UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ MIKE ALLEN, Plaintiff - Appellant,

v. KADEN ADAMS, Defendant - Appellee. No. 21-3208 (D.C. No. 6:21-CV -01221-JAR-KGG) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MORITZ , BRISCOE , and CARSON , Circuit Judges.

________________ _________________ Mike Allen appeals the district cour t’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 Ma rtin Pringle law firm in Wichita, Kansas, referred Allen to Ka den Adams, an accountant at Adams &

* After examining the briefs and appella te record, this pa nel 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### March 8, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-3208 Document: 010110653985 Date Filed: 03/08/2022 Page: 12 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 Adam s seeking an update. Adams told Allen the statute of limitati ons for a 2016 tax refund had r un. 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 American s with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. , and a provision of the Un ited 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 re lief sought was “[t]o protect the plaintiff from discrimination against the disabled.” ROA at 7. He checked boxes on a form complaint indicating he clai ms both actual and punitive damages. Where the form indicated he should state the amounts clai med 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 compla int was filed. We assume Allen meant to refer to September 12, 2021, the day he filed. Appellate Case: 21-3208 Document: 010110653985 Date Filed: 03/08/2022 Page: 23 damages, Allen wrote: “Any monetary damages arising from this petition.” ROA at 11. He also asked for an order dire cting 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 reli ef can be granted. In res ponse, Allen filed a document captioned “Motion to Deny Defendant’s Reque st to Dismiss Plai ntiff’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 asse rted that, if the court determined Allen had no remedy under the ADA, two provisi ons of the United States Tax Code, 26 U.S.C. §§ 6694 and 6695, would compel Ad ams to return the documents. ROA at 27–30. Allen then filed a document cap tioned “Objection to Dismiss Plaintiff’s Complaint with Prejudice.” ROA at 35. On November 12, 2021, the district c ourt granted Adams’s motion to dismiss and dismissed the case without prejudice. Allen filed a notice of appeal, but we abated the appeal when Ad ams filed a motion to alter or amend the judgment, requesting the district court correct its dismissa l without prejudice to a dismissal with prejudice. Allen requested that counsel be appointed, but th e district court denied his motion. Allen did not ot herwise respond to the motion to alter or amend the judgment. The district court then gran ted Adams’s motion and dismissed the case with prejudice. We lifted the abatement and now affirm. Appellate Case: 21-3208 Document: 010110653985 Date Filed: 03/08/2022 Page: 34 II. Standard of Review We review de novo a distri ct court’s decision to di smiss a complaint pursuant to Rule 12(b)(6) for failu re to state a claim. Smallen v. The Western Union Co ., 950 F.3d 1297, 1305 (10th Cir. 2020). “To surviv e 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 pl aintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the mi sconduct alleged.” Id

. “The plausibility standard is not akin to a ‘probability re quirement,’ but it asks for more than a sheer possib ility that a defendant has acted unlawfully.” Id . (quoting Twombly , 550 U.S. at 556). “Where a compla int pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitl ement 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 cl early state the issues on appeal. Adams frames the issues as: Appellate Case: 21-3208 Document: 010110653985 Date Filed: 03/08/2022 Page: 45 1. Was the district court correct in granting Mr. Adam s’ motion to dismiss Mr. Allen’s complaint for failur e to state a claim upon whic h relief can be granted? 2. Did the district court correctly de ny 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 comp laint 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 A llen’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 gran t 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 di scrimination; Title II prot ects against discrimination by public entities; and Title II I protects against discrimina tion by owners or operators of public accommodations. See 42 U.S.C. §§ 12112(a), 1213 2, & 12182(a). Allen

2 Even construing Allen’s cl aims liberally, we do not r ead his briefs as seeking to appeal the district court’s order ame nding the judgment and altering the dismissal from one without prejudice to one with pr ejudice. While Allen touches on that motion in reply, it is clearly not a request fo r review of the distri ct 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 substa ntively 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. Appellate Case: 21-3208 Document: 010110653985 Date Filed: 03/08/2022 Page: 56 never specified which title of the ADA he cl aims 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 Titl e 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 discrimi nated 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 allege d 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 opera tes 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 Adam s aka (Dave Adams and Associates),” but we need not decide whether this is suffi cient when liberally construed to assert that Ad ams owns or operates a pub lic accommodation. Rather, we agree with the district court that Al len 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 Appellate Case: 21-3208 Document: 010110653985 Date Filed: 03/08/2022 Page: 67 statement that “Kaden obviou sly reserved professional c ourtesy for some, and then declined service to a disabl ed person,” which is an uns upported assumption, he does not allege that he was subject to disparate treatment. Th is 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 id entification 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. 200 7) (“[D]ismissal . . . wa s proper because these are criminal statutes that do no t 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 i nvocation of 26 U.S.C. §§ 6694 and 6695 as a request for leave to am end his complaint to assert claims under those statutes. The district court did not a buse its discretion in denying that motion because these statutes are only enforceable by the Secretary of the Inte rnal Revenue Service, and any penalties under those provisi ons “shall be assessed a nd 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. Appellate Case: 21-3208 Document: 010110653985 Date Filed: 03/08/2022 Page: 78 IV. Conclusion Because the district court did not er r in dismissing Alle n’s complaint for failure to state a claim, we AFFIRM.

Entered for the Court
Mary Beck Briscoe Circuit Judge Appellate Case: 21-3208 Document: 010110653985 Date Filed: 03/08/2022 Page: 8