* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10 TH C IR . R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 4 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
ROWANA K. RIGGS, Plaintiff - Appellant,

v. AMERICAN HERITAGE LIFE INSURANCE COMPANY, Defendant - Appellee. No. 02-3198 (D.C. No. 00-CV-2433-CM) (D. Kansas)

ORDER AND JUDGMENT *

Before EBEL , LUCERO , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is therefore ordered submitted without oral argument.1 We liberally construe a pro se appellate brief. Cummings v. Evans, 161

F.3d 610, 613 (10th Cir. 1998), cert. denied , 426 U.S. 1052 (1999).

2 American moved for summary judgment or, in the alte rnative, for dismissal for failure to state a claim. The distri ct court considered both alternatives sound. We will confine our review to dismissal for failure to state a claim upon which relief can be granted, pursuant to F ED . R. C IV . P. 12(b)(6).

3 Ms. Riggs filed a like claim in the United States D istrict Court for the District of Kansas on September 27, 2000, against t he CUNA Mutual Insurance Society, a case at one time consolidated with this case for pre-trial proceedings. Her claims against CUNA, like those in this case, w ere eventually dismissed by the district court for failure to state a claim upo n which relief can be granted, pursuant to F ED . R. C IV . P. 12(b)(6). Ms. Riggs appealed and we affirmed. Riggs v. CUNA Mutual Ins. Soc’y, 42 Fed. Appx. 334 (10th Cir. 2002), 2002 WL 1462892 (unpublished opinion). -2- Rowana K. Riggs, acting pro se, 1 appeals the district court’s dismissal of her civil rights complaint for failure to state a c laim upon which relief can be granted. 2 Exercising jurisdiction under 28 U.S.C. § 1291 (2003), we affirm. On September 27, 2000, Ms. Riggs filed a pro se com plaint against American Heritage Life Insurance Company (“American ”) claiming she became totally disabled due to bilateral carpal tunnel syn drome and seeking damages for alleged violations of her civil rights stemming fro m American’s refusal to pay total disability under two credit disability insura nce policies. The district court liberally construed her complaint to state claims f or denial of disability benefits in violation of Title VII of the Civil Rights Act of 1 964, 42 U.S.C. § 2000e, et seq. , and Titles I, II and III of the Americans with Disa bilities Act (“ADA”), 42 U.S.C. § 12111, et seq. 34 In her appellate brief, Ms. Riggs claims for the fi rst time a violation of 42

U.S.C. § 1981. We need not reach the merit of this claim because we will not consider an argument unless it is first presented t o the district court. Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992). -3- We review de novo the dismissal of a complaint for failure to state a claim upon which relief can be granted under F ED . R. C IV . P. 12(b)(6). Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). “[A]ll well-pleaded factual allegations in the . . . compl aint are accepted as true and viewed in the light most favorable to the nonmoving party. A 12(b)(6) motion should not be granted unless it appears beyond doub t that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. (internal quotations and citations omitted). Altho ugh we liberally construe a pro se complaint, “we will not supply additional factua l allegations to round out a plaintiff’s complaint or construct a legal theory o n a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997). We turn now to Ms. Riggs’s complaint. 4 Title VII of the Civil Rights Act protects against employment discrimination. Ms. Riggs does not claim an employment relationship with American. Therefore, her Title VII claim fails. Title I of the ADA prohibits employment discriminat ion by a “covered entity.” 42 U.S.C. § 12112(a). Since Ms. Riggs did not and app arently could not demonstrate5 “Covered entity” is defined as “an employer, employ ment agency, labor

organization, or joint labor-management committee.” 42 U.S.C. § 12111(2).

6 “The term ‘public entity’ means (A) any State or lo cal government; (B) any department, agency, special purpose district, o r other instrumentality of a State or States or local government; and (C) the Na tional Railroad Passenger Corporation, and any commuter authority (as defined in section 502(8) of Title 45).” 42 U.S.C. § 12131(1). -4- American is a “covered entity,” 5 this claim fails. Further, her claim under Title II of the ADA fails because Title II protects disabled persons from discrimination by a “public entity.” 42 U.S.C. § 12132. Ms. Riggs c annot demonstrate American is a “public entity.” 6 Finally, Ms. Riggs’s claim under Title III of the ADA fails because she seeks only damages, and Title III limit s the remedy of a private claim to injunctive relief. 42 U.S.C. § 12188(a)(1). We conclude Ms. Riggs was unable to establish any f acts in support of her claim which would entitle her to relief. Therefore , the district court was correct to dismiss her complaint for failure to state a cla im and its judgment is AFFIRMED
.
Entered by the Court: TERRENCE L. O’BRIEN United States Circuit Judge