NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-1630

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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

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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

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Submitted Under Third Circuit LAR 34.1(a)

December 14, 2010

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

(Filed: December 15, 2010 )

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OPINION OF THE COURT

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2

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.
3

Nearly two years later,1on 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”).
4

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.
5

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.
6

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 
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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.”).