John Toth v. Vitality Medical Supplies

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 24-2061
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JOHN TOTH,
Appellant
v.
VITALITY MEDICAL SUPPLIES;
BRAD PACKARD, Co-Founder of Vitality Medical Supplies;
RUKIYA PACKARD, Co-Founder of Vitality Medical Supplies;
ALL VITALITY EMPLOYEES
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. Civil Action No. 1:24-cv-00968)
Chief District Judge: Honorable Renée M. Bumb
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Submitted Pursuant to Third Circuit LAR 34.1(a)
November 26, 2025
Before: MATEY, MONTGOMERY-REEVES, and NYGAARD, Circuit Judges
(Opinion filed: December 23, 2025)
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OPINION*
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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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PER CURIAM
Pro se appellant John Toth appeals from the District Court’s order dismissing his
amended complaint. For the reasons that follow, we will affirm the District Court’s
judgment.
In 2024, Toth filed a complaint in the District Court against Vitality Medical
Supplies (“Vitality”), its co-founders, and all of its employees. Toth alleged that in 2022,
he ordered a nebulizer from Vitality that took 49 days to arrive. Toth claimed that during
those 49 days, he suffered from severe COPD attacks without significant relief. He
maintained that the delay in delivery violated the Federal Food, Drug, and Cosmetic Act
(“FDCA”) and the Americans with Disabilities Act (“ADA”).
After granting Toth leave to proceed in forma pauperis, the District Court screened
his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and dismissed it but granted him
leave to amend. In his amended complaint, Toth included allegations that before he
placed his order, he called Vitality and spoke with someone who told him that the
nebulizer would arrive one to three days after he ordered it. He sought to bring a
negligence claim based on this representation. The District Court again screened his
complaint and dismissed it for failure to state a claim, this time with prejudice. Toth
timely appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We construe Toth’s
allegations liberally and exercise plenary review over the District Court’s dismissal of his

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amended complaint for failure to state a claim. See Allah v. Seiverling, 229 F.3d 220,
223 (3d Cir. 2000).
In his appellate brief, Toth primarily challenges the District Court’s rulings on his
ADA and FDCA claims. However, his amended complaint is the operative complaint,
and he did not replead those claims there. We may nevertheless review the District
Court’s dismissal of Toth’s FDCA claim, which was dismissed on legal grounds, and
agree with the District Court that “violations of the FDCA do not create private rights of
action.”1 See Gile v. Optical Radiation Corp., 22 F.3d 540, 544 (3d Cir. 1994); see also
Palakovic v. Wetzel, 854 F.3d 209, 221 (3d Cir. 2017) (explaining that we may review
the dismissal of a claim that was not repleaded in an amended complaint when the
dismissal was “on legal grounds, rather than due to a lack of factual specificity”).
Toth does not challenge the District Court’s conclusion that he had not alleged that
defendants owed him a duty of care such that he could sustain a negligence claim against
them. See Townsend v. Pierre, 110 A.3d 52, 61 (N.J. 2015) (explaining that to state a
cause of action for negligence, a plaintiff must establish “(1) a duty of care, (2) a breach
of that duty, (3) proximate cause, and (4) actual damages”) (citation and quotation marks
1 We note that even if we could review Toth’s ADA claim, he did not allege that he was
denied any good or service “on the basis of disability” by claiming that it took 49 days
for his purchase of a nebulizer to arrive. See 42 U.S.C. § 12182(a).

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omitted); see also In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016) (explaining that any
claims that are not raised in an appellant’s opening brief are forfeited).
Finally, Toth had an opportunity to amend his complaint and has not raised
anything on appeal suggesting that he could state a claim regarding the delivery of the
nebulizer if given another chance to amend. Accordingly, the District Court did not
abuse its discretion in concluding that granting Toth further leave to amend would have
been futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
For these reasons, we will affirm the judgment of the District Court.

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