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

                                                                      September 26, 2005
                     UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT                          Clerk of Court


 JOHN R. ALVAREZ,

          Plaintiff-Appellant,
 v.                                                     No. 05-1193
 JON SANDRIDGE,                              (D.C. No. 04-CV-2349-LTB-CBS)
                                                         (D.Colo.)
          Defendant-Appellee.




                             ORDER AND JUDGMENT         *




Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.


      John Alvarez, proceeding pro se, appeals the district court’s order adopting

the magistrate’s report and recommendation and dismissing his complaint

pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). We exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm.




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       This order and judgment is not binding precedent, except under the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

      On May 18, 2001, Alvarez was involved in an automobile accident with

another individual who is not a party to this action. Colorado State Patrol Officer

John Sandridge investigated the accident and determined that Alvarez was in

possession of a stolen vehicle. Officer Sandridge impounded the car, despite

Alvarez’s contention that it was not stolen.

      On April 30, 2003, Alvarez brought suit against John Lizza, the deputy

attorney general of Colorado, asserting claims arising out the automobile

accident. The district court dismissed the complaint pursuant to Fed. R. Civ. P.

12(b)(1) and 12(b)(6), and on appeal we affirmed. See Alvarez v. Lizza, No. 04-

1083, 2004 WL 1926231 (10th Cir. Aug. 31, 2004).

      Alvarez filed the present action on November 12, 2004, against Officer

Sandridge. In short, Alvarez contends that Officer Sandridge searched and seized

his car without probable cause, deprived him of his property without due process

of law, and that both Officer Sandridge and the driver of the other car conspired

to violate his rights. However, Alvarez’s complaint cites only 18 U.S.C. § 241, a

federal criminal statute, as a basis for relief. See Newcomb v. Ingle, 827 F.2d

675, 677 n.1 (10th Cir. 1987) (“Section 241 is a criminal statute prohibiting acts

of conspiracy against the rights of citizens, and it does not provide for a private

cause of action.”).


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      Officer Sandridge filed a motion to dismiss pursuant to Fed. R. Civ. P.

12(b)(1) and 12(b)(6). He argued that to the extent Alvarez alleged claims under

42 U.S.C. §§ 1983 and 1985, those claims were barred by the applicable two-year

statute of limitations, and in any event, Alvarez failed to state a claim for a

violation of his constitutional rights or for a conspiracy to deprive him of equal

protection or equal privileges and immunities. Additionally, Officer Sandridge

maintained that the district court lacked subject matter jurisdiction over any state

constitutional tort claims Alvarez attempted to allege, citing Alvarez’s failure to

file a timely notice with the Office of the Colorado Attorney General as required

by the Colorado Governmental Immunity Act (“CGIA”). See Colo. Rev. Stat. §

24-10-101 et seq.

      The magistrate judge’s report and recommendation, adopted by the district

court, concluded that Alvarez’s complaint did not state a § 1985(3) claim; any

potential claims under § 1983 and § 1985 were time-barred under the two-year

statute of limitations provided in Colo. Rev. Stat. § 13-80-102; and that Alvarez

did not timely comply with the CGIA’s notice provisions, a jurisdictional

prerequisite to suit.

                                          II.

      We review de novo an order dismissing a complaint under either Rule

12(b)(1) or 12(b)(6), employing the same standard applied by the district court.


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Ordinance 59 Ass’n v. U.S. Dep’t of Interior Sec’y, 163 F.3d 1150, 1152 (10th

Cir. 1998). “We accept as true all well-pleaded facts, as distinguished from

conclusory allegations, and view those facts in the light most favorable to the

nonmoving party.” Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th

Cir. 1998). Dismissal of a complaint pursuant to Rule 12(b)(6) will be upheld

only if “it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.” Conley v. Gibson, 355

U.S. 41, 45-46 (1957). Because Alvarez represents himself on appeal, his

pleadings will be liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-

21, (1972).

                                          III.

      We have carefully reviewed the record on appeal, as well as the briefs

submitted by the parties. Applying the standards set out above, we affirm the

judgment of dismissal for substantially the same reasons stated by the magistrate

judge in his report and recommendation dated January 26, 2005. The attempt to

ascertain the nature of Alvarez’s claims was proper, and we agree with the

construction of his claims. While we must liberally construe a pro se litigant’s

pleadings, it is not our role to serve as an advocate. Barnett v. Hargett, 174 F.3d

1128, 1133 (10th Cir. 1999). We note that in the pleadings filed by Alvarez

before the district court, as well as his brief on appeal, Alvarez did not dispute the


                                           4
manner in which his complaint was construed or the basis for dismissing his

claims. Instead, the only relevant legal argument Alvarez asserted was that

Officer Sandridge did not timely file or serve the motion to dismiss. The docket

report in this case shows that this contention is without merit.

      Accordingly, the decision of the district court is AFFIRMED.

                                              Entered for the Court



                                              Mary Beck Briscoe
                                              Circuit Judge




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