                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        June 22, 2006
                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court


 KURT C. BALLENGER,

               Plaintiff-Appellant,                     No. 05-4315
          v.                                             (D. Utah)
 V IRGIN IA BA LLA RD and JO E                 (D.C. No. 2:05-cv-00696-TS)
 JO H N SO N ,

               Defendants-Appellees.




                            OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges. **


      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. M r.

Ballenger has moved to proceed in forma pauperis. W e grant his motion to


      *
        This order and judgment is not binding precedent, except under the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 10 TH C IR . R. 36.3.


      **
        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 F ED . R. A PP . P. 34( A )(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
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. 1991),

we conclude for substantially the same reasons set forth in the district court’s

order that M r. 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, M r. Ballenger alleges that he was unfairly treated and

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 M r. Ballenger’s complaint,

Virginia B allard and Joe Johnson, are two individuals w ho 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).

      M oreover, M r. 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 comm unicate 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




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or suffered any other adverse personnel action because of a disability covered by

the A D A .

       Accordingly, we A FFIRM the district court’s dismissal of M r. Ballenger’s

complaint.

                                Entered for the Court,



                                Robert H. Henry
                                United States Circuit Judge




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