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 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 This order and judgment is not binding precedent, 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. 

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: 1
2 

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. 

Appellate Case: 21-3208 Document: 010110653985 Date Filed: 03/08/2022 Page: 2
3 

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. 

Appellate Case: 21-3208 Document: 010110653985 Date Filed: 03/08/2022 Page: 3
4 

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: 

Appellate Case: 21-3208 Document: 010110653985 Date Filed: 03/08/2022 Page: 4
5 

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. 

Appellate Case: 21-3208 Document: 010110653985 Date Filed: 03/08/2022 Page: 5
6 

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 

Appellate Case: 21-3208 Document: 010110653985 Date Filed: 03/08/2022 Page: 6
7 

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. 

Appellate Case: 21-3208 Document: 010110653985 Date Filed: 03/08/2022 Page: 7
8 

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 

Appellate Case: 21-3208 Document: 010110653985 Date Filed: 03/08/2022 Page: 8