                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 16-1429
                                    _____________

                              JAMES KREUTZBERGER,
                                             Appellant

                                           v.

               PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
                 SECRETARY DEPARTMENT OF CORRECTIONS,
                             ______________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                             (W.D. Pa. No. 3-15-cv-00119)
                       District Judge: Honorable Kim R. Gibson
                                   ______________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 November 10, 2016
                                  ______________

        Before: SMITH, Chief Judge, McKEE and RESTREPO, Circuit Judges

                            (Opinion filed: March 27, 2017)

                              _______________________

                                     OPINION*
                              ______________________




*
 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
McKEE, Circuit Judge.

       Plaintiff James Kreutzberger appeals the Rule 12(b)(6) dismissal of the Complaint

he filed alleging discrimination under the Americans with Disabilities Act1 and age

discrimination under the Age Discrimination in Employment Act.2 For the reasons that

follow, we will affirm.

                                             I

       All of Kreutzberger’s claims were filed against the Pennsylvania Department of

Corrections and John E. Wetzel, individually and acting in his capacity as the Secretary

of the Department of Corrections. J.A. 3a. The District Court dismissed the ADA and

ADEA claims against both Defendants, ruling that they were immune from suit under the

Eleventh Amendment. J.A. 13a. The court declined to exercise supplemental jurisdiction

over the remaining state law claim.3 J.A. 13a. The dismissal was with prejudice because

the court concluded that any amendment would be futile given the immunity afforded

defendants under the Eleventh Amendment. J.A. 13a.

       Both parties identify the standard of review as abuse of discretion due to the

District Court’s refusal to grant leave to amend. Appellant Br. 9, Appellee Br. 8. That is

clearly the standard for reviewing a court’s denial of a motion to amend. However,

Kreutzberger did not seek leave to amend. J.A. 15a-21a. Rather, the order granting the

motion to dismiss under Fed. R. Civ. P. 12(b)(6) stated that an amendment would be

1
  42 U.S.C. § 12112, et seq.
2
  29 U.S.C. § 621, et seq.
3
  The District Court had jurisdiction under 28 U.S.C. § 1331 and § 1367. We have
jurisdiction under 28 U.S.C. § 1291.

                                             2
futile and dismissed with prejudice. J.A. 13a. That is a conclusion of law, and our review

therefore is plenary.4

                                            II

A. ADA and ADEA Claims against the Pennsylvania Department of Corrections

       The Eleventh Amendment prohibits private parties from bringing suits against

states and state agencies absent their consent or Congressional abrogation.5 The

Commonwealth of Pennsylvania has not consented to waiver of Eleventh Amendment

immunity, and Kruetzberger does not argue to the contrary.6 In addition, Congress has

not validly abrogated a state’s immunity from suits for damages under the ADA or the

ADEA.7 The Pennsylvania Department of Corrections is thus immune from suit in

federal court pursuant to the Eleventh Amendment.

       We therefore affirm the dismissal of the ADA and ADEA claims against the

Pennsylvania Department of Corrections.

B. ADA and ADEA Claims against Secretary Wetzel

       Kreutzberger includes claims for injunctive relief against Secretary Wetzel in his

official capacity. J.A. 25a, 29a. On appeal, Kreutzberger attempts to rely on Ex parte



4
  Heffernan v. Hunter, 189 F.3d 405, 408 (3d Cir. 1999).
5
  Judicial Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990).
6
  Lavia v. Pa., Dep’t of Corr., 224 F.3d 190, 195 (3d Cir. 2000) (citing 42 Pa. Stat. and
Cons. Stat. Ann. § 8521(b) (West 2016)).
7
  See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363-64 (2001) (holding invalid
Congress’s attempt under the ADA to abrogate states’ sovereign immunity); Kimel v. Fla.
Bd. of Regents, 528 U.S. 62, 91 (2000) (holding invalid Congress’s attempt under the
ADEA to abrogate states’ sovereign immunity).

                                            3
Young8 and its progeny to argue that his claim for injunctive relief against Wetzel in his

official capacity is not barred by the doctrine of sovereign immunity. Appellant Br. 10,

13. However, he never made that argument in his Response to Defendants’ Motion to

Dismiss Complaint in the District Court. J.A. 46a-54a. His sole ground for opposing the

motion to dismiss for failure to state a claim was his argument that dismissal under Rule

12(b)(6) was premature and that the court should allow him to take discovery. J.A. 53a.

In opposing dismissal pursuant to the doctrine of sovereign immunity, Kreutzberger

argued:

       [T]he Plaintiff will argue that the Defendant is attempting to dismiss the
       case before any discovery has taken place and has done so without even an
       Affidavit or any other document attached to the Motion to Dismiss.
       Furthermore, as per the attached Exhibit, the EEOC in its Right to Sue
       letter, informs Plaintiff to proceed to appropriate Court.

       Wherein it may appear on the face on [sic] the pleadings that any recoveries
       may be remote or unlikely, that is not the test at this stage of the
       proceeding. The test is whether the Claimant/Plaintiff is entitled to offer
       evidence to support the claims.

       J.A. 52a (citations omitted). Kreutzberger did not mention or cite to Ex parte

Young, or suggest that his claim for prospective injunctive relief precludes application of

sovereign immunity. We have consistently held that we will not entertain arguments

raised for the first time on appeal.9 Since his claims are clearly otherwise barred by

Eleventh Amendment sovereign immunity, the District Court did not err in granting the

8
 209 U.S. 123 (1908).
9
 E.g., Tri-M Grp., LLC v. Sharp, 638 F.3d 406, 416 (3d Cir. 2011) (“It is axiomatic that
arguments asserted for the first time on appeal are deemed to be waived and consequently
are not susceptible to review in this Court absent exceptional circumstances.” (internal
quotations omitted)).

                                             4
Motion to Dismiss under Rule 12(b)(6).

                                           III

      For the reasons stated above, we will affirm the order of the District Court.




                                            5
