TOTH v. VITALITY MEDICAL SUPPLIES

• Court: District Court, D. New Jersey
• Decided: March 20, 2024
• Docket: 1:24-cv-00968
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE

JOHN TOTH,

Plaintiff, Civil No. 24-968 (RMB-SAK) v. OPINION VITALITY MEDICAL SUPPLIES, BRAD PACKARD, RUKIYA PACKARD, and ALL VITALITY EMPLOYEES,

Defendants.

RENÉE MARIE BUMB, Chief United States District Judge THIS MATTER comes before the Court upon the filing of a Complaint and amended application to proceed in forma pauperis (“IFP”) by pro se Plaintiff John Toth (“Plaintiff”). [Docket Nos. 1 (“Compl.”), 4.] The amended IFP application establishes Plaintiff’s financial eligibility to proceed without prepayment of the filing fee and will be granted. I. SCREENING FOR DISMISSAL When a person files a complaint and is granted IFP status, 28 U.S.C. § 1915(e)(2)(B) requires courts to review the complaint and dismiss claims that are: (1) frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief against a defendant who is immune from such relief. Courts, however, must liberally construe pleadings that are filed pro se. Erickson v. Pardus, 551 U.S. 89, 94 (2007). The legal standard for dismissing a complaint for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), is the same as that for dismissal under Federal Rule of Civil Procedure 12(b)(6). See Schreane v. Seana, 506 F. App’x 120, 122

(3d Cir. 2012). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic 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.” Twombly, 550 U.S. at 556. II. ANALYSIS Plaintiff brings this action against a medical supplies company, Vitality Medical Supplies (“Vitality”), its co-founders and “all Vitality employees” (collectively, “Defendants”). [Compl. at 1.] Plaintiff asserts claims under the Federal Food, Drug

and Cosmetics Act (“FDCA”), 21 U.S.C. § 301 et seq. and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. He alleges that he suffers from advanced COPD and must use a nebulizer to help him breathe. [Compl. ¶¶ 1–2.] He alleges that he ordered a nebulizer from Defendants on February 22, 2022 but that he

did not receive the nebulizer until April 12, 2022. [Compl. ¶¶ 3–4.] During the intervening period, Plaintiff alleges that he could not breathe and suffered severe COPD attacks, sometimes leaving him “near death.” [Compl. ¶ 5.] Plaintiff cannot state a claim for relief under the FDCA or the ADA. Plaintiff’s FDCA claim fails because the FDCA confers no private right of action on plaintiffs. See Eli Lilly & Co. v. Roussel Corp., 23 F. Supp. 2d 460, 476 (D.N.J. 1998) (no private right of action exists under the FDCA) (citing Gile v. Optical Radiation Corp., 22 F.3d 540, 544 (3d Cir.1994)). And Plaintiff’s ADA claim fails because he has not alleged

that that he was denied access to goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation because he has a disability. 42 U.S.C. § 12182(a). He alleges only that his nebulizer did not arrive fast enough. Accordingly, Plaintiff cannot state a claim for relief as alleged.

III. CONCLUSION For the reasons stated above, the Court will GRANT Plaintiff’s IFP application and DISMISS the Complaint WITHOUT PREJUDICE. An appropriate Order follows.

March 20, 2024 s/Renée Marie Bumb Date RENÉE MARIE BUMB Chief United States District Judge