Allen v. Adams

Appellate Case: 21-3208 Document: 010110653985 Date Filed: 03/08/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 8, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
MIKE ALLEN,
Plaintiff - Appellant,
v. No. 21-3208
(D.C. No. 6:21-CV-01221-JAR-KGG)
KADEN ADAMS, (D. Kan.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, BRISCOE, and CARSON, Circuit Judges.
_________________________________
Mike Allen appeals the district court’s grant of Kaden Adams’s motion to
dismiss for failure to state a claim and entry of judgment with prejudice. Exercising
jurisdiction under 28 U.S.C. § 1291, we AFFIRM.
I. Background
Allen is disabled. In or around August of 2021, the Martin Pringle law firm in
Wichita, Kansas, referred Allen to Kaden Adams, an accountant at Adams &
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
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Associates (referred to by Allen as “Dave Adams and Associates”). While the parties
never had a written agreement, Adams agreed to assist Allen recover withheld taxes
from 2016. Allen mailed a 1040 tax return and W-2 for 2016 to Adams, as well as a
“Social Security disability document, and a copy of another attorney’s document.”
ROA at 9.
On August 31, 2021, Allen called Adams seeking an update. Adams told
Allen the statute of limitations for a 2016 tax refund had run. The next day, Allen
called Adams’s office and spoke to an unidentified woman. He requested his
documents be mailed back to him. Allen called Adams’s office again with the same
request on September 5, and again on September 7. On the September 7 call, Adams
told Allen he would mail the documents back that day. As of the filing of Allen’s
complaint on September 12, 2021, he had not received his documents.1
Allen’s complaint asserted claims under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq., and a provision of the United States Criminal
Code, 18 U.S.C. § 1028. He stated that he wished to recover “[a]ll future expenses
arising from this petition” and that the relief sought was “[t]o protect the plaintiff
from discrimination against the disabled.” ROA at 7. He checked boxes on a form
complaint indicating he claims both actual and punitive damages. Where the form
indicated he should state the amounts claimed and reasons for entitlement to money
1
Allen’s complaint asserted he had not received his documents as of
September 13, 2021, the day after his complaint was filed. We assume Allen meant
to refer to September 12, 2021, the day he filed.
2
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damages, Allen wrote: “Any monetary damages arising from this petition.” ROA at
11. He also asked for an order directing Adams to return the documents.
On October 8, 2021, Adams filed a Rule 12(b)(6) motion to dismiss for failure
to state a claim for which relief can be granted. In response, Allen filed a document
captioned “Motion to Deny Defendant’s Request to Dismiss Plaintiff’s Complaint
Before Returning Plaintiff’s Documents to Plaintiff” and attached a document
captioned “Objection to Dismiss Plaintiff’s Complaint Before Returning Plaintiff’s
Documents to Plaintiff,” both of which asserted that, if the court determined Allen
had no remedy under the ADA, two provisions of the United States Tax Code, 26
U.S.C. §§ 6694 and 6695, would compel Adams to return the documents. ROA at
27–30. Allen then filed a document captioned “Objection to Dismiss Plaintiff’s
Complaint with Prejudice.” ROA at 35.
On November 12, 2021, the district court granted Adams’s motion to dismiss
and dismissed the case without prejudice. Allen filed a notice of appeal, but we
abated the appeal when Adams filed a motion to alter or amend the judgment,
requesting the district court correct its dismissal without prejudice to a dismissal with
prejudice. Allen requested that counsel be appointed, but the district court denied his
motion. Allen did not otherwise respond to the motion to alter or amend the
judgment. The district court then granted Adams’s motion and dismissed the case
with prejudice. We lifted the abatement and now affirm.
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II. Standard of Review
We review de novo a district court’s decision to dismiss a complaint pursuant
to Rule 12(b)(6) for failure to state a claim. Smallen v. The Western Union Co., 950
F.3d 1297, 1305 (10th Cir. 2020). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting
Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are merely
consistent with a defendant’s liability, it stops short of the line between possibility
and plausibility of entitlement to relief.” Id. (quotation marks omitted).
We review a district court’s denial of leave to amend for abuse of discretion.
Carroll v. Lawton Indep. Sch. Dist. No. 8, 805 F.3d 1222, 1231 (10th Cir. 2015).
This review “includes de novo review of the legal basis for the finding of futility” of
a proposed amendment.” Adams v. C3 Pipeline Constr. Inc., 17 F.4th 40, 69 (10th
Cir. 2021).
III. The District Court Did Not Err.
Allen’s opening and reply briefs do not clearly state the issues on appeal.
Adams frames the issues as:
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1. Was the district court correct in granting Mr. Adams’ motion to dismiss Mr.
Allen’s complaint for failure to state a claim upon which relief can be granted?
2. Did the district court correctly deny Mr. Allen’s motion for leave to amend
as futile?
Aple. Br. at 3.
We liberally construe pro se filings, but we “will not supply additional factual
allegations to round out a plaintiff’s complaint or construct a legal theory on a
plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir.
1997). Liberally construing Allen’s filings, we review the district court’s dismissal
of Allen’s claim for violation of the ADA, dismissal of a claim under the United
States Criminal Code, and refusal to grant leave to amend to add claims under the
United States Tax Code.2
A. ADA Claims
The ADA protects against discrimination on the basis of disability. Title I
protects against employment discrimination; Title II protects against discrimination
by public entities; and Title III protects against discrimination by owners or operators
of public accommodations. See 42 U.S.C. §§ 12112(a), 12132, & 12182(a). Allen
2
Even construing Allen’s claims liberally, we do not read his briefs as seeking
to appeal the district court’s order amending the judgment and altering the dismissal
from one without prejudice to one with prejudice. While Allen touches on that
motion in reply, it is clearly not a request for review of the district court’s decision.
See Reply at 4 (“The defendant’s representatives used this redundant method at the
district court to alter the order of the same judge from dismissal without prejudice to
dismissal with prejudice.”). Moreover, Allen did not substantively respond to
Adams’s motion to alter or amend in the district court, so it is also doubtful that he
preserved the issue for appeal.
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never specified which title of the ADA he claims Adams has violated. The district
court assumed he meant to assert a claim under Title III, and we agree. The facts
Allen alleged are inconsistent with a Title I or Title II claim because Allen does not
claim Adams employed him or that Adams is a public entity.
To state a claim under Title III of the ADA, Allen must allege: (1) that he is
disabled under the ADA; (2) that Adams owns, leases, or operates a place of public
accommodation; and (3) that Adams discriminated against Allen on the basis of his
disability. See 42 U.S.C. § 12182; Roberts v. Royal Atlantic Corp., 542 F.3d 363,
368 (2d Cir. 2008).
Adams does not contest that Allen alleged that he is disabled, nor that an
accounting firm is a public accommodation. Rather, Adams asserts that Allen never
alleged that Adams owns, leases, or operates the public accommodation at issue and
that Allen does not plausibly allege that Adams discriminated against Allen on the
basis of a disability.
Allen’s complaint names the defendant as “Kaden Adams aka (Dave Adams
and Associates),” but we need not decide whether this is sufficient when liberally
construed to assert that Adams owns or operates a public accommodation. Rather,
we agree with the district court that Allen failed to allege Adams discriminated
against him on the basis of a disability.
Allen does not plausibly allege that Adams refused to return Allen’s
documents because Allen is disabled. He does not allege Adams used discriminatory
language or committed other forms of overt discrimination. Aside from a passing
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statement that “Kaden obviously reserved professional courtesy for some, and then
declined service to a disabled person,” which is an unsupported assumption, he does
not allege that he was subject to disparate treatment. This is the kind of speculation
that fails to meet Rule 8’s pleading standard. See Iqbal, 556 U.S. at 678.
B. Criminal Code Claim
Allen attempts to assert a claim under 18 U.S.C. § 1028, which criminalizes
fraudulent and other activities relating to identification documents. As this statute
does not provide a private right of action, the district court correctly dismissed
Allen’s claim under the United States Criminal Code. See Andrews v. Heaton, 483
F.3d 1070, 1076 (10th Cir. 2007) (“[D]ismissal . . . was proper because these are
criminal statutes that do not provide for a private right of action and are thus not
enforceable through a civil action.”).
C. Tax Code Claims
The district court construed Allen’s invocation of 26 U.S.C. §§ 6694 and 6695
as a request for leave to amend his complaint to assert claims under those statutes.
The district court did not abuse its discretion in denying that motion because these
statutes are only enforceable by the Secretary of the Internal Revenue Service, and
any penalties under those provisions “shall be assessed and collected in the same
manner as taxes.” 26 U.S.C. § 6671. To the extent Allen argues that these
provisions are applicable beyond providing a cause of action, he does not explain or
develop that argument and it is unclear how these provisions could compel a court to
consider Allen’s ADA claim differently.
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IV. Conclusion
Because the district court did not err in dismissing Allen’s complaint for
failure to state a claim, we AFFIRM.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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