Romero v. Bellevue Hospital

Background

Jesus M. Romero, Sr., proceeding without a lawyer and without prepaying the filing fee, sued after he, his 12-year-old son, and his son’s mother went to Bellevue Hospital for the son’s scheduled pediatric dental appointment. A clerk said that the son had to wear a mask. After Romero objected, hospital authorities escorted Romero and his family out before the son received treatment.

Romero alleged that the mask requirement violated 21 U.S.C. § 360bbb-3, which concerns emergency-use authorization for medical products. He also invoked Title III of the Americans with Disabilities Act, federal criminal statutes, and provisions of New York City law. He sought damages for emotional distress and an order allowing him and his son to attend medical visits without masks and allowing more than one parent to accompany the son.

Earlier Order and Amended Complaint

In an earlier order, the court dismissed claims brought on behalf of Romero’s son because a person proceeding without a lawyer generally cannot represent another person in court. The court also dismissed the claims under Section 360bbb-3 because that statute does not provide a private right to sue, dismissed claims under federal criminal statutes, and dismissed claims against Bellevue Hospital because the court determined that it was not a suable entity. The court explained that any claim against the broader health-and-hospitals entity would require facts showing that a municipal policy, custom, or practice caused a rights violation.

The court allowed Romero to replead his Americans with Disabilities Act claim because the original complaint did not allege that he was disabled, that he was denied the opportunity to participate in or benefit from the defendants’ services because of a disability, or that the defendants otherwise discriminated against him because of a disability.

Romero’s amended complaint again asserted claims on behalf of his son and repeated substantially similar allegations. It named the health-and-hospitals entity, Bernadette Smalls, Sarah Beth Lardie, Dr. Margaret McHugh, and Dr. Catapano. The amended complaint did not correct the deficiencies identified in the earlier order.

Court’s Analysis

The court held that Romero could not represent his son while proceeding without a lawyer. It also held that Romero had not alleged the facts required for a viable Title III disability-discrimination claim: he did not allege that he was disabled, that he was denied participation in or benefits from the defendants’ services because of a disability, or that the defendants otherwise discriminated against him because of a disability.

The court declined to allow another amendment because Romero had already been given an opportunity to amend and, in the court’s view, the defects could not be cured through further amendment.

Disposition

The court dismissed the complaint under 28 U.S.C. § 1915(e)(2)(B)(ii), which requires dismissal of certain claims filed without prepaying the filing fee when they fail to state a claim. The court certified under 28 U.S.C. § 1915(a)(3) that an appeal would not be taken in good faith and denied fee-free status for purposes of an appeal. The clerk was directed to enter judgment.