Kelly v. Food and Drug Administration
- Laura Swain
- 1:23-cv-00750
- U.S. District Court · Southern District of New York
- 8
Kelly v. Food and Drug Administration: Judge Swain ordered Ismael S. Kelly to explain federal jurisdiction before possible dismissal.
Ismael S. Kelly, who must respond to the jurisdiction order, and the named defendants, whose case remains pending unless the court later dismisses it.
What happened
In Kelly v. Food and Drug Administration, Ismael S. Kelly, representing himself, sued the Food and Drug Administration and several other named defendants over the effects of the drug Respiridol. He seeks $6.25 million and asks for a law requiring people given the medication to be notified about its effects.
The court said Kelly did not identify a federal law supporting his claims or provide facts showing a plausible federal claim. It also said his allegations did not establish diversity jurisdiction because he and at least one defendant appear to be in New York, and the amount he could recover was unclear despite his requested damages.
Judge Laura Taylor Swain ordered Kelly to file a written declaration within 30 days explaining why the case should not be dismissed without prejudice for lack of subject matter jurisdiction. The court did not dismiss the case in this order; it said dismissal would follow if Kelly failed to respond or failed to show jurisdiction, and denied fee-free status for any appeal.
The detailed version
- Kelly v. Food and Drug Administration · No. 1:23-cv-00750
- Laura Swain
- Mar. 6, 2023
Background
Ismael S. Kelly, proceeding without a lawyer, filed a complaint invoking federal-question jurisdiction under 28 U.S.C. § 1331. The named defendants are the Food and Drug Administration, “the makers and company of the drug Respiridol,” “the mental hospital,” and “the pharmacy for distribution.” The opinion notes that the complaint’s body also names “Respiridol,” “Lincoln Hospital,” and “Long Island Jewish and various mental hospitals.”
Kelly alleges that a drug was given to him without his consent to reduce his hormones and produce female hormones. He alleges that after 12 years of taking Respiridol, his hormones were completely stopped and his body was reduced to a weaker state. He seeks $6.25 million in damages and asks for a law requiring notice of the medication’s effects.
The court had previously granted Kelly permission to proceed without paying filing fees. The court explained that it must screen such a complaint and dismiss it if it is frivolous, fails to state a claim, seeks money from an immune defendant, or if the court lacks subject matter jurisdiction. Subject matter jurisdiction is the court’s legal authority to hear a case.
Jurisdiction analysis
The court found that Kelly did not identify a federal law under which his claims arose, and that his allegations, even when read generously because he is representing himself, did not suggest a plausible federal cause of action. Merely checking the federal-question box on a complaint form does not establish federal-question jurisdiction.
The court also considered diversity jurisdiction, which generally requires the plaintiff and defendants to be citizens of different states and requires a non-speculative amount in controversy exceeding $75,000. Kelly provided a New York, New York, address, and the court stated that Lincoln Hospital, which Kelly described as a mental hospital pharmaceutical medicine distributor, is in the Bronx, New York. The court therefore said complete diversity appeared to be precluded. It also said the complaint did not make clear that Kelly could recover more than $75,000, despite his request for $6.25 million. The opinion additionally notes that Long Island Jewish Medical Center is in New York State if that is the facility Kelly intended to name.
Order
The court directed Kelly to show cause by filing a written declaration within 30 days of the order explaining why the action should not be dismissed without prejudice for lack of subject matter jurisdiction. The declaration must provide facts showing either that the claims arise under federal law or that Kelly and the defendants are citizens of different states and the claim exceeds $75,000.
This order did not itself dismiss the action. It states that the complaint will be dismissed for lack of subject matter jurisdiction if Kelly does not submit the declaration within 30 days or if the declaration does not establish jurisdiction. The court also certified that an appeal would not be taken in good faith and denied permission to proceed without paying filing fees for purposes of an appeal.
Read the full 8-page opinion on CourtListener, the free public archive maintained by the Free Law Project.