
Wyeth Pharmaceuticals, Inc. (“Wyeth”), Procter
& Gamble Co. (“P&G”), several unknown
business entities, Corizon LLC, and several unknown employees
of Corizon, alleging negligence (Count I); strict products
liability (Count II); breach of express warranty (Count III);
breach of implied warranty (Count IV); fraudulent
misrepresentation and omission (Count V); and violation of
the Missouri Merchandising Practices Act
states that he was diagnosed with hiatal hernia with Schatzky
ring, mild esophageal stenosis, and severe antritis with
multiple duodenal ulcers on January 14, 2002. Since this
time, he has taken prescription drugs Protonix, Nexium,
Prilosec, and Prilosec OTC to treat these conditions. These
drugs are commonly referred to as proton pump inhibitors
(“PPIs”), and are prescribed to reduce stomach
9, 2014, plaintiff was diagnosed with chronic kidney disease,
allegedly “as a result of his prolonged use of
PPIs.” A CT scan showed two tumors and a blockage of
plaintiff's kidney tubules. His right kidney was later
removed. Over the span of twenty-eight months, doctors
removed five additional cancerous tumors.
alleges defendant drug companies willfully and intentionally
misrepresented the risks of PPIs and failed to warn about the
risk of acute interstitial nephritis, acute kidney failure,
kidney cancer, and other kidney injuries associated with long
term use of PPIs. Plaintiff alleges his kidney cancer is ...