UNITED STATES COURT OF APPEALS TENTH CIRCUIT

CARLTON L. WILLIS, Plaintiff - Appellant,

v. DEPARTMENT STORES NATIONAL BANK; MACY’S; BLOOMINGDALE’S, Defendants - Appellees. No. 15-7007 (E.D. Oklahoma) (D.C. No. 6:14-CV-00363-FHS)

ORDER AND JUDGMENT *

Before, HARTZ , TYMKOVICH , and BALDOCK , Circuit Judges.

Plaintiff Carlton Willis, proceeding pro se and in forma pauperis , sued Department Stores National Bank (DSNB), Macy’s, Inc., and Bloomingdale’s, Inc. (collectively, Defendants), in the United States District Cour t for the Eastern District of

* After examining the briefs and appellate reco rd, this panel has determined unanimously that oral argument would not ma terially 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 ordered submitted without oral argument. This order and judg ment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 21, 2015
Elisabeth A. Shumaker Clerk of Court2 Oklahoma. 1 He alleged a violation of 15 U.S. C. § 1681h and raised claims under Oklahoma law for breach of contract, defamati on, and intentional damage to credit. The district court dismissed the co mplaint for failure to state a claim. Plaintiff appeals the denial of his state-law claims for breach of contract and defa mation. We have jurisdiction under 28 U. S.C. § 1291 and affirm. Plaintiff was incarcerated at the Mack Al ford Correctional Center in Stringtown, Oklahoma, for crimes incl uding forgery and unauthorized use of a credit card. 2 While incarcerated he opened accounts online with Ma cy’s and Bloomingdale’s in March 2014. DSNB sent him an IRS 4506-T form seeking verification of his identity. He closed the Macy’s account and filed a co mplaint with the Consumer Financial Protection Bureau (CFPB) regarding the Bloomingdale’s acco unt, which had been restricted pending identity verification. Bloomi ngdale’s received the CFPB co mplaint and sent Plaintiff another IRS 4506-T form. In respon se Plaintiff closed the account. On April 6, 2014, Plaintiff ope ned new accounts with Macy’s and Bloomingdale’s. The next day he faxed Macy ’s a bank statement, birth certificate, driving-reinstatement letter, and profit-and-lo ss document. On April 10, Macy’s closed

1 Bloomingdale’s, Inc. is a subsidiary of Macy’s, Inc. DSNB provides credit card accounts to Macy’s and Bloomingdale’s.

2 Plaintiff attached numerous documents, including prison records and correspondence with Defendants, to his comp laint. “[I]n deciding a motion to dismiss pursuant to Rule 12(b)(6), a court may lo ok both to the co mplaint itself and to any documents attached as exhibits to the complaint.” Oxendine v. Kaplan , 241 F.3d 1272, 1275 (10th Cir. 2001).3 both accounts and sent a letter enclosing anothe r IRS 4506-T form. On April 15 he faxed back the form. After recei ving the completed form, Macy ’s sent it to the IRS for verification but did not receive a response. DSNB learned of Plaintiff’s incarceration, which confirmed that the info rmation provided in his a pplication was false, and it therefore did not reopen the accounts. Plain tiff filed another comp laint with the CFPB, who forwarded it to the Office of the Comp troller of the Currency (OCC). Macy’s investigated the complaint and responded by letter, copying the OCC, on August 4. We review de novo a district court’s deci sion to dismiss a complaint for failure to state a claim. See Smith v. United States , 561 F.3d 1090, 1098 (1 0th Cir. 2009). “We are free to affirm the decision of the district c ourt on any grounds for which there is a record sufficient to permit conclusions of law, ev en grounds not relied upon by the district
court.” Jenkins v. Hodes (In re Hodes ), 402 F.3d 1005, 1011 (1 0th Cir. 2005). Although we liberally construe the pleadings of a pr o se plaintiff, we “will not supply additional factual allegations to round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.” Smith , 561 F.3d at 1096 (interna l quotation marks omitted). “Threadbare recitals of the elements of a ca use of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Plaintiff’s breach-of-contract claim was pr operly dismissed because the complaint does not identify a contractual promise that was breached or any action by Defendants that constituted a breach. On appeal Plai ntiff contends that the April 10 letter, by threatening to permanently clos e his Macy’s account in 30 da ys if he did not submit the4 requested documents, promised to keep the acc ount open for 30 days. But that is not a tenable reading of the letter, which contains no promise and states that the account was being “temporarily blocked from further char ging privileges.” Aplt. App. at 24. As for Plaintiff’s defamation claim, unde r Oklahoma law “[u]nless a plaintiff demonstrates that a defendant committed libel per se, [he] must also plead and prove special damages caused by publication.” Peterson v. Grisham , 594 F.3d 723, 728 (10th Cir. 2010). “[L]ibel per se . . . requires a stat ement that is clearly defamatory on its face.” Id. (internal quotation marks omitted). On ap peal Plaintiff rests his defamation claims on Macy’s August 4 letter copied to the OCC. Bu t that letter contains no libel per se and Plaintiff has not pleaded special damages. At most, he claims that Defendants’ statements will reflect ba dly on his credit. But he does not allege that he was ever denied credit or even that he received a lower cr edit score because of the statements. See Llewellyn v. Allstate Home Loans, Inc. , 711 F.3d 1173, 1179– 80 (10th Cir. 2013). We AFFIRM the district court’s decision.
ENTERED FOR THE COURT

Harris L Hartz Circuit Judge