Lettieri v. Hostess Brands

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 23, 2025
• Docket: 25-3005
• Status: Unpublished

Opinion

Appellate Case: 25-3005 Document: 10-1 Date Filed: 04/23/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 23, 2025 _________________________________ Christopher M. Wolpert Clerk of Court DAVID C. LETTIERI,

Plaintiff - Appellant,

v. No. 25-3005 (D.C. No. 5:24-CV-03064-JWL) HOSTESS BRANDS, LLC, (D. Kan.)

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT * _________________________________

Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges. _________________________________

Proceeding pro se, David C. Lettieri alleged that Hostess Brands, LLC

inadequately labeled one of its food products in violation of federal and state

laws. The district court dismissed his suit for failure to state a claim under 28

U.S.C. § 1915(e)(2)(B)(ii). He appeals and he also seeks to proceed in forma

pauperis (IFP) on appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 25-3005 Document: 10-1 Date Filed: 04/23/2025 Page: 2

grant his motion to proceed IFP, but we affirm the district court’s dismissal of

his claims.

BACKGROUND

In his complaint, Lettieri alleges that the packaging for Hostess’s

“Cloverhill Bearclaw Danish Dutch Apple” lacks certain nutritional

information. R. vol. I, at 20, 22. For example, he alleges that the product’s

packaging does not provide the “daily percentage value for total sugars” or

information about vitamin B1, vitamin B3, and folic acid. Id. at 22.

Challenging the lack of that and other nutritional information, he brought eight

claims: (1) deceptive business acts in violation of New York General Business

Law § 349(a); (2) false advertising in violation of New York General Business

Law § 350; (3) negligently misleading information in violation of New York’s

Standards for Enriched Foods; (4) breach of contract; (5) breach of the duty of

care; (6) false or misleading label in violation of 21 U.S.C. § 343(a); (7) lack of

nutrition information in violation of 21 U.S.C. § 343(q); and (8) violations of 7

U.S.C. §§ 3401–17. 1 Id. at 23–25.

For each claim, he sought money damages and an injunction requiring

Hostess “to put the nutrition facts on [the] package.” Id. at 19, 26. The district

1 Lettieri filed his complaint using the form for 42 U.S.C. § 1983 actions. But § 1983 requires a violation of a federal right committed by a person acting “under color” of state law. And Lettieri makes no allegation that Hostess acted under color of state law. As the district court noted, “[i]t appears he mistakenly used the § 1983 form.” Lettieri v. Hostess Brands, LLC, No. 5:24-CV-03064- JWL, 2024 WL 3677534, at *1 n.1 (D. Kan. Aug. 2, 2024). 2 Appellate Case: 25-3005 Document: 10-1 Date Filed: 04/23/2025 Page: 3

court dismissed Lettieri’s complaint for failing to state a claim because Lettieri

pointed to no authority requiring that Hostess include the sought-after

nutritional information on the product’s packaging. See Lettieri v. Hostess

Brands, LLC, No. 5:24-CV-03064-JWL, 2024 WL 3677534, at *2–3 (D. Kan.

Aug. 2, 2024). Lettieri timely appealed. 2

DISCUSSION

We review de novo dismissals for failure to state a claim under 28 U.S.C.

§ 1915(e)(2)(B)(ii), applying the same standard of review as under Federal Rule

of Civil Procedure 12(b)(6). Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir.

2007). That standard requires specific allegations sufficient to “plausibly

support a legal claim for relief.” Id. at 1218 (internal quotation marks omitted).

Because Lettieri proceeds pro se, we construe his pleadings liberally without

acting as his advocate. United States v. Pinson, 584 F.3d 972, 975 (10th Cir.

2009).

As the district court highlighted, Lettieri alleges that the product’s

packaging lacks nutritional information that he believes federal and state law

requires. 3 See Lettieri, 2024 WL 3677534, at *2 (“The crux of [Lettieri’s] claim

2 Lettieri filed a timely notice of appeal under the prison mailbox rule. See Fed. R. App. P. 4(c)(1)(A)(ii). 3 Lettieri does not plausibly allege that the package’s information is false. The thrust of his complaint is that Hostess has breached its duties, engaged in false advertising, and deceived him because the packaging lacks allegedly necessary nutritional information. See Op. Br. at 3 (reiterating that the package (footnote continued) 3 Appellate Case: 25-3005 Document: 10-1 Date Filed: 04/23/2025 Page: 4

is that the nutritional label on the Product does not contain some information he

believes should be there.”). So his claims depend on his plausibly alleging that

Hostess needed to include the sought-after nutritional information on the

product’s packaging.

We agree with the district court that Lettieri’s complaint fails to allege

that the packaging lacked nutritional information as required by federal or state

law. See id. at *2 (“Plaintiff points to no authority requiring that this additional

nutritional information be included on the label, and the Court has found

none.). On appeal, Lettieri relies on 21 U.S.C. § 343(q)(1)(E). 4 See Op. Br. at 1

(restating the statute); id. at 3–5 (arguing that § 343 also establishes his state-

law claims, because the state laws allegedly incorporate § 343’s substantive

provisions). That statute provides that food shall be deemed to be misbranded

unless its packaging bears nutritional information that the Secretary of Health

and Human Services has determined would “assist consumers in maintaining

healthy dietary practices.” § 343(q)(1)(E). But Lettieri does not allege that the

Secretary has determined that the sought-after nutritional information needs to

be on the product’s label, nor does he adequately allege why he thinks the

is “clearly misleading by not having” certain nutritional information); id. (asserting that Hostess’s failure to “put[] the grams and percentages of the vitamins” on the package violated the law); id. at 5 (contending that the “mere [f]act of not knowing the proper vitamins” injured him). 4 The Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., prohibits the “misbranding of any food,” § 331(b), and authorizes federal courts to “restrain violations” of that prohibition through injunctive relief, § 332(a). 4 Appellate Case: 25-3005 Document: 10-1 Date Filed: 04/23/2025 Page: 5

product contains non-insignificant amounts of certain vitamins and nutrients.

See Lettieri, 2024 WL 3677534, at *2 (noting that, based on Lettieri’s

undeveloped complaint, “it appears [Hostess] was merely complying with the

law”).

Though we liberally construe a pro se plaintiff’s filings, “this rule of

liberal construction stops . . . at the point at which we begin to serve as his

advocate.” Pinson, 584 F.3d at 975. Without our serving as Lettieri’s advocate

and filling in crucial blanks, his complaint fails to state a claim.

CONCLUSION

We grant Lettieri’s motion to proceed IFP, but we affirm the district

court’s dismissal of his claims.

Entered for the Court

Gregory A. Phillips Circuit Judge