                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 6 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    MARGUERITE MEYERS,

                Plaintiff - Appellant,

    v.
                                                         No. 02-1054
    COLORADO DEPARTMENT OF                            D.C. No. 01-D-713
    HUMAN SERVICES, Division of                         (D. Colorado)
    Vocational Rehabilitation; PEG
    SCHMITZ, M.A., C.R.C.; KEN
    SCHMIDT, Ph.D.; MICHAEL CLINE;
    KAMELA BROWN; CYNDY
    WYMER; GARY ANGERHOFER,

                Defendants - Appellees.


                             ORDER AND JUDGMENT           *




Before KELLY and BALDOCK , Circuit Judges, and          BRORBY , Senior Circuit
Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of




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      This order and judgment is not binding precedent, except under the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

      Pro se appellant Marguerite Meyers brought this action against Colorado’s

Division of Vocational Rehabilitation (DVR), the State of Colorado, and certain

individuals, alleging that the defendants discriminated against her on the basis of

her physical disabilities, dyslexia, bipolar disorder, and Caucasian race. The

magistrate judge and district court interpreted the action as arising under § 504 of

the Rehabilitation Act, 29 U.S.C. § 794, Title II of the Americans with

Disabilities Act (ADA), 42 U.S.C. §§ 12131-12165, and 42 U.S.C. § 1983. The

defendants moved to dismiss, and the district court granted their motion, partially

accepting and partially rejecting the magistrate judge’s report and

recommendation.

      A motion to dismiss based on immunity is treated as a 12(b)(1) motion to

dismiss for lack of subject matter jurisdiction, and we review the district court’s

decision de novo.   Tippetts v. United States , 308 F.3d 1091, 1093-94 (10th Cir.

2002). We also review de novo the district court’s determination of a 12(b)(6)

motion to dismiss for failure to state a claim, taking all well-pleaded facts

as true. Moffett v. Halliburton Energy Servs., Inc.   , 291 F.3d 1227, 1231

(10th Cir. 2002). We may affirm for any basis supported in the record.        Ruiz v.

McDonnell , 299 F.3d 1173, 1182 (10th Cir. 2002).


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       As the magistrate judge and district court concluded, Ms. Meyers’ claims

under Title II of the ADA asserted against the State of Colorado and the

individual defendants in their official capacities are barred by the Eleventh

Amendment. Thompson v. Colorado , 278 F.3d 1020, 1034 (10th Cir. 2001),

cert. denied , 122 S. Ct. 1960 (2002). However, Ms. Meyers may still assert

ADA claims against defendants in their individual capacities, so long as she

states a claim.

       To state a claim for a violation under Title II of the ADA, a plaintiff must

allege (1) that she is a qualified individual with a disability; (2) that she was

excluded from the benefits or services of a public entity; and (3) that her

exclusion was by reason of her disability.     Shotz v. Cates , 256 F.3d 1077, 1079

(11th Cir. 2001) (quoting 42 U.S.C. § 12132). Assuming that Ms. Meyers is

a qualified individual with a disability, she has not alleged that she was excluded

from services on the basis of her disability. The ADA “requires that public

entities make certain accommodations for the disabled in order to ensure

their access to government programs.”        Thompson , 278 F.3d at 1028. Here,

Ms. Meyers was found eligible for DVR services, and DVR personnel worked

with her on her employment goals. While she did not have the ultimate outcome

she desired, Ms. Meyers has not alleged that she was excluded from services.

Further, the DVR was assigned with the task of assessing Ms. Meyers’ abilities


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and recommending and facilitating employment options based on that assessment.

Thus, while Ms. Meyers alleges that she and DVR personnel disagreed in the

assessment of her abilities, this does not support the conclusion that any denial

or delay of services was based on the fact that she was disabled. Conclusory

allegations to the contrary are not sufficient to survive 12(b)(6) dismissal.

See Ruiz , 299 F.3d at 1181.

      Regarding Ms. Meyers’ Rehabilitation Act claims, she did allege that DVR

received federal funds under the act, which would operate to waive immunity.

See Robinson v. Kansas , 295 F.3d 1183, 1188-89 (10th Cir. 2002) (holding that

abrogation was irrelevant in light of the fact that Kansas had waived its immunity

by accepting federal funds under the Rehabilitation Act). But these claims

nonetheless fail.

      First, Ms. Meyers may not obtain compensatory damages from the state or

official capacity defendants under the Rehabilitation Act without showing

intentional discrimination, and she made no such allegation.    See Powers v.

MJB Acquisition Corp. , 184 F.3d 1147, 1153 (10th Cir. 1999) (entitlement to

compensatory damages under § 504 of the Rehabilitation Act requires proof of

intentional discrimination). Second, the allegations supporting Ms. Meyers’ claim

for injunctive relief fail to state a claim for the same reasons discussed with

reference to the ADA claims. Section 504 of the Rehabilitation Act closely


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parallels Title II of the ADA and similarly requires that, to be liable, a public

entity must have denied services to a plaintiff because of the plaintiff’s disability.

See Woodman v. Runyon , 132 F.3d 1330, 1338 (10th Cir. 1997). This was simply

not alleged in this case.

       Regarding Ms. Meyers’ claims under § 1983, the magistrate judge and

district court properly concluded that neither the state nor state officials sued in

their official capacities are considered “persons” under § 1983 and therefore

Ms. Meyers’ § 1983 claims against these defendants must fail.               See Will v. Mich.

Dep’t of State Police , 491 U.S. 58, 71 (1989). Further, while state officials

may be sued in their individual capacities under § 1983, they may still be

protected by qualified immunity–i.e., they are only liable if their actions violated

a clearly-established constitutional or statutory right.          Roska v. Peterson , 304 F.3d

982, 989 (10th Cir. 2002). The first step of the qualified immunity inquiry is to

determine if a rights violation has been alleged.          Id.

       The magistrate judge and district court correctly concluded that

Ms. Meyers’ equal protection claim fails because she has not shown that she

was treated differently than another similarly situated individual.            See Crider v.

Bd. of County Comm’rs , 246 F.3d 1285, 1288 (10th Cir.) (plaintiffs failed to state

an equal protection claim where they did not allege that they were similarly

situated to others who received different treatment),            cert. denied , 122 S. Ct. 205


                                              -5-
(2001). In addition, to the extent her complaint could be liberally construed

as alleging a due process violation (i.e., because the DVR failed to develop

Ms. Meyers’ individualized employment plan within the time specified by DVR

regulations), there is no property interest in a state agency adhering to its own

procedural regulations.    See Bunger v. Univ. of Okla. Bd. of Regents   , 95 F.3d 987,

990-91 (10th Cir. 1996) (no property interest in having University follow its own

procedural regulations).

      For these reasons, we AFFIRM the dismissal of Ms. Meyers’ claims. Ms.

Meyers’ motion to proceed in forma pauperis is granted.


                                                       Entered for the Court


                                                       Bobby R. Baldock
                                                       Circuit Judge




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