                                    PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT

                _______________

                  No. 17-2073
                _______________

               CRAIG A. GENESS,
                                            Appellant

                        v.

                  JASON COX
                _______________

  On Appeal from the United States District Court
     for the Western District of Pennsylvania
           (W.D. Pa. No. 2:16-cv-00876)
  Honorable Mark A. Kearney, U.S. District Judge
               _______________

             Argued: January 19, 2018

Before: SMITH, Chief Judge, GREENAWAY, JR., and
             KRAUSE, Circuit Judges


         (Opinion Filed: August 28, 2018)
Joel S. Sansone [Argued]
Massimo Terzigni
401 Liberty Avenue, Suite 1700
Three Gateway Center
Pittsburgh, PA 15222

Attorneys for Appellant Craig A. Geness

April L. Cressler
Paul D. Krepps
Marshall Dennehey Warner Coleman & Goggin
501 Grant Street
Union Trust Building, Suite 700
Pittsburgh, PA 15219

Carol A. VanderWoude [Argued]
Marshall Dennehey Warner Coleman & Goggin
2000 Market Street, Suite 2300
Philadelphia, PA 19103

Attorneys for Appellee Jason Cox

                     _______________

                OPINION OF THE COURT
                    _______________

KRAUSE, Circuit Judge.

       In a tragic case that suggests systemic deficiencies at
the juncture of Pennsylvania’s criminal justice and mental
health systems, the Appellant in this case—an adult with
mental retardation and other mental illness—was charged for




                              2
a crime that may not have occurred and was then detained for
nearly a decade awaiting trial, even though it was determined
early in the proceedings that he was incompetent and unlikely
to improve. With fault shared among the Uniontown Police
Department, the Fayette County Public Defender’s Office and
later, private counsel, the Fayette County District Attorney’s
Office, the Court of Common Pleas of Fayette County, and
the mental health infrastructure of Pennsylvania, Craig
Geness’s criminal case was inadequately investigated,
inadequately defended, and inadequately monitored and
supervised as Geness languished in various detention
facilities. All the while, his petition for habeas relief
remained pending. And when a hearing was finally held on
that petition, the District Attorney’s Office voluntarily
dismissed the charges out of concern for its “ability to meet
its burden of proof, even if the defendant were competent.”
App. 205a.

       This appeal arises from Geness’s subsequent lawsuit
against the arresting officer, then-Detective Jason Cox,1 and
various other defendants, claiming they violated his civil
rights through reckless investigation, false arrest, false
imprisonment, and malicious prosecution, in violation of 42
U.S.C. § 1983, and that they denied him due process and
violated the Americans with Disabilities Act (“ADA”), 42

      1
         Appellee Jason Cox is now Chief of Police for the
Uniontown Police Department. Simply for ease of reference,
and without intending any disrespect to the parties, we will
refer to former-Detective Cox and Mr. Geness as simply
“Cox” and “Geness.”




                              3
U.S.C § 12131. But at this point—nearly a dozen years after
Geness’s arrest and with the performance of his various
counsel marred by inexcusable delays and dilatory discovery
efforts—most avenues of relief are now closed to him. For
the reasons explained below, we will affirm the District
Court’s dismissal of Geness’s § 1983 claims but will reverse
its denial of leave for Geness to amend his complaint and will
remand for him to reinstitute his due process and ADA claims
against the Commonwealth.

I.     Background

       A.    The Incident at the McVey Personal Care
     Home

       In 2006, Craig Geness lived at the McVey Personal
Care Home, an assisted living facility for intellectually
disabled people, in Uniontown, Pennsylvania. In October of
that year, another resident, Ronald Fiffik, fell from the front
porch of the building and sustained serious injuries. Hearing
the resulting commotion, James McVey, the son of the owner
and the supervisor then on duty, walked out to the porch to
find Fiffik lying on the ground. He called for an ambulance,
informing the dispatcher that a resident had fallen, and Fiffik
was taken by an emergency medical services (“EMS”) unit to
Uniontown Hospital where he was treated before being
discharged to the McVey Home later that day. That evening,
however, Fiffik’s pain intensified and he returned to the
hospital where his condition continued to deteriorate,
ultimately resulting in his death a few weeks later.

       Three contemporaneous records from the day of the
incident indicated that Fiffik had merely fallen in an




                              4
unfortunate accident. First, the initial EMS record noted that
the ambulance was dispatched “in response to a fall” and also
reflected that Fiffik’s wife had witnessed the incident and that
she “stated that [Fiffik] walked out on porch and fell down
approx[.] 5 steps head first.” App. 193a. Next, a Uniontown
police officer who responded to the scene filled out an
incident report, stating that a “[c]aller . . . reported that a male
fell off of a porch” and that the officer took “[n]o further
police action . . . [because] no one onscene [sic] could
provide[] any information as to what happened other than
[that] Fiffik fell off of the porch.” App. 140. Finally, Fiffik’s
hospital admission records reflected that Fiffik was “alert,
cooperative in no distress,” that his “chief complaint” was
that he “FELL,” that he reported he “fell down approximately
five stairs[,] . . . [h]as [mental retardation] and is unsteady and
is not supposed to go near the stairs but he did and then he
fell down them. It was witnessed. No loss of consciousness.
Patient says he feels fine and he wants to go home.”
App. 171.

       Notwithstanding these reports by Fiffik and his wife,
once Fiffik’s condition deteriorated to the point that he was
on life support, his daughter reached out to the Uniontown
Police Department to report her suspicion that her father
might have been shoved. As a result, on November 16, 2006,
Cox conducted a one-day investigation, which involved
speaking to Fiffik’s daughter and hospital personnel,
interviewing James McVey, and then interviewing and
obtaining a confession from Geness. Soon thereafter, Cox
swore out a criminal complaint against Geness for aggravated
assault, later upgraded to murder.




                                 5
       In his November 16th interview, with the prospect of a
personal injury lawsuit, if not wrongful death suit looming,
McVey reported for the first time that immediately prior to
Fiffik’s fall he heard Geness scream “shut up” from nearby
and then saw Geness walk quickly inside to his bedroom.
App. 141. McVey also said he then followed Geness to his
room and asked if he pushed Fiffik, but Geness did not
answer and instead “responded by laying in a fetal position on
the bed.” Id. In addition, McVey reported, again for the first
time, that during the brief interlude between Fiffik’s return to
the McVey Home and his being readmitted to the hospital,
Fiffik had told McVey that “someone” pushed him. App.
143.

        With Geness now a suspect in an alleged crime, Cox
proceeded to interview him. At that point, for reasons not
apparent from the record, Geness had been transferred from
the McVey Home to the Highlands Hospital where he had
been admitted in the past and was then living as an in-patient.
According to Cox’s report, he had Geness brought to a room
to meet with him, read Geness his Miranda warnings, and
asked if Geness would speak with him concerning “the day
that Ronald Fiffick fell from the wall.” App. 141. Once
Geness agreed and signed the Miranda waiver, Cox asked
him the date, the day of the week, if he had gone to high
school, and who was President of the United States. Geness
correctly answered these questions and then, according to the
report, provided a confession closely tracking McVey’s
account of events. That is, he admitted that on the day Fiffik
was injured, Fiffik “said something” to him; he then
“screamed at Fiffik ‘Shut Up’” and “voices inside his head
told him to push Fiffik over the wall”; and he “shoved Fiffik
hard . . . went up to his bedroom, and shut the door.” Id.




                               6
        In his Affidavit of Probable Cause in support of the
arrest warrant, Cox recounted James McVey’s allegations
against Geness and Geness’s confession, and on that basis, a
magisterial district judge issued a warrant for Geness’s arrest.
From that point forward, according to the affidavit he filed in
support of his motion for summary judgment in the District
Court, Cox “no longer maintained an active role in the
prosecution of Mr. Geness,” “heard very little from the
prosecution regarding this case for approximately seven
years,” “did not have any role in the subsequent decision
making in the prosecution,” and “was never contacted by
[the] Public Defender . . . or [Geness’s private counsel] for
information relating to [his] investigation . . . .” App. 165.
Also according to that affidavit, Cox did not reference the
exculpatory evidence in the EMS report and the hospital
admission records in his Affidavit of Probable Cause because
he “ha[d] no recollection of ever having seen [them] prior to
the filing of this lawsuit,” and to obtain them, he would have
required a search warrant, which he also “ha[d] no
recollection of ever having obtained.” App. 164.

        Upon his arrest, Geness was taken into custody, where,
between Fayette County Prison and a locked-down mental
institution, he would remain for over nine years without any
further investigation, a hearing on his habeas petition, or a
trial.

     B.   Geness’s Incarceration and Eventual Civil
   Commitment

      The administration of justice went awry for Geness
from the outset. After he was arraigned in November 2006,




                               7
Geness did not receive a preliminary hearing in magisterial
district court for over five months. The Public Defender filed
a habeas motion in the Court of Common Pleas of Fayette
County in June 2007, asserting that Geness’s confession was
obtained in violation of his constitutional rights and that Cox
lacked probable cause to arrest. Yet that motion was not
ruled upon as Judge Leskinen, to whom the case was
assigned, opined that Geness was “not at the present time
competent to stand trial,” App. 147, and the Defender agreed
to continue any hearing on the petition “until [d]efendant is
competent,” App. 148. Pursuant to Section 402 of the
Pennsylvania Mental Health Procedures Act, 50 Pa. Cons.
Stat. Ann. § 7402, Geness was ordered to be transferred to
Mayview State Hospital, for no more than 60 days, to receive
a psychiatric evaluation.

       That transfer, however, was not carried out, and almost
two months later, the court issued a second order for a
psychiatric examination to be performed. Still no action was
taken. Finally, in September 2007, nearly ten months after
Geness’s arrest and after yet a third order was issued, Geness
received his first examination. He was diagnosed by a
psychiatrist with the Psychiatric Forensic Center at Mayview
State Hospital with mild mental retardation with an IQ of 51
and schizoaffective bipolar disorder, and was found
“incompetent to stand trial” because he was unable “to
understand the concept of trial,” App. 194, or “to recognize
the role of personnel in the court system . . . [or the] various
outcomes from his pending charges,” App. 198. His
prognosis for improvement was deemed “poor.” App. 197.

      Notwithstanding that prognosis, however, Judge
Leskinen merely instructed counsel to request a hearing on




                               8
the habeas petition “at such time as def. is deemed competent
to proceed,” App. 148, and it appears that neither the Public
Defender, nor the DA’s Office, nor the court paid particular
heed to the case again for another three years. Instead,
Geness was returned to prison where he remained until
November 2010.

       At that point, for reasons not apparent from the record,
the Public Defender requested that the court order Geness’s
involuntary commitment and residential treatment.            In
response, Judge Leskinen ordered a second psychiatric
examination, noting that upon “a report containing a
determination that the def. would not regain competency
within a reasonable period of time . . . upon motion of
counsel, the Court will schedule an additional hearing on that
issue.” App. 149.

       Still, the cycle of indifference continued. This second
examination was inexplicably delayed for nearly a year, and
in the interim, counsel took no action.2 And even after the
examination was completed and concluded (as the court had
anticipated) that Geness remained incompetent and was “not
likely to respond to any additional treatment interventions,”
App. 203, Geness’s counsel did not request a hearing on his
long-pending habeas petition, nor did the prosecutor or the
court raise the matter. Instead, in September 2011—five
years after Geness’s arrest and with his criminal charges still

      2
         Geness was ordered evaluated at Torrance State
Hospital, but apparently on account of space constraints, the
assessment eventually took place at Fayette County Prison.




                              9
pending—Judge Leskinen ordered him transferred to
involuntary commitment in a long term structured residence
(“LTSR”) where he would be fitted with an ankle monitor
and would “remain without contact with the general public.”
App. 151. He further ordered that Geness be returned to
Fayette County Prison “upon completion” of his civil
commitment or upon “a determination that he is competent to
stand trial, whichever comes first.” App. 151.

       In March 2012, Geness had a change of counsel but,
sadly, no change of fortune. According to the affidavit his
new counsel, Bernadette Tummons, filed in connection with
the underlying summary judgment proceeding, she made
numerous and repeated discovery requests of the District
Attorney’s Office over a two-year period that were simply
ignored. Tummons, however, opted not to seek the court’s
intervention because she was concerned that “doing so would
have flaunted [sic] the common practice of Fayette County . .
. , would not have been successful, and would have assuredly
soured [her] already tenuous relationship with the Office of
the District Attorney.” App. 331.

        In June 2014, Tummons received a limited document
production, including Cox’s affidavit and the Public
Defender’s omnibus pretrial motion that asserted the
confession was illegal. Those documents prompted her to
think Geness’s Miranda waiver and confession might not
have been voluntary. By her account, when she next met with
Geness, he told her he confessed because “the police told him
[to say] that he pushed Mr. Fiffik.” App. 332. Rather than
acting on this information, however, Tummons opted to await
further discovery, if forthcoming, from the DA’s Office. In
fact, she waited nearly another year before filing her first of




                              10
three motions to compel in May 2015. Contrary to her earlier
assumption, all were successful. In September 2015, with the
additional support in the psychiatric reports for her hypothesis
that the confession was involuntary, Tummons filed a motion
to dismiss the indictment and renewed motion for habeas
relief.

       C.     The Hearing on Geness’s Motions

        Two months later, nearly nine years to the day after his
arrest, Geness finally received a hearing in the Court of
Common Pleas. Unsurprisingly, the DA’s Office advised the
court that it did not intend to proceed to trial as it anticipated
it would be “unable to prove the case,” App. 174, and the
court agreed, noting that “if there is a reasonable possibility
that the decedent just fell then it would be impossible for the
Commonwealth to prove the case beyond a reasonable
doubt,” App. 177. But despite those observations and the
protracted proceedings in this case, Judge Leskinen declined
to reach the merits of Geness’s motion to dismiss or his
habeas petition, instead inviting the Commonwealth to
abandon the charges by submitting a request for nolle
prosequi (“nol pros”), and advising he would just “sign it” if
submitted. App. 177-78. As the court observed, that
approach would “moot consideration of [the] Motion for
Habeas Corpus.” App. 187.

       The DA’s Office readily agreed that it would “rather
be in a position to present the Nol Pros today,” id., and thus,
over the repeated objection of Tummons, the court postponed
ruling on Geness’s motions.           The court also rejected
Tummons’s entreaty that it at least require the prosecutor to
put “the reasons for the nol pros . . . on the record,” but it did




                               11
instruct the prosecutor to include those reasons “in the nol
pros when he brings it up.” App. 189. And when it did—not
that day as promised, but two weeks later—the DA’s office
acknowledged its reason was not only that the
“Commonwealth believes that the defendant is and remains
incompetent for trial,” but also that there were “substantive
evidentiary issues in this matter that likely could and would
impair the Commonwealth’s ability to meet its burden of
proof, even if the defendant were competent.” App. 205a.

       When it came to entering the nol pros order, however,
the court declined to mention the prosecution’s inability to
sustain its evidentiary burden, referencing only Geness’s
incompetence. And although not argued or requested by the
prosecution, the court sua sponte offered its opinion that
“there was clearly sufficient probable cause to file the
criminal complaint and to pursue the matter,” App. 191, and
that the charges, which it dismissed “without prejudice,”
“may be refiled in the event evidence justifying such refiling
is developed and discovered,” App. 193.

      In mid-December 2015, Geness was finally released.

      D.     Proceedings in the District Court

       In June 2016, represented by his third and current
attorney, Geness filed a complaint against Cox, James McVey
and his parents (the owners of the McVey Home), the County
of Fayette, and the City of Uniontown. As relevant to this
appeal, he asserted claims for malicious prosecution, false
arrest, false imprisonment, and reckless investigation, in
violation of 42 U.S.C. § 1983, and claims for violation of due
process and the ADA.




                             12
       Ruling on the defendants’ motion under Rule 12(b)(6),
the District Court dismissed Geness’s malicious prosecution
claim on the ground that the nol pros order, by its terms, did
not satisfy the element of “favorable termination” of the
charges against him. Sometime thereafter, realizing he had
erroneously filed his ADA and due process claims against the
City of Uniontown and the County of Fayette instead of the
Commonwealth, Geness sought leave to amend. But the
District Court denied that request, reasoning that amendment
would be futile because the ADA claim also would be barred
under the Rooker-Feldman doctrine as “a direct challenge to a
state court’s orders and judgments.” Geness v. Cox, No. 16-
876, 2017 WL 1058826, at *4 (W.D. Pa. Mar. 21, 2017).

        With Geness having voluntarily dismissed all
defendants but Cox, the parties proceeded with discovery.
And once that was completed, the District Court granted
summary judgment on Geness’s reckless investigation, false
arrest, and false imprisonment claims, concluding that Geness
“fail[ed] to adduce evidence sufficient to proceed to trial” on
any of them, and that the claims were also barred by the
applicable two-year statute of limitations.3 Geness v. Cox,

      3
          The District Court also granted summary judgment
on Geness’s state law claim for intentional infliction of
emotional distress on both statute of limitations and
sufficiency of the evidence grounds. We need not dwell on
this claim, however, as Geness does not challenge the ruling
that it is time-barred on appeal, and, regardless, Geness did
not present evidence that he suffered “some type of resulting
physical harm due to the defendant’s outrageous conduct,” as




                              13
No. 16-876, 2017 WL 1653613, at *4 (W.D. Pa. May 1,
2017).

II.   Standard of Review4

       We exercise plenary review over a district court’s
dismissal of claims under Rule 12(b)(6), Schmidt v. Skolas,
770 F.3d 241, 248 (3d Cir. 2014), accepting the complaint’s
factual allegations as true and construing them in the light
most favorable to the nonmoving party, Connelly v. Lane
Constr. Corp., 809 F.3d 780, 790, 793 (3d Cir. 2016). We
also review a district court’s grant of summary judgment de
novo, Faush v. Tuesday Morning, Inc., 808 F.3d 208, 215 (3d
Cir. 2015), and we consider the undisputed facts in the light
most favorable to the nonmoving party. Fed. R. Civ. P. 56(a);
Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013).
Finally, we review a district court’s denial of a motion to
amend for abuse of discretion, Lake v. Arnold, 232 F.3d 360,
373 (3d Cir. 2000), but where an amendment is denied on the
grounds of futility, as it was here, we use the “same standard
of legal sufficiency as applies under Rule 12(b)(6),” Shane v.
Fauver, 213 F.3d 113, 115 (3d Cir. 2000).



required under Pennsylvania law, that claim would fail in any
event. Reedy v. Evanson, 615 F.3d 197, 231-32 (3d Cir.
2010) (quoting Swisher v. Pitz, 868 A.2d 1228, 1230 (Pa.
Super. Ct. 2005)).
      4
        The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction under 28 U.S.C. § 1291.




                             14
III.   Discussion

        For the reasons we explain below, notwithstanding the
disturbing history of this case, we are constrained to affirm
the dismissal of Geness’s § 1983 claims because they were
either time-barred by the date the complaint was filed or were
not sufficiently substantiated through discovery.          We
consider, in turn, Geness’s argument concerning the time-
barred claims, the District Court’s dismissal of his malicious
prosecution claim, and the Court’s denial of leave to amend
with regard to his due process and ADA claims.

       A.     Time-Barred Claims

        In what we construe as an argument that the District
Court erred in concluding that his § 1983 claims for false
arrest, false imprisonment, and reckless investigation were
time-barred,5 Geness urges this Court to “rule that Mrs.

       5
           Although Geness purports to state a claim for
reckless investigation under the Due Process Clause of the
Fourteenth Amendment, such a claim, if cognizable, could
only arise under the Fourth Amendment. See Manuel v. City
of Joliett, III, 137 S. Ct. 911, 919 (2017) (“If the complaint is
that a form of legal process resulted in pretrial detention
unsupported by probable cause, then the right allegedly
infringed lies in the Fourth Amendment.”); accord Albright v.
Oliver, 510 U.S. 266, 274 (1994) (plurality opinion).
Whatever doubts we may harbor as to the viability of such a
claim, however, see Brooks v. City of Chi., 564 F.3d 830, 833
(7th Cir. 2009) (observing that “[a] plaintiff cannot state a due
process claim by combining what are essentially claims for




                               15
Tummons acted in as timely a fashion as possible given all of
the circumstances and that . . . the constitutional
claims . . . have been preserved.” Appellant’s Br. 57. The
District Court found that, even with tolling until March 2012
when Tummons had sufficient information to file a claim,
Geness’s false arrest, false imprisonment, and reckless
investigation claims were still filed outside the two-year
limitations period.

        It is the “standard rule” that accrual of a claim
“commences when the plaintiff has a complete and present
cause of action,” Bay Area Laundry & Dry Cleaning Pension
Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)
(citation omitted), which occurs for false arrest and false
imprisonment claims when a plaintiff “appear[s] before the
examining magistrate and [is] bound over for trial,” i.e.,


false arrest under the Fourth Amendment and state law
malicious prosecution into a sort of hybrid substantive due
process claim under the Fourteenth Amendment” (citations
omitted)); Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d Cir.
2001) (stating that an officer need not “explore and eliminate
every theoretically plausible claim of innocence” even if “an
investigation might have cast doubt upon the basis for the
arrest” (citations omitted)), we have no occasion to resolve
them today. First, no such constitutional right was “clearly
established” at the relevant time, as required to overcome
qualified immunity. Ashcroft v. Al-Kidd, 563 U.S. 731, 741
(2011). Second, such a claim, in any event, would be time
barred and, for the reasons we discuss below, would not
survive summary judgment. See infra Section IV.B.2.




                              16
“once the victim becomes held pursuant to [legal] process,”
Wallace v. Kato, 549 U.S. 384, 389, 391 (2007) (emphasis
omitted).6 As Geness was held over on the homicide charges
in 2007, his § 1983 claims expired sometime in 2009,
rendering the filing of his complaint in 2016 far out of time.

        Unfortunately for Geness, although we may toll the
statute of limitations pursuant to a state law discovery rule or
applicable federal tolling principle, see Kach v. Hose, 589
F.3d 626, 639 (3d Cir. 2009), we do not have a basis to do so
here. Application of a tolling doctrine requires the plaintiff to
at least “invoke [the] rule in [the] opening brief.” Id. at 642.
In his opening brief, however, Geness’s counsel fails to even
mention the “discovery rule,” let alone cite to any authority or
record support for equitable tolling. Aside from the fact that

       6
          In its recent opinion in Manuel, the Supreme Court
left unresolved whether a claim for unlawful pretrial
detention, i.e., imprisonment that persists without probable
cause beyond the onset of legal process, accrues at the onset
of that legal process, like a claim of false arrest, see Manuel,
137 S. Ct. at 921 (citing Wallace, 549 U.S. at 389-90), or
accrues only upon dismissal of the charges, like a claim of
malicious prosecution, id. In Manuel, the Court remanded to
the Seventh Circuit to address the issue in the first instance;
here, we have no need to address the issue, given both
Geness’s failure to raise the issue of accrual, In re Wettach,
811 F.3d 99, 115 (3d Cir. 2016) (noting that arguments not
raised in an appellant’s opening brief are forfeited), and our
conclusion that Geness, in any event, failed to raise a genuine
dispute of material fact as to probable cause, see infra Section
IV.B.2.




                               17
such failure to “cit[e] to the authorities and parts of the record
on which the appellant relies” violates Fed. R. App. P.
28(a)(8)(A), it is “well settled that ‘a passing reference to an
issue will not suffice to bring that issue before this court.’”
Kach, 589 F.3d at 642 (quoting Laborers’ Int’l Union of N.
Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d
Cir. 1994)); see also In re Wettach, 811 F.3d 99, 115 (3d Cir.
2016) (treating as forfeited arguments not raised in an
appellant’s opening brief).

       In short, Geness has waived any tolling arguments on
appeal, and the District Court correctly dismissed Geness’s
false arrest, false imprisonment, and reckless investigation
claims as time-barred.

       B.     Dismissal of the Malicious Prosecution Claim

       We next consider the District Court’s dismissal of
Geness’s malicious prosecution claim, which required him to
show that: “(1) the defendants initiated a criminal proceeding;
(2) the criminal proceeding ended in his favor; (3) the
defendants initiated the proceeding without probable cause;
(4) the defendants acted maliciously or for a purpose other
than bringing the plaintiff to justice; and (5) he suffered
deprivation of liberty consistent with the concept of seizure as
a consequence of a legal proceeding.” Zimmerman v.
Corbett, 873 F.3d 414, 418 (3d Cir. 2017), cert. denied, No.
17-1234, 2018 WL 1173874 (U.S. June 11, 2018) (brackets
and citations omitted); see also Manuel v. City of Joliet, Ill.,
137 S. Ct. 911, 920 (2017) (“[T]he Fourth Amendment
governs a claim for unlawful pretrial detention even beyond
the start of legal process . . . .”). Although we conclude the
District Court erred in dismissing this claim for failure to




                               18
establish “favorable termination,” we will nonetheless affirm
because Geness failed at summary judgment to raise a
genuine dispute of material fact as to the absence of probable
cause.7

              1.     Favorable Termination

       The element of favorable termination is established by
showing that the proceeding ended in any manner “that
indicates the innocence of the accused,” Kossler v. Crisanti,
564 F.3d 181, 187 (3d Cir. 2009), which can be satisfied
when charges are formally abandoned by way of a nol pros,
Donahue v. Gavin, 280 F.3d 371, 383 (3d Cir. 2002). Here,
the District Court concluded that the charges did not
“favorably terminate” for Geness because the nol pros order
did not itself indicate his innocence. Geness v. County of


       7
         Having dismissed the malicious prosecution claim at
the outset, the District Court did not have occasion to address
the presence of probable cause for that claim in particular at
summary judgment. As that element is the same, though, for
Geness’s false arrest and false imprisonment claims, the
District Court’s conclusion that he failed to establish a triable
issue concerning probable cause for those claims would make
any remand for that determination on the malicious
prosecution claim futile. See, e.g., Great W. Mining &
Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 n.9
(3d Cir. 2010) (declining to remand because the § 1983 claim
would have been futile).




                               19
Fayette, No. 16-876, 2016 WL 6652758, at *6-7 (W.D. Pa.
Nov. 9, 2016). That reasoning does not square with our
precedent.

       Regardless of whether a nol pros order on its face
“indicate[s] the innocence of the accused,” Donahue, 280
F.3d at 383, a district court must conduct a “fact-based
inquiry,” Kossler, 564 F.3d at 194, considering, among other
things, the “underlying facts” of the case, id., the “particular
circumstances” prompting the nol pros determination, id. at
189, and the substance of the “request for a nol pros that . . .
result[ed in the] dismissal,” Donahue, 280 F.3d at 384. Yet
the District Court here refused to look beyond the four
corners of the order. And it need not have looked far to
conclude that the nol pros termination here was a favorable
termination, for the abandonment of charges for “insufficient
evidence” unquestionably provides “an indication that the
accused is actually innocent of the crimes charged.” Hilfirty
v. Shipman, 91 F.3d 573, 580 (3d Cir. 1996); see also
Haefner v. Burkey, 626 A.2d 519, 521 (Pa. 1993) (holding as
a matter of Pennsylvania law that nol pros “because of
insufficient evidence” demonstrates that “the proceedings
terminated in favor of the [accused]”).

       In Geness’s case, the DA’s Office anticipated it would
be “unable to prove the case,” App. 174, and the state court
agreed that “a reasonable possibility that the decedent just
fell” would make it “impossible for the Commonwealth to
prove the case beyond a reasonable doubt,” App. 177. In
addition, the proposed order submitted by the DA’s Office
expressly acknowledged “substantive evidentiary issues in
this matter that likely could and would impair the




                              20
Commonwealth’s ability to meet its burden of proof.” App.
205a.
       Under Kossler and Donohue, this nol pros disposition
did reflect a favorable termination, and the District Court
should not have dismissed the malicious prosecution claim
for failure to prove that element.8 Nonetheless, we may
affirm on any basis in the record and one such basis is
apparent: Geness failed to satisfy his burden to establish a
genuine dispute of material fact concerning the absence of
probable cause. We turn next to that issue.

               2.     Probable Cause

       Where, as here, a probable cause finding was made by
a neutral magistrate in connection with a warrant application,
a plaintiff must establish “first, that the officer, with at least a
reckless disregard for the truth, ‘made false statements or
omissions that create[d] a falsehood in applying for a
warrant,’” and second, “that those assertions or omissions
were ‘material, or necessary, to the finding of probable
cause.’” Dempsey v. Bucknell Univ., 834 F.3d 457, 468-69
(3d Cir. 2016) (quoting Wilson v. Russo, 212 F.3d 781, 786-
87 (3d Cir. 2000)). Omissions are made with reckless
disregard only if an officer withholds a fact “in his ken” that
any “reasonable person would have known . . . [is] the kind of

       8
          The fact that the charges were dismissed without
prejudice is also not fatal to favorable termination. See
Haefner, 626 A.2d at 521 n.2 (holding that charges
terminated favorably even though they could have been
“reinstated”).




                                21
thing the judge would wish to know,” id. at 470 (quoting
Wilson, 212 F.3d at 788) (internal quotation marks omitted),
and the focus is thus “facts and circumstances within the
officer’s knowledge” at the time of the arrest, irrespective of
later developments, Michigan v. DeFillippo, 443 U.S. 31, 37
(1979).

       Geness’s argument, in essence, is that Cox knew and
failed to disclose in his Affidavit of Probable Cause (1) the
exculpatory evidence in the EMS report and hospital
admission records; and (2) Geness’s inability, because he was
incompetent or highly suggestible, to give a valid confession.
We have little doubt that this information, had it been known
to Cox when he swore out his Affidavit of Probable Cause,
would satisfy the threshold for “[r]eckless [o]missions,”
Dempsey, 834 F.3d at 470-74, and had Geness’s counsel
“go[ne] beyond the pleadings” and “come forward with
‘specific facts showing that there [was] a genuine [dispute
concerning such knowledge] for trial,’” Santini v. Fuentes,
795 F.3d 410, 416 (3d Cir. 2015) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)),
it would have been error to grant summary judgment.

      But there’s the rub: Because Geness elected not to
depose Cox,9 the only evidence in the record concerning

       9
        While Geness’s counsel asserts he did not “choose”
to forego Cox’s deposition, Appellant’s Br. 44 n.15, it is
beyond dispute that he sought to depose Cox after the
deadline for fact discovery and after Cox’s motion for
summary judgment had already been filed. We cannot say it
was an abuse of discretion for the District Court to grant a




                              22
Cox’s knowledge of the exculpatory evidence or Geness’s
competence at that time is Cox’s own affidavit in support of
summary judgment. In it, Cox swears that he “ha[s] no
recollection of ever having seen [the EMS or hospital records]
prior to the filing of this lawsuit,” App. 164; that to obtain
them, he would have required a search warrant, which he also
“ha[s] no recollection of ever having obtained,” id., and that
he observed, before taking Geness’s confession, that Geness
“indicated his understanding of [Cox’s] purpose for being
there,” that he signed the Miranda waiver, and that he “was
able to respond” to questions and answer “appropriately,” id.
at 162.

       What Geness identifies as contradictory circumstantial
“evidence” in the record is, on inspection, nothing more than
“speculation or conjecture [that] does not create a material
factual dispute sufficient to defeat summary judgment.”
Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014). Even
viewing in the light most favorable to Geness, see Fed. R.
Civ. P. 56(a); Burton, 707 F.3d at 425, the fact that the
Unionville Hospital records reflect a print-out date of
November 16, 2006, the same date as Cox’s one-day
investigation, it is equally or more plausible—particularly in
view of Cox’s assertion that he could not access such records
without a search warrant—that the records were printed not


protective order, precluding Cox’s deposition, in this
circumstance. See United States v. Washington, 869 F.3d
193, 220 (3d Cir. 2017) (“As we have often said, matters of
docket control and discovery are committed to broad
discretion of the district court.”).




                             23
for Cox but for hospital risk management personnel, treating
physicians, or Fiffik’s family members. Nor, outside of
hypothetical possibilities, does the record support a linkage
between the fact that Cox had a general practice of turning his
files over to the DA’s Office and the fact that the DA’s
Office—which could have received the hospital records from
any number of sources—eventually had those records in its
possession to produce to Tummons.

        As Geness elected not to depose any of the witnesses
who might have substantiated his hypotheses,10 however, he
is left with disparate facts and possible inferences from which
to argue Cox’s contemporaneous knowledge of the reports’

      10
           For example, Geness did not depose any of the
Unionville Hospital personnel with whom Cox spoke on the
day of the investigation to ascertain whether they
communicated to him the substance of the admission report;
any hospital records custodian who might have maintained a
record of how the admission report came to be printed out on
that day and to whom it was provided; Fiffik’s daughter
concerning her conversation with Cox that day and any
documents she may have provided to him at that time;
Fiffik’s wife concerning any conversations she may have had
with Cox before he filed his Affidavit of Probable Cause; or
the initial investigating officer concerning what, if anything,
he conveyed to Cox about his conversations with Fiffik or
McVey on the day of the incident. See, e.g., Montgomery v.
De Simone, 159 F.3d 120, 122 (3d Cir. 1998) (reversing a
grant of summary judgment on malicious prosecution claim
because, through discovery, the plaintiff “raised a genuine
issue of material fact as to probable cause”).




                              24
exculpatory contents. At best, however, that amounts to “a
mere ‘scintilla of evidence’ in [Geness’s] favor,” Ramara,
Inc. v. Westfield Ins. Co., 814 F.3d 660, 666 (3d Cir. 2016),
and not what is needed to survive summary judgment:
“evidence on which the jury could reasonably find for
[Geness],” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986).

       Geness fares no better with his “facts” purportedly
showing that Cox knew at the time that Geness’s Miranda
waiver and confession were not “reasonably trustworthy.”
Zimmerman, 873 F.3d at 418. Geness’s current counsel
points to Tummons’s affidavit, recounting that Geness told
her the police put words in his mouth, and notes that he
“expects [Geness] to be able to testify that he was told by
Defendant Cox that he committed this crime, thereby
obviating . . . hearsay considerations.” Appellant’s Br. 45 n.
16 (emphasis added). Starkly absent from the existing record,
however, is any testimony or affidavit from Geness, or any
other contemporaneous evidence suggesting that his
confession was indeed coerced. Cf. Sutkiewicz v. Monroe
Cty. Sheriff, 110 F.3d 352, 358-60 (6th Cir. 1997)
(concluding that recordings of interrogation undermined
probable cause because they showed the officer “strongly
suggested to [the accused mentally ill man] that he should
confess”).

       And while Geness’s counsel insinuates that his
impairments were so severe and pronounced that it would
have been apparent to any reasonable officer that his
confession was involuntary, counsel did not adduce any
testimony or evidence to that effect in discovery. For
example, Geness’s counsel did not seek to depose or submit




                             25
affidavits from personnel at Highlands Hospital where Cox
interviewed Geness, the physicians who conducted Geness’s
psychiatric examinations, or any experts as to how Geness
presented at the time and whether his incompetence would
have been obvious.11 Cf. Sanchez v. Hartley, 810 F.3d 750,
756 (10th Cir. 2016) (holding that the plaintiff’s “pronounced
cognitive and developmental disabilities,” coupled with
allegations that the “detectives and investigator noticed [the
plaintiff’s] unusual behavior,” supported plausible inference
that “the defendants either knew the confession was untrue or
acted in reckless disregard of the truth”). In short, aside from
Geness’s mental condition—which, “by itself and apart from
its relation to official coercion,” does not render his
confession involuntary, Colorado v. Connelly, 479 U.S. 157,
164 (1986)—Geness has not identified any admissible
evidence in Cox’s “ken” contradicting the affidavit.
Dempsey, 834 F.3d at 469-70.

       According to that affidavit, the “facts and
circumstances within . . . [Cox’s] knowledge” at the time of
the arrest, DeFillippo, 443 U.S. at 37, were (1) that Fiffik’s
daughter believed her father had been pushed off the wall by
Geness; (2) that McVey had heard Geness scream at Fiffik
moments before Fiffik was discovered on the ground, had
seen Geness rush to his room and assume a fetal position, and

       11
         To the contrary, counsel argues that even Tummons
did not appreciate “the extent of [Geness’s] mental
impairment” until she received the psychiatric reports,
Appellant’s Br. 54-55—two years after she met with Geness
and took on his representation.




                              26
had been told by Fiffik later that day Fiffik had been pushed;
and (3) that Geness—after agreeing to speak, waiving his
Miranda rights, and answering basic questions accurately and
appropriately—provided a confession consistent with
McVey’s account. Probable cause requires only sufficient
probability, not certainty that a crime has been committed, see
Zimmerman, 873 F.3d at 418-19. As the foregoing discussion
makes clear, the facts then known to Cox were sufficient for a
“reasonable person” to reach that conclusion. Dempsey, 834
F.3d at 469-70.12

       12
          Under our case law to date, a malicious prosecution
claim fails so long as “the proceeding was initiated . . . with[]
probable cause.” Zimmerman, 873 F.3d at 418 (emphasis
added). The Supreme Court has recently stated, though, that,
“those objecting to a pretrial deprivation of liberty may
invoke the Fourth Amendment when . . . that deprivation
occurs [even] after legal process commences,” Manuel, 137
S. Ct. at 918, and some of our Sister Circuits have implicitly
authorized a malicious prosecution claim based upon a theory
of “continuing prosecution,” i.e., that the prosecution
continued and charges were not dismissed after the revelation
of sufficient exculpatory information to undermine a probable
cause finding, see Haupt v. Dillard, 17 F.3d 285, 290 n.5 (9th
Cir. 1994), as amended (Apr. 15, 1994) (“Probable cause to
continue a prosecution may disappear with the discovery of
new exculpatory evidence after the preliminary hearing . . .
[and] state actors who . . . suppress [this evidence] may be
liable for malicious prosecution . . . .”); accord Jones v. City
of Chi., 856 F.2d 985, 994 (7th Cir. 1988) (noting that a
malicious prosecution claim could be stated “[i]f police
officers have been instrumental in the plaintiff’s continued




                               27
       C.     The ADA and Due Process Claim

       Finally, we turn to Geness’s claims that his prolonged
detention, without a hearing, pending duplicative and futile
psychiatric examinations violated due process and constituted
discrimination “by reason of [mental] disability” under the
ADA. 42 U.S.C. § 12132. These claims go to the heart of the
systemic problems that plagued this case, but Geness did not
have the opportunity to pursue them because he initially
named the wrong defendants and the District Court denied
him leave to add the right one, the Commonwealth. Its
reasoning was that, although requests to amend generally
should be “freely given” in the absence of (1) undue delay,
bad faith or dilatory motives, (2) futility, or (3) prejudice to
the other party, Foman v. Davis, 371 U.S. 178, 182 (1962);
Lake, 232 F.3d at 373; see also Fed. R. Civ. P. 15, two of
those grounds applied here: futility, because the claims would
be barred under the Rooker-Feldman doctrine, and delay,
because Geness provided no explanation, other than “recently
discovered case law” in the form of the thirteen-year-old
Supreme Court case Tennessee v. Lane, 541 U.S. 509 (2004),
for waiting four-months before seeking to add the
Commonwealth. Geness, 2017 WL 1058826, at *2-3.

      For the reasons we explain below, neither of these
grounds justified a departure from the general rule in favor of
permissive amendment.


confinement or prosecution”). We have no occasion to
consider that theory today, as it was not raised by Geness and
he states his claim only against Cox, not any other actors
responsible for Geness’s continued confinement.




                              28
              1.   Geness’s ADA           and    Due    Process
              Claims Are Not Futile.

                   a.   Geness’s Claims              Are    Not
          Barred by Rooker-Feldman.

        The Rooker-Feldman doctrine “bars federal district
courts from exercising appellate jurisdiction over state court
actions.” Nat’l R.R. Passenger Corp. v. Pa. Pub. Util.
Comm’n, 342 F.3d 242, 256 (3d Cir. 2003) (citing Rooker v.
Fidelity Trust Co., 263 U.S. 413, 416 (1923)). This “narrow
doctrine . . . applies only in ‘limited circumstances,’” Lance v.
Dennis, 546 U.S. 459, 464-66 (2006), and is restricted to
cases where “four requirements are met: (1) the federal
plaintiff lost in state court, (2) the plaintiff complains of
injuries caused by the state-court judgment, (3) that judgment
issued before the federal suit was filed, and (4) the plaintiff
invites the district court to review and reject the state-court
judgment.” In re Phila. Entm’t & Dev. Partners, 879 F.3d
492, 500 (3d Cir. 2018) (citing Great W. Mining & Mineral
Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir.
2010)).

       Contrary to the District Court’s ruling that Geness
stated “a direct challenge to a state court’s orders and
judgments,” App. 30, neither the first nor the fourth
requirements were met. Geness is not a “state-court loser[],”
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.
280, 284, 293 (2005), in the sense that his ADA and due
process claims were presented to or ruled upon by the state
court; they were not. Nor is Geness a “federal plaintiff who
was injured by a state-court judgment . . . invariably seeking
review and rejection of that judgment.” Great Western, 615




                               29
F.3d at 168. Instead, a subsequent federal claim constitutes
“[p]rohibited appellate review” only when it “consists of a
review . . . to determine whether [the lower tribunal] reached
its result in accordance with law,” id. at 169, or when the
federal plaintiff seeks “to have the state-court decisions
undone or declared null and void,” id. at 173.

       Neither pertains here. Geness asserts that the orders
requiring him to be held for future, duplicative examinations,
despite the hopelessness of his gaining competence, and the
prolonged detention that resulted, amounted to disability
discrimination.     His federal suit thus presents an
“‘independent claim,’ even if that claim denies a legal
conclusion reached by the state court,” id. at 169 (quoting
Exxon Mobil Corp., 544 U.S. at 293), and seeks a remedy for
the “legal injury caused by the adverse party”—the
Commonwealth of Pennsylvania—not any “legal injury
caused by a state court judgment because of a legal error
committed by the state court,” id.

        As a result, this case falls comfortably outside the
boundaries we have set for the Rooker-Feldman doctrine. In
Great Western, where the plaintiff asserted the defense
attorney had conspired with the Common Pleas judges who
ruled on his arbitration-related claim, we explained that
Rooker-Feldman does not present a jurisdictional bar to
federal review when the plaintiff asserts not “merely” that the
“state-court decisions were incorrect,” id. at 172, but that
“people involved in the decision violated some independent
right,” id. Similarly, in Desi’s Pizza, Inc. v. City of Wilkes-
Barre, a case concerning repeated state court determinations
that the plaintiff’s pizza shop was a nuisance, we held
Rooker-Feldman inapplicable where the shop owner alleged




                              30
his shop was targeted for enforcement “with the intent to
drive certain ethnic groups out of the city,” because such a
claim arose independently of the state court finding that the
shop was, in fact, a nuisance. 321 F.3d 411, 422-26 (3d Cir.
2003); see also id. at 425 (“It is well established . . . that
selective prosecution may constitute illegal discrimination
even if the prosecution is otherwise warranted.” (citing Wayte
v. United States, 470 U.S. 598, 608 (1985))).

       Like those plaintiffs, Geness alleges “federal [due
process] and statutory discrimination claims,” id. at 423,
namely, that the Office of the Fayette County District
Attorney and the Court of Common Pleas of Fayette County
acted in concert to deprive him of “an independent
constitutional” and statutory right—the right to a forum free
of disability discrimination—that arises irrespective of
whether he was, in fact, competent to stand trial, Great
Western, 615 F.3d at 161. Rooker-Feldman is therefore
inapplicable, and the District Court erred in denying leave to
amend on that ground of futility.

                  b.      Geness’s        Claim     Is     Not
          Otherwise Futile.

       As we may affirm on any ground supported by the
record, we have considered whether Geness’s proposed claim
would be futile for any other reason and conclude it would
not. On the contrary, “taking all pleaded allegations as true
and viewing them in a light most favorable to the plaintiff” as
we must when evaluating futility, Great Western, 615 F.3d at
175 (citing Winer Family Tr. v. Queen, 503 F.3d 319, 330-31
(3d Cir. 2007)), Geness has stated cognizable ADA and due
process claims.




                              31
        To state a claim under Title II of the ADA, Geness
must establish: “(1) he is a qualified individual; (2) with a
disability; (3) who was excluded from participation in or
denied the benefits of the services, programs, or activities of a
public entity, or was subjected to discrimination by any such
entity; (4) by reason of his disability.” Haberle v. Troxell,
885 F.3d 170, 178-79 (3d Cir. 2018) (brackets omitted); see
also 42 U.S.C. § 12132.

       As for the first two, he sufficiently pleaded that he is a
qualified individual with a disability. See App. 78; see also
Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210-11 (1998)
(holding that a state prisoner is a “qualified individual” under
the ADA); 42 U.S.C. § 12102(1)(A) (defining “disability” to
include “a . . . mental impairment that substantially limits one
or more major life activities”).

        He also sufficiently pleaded the last two, i.e., that he
was “denied . . . benefits [and] services” and “subjected to
discrimination . . . by reason of his disability.” Haberle, 885
F.3d at 178. Regulations promulgated under the ADA require
that the Commonwealth “shall ensure that inmates or
detainees with disabilities are housed in the most integrated
setting appropriate to the needs of the individuals,” 28 C.F.R.
§ 35.152(b)(2) (emphasis added), and “[s]hall not place
inmates or detainees with disabilities in inappropriate security
classifications because no accessible cells or beds are
available,” id. § 35.152(b)(2)(i). Pennsylvania’s Mental
Health Procedures Act also requires that “[w]henever a
person who is detained on criminal charges or is incarcerated
is made subject to inpatient examination or treatment, he shall
be transferred, for this purpose, to a mental health facility,”
50 Pa. Cons. Stat. Ann. § 7401(b) (emphasis added), and




                               32
although the Act provides that a person accused of murder
“may be subject to court-ordered involuntary treatment,” it
limits that to “a period not to exceed one year,” id.
§ 7304(g)(2). Involuntary competency restoration treatment
can only take place if it is “reasonably certain that the
involuntary treatment will provide the defendant with the
capacity to stand trial.” Id. § 7402(b). These procedural
protections are designed to avoid undue delays and safeguard
the fair and efficient functioning of the criminal justice
system, and the denial of those protections, leading to the
“unjustified institutional[ization] . . . of persons with
disabilities,” is “a form of discrimination.” Olmstead v. L.C.
ex rel. Zimring, 527 U.S. 581, 600 (1999).

        Here, despite the Commonwealth’s statutory
commands and the protections they were intended to provide,
Geness was incarcerated for seven months before he was
ordered to seek treatment, was forced to wait three months
more for that order to be carried out, and—notwithstanding
that the competency evaluation declared him “unable to
recognize the role of personnel in the court system,” “unable
to recognize the different methods of trial,” “unable to
recognize various outcomes from his pending charges,” with
a “poor” prognosis for improvement, App. 197-98—Geness
was returned to prison for three years. He was then ordered
to undergo another evaluation, forced to wait another year to
receive it, and involuntarily committed for several more
years—not only without “reasonabl[e] certain[ty]” he would
attain capacity, 50 Pa. Cons. Stat. Ann. § 7402(b), but in the
face of a second evaluation that had declared him “not likely
to respond to any additional treatment interventions.” App.
203.




                             33
       As alleged, these multiple, protracted, and inexcusable
delays in the handling of Geness’s examinations, transfers,
and motions—resulting in nearly a decade of imprisonment
and civil commitment before a hearing was finally held on his
habeas petition—are more than sufficient to state a claim
under the ADA.13 See Haberle, 885 F.3d at 179 (finding
discrimination on the basis of disability where the “disability
‘played a role in the . . . decisionmaking process and . . . had a
determinative effect on the outcome of that process’”); CG v.
Pa. Dep’t of Educ., 734 F.3d 229, 236 (3d Cir. 2013) (“To
satisfy . . . causation [under the ADA], Plaintiffs must prove


       13
          To the extent Geness seeks monetary damages on
his ADA claim, see App. 79, he must “adequately ple[a]d that
[the Commonwealth] acted with deliberate indifference to the
risk of an ADA violation.” Haberle, 885 F.3d at 181.
“[C]laims for compensatory damages under . . . the ADA also
require a finding of intentional discrimination,” which
requires proof, at minimum, of deliberate indifference, S.H.
ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248,
261-63 (3d Cir. 2013), which may be pleaded by showing that
the defendant failed to “adequately respond to a pattern of
past occurrences of injuries like the plaintiff[’s],” Beers-
Capitol v. Whetzel, 256 F.3d 120, 136 (3d Cir. 2001).
Geness’s complaint does not do this, thus, like we did
recently in Haberle, we will grant him “the narrow
opportunity to amend h[is] complaint with respect to [his]
ADA claim, particularly [the] allegations of a history of civil
rights violations by [the Commonwealth], because deliberate
indifference was not discussed in the District Court as to that
claim,” 885 F.3d at 182 n.12.




                               34
that they were treated differently based on . . . their
disability.”); see also Cooper v. Kliebert, No. 15-751-SDD-
RLB, 2016 WL 3892445, at *6 (M.D. La. July 18, 2016)
(denying motion to dismiss ADA claims brought by mentally
handicapped pretrial detainees stemming from denial of
“prompt transfer of [plaintiffs] . . . from [local] jails” to
appropriate mental health facilities).

       These same circumstances are also sufficient to sustain
Geness’s claim that he was “depr[ived] . . . of normal benefits
of criminal procedure and due process of law,” App. 78, both
as to his protracted incarceration without prompt transfer to a
mental health facility, and his protracted institutionalization
without a realistic prospect of trial. As for his incarceration,
Pennsylvania requires that criminal defendants suspected of
mental illness receive mental health services, 50 Pa. Cons.
Stat. Ann. § 7401(b), and it is well-established that the
extended imprisonment of pretrial detainees when they have
been ordered to receive such services violates the
Constitution.14 See Foucha v. Louisiana, 504 U.S. 71, 77

       14
           The Commonwealth acknowledged as much in a
recently-settled class action brought on behalf of mentally ill
inmates who claimed that the practice of continuing detention
“for more than thirty . . . days after the determination that the
[plaintiff] is unlikely to become competent,” violates the
Constitution and the ADA. See Complaint at ¶ 193, J.H. v.
Dallas, No. 1:15-cv-02057-SHR (M.D. Pa. Oct. 22, 2015). In
the settlement agreement, the Commonwealth stipulated that,
generally, excessive wait times violate the Constitution and,
specifically, its “average wait times of at least sixty . . . days .
. . fail to comply with Fourteenth Amendment due process




                                35
(1992) (“[It is] unconstitutional for a State to continue to
confine a harmless, mentally ill person.”); see also Trueblood
v. Wash. State Dep’t of Soc. & Health Servs., 822 F.3d 1037,
1039 (9th Cir. 2016) (“It is well recognized that detention in a
jail is no substitute for mentally ill detainees who need
therapeutic evaluation and treatment.”); Or. Advocacy Ctr. v.
Mink, 322 F.3d 1101, 1122 (9th Cir. 2003) (“Holding
incapacitated criminal defendants in jail for weeks or months
violates their due process rights . . . .”).15



guarantees.” Settlement Agreement at 3, ECF No. 35, J.H. v.
Dallas, No. 1:15-cv-02057-SHR (M.D. Pa. Jan. 27, 2016).
Those violations, moreover, appear to be widespread.
According to the County Commissioners Association of
Pennsylvania, “[c]ounties have reached a level of frustration
over the inability to address mental illness in jails due to
resource limits at the state level,” Cty. Comm’rs Ass’n of Pa.,
Comprehensive Behavioral Health Task Force: Report of
Findings and Recommendations at 5, (Aug. 7, 2016),
https://tinyurl.com/y88z8mzp, and “[t]he shortage of
psychiatric, or forensic, beds in state hospitals for county
inmates who have mental illness and developmental
disabilities has become a crisis that fails to effectively or
compassionately address human need,” Cty. Comm’rs Ass’n
of Pa., Increasing Forensic Bed Access for County Inmates
with Mental Illness (2018), https://tinyurl.com/y7d7qebl.
       15
         See also Hunter v. Beshear, No. 2:16-cv-798-MHT,
2018 WL 564856 (M.D. Ala. Jan. 25, 2018); Disability Law
Ctr. v. Utah, 180 F. Supp. 3d 998 (D. Utah 2016); Advocacy
Ctr. for the Elderly & Disabled v. La. Dep’t of Health &




                              36
        As for his institutionalization, the Supreme Court
announced more than forty years ago in Jackson v. Indiana,
406 U.S. 715 (1972), that “indefinite commitment of a
criminal defendant solely on account of his incompetency to
stand trial does not square with the Fourteenth Amendment’s
guarantee of due process,” id. at 731, and the Constitution
forbids detention of the accused “committed solely on
account of . . . incapacity” any longer than “the reasonable
period of time necessary to determine whether there is a
substantial probability that he will attain that capacity in the
foreseeable future,” id. at 738. Once it has been determined
that there is no substantial probability that the defendant will
attain the capacity to stand trial, a state “must” either
“institute . . . customary civil commitment proceeding[s]” or
“release the defendant.” Id.; see also Foucha, 504 U.S. at 77
(“Even if the initial commitment was permissible, ‘it [can]not
constitutionally continue after that basis no longer exist[s].’”);
United States v. Foy, 803 F.3d 128, 142 (3d Cir. 2014)
(Krause, J., concurring) (observing that “the circumstances of
Foy’s continued civil commitment in federal custody raise
significant statutory and due process concerns”). Even if
there is a likelihood of regaining capacity, “continued
commitment must be justified by progress towards that goal,”
and while the Court has declined to impose “arbitrary time
limits,” the three-year commitment period in Jackson
“sufficiently establishe[d]” that the detainee would never be
“able to participate fully in a trial.” 406 U.S. at 738-39.



Hosps., 731 F. Supp. 2d 603 (E.D. La. 2010); Terry ex rel.
Terry v. Hill, 232 F. Supp. 2d 934 (E.D. Ark. 2002).




                               37
       In view of this authority, the constitutional claims
Geness seeks to bring against the Commonwealth as to both
the length of his pretrial imprisonment and the length of his
civil commitment would not be futile. After his first
psychological evaluation indicated that he “remain[s]
incompetent to stand trial,” App. 198, Geness was
incarcerated for an additional three years before civil
commitment proceedings and a second examination were
even requested. And once institutionalized, Geness was left
to languish for another four years before he was granted a
hearing on his habeas petition and the charges against him
were dismissed. There is no question this exceeded the
“reasonable period of time necessary” under Jackson to
ascertain whether there was a substantial probability Geness
would attain competency in the foreseeable future.

             2.    Geness Did Not Unduly Delay in
          Seeking Amendment.

       The ground of “undue delay” also did not justify the
District Court’s denial of leave to amend. As we have
cautioned, “delay alone is an insufficient ground to deny
leave to amend,” and only delays that are either “undue” or
“prejudicial” warrant denial of leave to amend. Cureton v.
Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 273 (3d Cir.
2001).

       Geness’s delay in seeking to substitute the
Commonwealth as a party was neither. His delay was not
“undue” because he raised it less than a year from the filing
of his complaint, see Lorenz v. CSX Corp., 1 F.3d 1406, 1414
(3d Cir.1993) (finding a three year lapse between filing of
complaint and proposed amendment an “unreasonable”




                             38
delay), and doing so at the summary judgment stage “is not
unusual,” Adams v. Gould Inc., 739 F.2d 858, 869 (3d Cir.
1984) (citing 6 C. Wright & A. Miller, Federal Practice and
Procedure § 1488, at 436 (1971)); see also Dole v. Arco
Chem. Co., 921 F.2d 484, 488 (3d Cir. 1990) (“Amendment
may be permitted at any point during the course of
litigation.”). It also would not have prejudiced Cox because,
as the District Court noted, Geness’s “proposed factual
allegations in his amended complaint . . . against the
Commonwealth . . . are identical to those in his . . . complaint
against Fayette County,” Geness, 2017 WL 1058826, at *3.
Thus, amendment would not have required of the detective
any “additional discovery, cost, and preparation to defend
against new facts or new theories.” Cureton, 252 F.3d at
273.16

       In sum, neither futility nor delay justified the denial of
leave for Geness to amend his complaint to reinstate his ADA
and due process claims against the Commonwealth.




       16
           The prejudice inquiry considers the effect of
amendment on the existing defendants in the case, not the
new defendant proposed to be added by way of amendment.
Lorenz, 1 F.3d at 1414 (“[P]rejudice to the non-moving party
is the touchstone for the denial of an amendment.”) (emphasis
added); see also Formosa Plastics Corp., U.S.A. v. ACE Am.
Ins. Co., 259 F.R.D. 95, 99 (D.N.J. 2009) (finding no
prejudice when “Plaintiff is only seeking to add one
additional party and, as such, the current Defendants will
likely not incur significant additional resources . . . .).




                               39
IV.    Conclusion

        Absurd as it may seem that Geness was detained for
nine years for a crime that may not have occurred and now
cannot pursue relief under § 1983, multipoint failures in the
criminal justice system have brought us to this juncture.
Those failures point up the essential role of each player in that
system—whether law enforcement officer, prison official,
mental health professional, defense counsel, prosecutor, or
judge—and the devastating consequences that can follow
when one or more of them fails to diligently safeguard the
civil rights with which they are entrusted. With the
complexities at the intersection of the criminal justice and
mental health systems, those risks are only compounded and
require vigilance at a systemic level. As for the case before
us, we will reverse the District Court’s denial of leave to
amend, remanding for Geness to reinstate his claim against
the Commonwealth, and we will affirm the District Court in
all other respects.




                               40
