Romero v. BronxCare Hospital

Background

Jesus M. Romero, Sr., proceeding without a lawyer and without prepaying the filing fee, sued BronxCare Hospital; Security Officer Perez; Mildred Oliveras-Rivas, identified as a manager in Patient Relations; and Patricia Snipes, identified as a patient representative. He brought the action for himself and purported to bring claims for his minor son, J.R.

Romero alleged that he, J.R., and J.R.’s mother went to BronxCare’s emergency room on December 19, 2022, because J.R. had a swollen gland near his right ear. Romero alleged that Security Officer Perez insisted that the family wear masks and escorted Romero out after he refused. Romero claimed that the mask requirement violated 21 U.S.C. § 360bbb-3 and other federal and New York provisions. He alleged emotional distress and requested money damages. He also sought an order preventing BronxCare from requiring him and his son to wear masks in the future and allowing more than one parent to accompany his son.

Earlier Order and Amended Complaint

The court had previously directed Romero to amend his original complaint. In that earlier related proceeding, the court had explained that Romero could not bring claims for his son while proceeding without a lawyer, that 21 U.S.C. § 360bbb-3 does not provide a private right to sue, and that federal criminal statutes do not create claims for Romero in this action. The court allowed him to replead a claim under the Americans with Disabilities Act because the original complaint did not allege that he was disabled, that he was denied participation in or benefits from the defendants’ services, programs, or activities because of a disability, or that the defendants discriminated against him because of a disability.

Romero’s amended complaint again asserted claims on behalf of his son and again alleged a right to refuse the defendants’ request that he and his family wear masks. It did not allege that Romero was disabled or that the defendants denied him services or discriminated against him because of a disability.

Court’s Analysis

The court held that Romero could not represent his son while proceeding without a lawyer. It also held that the amended complaint did not cure the deficiencies identified in the earlier order and therefore did not state a viable claim under the Americans with Disabilities Act.

A court generally gives a plaintiff proceeding without a lawyer an opportunity to amend defective claims. But the court may deny another opportunity when the plaintiff has already been allowed to amend and has not corrected the deficiencies. Judge Laura Taylor Swain concluded that the defects could not be cured through another amendment.

Disposition

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