                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                November 9, 2006
                           FOR THE FIFTH CIRCUIT
                                                             Charles R. Fulbruge III
                                                                     Clerk

                               No. 05-11357



     CALEB ELLIOTT,


                                              Plaintiff–Appellant,
           versus


     DUSTIN DEAN DUSTY HARRIS, Individually;
     OWS, INC., doing business as OLD WEST STABLES,

                                              Defendants–Appellees.




           Appeal from the United States District Court
                 for the Northern District of Texas



Before GARWOOD, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:1

     Plaintiff–appellant Caleb Elliott (Elliott) appeals from the

district court’s final judgment entered on September 16, 2005, that

Elliott   take   nothing    from   defendants–appellants   Dusty    Harris

(Harris) and OWS, Inc., doing business as Old West Stables (OWS).

We affirm.

                      FACTS AND PROCEEDINGS BELOW

     1
      Per 5th Cir. R. 47.5, the court has decided that this
opinion should not be published and is not precedent except under
those limited circumstances set forth by 5th Cir. R. 47.5.4.
     Appellant Elliott is the 15-year-old son of Dale and Ann

Elliott and is blind.     The week of June 14, 2004, Ann Elliott

called OWS, a park riding concessionaire at Palo Duro Canyon State

Park, to reserve horses for renting on June 26, 2004. She explained

to the person taking the reservation that her son Elliott was blind

and that a lead rope would be needed for him to ride.

     On June 26, 2004, the Elliott family arrived at OWS stables

and paid for the family’s horse ride.     Dale Elliott mentioned to

Harris, an officer and part owner of OWS, that Elliott would need

a lead rope.   Harris refused the request and refunded the payment.

     Elliott filed suit against Harris on September 29, 2004, under

Title III of the Americans with Disabilities Act (ADA) and Texas

Human Resources Code Chapter 121, as well as for intentional

infliction of emotional distress.        OWS was later added as a

defendant.

     A jury trial was held September 13 and 14, 2005.            The

defendants moved for, and the district court granted, judgment as

a matter of law on Elliott’s intentional infliction of emotional

distress claim.   Elliott’s discrimination claims were submitted to

the jury, and the jury found for the defendants on all counts.   The

court entered a take-nothing judgment on September 16, 2005.

                            DISCUSSION

     Elliott’s sole argument on appeal is that the district court,




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in its jury instructions,2 misstated the elements of proof for his

discrimination claim by limiting the jury’s consideration of the

applicability   of   the   ADA   (and       the   corresponding   Texas   Human

Resources Code Chapter 121) to Elliott’s proposed use of a lead

rope.3   At the charge conference, this objection was raised and

overruled; the court concluded that because the pretrial order

     2
      The district court instructed the jury that Elliott was
required to prove six facts to prevail on his ADA claim:
     “(1)       Plaintiff had a disability;
     (2) Defendant operated a place of public
           accommodation;
     (3) Plaintiff requested the accommodation of a lead
           rope to allow Plaintiff to ride without being able
           to see the direction of the trail;
     (4) The use of a lead rope on the trail at Palo Duro
           Canyon State Park is a reasonable accommodation;
     (5) Defendant was aware of Plaintiff’s disability at
           the time of Plaintiff’s request; and
     (6) Defendant failed to provide Plaintiff with a lead
           rope.” (RE Tab 9, at 6–7.)
Jury Question number one asked:
     “Do you find, by a preponderance of the evidence, that
     Defendants DUSTIN DEAN ‘DUSTY’ HARRIS, individually,
     and OWS, INC. d/b/a OLD WEST STABLES failed to provide
     a reasonable accommodation under the AMERICANS WITH
     DISABILITIES ACT as defined by the Court’s instructions
     by failing to permit Plaintiff to use a lead rope on
     their trail ride?”
The jury answered “no.”

     Jury question number 4 asked:
     “Do you find, by a preponderance of the evidence, that
     providing Plaintiff CALEB ELLIOT a lead rope would have
     been a reasonable accommodation in policies, practices
     or procedures or auxiliary aids and services that was
     necessary to allow Plaintiff the full use and enjoyment
     of OLD WEST STABLES, as required by the TEXAS HUMAN
     RESOURCES CODE?”
The jury answered “no.”
     3
     Elliott does not challenge the district court’s ruling on
his intentional infliction of emotional distress claim.

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referenced only the requested use of a lead rope, any other

potential accommodations were not issues in the case.                We review

the district court’s jury instructions for abuse of discretion.

Nat’l Hispanic Circus, Inc. v. Rex Trucking, Inc., 414 F.3d 546,

550 (5th Cir. 2005).      The court’s legal conclusions are reviewed de

novo.      Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052,

1056 (5th Cir. 1997).

      The joint pretrial order in this case, entered on August 31,

2005, did not refer to any potential accommodation other than the

use   of    a   lead   rope,      which   it   referred   to   numerous   times.

Certainly, a reasonable reading of the Pretrial Order is that this

was the only potential accommodation as to which there was any

factual or legal issue to be tried.            “‘Once the [pretrial] order is

entered, it controls the scope and course of the trial.’” Valley

Ranch Dev. Co., Ltd. v. Fed. Deposit Ins. Corp., 960 F.2d 550, 554

(5th Cir. 1992) (quoting Flannery v. Carroll, 676 F.2d 126, 129

(5th Cir. 1982)); see also FED. R. CIV. P. 16(e).              An issue omitted

from the order is waived.           Id.   And the district court “may refuse

to give an instruction to the jury on an issue not [so] embodied in

the pretrial order.”        CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY KAY

KANE, 6A FEDERAL PRACTICE   AND   PROCEDURE § 1527, at 279 (2d ed. 1990).

      Elliott argues that the pretrial order did not limit the

accommodation possibilities to use of a lead rope.               This argument

requires an expansive reading of the order.                As this court has


                                          4
previously noted, “[d]istrict courts are encouraged to construe

pre-trial orders narrowly without fear of reversal.” Flannery, 676

F.2d at 129. Thus, “unless the court has abused its discretion, its

rulings concerning the order will not be disturbed on appeal.” Id.

at 130.     We find that the district court did not abuse its

discretion in construing the pretrial order to raise only the issue

of whether a lead rope is a reasonable accommodation.

     Further,   Elliott   has   not       suggested   any   other   modes   of

accommodation on which the district court should have instructed

the jury.   In a Title III4 case, the “plaintiff has the burden of

proving that a modification was requested and that the requested

modification is reasonable.”     Johnson, 116 F.3d at 1059.          Elliott

has not suggested–in either his main or reply brief–alternatives to

the lead rope, let alone alternatives that were requested.

     Elliott asserts that he “need only request a modification that


     4
      Title III of the ADA states that “No individual shall be
discriminated against on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or leases to), or
operates a place of public accommodation.” 42 U.S.C. § 12182(a)
(2000). Discrimination includes:
     “a failure to make reasonable modifications in
     policies, practices, or procedures, when such
     modifications are necessary to afford such goods,
     services, facilities, privileges, advantages, or
     accommodations to individuals with disabilities, unless
     the entity can demonstrate that making such
     modifications would fundamentally alter the nature of
     such goods, services, facilities, privileges,
     advantages, or accommodations.” 42 U.S.C. §
     12182(b)(2)(A)(ii) (2000).

                                      5
is reasonable ‘in the run of cases’” and that therefore he “did not

have to prove that the specific auxiliary aid of a lead rope would

be suitable for use on Defendants’ particular trail.”          We agree

that Elliott only needed to show that his requested modification

was “generally reasonable.”      Johnson, 116 F.3d at 1058.    Thus, for

example, Elliott did not need to go into the specifics of how the

lead rope would be used.   But he still needed to show the requested

modification.   The only such modification Elliott refers to is the

use of a lead rope.   Elliott does not argue any other modifications

that the district court should have asked the jury to consider.

     Finally, Elliott also objects to the district court’s jury

instructions in relation to his Texas claim.        While he states that

Texas Human Resources Code Chapter 121 is “the Texas analog to

Title III ADA and imposes similar requirements” and partially

quotes the Texas statute, Elliott does not cite any cases dealing

with the Texas statute in his briefs and relies exclusively on ADA

case law to make his arguments.         Thus, we do not consider whether

his arguments on appeal might fare differently in regards to his

Texas discrimination claim.      “Failure adequately to brief an issue

on appeal constitutes waiver of that argument.”         Procter & Gamble

Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004) (citing

FED. R. APP. P. 28(a)(9)(A)).



                                CONCLUSION


                                    6
     For the foregoing reasons, the judgment of the district court

is

                            AFFIRMED.




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