NOT PRECEDENTIAL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