Romero v. BronxCare Hospital

Background

Jesus Romero, Sr., appeared without a lawyer and sued BronxCare Hospital under the court’s federal-question jurisdiction. He alleged that, during a December 19, 2022 visit to the hospital’s emergency room, Security Officer Perez required Romero and his family to wear masks. Romero refused, and the officer escorted him from the hospital. Romero alleged that the mask requirement violated 21 U.S.C. § 360bbb-3, a federal law governing emergency authorization of medical products. He also cited the Americans with Disabilities Act (ADA), federal criminal statutes, and New York laws. He alleged emotional distress and sought money damages and orders concerning the hospital’s mask policy and the number of parents allowed to accompany his son.

The court had previously allowed Romero to proceed without prepaying filing fees. It reviewed the complaint under the screening requirement for such cases, which requires dismissal of claims that are frivolous, fail to state a claim, seek money from an immune defendant, or fall outside the court’s jurisdiction. The court also explained that self-represented complaints are read liberally but still must provide enough facts to make a legal claim plausible.

Claims on behalf of other people

The court held that Romero could not represent his son or his son’s mother because he was not alleged to be a lawyer. Only Romero was named in the caption and signed the complaint. The court noted that even if Romero could challenge the mask policy on behalf of his son, he would still need to plead facts supporting a valid legal claim.

Disability-discrimination claims

Although Romero cited Title III of the ADA, the court treated his allegations as potentially implicating Title II, which concerns discrimination by public entities. The court also considered the Rehabilitation Act, which prohibits disability discrimination in federally funded programs. The court found that Romero alleged no facts showing that he had a disability, that BronxCare discriminated or retaliated against him because of a disability, or that he identified himself as disabled and requested a reasonable accommodation. The complaint therefore failed to state a claim under the ADA or the Rehabilitation Act.

Emergency-use authorization claim

The court dismissed Romero’s claim under 21 U.S.C. § 360bbb-3 for failure to state a claim. It explained that this statute establishes a framework for emergency authorization of products by the Food and Drug Administration but does not create a private right of action—that is, a right for a private person to sue to enforce the statute.

Federal criminal-statute claims

The court dismissed any claims based on federal criminal statutes for failure to state a claim. It explained that a private person cannot use a civil case to order an arrest or require prosecutors to bring criminal charges. Decisions to prosecute belong to prosecutors.

State-law claims

Romero also cited New York municipal regulations concerning unlawful discrimination. The court did not decide whether to exercise supplemental jurisdiction over those state-law claims. It stated that it would address that issue later because Romero was being given an opportunity to file an amended complaint.

Disposition and leave to amend

Judge Laura Taylor Swain granted Romero leave to file an amended complaint within 60 days. The amended complaint must replace, rather than supplement, the original complaint and must repeat any facts or claims Romero wants the court to consider. The order directs him to provide facts identifying the relevant people, describing what each defendant did, stating when and where events occurred, describing his injuries, and specifying the relief sought. No summons issued at that time. If Romero failed to amend within the allowed period and could not show good cause, the complaint would be dismissed for failure to state a claim. The court also certified that an appeal would not be taken in good faith and denied fee-free status for purposes of an appeal.