                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 09-2735


                                  JOHN B. OWLETT;
                                 CORALEE OWLETT,
                                             Appellants

                                            v.

                        VERNE A. DOUD; CHARLES L. NEAL;
                             RICHMOND TOWNSHIP


                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                            (M.D. Pa. Civ. No. 08-cv-00548)
                        District Judge: Honorable Malcolm Muir


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 22, 2010

                Before: BARRY, AMBRO and COWEN, Circuit Judges

                             (Opinion filed: April 26, 2010)




                                        OPINION


PER CURIAM.

       John B. Owlett (“Owlett”) and his wife, Coralee Owlett (collectively,

“appellants”), appeal from the District Court’s final judgment dismissing their claims
against defendants Verne A. Doud, Charles L. Neal, and Richmond Township,

Pennsylvania. For the reasons that follow, we will affirm.

                                             I.

       Appellants commenced this action in the United States District Court for the

Middle District of Pennsylvania by filing a three-count complaint. In Count I, Owlett

asserted a claim under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12132, against Doud, Neal, and Richmond Township; in Count II, Owlett asserted a

state law negligence claim against Richmond Township; and in Count III, Coralee Owlett

asserted a claim for loss of consortium against all three defendants.

       According to the complaint, Owlett suffers from “macular degeneration,” a

condition that “has significantly reduced [his] sight and has prevented him from working

at a job, working in his woodshop, fishing, hunting, shopping and reading small print.”

Compl. ¶¶ 5-6. From approximately 1996 to 2006, both Owlett and Doud were members

of the Richmond Township Planning Commission. Id. ¶ 7.

       Meetings of the Planning Commission were held at the Richmond Township

Municipal Building. Id. ¶ 9. The meeting room had a laminated vinyl floor, and prior to

May 4, 2004, Owlett observed that “a part of the vinyl floor had become bumpy and

raised-up in elevations between one and two inches.” Id. ¶¶ 11-12. “Part of this bumpy,

raised-up area was a corridor that users of the meeting room were required to traverse[.]”

Id. ¶ 13. In 2004, Owlett advised Township supervisors, including Doud and Neal, that



                                             2
the bumpy floor could interfere with disabled persons’ use of the meeting room, and

should be corrected. Id. ¶¶ 14-15. No corrective measures were taken, and the flooring

problem expanded deeper into the corridor in the meeting room. Id. ¶¶ 16-17.

       On March 29, 2006, Owlett arrived to attend a meeting of the Planning

Commission, and as he “was walking up the corridor in the meeting room he tripped over

the expanded bumpy, raised-up area and grabbed a chair to keep from falling, twisting his

lower back in the process.” Id. ¶¶ 18-19. Owlett claimed to suffer “serious injury to his

Sacroiliac joint.” Id. ¶ 21. He and his wife sought compensatory damages.

       The District Court granted Doud and Neal’s motion to dismiss, noting that

appellants had conceded in response to the motion that they cannot hold Doud and Neal

individually liable for money damages under the ADA. The District Court rejected

appellants’ argument that Doud and Neal can be sued in their official capacities for

prospective injunctive relief because the allegations in the complaint failed to state such a

claim. The District Court afforded leave to amend to plead a claim for prospective relief.

       Appellants thereafter filed an amended complaint in which they dropped Doud and

Neal as defendants, reasserted the same allegations and counts from the original

complaint, and named Richmond Township as the sole defendant.1

       Following the close of the discovery period, appellants filed a motion to amend the



   1
    Appellants were represented by counsel when they filed the complaint and amended
complaint. Counsel withdrew after filing the amended complaint, and appellants have
proceeded pro se since that time.

                                              3
complaint, asking for leave to reinsert Doud and Neal as defendants, and to add several

new claims to the suit, including claims under 42 U.S.C. § 1983, § 504 of the

Rehabilitation Act, and state law for assault and reckless endangerment.

       The District Court denied leave to amend, explaining that Richmond Township

would be unfairly prejudiced by the amendment given that the discovery cutoff had

passed, and that the new claims “would drastically expand the scope of this action and

would likely require substantial discovery to litigate fairly.” The District Court noted that

appellants had failed to explain their delay in seeking leave to add the new claims, and it

observed that the attempt to rename Doud and Neal amounted to an untimely motion for

reconsideration of the order dismissing those defendants.

       Richmond Township thereafter moved for summary judgment on all counts in the

amended complaint. Appellants did not respond to the motion, and instead they filed a

motion for judgment as a matter of law, which the District Court treated as a cross-motion

for summary judgment. The District Court deemed appellants to have admitted

Richmond Township’s statement of material facts, which was based mainly on Owlett’s

deposition testimony. The District Court denied appellants’ cross-motion, and entered

summary judgment for Richmond Township.

       With regard to the ADA claim, the District Court determined that Owlett “was

never ‘excluded from participation in or ... denied the benefits of the services, programs,




                                              4
or activities of a public entity, or ... subjected to discrimination[.]’” 2 The District Court

rejected the negligence claim because Owlett failed to present evidence that he had

sustained a permanent loss of body function, permanent disfigurement, or permanent

dismemberment, thereby precluding recovery against Richmond Township for non-

economic losses under the Pennsylvania Political Subdivision Tort Claims Act.

Appellants timely filed this appeal.

                                               II.

       We have appellate jurisdiction under 28 U.S.C. § 1291. Our review is plenary of

the order granting Doud and Neal’s motion to dismiss under Rule 12(b)(6).3 See


   2
     Owlett sought relief under 42 U.S.C. § 12132, which provides that “no qualified
individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such entity.”
   3
     Appellants’ pro se notice of appeal identified the District Court’s summary judgment
order and the order denying leave to amend as the subjects of this appeal, but did not
expressly designate the order granting Doud and Neal’s motion to dismiss. In their
opening brief, however, appellants challenge the order granting the motion to dismiss.
We note that appellees chose not to brief the dismissal of the claims against Doud and
Neal, presumably because of the manner in which appellants drafted the notice of appeal.
       A notice of appeal generally must “designate the judgment, order, or part thereof
being appealed,” Fed. R. App. P. 3(c)(1)(B), but this Court “liberally construe[s] the
requirements of Rule 3,” and has “held that when an appellant gives notice that he is
appealing from a final order, failing to refer specifically to earlier orders disposing of
other claims or other parties does not preclude us from reviewing those orders.” Shea v.
Smith, 966 F.2d 127, 129 (3d Cir. 1992). Accordingly, “appellate jurisdiction vests over
orders not specified in the notice of appeal if there is a connection between the specified
and unspecified orders, the intention to appeal the unspecified order is apparent, the
opposing party is not prejudiced and has a full opportunity to brief the issues.” Id. Here,
while appellees have elected not to brief the dismissal of Doud and Neal, they fully
briefed those claims before the District Court, and the issues raised are not complex. We

                                               5
Lora-Pena v. F.B.I., 529 F.3d 503, 505 (3d Cir. 2008). When deciding a motion to

dismiss, a court must “accept all factual allegations as true, construe the complaint in the

light most favorable to the plaintiff, and determine whether, under any reasonable reading

of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny,

515 F.3d 224, 233 (3d Cir. 2008) (citation omitted). We review the denial of leave to

amend for abuse of discretion. Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 266 (3d

Cir. 2008). Finally, we exercise plenary review over the entry of summary judgment for

Richmond Township, and we apply the same test used by the District Court. See Saldana

v. Kmart Corp., 260 F.3d 228, 231 (3d Cir. 2001). Summary judgment should be granted

when the “pleadings, the discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and that the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2).

       (a) Dismissal of Doud and Neal under Rule 12(b)(6)

       Appellants first challenge the order dismissing Doud and Neal from the suit.

Appellants’ Br. at 4, 8. We discern no error. As the District Court noted, appellants

conceded in their counseled brief in opposition to the motion to dismiss that they could

not seek individual liability for money damages under Title II of the ADA, and they asked

the District Court for leave to amend so that they could withdraw any claim for damages




are satisfied that appellants’ pro se notice of appeal was sufficient, and thus we will
review the order dismissing Doud and Neal.

                                              6
against Doud and Neal. See District Court docket # 13. Appellants expressly limited

their ADA claim to one for prospective injunctive relief against Doud and Neal. See id.

       We have recognized that ADA claims for prospective injunctive relief are

authorized, see Koslow v. Pennsylvania, 302 F.3d 161, 179 (3d Cir. 2002), but the

District Court properly concluded here that the allegations in the complaint failed to state

such a claim. Owlett sought relief solely for injury suffered from a past slip and fall at

the Richmond Township Municipal Building, and he alleged no ongoing violation.

Furthermore, appellants did not avail themselves of the opportunity they were afforded to

amend the complaint to state a claim for prospective relief. The District Court did not err

in dismissing the ADA claims (and derivative loss of consortium claims) against Doud

and Neal.

       (b) Denial of leave to amend

       The District Court denied appellants’ request to reinsert Doud and Neal and to add

several new substantive claims to the action. With respect to Doud and Neal, the District

Court rightly observed that appellants’ motion to amend amounted to nothing more than

an untimely request to reconsider the order that dismissed those defendants. We cannot

conclude that the District Court’s abused its discretion by refusing to allow those

defendants back into the suit to defend against claims that already had been dismissed.

       The District Court denied leave to introduce the new claims because it concluded

that Richmond Township would be unfairly prejudiced, and because appellants had



                                              7
unduly delayed in seeking to amend. The record reflects that appellants sought to

introduce the new claims after expiration of the discovery deadline, and the proposed

claims (particularly, § 1983) clearly would have taken the action well beyond its original

scope, requiring additional discovery. The prejudice to Richmond Township is apparent.

In addition, appellants’ delay in seeking leave to amend is fairly characterized as “undue.”

Appellants first raised the prospect of adding a § 1983 claim in a letter they filed with the

District Court shortly after their counsel withdrew. See District Court docket # 20. But

appellants then waited almost three months to seek leave to amend, and when they did file

a motion, they failed to submit a proposed amended pleading. A district court “has

discretion to deny the request [to amend] only if the plaintiff’s delay in seeking to amend

is undue, motivated by bad faith, or prejudicial to the opposing party.” Bjorgung, 550

F.3d at 266. The delay here was both undue and prejudicial to Richmond Township. We

cannot conclude that the District Court abused its discretion in denying leave to amend.

       (c) Entry of summary judgment for Richmond Township

       We are satisfied that the record supports the entry of summary judgment for

Richmond Township for the reasons fully explained by the District Court. Appellants

have failed on this appeal to raise any specific challenge to the District Court’s analysis of

the evidence in the summary judgment record, and we conclude that the District Court’s

analysis was correct. We note, with respect to the ADA claim, that Richmond Township

amply proved, through Owlett’s own deposition testimony, that Owlett could not state a



                                              8
viable claim for relief based on Richmond Township having maintained a section of

flooring that caused Owlett to slip and fall. As the District Court observed, the evidence

in the summary judgment record (which appellants never opposed) does not create a

triable issue as to whether Owlett was “excluded from participation in or . . . denied the

benefits of the services, programs, or activities of a public entity, or . . . subjected to

discrimination by any such entity.” 42 U.S.C. § 12132.

                                               III.

       For the foregoing reasons, we will affirm the District Court’s judgment.4




   4
    Appellants’ motion to supplement the record to include documents that were not
submitted to the District Court is denied. See Fed. R. App. P. 10(a). All other pending
motions are also denied.

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