                                                               NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ____________

                                No. 10-1630
                               ____________

                     CHARMAINE KLATCH-MAYNARD

                                     v.

   ENT SURGICAL ASSOCIATES HAZLETON HEALTH & WELLNESS CENTER;
        D. O. THOMAS G. POLLACK, Hazleton Health & Wellness Center;
D. O. DARREN J. HOHN, Hazleton Health & Wellness Center; HAZLETON HEALTH &
                            WELLNESS CENTER

                                          Charmaine Klatch,

                                                   Appellant
                               ____________

               On Appeal from the United States District Court
                   for the Middle District of Pennsylvania
                           (D.C. No. 09-cv-01963)
                District Judge: Honorable A. Richard Caputo
                                ____________

                 Submitted Under Third Circuit LAR 34.1(a)
                            December 14, 2010

       Before: RENDELL, JORDAN, and HARDIMAN, Circuit Judges.

                        (Filed: December 15, 2010 )

                               ____________

                        OPINION OF THE COURT
                             ____________
HARDIMAN, Circuit Judge.

       Charmaine Klatch appeals from the judgment of the District Court dismissing her

myriad federal and state discrimination claims. On appeal, Klatch argues only that the

District Court erred in dismissing her claims under the Americans with Disabilities Act,

42 U.S.C. §§ 12101 et seq. (ADA). Essentially for the reasons articulated by the District

Court, we will affirm.

                                              I.

       Because we write for the parties, we recount only the essential facts and we accept

all well-pleaded facts as true in light of the District Court’s dismissal under FED. R. CIV.

P. 12(b)(6). Klatch suffers from, inter alia, reflex sympathetic dystrophy, for which she

has a trained and certified service dog named “Liesel.” Klatch alleges that in early

October 2007, the Appellees—a medical facility (ENT Surgical Associates and Hazleton

Health & Wellness Center) and two physicians (Thomas G. Pollack, and Darren J.

Hohn)—twice refused her access to their services and premises because she was

accompanied by her service dog, and that they sent her a letter to the same effect on

October 10, 2007.




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       Nearly two years later,1 on October 9, 2009, Klatch filed a complaint and then an

amended complaint in the Middle District of Pennsylvania, along with a motion for leave

to proceed in forma pauperis. Appellees failed to file any response either in the District

Court or in this Court.

       Magistrate Judge Thomas Blewitt recommended that Klatch’s motion for leave to

proceed in forma pauperis be granted, but that all of her claims be dismissed with

prejudice for failure to state a claim pursuant to FED. R. CIV. P. 12(b)(6) and 28 U.S.C.

§1915(e)(2)(B). Klatch-Maynard v. ENT Surgical Associates, C.A. No. 09-1963, 2009

WL 5743182 (M.D. Pa. Dec. 9, 2009). Specifically, Magistrate Judge Blewitt

recommended that Klatch’s ADA claims be dismissed because he found that her claim

was “seemingly pursuant to 42 U.S.C. § 12112(a),” a provision of Title I of the ADA, and

Klatch was not an employee of the Appellee Defendants. Id. at *8-*9. Likewise, he

recommended than any claim under 42 U.S.C. § 12132, a provision of Title II of the ADA

and the only specific provision cited by Klatch, should be dismissed because none of the

Appellee Defendants were “public entities” within the meaning of Title II. Id. at *9.

       Klatch filed an objection to Magistrate Judge Blewitt’s Report and


       1
         Because the ADA does not contain a statute of limitations, we apply the two year
Pennsylvania statute of limitations for personal injury claims and claims under the
Pennsylvania Human Relations Act, 42 Pa. Cons. Stat. § 5524(2); 43 Pa. Cons. Stat. §
962(c)(2) (PHRA). See Disabled in Action of Pennsylvania v. Southeastern Pennsylvania
Transp. Authority 539 F.3d 199, 208 (3d Cir. 2008) (holding that “the statute of
limitations applicable to claims under Title II of the ADA . . . is the statute of limitations
for personal injury actions in the state in which the trial court sits”).
                                              3
Recommendation, mentioning for the first time two other sections of the ADA, namely,

42 U.S.C. §§ 12181(7)(F) and 12182. These sections are part of Title III of the ADA,

which prohibits discrimination by public accommodations including physician’s offices.

Judge Richard Caputo issued a Memorandum and Order modifying Magistrate Judge

Blewitt’s Report and Recommendation, denying Klatch in forma pauperis status, and

dismissing the case. Maynard v. ENT Surgical Associates, C.A.No. 09-1963, 2010 WL

419441 (M.D. Pa. Jan. 26, 2010). Judge Caputo adopted Magistrate Judge Blewitt’s

recommendation dismissing any claims under Title II of the ADA, since none of the

Appellee Defendants were public entities. Id. at *2-*3. As for any other potential ADA

claims, Judge Caputo found:

              Plaintiff’s Amended Complaint also broadly cites the ADA and
      PHRA, without citing to any specific statutory sections other than the
      aforementioned inapplicable ADA section. Federal Rule of Civil Procedure
      8(a)(2) requires a short plaint [sic] statement of the claim showing that the
      pleader is entitled to relief.
              Both the ADA and PHRA cover a host of situations in which a
      disabled person might be entitled to relief against discrimination, such as
      with public accommodations, employment situations, and public entities.
      However, without a citation to a specific statutory section it is impossible
      for this Court, or the Defendants for that matter, to know precisely the claim
      that Plaintiff is attempting to make. As such, any claims brought by
      invoking the ADA and PHRA in toto necessarily fail to meet the basic
      notice pleading requirement envisioned in the Federal Rules of Civil
      Procedure. As such, Plaintiffs’ [sic2] ADA and PHRA claims will be
      dismissed.

Id. Having found that Klatch had failed to state a claim upon which relief could be


      2
          In her complaints, Klatch mistakenly refers to plural plaintiffs.
                                               4
granted, Judge Caputo dismissed the case and denied her in forma pauperis status

pursuant to FED. R. CIV. P. 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B). Id. at *2, *4.

         A month after the case was closed, and one day after filing a notice of appeal,

Klatch filed a second amended complaint. It was substantially similar to her earlier

complaints, including all of the dismissed claims, but added specific references to 42

U.S.C. §§ 12181(7)(F) and 12182. The District Court struck the new complaint from the

record because the case was already closed.

                                              II.

         Magistrate Judge Blewitt correctly found that Klatch’s amended complaint failed

to state a claim under any provision of the ADA pursuant to which she purported to be

proceeding. When faced with the recommendation that her amended complaint be

dismissed, Klatch did not seek leave to amend under FED. R. CIV. P. 15(a). Instead, in her

objection to Magistrate Judge Blewitt’s Recommendation, she declared that “Plaintiff

stands by the allegations contained in her complaint, and, furthermore, states that all of

the paragraphs of her complaint speak for themselves in stating violations of statutes, and

federal and state constitutions and common law.” When Klatch then referenced 42

U.S.C. §§ 12181(7)(F) and 12182 for the first time, she insisted that her “complaint

proceeds under this section [sic] of the Americans with Disabilities Act,” although her

pleading contained no reference to those sections, or any part of Title III of the ADA. Id.

at 12.

                                               5
       Judge Caputo understandably did not treat Klatch’s repeated declarations that her

amended complaint was sufficient as a motion for leave to amend it a second time,

although he could have. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 236 (3d Cir.

2008); District Council 47 v. Bradley, 795 F.2d 310, 316 (3d Cir. 1986). Instead, he

considered Klatch’s insistence that her amended complaint sufficiently stated a claim, and

correctly found that it did not because it “fail[ed] to meet the basic notice pleading

requirement envisioned in the Federal Rules of Civil Procedure.” Maynard v. ENT

Surgical Associates, 2010 WL 419441, *3; see Frederico v. Home Depot, 507 F.3d 188,

192-93 (3d Cir. 2007) (holding that a plaintiff elected to stand on her complaint by failing

to seek leave to amend before or after dismissal, and by maintaining throughout the

pendency of litigation that her complaint’s allegations were sufficient). Arguably, Judge

Caputo should have acted sua sponte, granting Klatch leave to amend her complaint a

second time or finding explicitly that such amendment would be inequitable or futile. See

Phillips, 515 F.3d at 236; District Council 47, 795 F.2d at 316. However, given her

professed intention to stand on her amended complaint, Klatch cannot expect relief in the

form of leave to amend.

       Nor has Klatch argued on appeal that she should have been granted leave to

amend. Indeed, she contends repeatedly that “all of the paragraphs of her complaint

speak for themselves in stating violations of statutes, and federal and state constitutions

and common law.” Appellant Br. at 6, 7. Klatch’s continued insistence on the

                                              6
sufficiency of her amended complaint, and her failure on appeal to even mention

amending her complaint a second time, convince us that affirmance of the District Court’s

judgment is the proper course. See FED. R. APP. P. 28(a)(9)(A), (providing that an

appellant’s brief must contain, inter alia “appellant’s contentions and the reasons for

them, with citations to the authorities and parts of the record on which appellant relies”);

United States v. Hoffecker, 530 F.3d 137, 162-63 (2008) (holding that appellant waived

an issue on appeal by failing to comply with FED. R. APP. P. 28(a)(9)(A)); United States v.

DeMichael, 461 F.3d 414, 417 (3d Cir. 2006) (“An issue is waived unless a party raises it

in its opening brief . . . .” (citation omitted)); United States v. Irizarry, 341 F.3d 273, 305

(3d Cir. 2003) (“An appellant who fails to comply with this requirement fails to preserve

the arguments that could otherwise have been raised.”).




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