UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ TONY SERNA, Plaintiff - Appellant,

v. BUREAU OF LAND MANAGEMENT WORLAND FIELD OFFICE (specifically Acting Specialists; RITA ALLEN; DONALD KRUMP; CAROL SHEAFF), Defendants - Appellees. No. 15-8006 (D.C. No. 2:14- CV-00245-NDF) (D. Wyo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , HOLMES , and McHUGH , Circuit Judges.

________________ _________________ Plaintiff-appellant Tony Serna, proceed ing pro se and in forma pauperis, appeals the district court’s di smissal of his comp laint for failure to state a claim. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. In his complaint, Mr. Sern a asserted a singl e claim of neglig ence against the Bureau of Land Management (BLM) and thr ee of its employees. He alleged that

* After examining plaintif f-appellant’s brief and th e appellate record, this panel has determined unanimous ly that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2 ); 10th Cir. R. 34.1(G). The case is therefore ordere d submitted without oral ar gument. This order and judgment is not binding preceden t, except under the doctrines of law of the case, res judicata, and collateral estoppe l. It may be cited, howev er, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 15, 2015
Elisabeth A. Shumaker Clerk of Court2 after he recorded a busine ss meeting between him and th e employees, the employees violated Wyoming law when they “negligen tly coerced [him] to erase the recording by threatening to phone the poli ce [and] file suit.” R., Doc. 1 at 2. Specifically, he invoked a Wyoming statute th at provides criminal penaltie s for the interception or disclosure of wire, oral , or electronic communica tions except under certain circumstances. See Wyo. Stat. Ann. § 7-3-702(a). As relevant here, the statute contains an exception that allows any person to intercept such communications “where the person is a part y to the communication.” Id. § 7-3-702(b)(iv). Mr. Serna also alleged that the BL M employees violated their general duties as public employees under 5 C.F.R. § 2635.101 and their duty to exercise due care under Wyoming common law. He sought more than four billion dollars in damages. Mr. Serna moved to proceed in forma paupe ris, and the district court reviewed the case under 28 U.S.C. § 1915(e)(2)(B)(ii ). It then dism issed the complaint because (1) even if § 7-3-702 exempts Mr . Serna from criminal liability for making the recording in the fi rst instance, it does not provide a private right of action against the defendants for convincing hi m to erase the recording ba sed on their belief that it violated the statute; (2) in two prior acti ons brought by Mr. Serna, federal district courts concluded that the ba sic obligations of public serv ice do not create a private right of action; and (3) Mr. Serna failed to identify any constitutional or statutory authority that would allow him to sue th e federal government for the loss of the recording. Thus, Mr. Serna failed to state a claim upon wh ich relief could be granted.3 We review de novo dismissals under § 1 915(e)(2)(B)(ii) for fa ilure to state a claim, applying the same standard of review that we employ for Federal Rule of Civil Procedure 12(b)(6) motions to dismis s for failure to state a claim. Kay v. Bemis , 500 F.3d 1214, 1217 (10th Cir. 2007). Although we cons true Mr. Serna’s pro se complaint liberally, it is not our role to act as his advocate. See Gallagher v. Shelton , 587 F.3d 1063, 1067 (10th Cir. 2009); see also Curley v. Perry , 246 F.3d 1278, 1281 (10th Cir. 2001). To determine whether Mr. Serna has su fficiently stated his claims under Rule 12(b)(6), we accept as true the we ll-pled factual allega tions and consider whether he has provided “‘enoug h facts to state a claim to relief that is plausible on its face.’” Hogan v. Winder , 762 F.3d 1096, 1104 (10th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 547 (2007)). “‘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.’” Thomas v. Kaven , 765 F.3d 1183, 1190-91 (10th Cir. 2014) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009)). On appeal, Mr. Serna asserts that th e district court erred by misapplying § 7-3-702 and by concl uding that he failed to state a claim for negligence under the Federal Tort Claims Act (F TCA), 28 U.S.C. § 1346(b). As discussed below, for substantially the same reasons stated by the di strict court, we also conclude that the complaint fails to stat e a claim for relief under § 1915(e)(2)(B)(ii). First, Mr. Serna cites no authority for the proposition that § 7-3-702 gives him the right to sue the defendant s because they convinced him to erase a recording that4 he made. To the contrary, the clear intent of the statute is to impose criminal liability on persons who intercept or disclose cert ain communications. Generally, criminal statutes do not create a pr ivate cause of action. See Kaw Nation v. Springer , 341 F.3d 1186, 1191 (10th Cir. 2003) (“[U]nless . . . congressiona l intent [to create a private right of action] can be inferred from th e language of the stat ute, the statutory structure, or some other s ource, the essential predicate for implication of a private remedy simply does not exist.” (internal quotation marks omitted)). As Mr. Serna is not being criminally prosecuted in this case, the statute does not apply here. Second, Mr. Serna appears to argue that the district court did not consider whether he stated a claim under the FTCA. But the court’s order implicitly does so by stating that two district c ourts “have previously determin ed Plaintiff failed to state a claim under either § 1983 or the Federal Tort Claims Act (FTCA) based on these allegations.” R., Doc. 3 at 3. Based on our review of the co mplaint, we likewise conclude that Mr. Serna fails to state an actionable claim fo r negligence. The allegations in the complaint do not show th at the defendants breached a duty owed to Mr. Serna. Moreover, his apparent th eory of negligence, although not fully developed, could perhaps best be construed as a claim th e employees misrepresented that it was illegal to record the meeting. The FTCA cl early bars such a claim. See 28 U.S.C. § 2680 (“The provisions of . . . section 1346(b) . . . shall not apply to . . . [a]ny claim arising out of . . . misrepresentation . . . .”); see also Dorking Genetics v. United States , 76 F.3d 1261, 1264 (2d Cir. 1996) (“ This exception applies to claims arising out of negligent, as well as intentional, misrepre sentation.” (internal quotation5 marks omitted)). Also lacking from Mr. Sern a’s complaint, as noted by the district court, is any showing as to how the defendants’ alleged conduct caused him to suffer any damage, including the over four billion do llars in damages he claims. Therefore, we affirm the district court’s dismissal of Mr. Serna’s case.

Entered for the Court
Carolyn B. McHugh Circuit Judge