# Butler v. Sazerac Company Fireball Manufacturer

> District Court, E.D. New York · November 17, 2023

URL: https://www.frixlaw.com/law-library/cases/10310793

## Case

- **Court:** District Court, E.D. New York
- **Decided:** November 17, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10310793

## How later opinions describe it (automated extraction)

- explaining that there is a rebuttable presumption that a prisoner retains his or her pre-incarceration domicile
- affirming dismissal of prisoner’s in forma pauperis action alleging claims of exposure to mold and unjust discipline based on the three-strikes rule

## Opinion text

UNITED STATES DISTRICT COURT CFLILEERDK
EASTERN DISTRICT OF NEW YORK
3:59 pm, Nov 17, 2023
----------------------------------------------------------------------X
TIMOTHY BUTLER, #309172, U .S .  D IS T R I C T  C OUR T
EA STERN D ISTRICT OF NEW YORK
Plaintiff, LON G ISLAND OFFICE
MEMORANDUM & ORDER
-against- 23-CV-7496(GRB)(ARL)

SAZERAC COMPANY FIREBALL MANUFACTURER,

Defendant.
----------------------------------------------------------------------X
TIMOTHY BUTLER, #309172,

Plaintiff,

-against- 23-CV-7497(GRB)(ARL)

JOHNSON & JOHNSON, and Any Other Company that
Manufactured or Used Phenylephrine as an Ingredient for
Decongesting,

Defendant.
----------------------------------------------------------------------X
GARY R. BROWN, United States District Judge:
Before the Court are the applications to proceed in forma pauperis (“IFP”) filed by pro se
plaintiff Timothy Butler (“Plaintiff”) while incarcerated at the Suffolk County Correctional
Facility (“Jail”) in relation to his complaints brought pursuant to 42 U.S.C. § 1983 (“Section
1983”) against Sazerac Company (the “Fireball Complaint”) and Johnson & Johnson1 (the
Decongestant Complaint”) (together, “Defendants”). Docket Entry “DE” 1, 2 in each case. For
the reasons that follow, the Court grants Plaintiff’s applications to proceed IFP and finds that
Plaintiff has not alleged a plausible claim in either complaint. Thus, the complaints are dismissed
pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).

1 Plaintiff also seeks to impose liability against “any other company that manufactured or used phenylephrine as an
ingredient for decongesting.”
BACKGROUND
1. Summary of the Complaints2
Each brief complaint is submitted on the Court’s form for civil rights actions brought
pursuant to Section 1983. See DE 1.

A. The Fireball Complaint
In its entirety, in the Fireball Complaint, Plaintiff alleges that, at various locations within
Suffolk County, New York, including gas stations, 7/11 stores, and card stores during the period
January 2018 to November 2022, he “unknowingly purchased bottles of Fireball” and:
Assumed they had 30% alcohol not the 13% I have come to find out. I purchased
these products before and after work for years because of the convenience of the
stores that sold it. I did the math on what I spent over the 4 years I consumed it,
the cost is well over $75,000.

I’d like to file a diversity3 fraud case against the owner and manufacturer of the
unlabeled 13% alcohol content bottles. I had to buy more to get the same feeling.
I was only made aware of the fraud in May of 2023.

DE 1 at ¶ II of the Fireball Complaint. Although Plaintiff left the space of the form complaint
blank that calls for a description of any injuries as a result of the challenged events, he seeks to
recover a damages award in the sum of $150,000. (Id. ¶¶ II.A.-III.)
B. The Decongestant Complaint
Like the Fireball Complaint, the Decongestant Complaint is brief. In its entirety, Plaintiff
alleges that, at various locations “all over Long Island, New York”, including CVS, Medford

2 Excerpts from the complaint are reproduced here exactly as they appear in the original. Errors in spelling,
punctuation, and grammar have not been corrected or noted.

3 Notably, Plaintiff has not included his pre-incarceration domicile, nor has he alleged where the Sazerac Company
is domiciled. (See Fireball Complaint, DE 1 in toto and at ¶¶ I.A-B.)

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Pharmacy, Rite Aid, and Genovese during the period January 1996 to the present, he:
purchased thousands of dollars worth of products manufactured by Johnson &
Johnson to alleviate decongestion for myself, my 4 children and my wife that has
extremely bad allergies. I was buying products every four days for years to no
satisfaction because the ingredient phenylephrine was labeled as a decongestant but
in fact proven by the FDA the chemical and products did not alleviate congestion
symptoms at all. This is a case of fraud with dollar amount over $75,000. I feel
my wife’s constant congestion issues played into her filing divorce. She could
never enjoy anything. She could barely breathe. Diversity fraud.

DE 1 at ¶ II of the Decongestant Complaint. Again, Plaintiff left the space of the form complaint
blank that calls for a description of any injuries as a result of the challenged events, yet seeks to
recover a damages award in the sum of $150,000. (Id. ¶¶ II.A.-III.)
LEGAL STANDARDS
The Second Circuit has established a two-step procedure wherein the district court first
considers whether plaintiff qualifies for in forma pauperis status, and then considers the merits of
the complaint under 28 U.S.C. § 1915(e)(2). Potnick v. E. State Hosp., 701 F.2d 243, 244 (2d
Cir. 1983).
I. In Forma Pauperis
Upon review of the IFP applications, the Court finds that Plaintiff is qualified by his
financial status to commence these actions without the prepayment of the filing fees. Therefore,
the applications to proceed IFP (DE 2 in each case) are granted.
II. Sufficiency of the Pleadings
As Judge Bianco summarized,
A district court is required to dismiss an in forma pauperis complaint if the action
is frivolous or malicious, fails to state a claim on which relief may be granted, or
seeks monetary relief against a defendant who is immune from such relief. See 28
U.S.C. §§ 1915(e)(2)(B)(i)-(iii). The Court is required to dismiss the action as
soon as it makes such a determination. See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii).

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It is axiomatic that district courts are required to read pro se complaints liberally,
see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)); Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010), and to
construe them “‘to raise the strongest arguments that [they] suggest [ ].’” Chavis,
618 F.3d at 170 (quoting Harris v. City of New York, 607 F.3d 18, 24 (2d Cir.
2010)). Moreover, at the pleadings stage of the proceeding, the Court must assume
the truth of “all well-pleaded, nonconclusory factual allegations” in the complaint.
Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 123 (2d Cir. 2010), aff’d, ---
U.S. ----, 133 S. Ct. 1659, 185 L. Ed. 2d 671 (2013) (citing Ashcroft v. Iqbal, 556
U.S. 662 (2009)). However, “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements . . . are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 678 (citation omitted).

Notwithstanding a plaintiff’s pro se status, a complaint must plead sufficient facts
to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The
plausibility standard requires “more than a sheer possibility that a defendant has
acted unlawfully.” Id.; accord Wilson v. Merrill Lynch & Co., 671 F.3d 120, 128
(2d Cir. 2011). While “detailed factual allegations” are not required, “[a] pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a
cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at
555). Plaintiff’s factual allegations must also be sufficient to give the defendant
“fair notice of what the . . . claim is and the grounds upon which it rests,” Twombly,
550 U.S. at 555 (internal quotation marks and citation omitted).

Patrick v. Bronx Care, No. 14-CV-7392 (JFB)(AKT), 2014 WL 7476972, at *1-2 (E.D.N.Y. Dec.
31, 2014).
DISCUSSION
Section 1983 provides that:

Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983. Section 1983 “creates no substantive rights; it provides only a procedure for

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redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d
Cir. 1993). To maintain a Section 1983 action, a plaintiff must show that the defendant (1) acted
under color of state law (2) to deprive the plaintiff of a right arising under the Constitution or
federal law. See id. The Court analyzes plaintiff’s Section 1983 claim below.

I. Lack of State Action or a Constitutional Deprivation
Plaintiff names two private entities – Sazerac and Johnson & Johnson - as the sole
Defendants. Wholly absent are any allegations suggesting that either defendant acted under color
of state law. Further, although he used the Section 1983 complaint form in both cases, he does
not allege the deprivation of any constitutional right. Thus, Plaintiff’s Section 1983 claims are
not plausible and are dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(i)-(ii); 1915A(b)(1).
II. Subject Matter Jurisdiction
Notwithstanding the liberal pleading standard afforded pro se litigants, federal courts are
courts of limited jurisdiction and may not preside over cases if they lack subject matter
jurisdiction. Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700 01 (2d Cir.

2000). A plaintiff seeking to bring a lawsuit in federal court must establish that the court has
subject matter jurisdiction over the action. See Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir.
2009) (citing Sharkey v. Quarantillo, 541 F.3d 75, 82 (2d Cir. 2008)). If a district court lacks
subject matter jurisdiction, it must dismiss the action. See FED. R. CIV. P. 12(h)(3); see also
Lussie-r, 211 F.3d at 701. This Court has an obligation to examine its subject matter jurisdiction
sua sponte. See Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006).
Given the dismissal of Plaintiff’s Section 1983 claim (see supra), federal question subject
matter jurisdiction does not lie in this Court. See 28 U.S.C. § 1331. Plaintiff appears to also seek

5
to invoke diversity subject matter jurisdiction pursuant to 28 U.S.C. § 1332 which requires both
diversity of citizenship and an amount in controversy exceeding $75,000. See 28 U.S.C. § 1332;
Perry v. Robles, 23-CV-7492(LTS), 2023 WL 6881993, at *2 (S.D.N.Y. Oct. 16, 2023) (“To
establish the court’s diversity jurisdiction, a plaintiff must first show that he and the defendants

are citizens of different States. . . . The plaintiff must also allege to a ‘reasonable probability’ that
his or her claims are in excess of the sum or value of $75,000, the statutory jurisdictional amount.”
(citing Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 221 (2d Cir. 2006) (cleaned
up) (additional citation omitted).
To establish diversity jurisdiction, there must be complete diversity of citizenship between
the plaintiff and the defendants. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553
(2005). This means that a plaintiff cannot be a citizen of the same state as any of the defendants.
St. Paul Fire and Marine Ins. Co. v. Universal Builders Supply, 409 F.3d 73, 80 (2d Cir. 2005)
(“Diversity is not complete if any plaintiff is a citizen of the same state as any defendant.”).
Courts evaluate diversity “by examining citizenship as of the time suit is commenced,” Housand

v. Heiman, 594 F.2d 923, 926 n. 6 (2d Cir. 1979), and “[a]n individual’s citizenship, within the
meaning of the diversity statute, is determined by his domicile.” Palazzo ex rel. Delmage v.
Corio, 232 F.3d 38, 42 (2d Cir. 2000). In addition, a prisoner “retains his pre-incarceration
domicile,” and the Court must therefore look to that state when evaluating whether diversity exists
between the parties. Poucher v. Intercounty Appliance Corp., 336 F. Supp. 2d 251, 253 (E.D.N.Y.
2004); Blumatte v. Quinn, 521 F. Supp. 2d 308, 312 n.3 (S.D.N.Y. 2007) (explaining that there is
a rebuttable presumption that a prisoner retains his or her pre-incarceration domicile).
Here, Plaintiff has not only omitted his pre-incarceration place of citizenship, he has wholly

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failed to allege the defendants’ citizenship. See DE 1, in toto, in each case. In the absence of
this information, it is impossible for this Court to find that diversity jurisdiction lies. Given that
the Defendants are artificial entities, Plaintiff must include the state of incorporation and principal
place of business for each defendant in his complaints. 28 U.S.C. § 1332(c)(1).

Further, although Plaintiff alleges that the amount in controversy is $150,000 in each case,
(DE 1 at ¶¶ III), there are no facts alleged in support of that amount. See DE 1, generally. Rather,
Plaintiff alleges in each case that his actual damages are “well over” $75,000 given that he has
allegedly purchased: (1) the challenged Fireball product twice per day for four years; and (2) the
challenged decongestants “every four days for years” during the period from 1996 to the present
(DE 2 at ¶¶ II, III in each case). “‘[E]ven where [the] allegations leave grave doubt about the
likelihood of a recovery of the requisite amount, dismissal is not warranted.’” GW Holdings Grp.,
LLC v. U.S. Highland, Inc., 794 F. App’x 49, 51 (2d Cir. 2019) (summary order) (quoting Zacharia
v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir. 1982); also citing Tongkook Am., Inc. v.
Shipton Sportswear Co., 14 F.3d 781, 785 (2d Cir. 1994) (“Where the damages sought are

uncertain, the doubt should be resolved in favor of the plaintiff’s pleadings.”)). However, as the
Second Circuit recently reiterated, the allegations must establish a “reasonable probability that the
amount-in-controversy requirement is satisfied.” Agoliati v. Block 865 Lot 300 LLC, No. 22-51,
2023 WL 405769, at *2 (2d Cir. Jan. 26, 2023) (quoting Pyskaty v. Wide World of Cars, LLC, 856
F.3d 216, 223 (2d Cir. 2017) (internal quotation marks and additional citation omitted)).4 Given

4 For example, assuming Plaintiff’s allegations are true as this Court must, even if he purchased a bottle of Fireball at
.99 cents twice per day every day for four years, he would have spent $2,816.00, well-below the $75,000 threshold.
(See DE 1 in 23-CV-7496 at ¶ 2; Compl. Marquez et al. v. Sazerac Co., Inc., 23-CV-00097 (N.D. Ill. Jan. 7, 2023)
(alleging Fireball Cinnamon Shots are sold “in supermarkets [and convenience stores] in small bottles for 99 cents”).

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that Plaintiff has not satisfied the diversity of citizenship requirement, the Court need not reach the
amount in controversy question at this time. Thus, subject matter jurisdiction does not lie in this
Court.
III. Leave to Amend

A pro se plaintiff should ordinarily be given the opportunity “to amend at least once when
a liberal reading of the complaint gives any indication that a valid claim might be stated.” Shomo
v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009) (internal quotation marks and citation
omitted). However, leave to amend is not required where it would be futile. See Hill v. Curcione,
657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).
However, given Plaintiff’s pro se status, in an abundance of caution, the Court grants leave
to amend the complaints to afford him an opportunity to allege as plausible claim and to establish
that subject matter jurisdiction lies in this Court in accordance with the guidance set forth above.
If Plaintiff chooses to amend his complaints, he shall do so within thirty (30) days from the date
of this Order. Each amended complaint shall be clearly labeled “Amended Complaint” and shall
bear docket number 23-CV-7496(GRB)(ARL) for claims concerning Fireball and 23-CV-
7497(GRB)(ARL) for claims concerning decongestants. If Plaintiff does not timely file an
amended complaint in each case, judgment shall enter without further notice in each case and the
cases will be closed. Alternatively, Plaintiff may pursue any valid claims he may have in state
court.
IV. Section 1915 Privilege

The Second Circuit has long-established that “the benefit of § 1915 is a privilege, not a
right . . . and that the court's ‘extra measure of authority’ in dealing with § 1915 actions is necessary
because frivolous suits unduly burden the courts, sometimes obscuring meritorious claims,

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occasion significant expenditures of public monies, and are a means by which plaintiffs can use
the federal government to harass individual defendants.” Anderson v. Coughlin, 700 F.2d 37, 42
(2d Cir. 1983) (citations omitted). As in forma pauperis status is not a constitutional right but
rather a congressionally created benefit, it can be extended or limited by Congress. Polanco v.
Hopkins, 510 F.3d 152, 156 (2d Cir. 2007) (citation omitted). Indeed, to help staunch a “flood of
nonmeritorious” prisoner litigation, the Prison Litigation Reform Act of 1995 (PLRA) established

what has become known as the three-strikes rule. Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1723
(2020) (citing Jones v. Bock, 549 U.S. 199, 203, 127 S.Ct. 910 (2007)). That rule generally
prevents a prisoner from bringing suit in forma pauperis—that is, without first paying the filing
fee—if he has had three or more prior suits “dismissed on the grounds that [they were] frivolous,
malicious, or fail[ed] to state a claim upon which relief may be granted.” Id. (quoting 28 U.S.C.
§ 1915(g)).
In determining when a plaintiff should receive a strike for a dismissed case under section
1915(g), the Second Circuit has made clear that district courts should not impose strikes in its
dismissal orders. See Barreto v. Cnty. of Suffolk, 455 F. App'x 74, 76 (2d Cir. 2012) (citing
Deleon v. Doe, 361 F.3d 93, 95 (2d Cir. 2004)). Rather, a district court should only consider
whether a plaintiff has three strikes if it appears that the plaintiff has run afoul of section 1915(g)
and is barred from proceeding in forma pauperis in the instant action. See id. As such,
[T]he district court judgments should clearly set forth the reasons for dismissal,
including whether the dismissal is because the claim is “frivolous,” “malicious,” or
“fails to state a claim,” whether it is because the prisoner has failed to exhaust an
available administrative remedy, or for other reasons.

Clarifications of this sort will undoubtedly assist subsequent courts that must
determine whether a plaintiff is barred from maintaining an action in forma
pauperis by the three strikes rule of Section 1915(g).

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Deleon, 361 F.3d at 95 (citing Snider v. Melindez, 199 F.3d 108, 115 (2d Cir. 1999))
(purgandum).5
Incarcerated litigants face a greater risk of various harms while in prison, including
physical injuries, poor prison conditions, inadequate medical care, and other constitutional
deprivations, making their access to relief from the judicial system of the utmost importance. This
access, however, when done through IFP status, is not unrestricted and the indigent prisoner should
be made aware of the limitations. Once a prisoner accrues three dismissals based on either
frivolousness, maliciousness, or for failure to state a claim, that prisoner will be prohibited from
commencing another action or appeal in forma pauperis unless he is in imminent physical
danger—regardless of the meritoriousness of the case. See, e.g., Polanco, 510 F.3d at 155
(affirming dismissal of prisoner’s in forma pauperis action alleging claims of exposure to mold
and unjust discipline based on the three-strikes rule); Fate v. New York, No. 19-CV-4107 (CS),
2021 WL 1177966, at *7 (S.D.N.Y. Mar. 26, 2021) (dismissing prisoner’s in forma pauperis case
alleging campaign of police harassment and retaliation and a physical assault under the three-
strikes rule). Indeed, “[r]equiring prisoners to make economic decisions about filing lawsuits

does not deny access to the courts; it merely places the indigent prisoner in a position similar to
that faced by those whose basic costs of living are not paid by the state.” Nicholas v. Tucker, 114
F.3d 17, 21 (2d Cir. 1997) (citation omitted).
Here, the Court does not impose any strikes against the plaintiff but will note, however—
for the pro se plaintiff’s benefit—that the statute under which he is proceeding is a privilege subject
to revocation. And the plain language of § 1915(g) suggests that such revocation is compulsory

5 See Farmers Property and Casualty Insur. Co. v. Fallon, No. 21-CV-6022 (GRB)(ARL), 2023 WL 4975977, at *3
n.6 (E.D.N.Y. Aug. 3, 2023) (discussing use of “purgandum” to indicate the removal of superfluous marks for the
ease of reading).

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in the face of abuse. See 42 U.S.C. § 1915(g) (“In no event shall a prisoner bring a civil action or
proceeding under this section if the prisoner has [violated the three-strike rule] unless the prisoner
is under imminent danger of serious physical injury.”) (emphasis added); see also Lomax, 140 S.
Ct. at 1723–24 (“That provision bars further IFP litigation once a prisoner has had at least three
prior suits dismissed on specified grounds.”). Accordingly, the plaintiff proceeding in forma
pauperis here is cautioned that should either of the instant actions be dismissed as frivolous,

malicious, or for failure to state a claim, such dismissals may be considered strikes by a future
court and contribute to the determination that he has violated the three-strikes rule of § 1915(g),
barring him from commencing further actions or appeals in forma pauperis.
CONCLUSION
Based on the foregoing, Plaintiff’s applications to proceed IFP (DE 2 in each case) are
granted. However, complaints are dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii) and
1915A(b)(1). Plaintiff is afforded an opportunity to amend his complaints as set forth above
within thirty (30) days from the date of this Order. If Plaintiff does not timely file an amended
complaint in each case, judgment shall enter without further notice and these cases will be closed.
The Clerk of the Court shall mail a copy of this Order to the pro se Plaintiff at his address
of record and note service on the docket.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and therefore in forma pauperis status is denied for the purpose
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

Dated: November 17, 2023 /s/ Gary R. Brown
Central Islip, New York GARY R. BROWN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10310793. Public record. Not legal advice.