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Date: Filed /
STATES COURT OF APPEALS
ORDER AND JUDGMENT(*)
BRISCOE, and O'BRIEN, Circuit
Kurt C. Ballenger, proceeding pro se, appeals the district court's sua
sponte dismissal of his complaint pursuant to 28 U.S.C. § 1915 and Fed. R. Civ.
P. 12(b)(6) for failure to state claim upon which relief may be granted. Mr.
Ballenger has moved to proceed in forma pauperis. We grant his motion to
proceed in forma pauperis. However, upon de novo review and construing his
allegations liberally, see Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.
we conclude for substantially the same reasons set forth in the district court's
order that Mr. Ballenger has failed to state a claim and that it would be futile to
allow him to amend his complaint. See Perkins v. Kansas Dep't of Corr., 165
F.3d 803, 806 (10th Cir. 1999). In his complaint, Mr. Ballenger alleges that he was unfairly
eventually discharged by Little Caesar Enterprises, his former employer. The
district court construed his complaint as alleging discrimination under the
Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213. However,
as the district court noted, the only defendants named in Mr. Ballenger's
complaint, Virginia Ballard and Joe Johnson, are two individuals who allegedly
worked as his supervisors. "The ADA precludes personal capacity suits against
individuals who do not otherwise qualify as employers under the statutory
definition." Butler v. City of Prairie Village, 172 F.3d 736, 744 (10th Cir. 1999).
Moreover, Mr. Ballenger "does not allege that the reason for his discharge
was the result of anything but the lack of his having a required permit and failing
to communicate with his employer while he was off work for not having the
permit." Dist. Ct..Order, at 5-6. Thus, even if he had named his former employer
as a defendant, these allegations do not raise an inference that he was discharged
or suffered any other adverse personnel action because of a disability covered by
Accordingly, we AFFIRM the district court's dismissal of Mr. Ballenger's
Entered for the Court,
Robert H. Henry
United States Circuit Judge
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*. This order and judgment is not binding
precedent, except under the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 judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th
Cir. R. 36.3.
2.After examining the briefs and appellate
record, this panel has determined
unanimously that oral argument would not materially assist 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.
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