64 F3d 670 Steadman v. Center on Deafness

64 F.3d 670

Franklin STEADMAN, Plaintiff-Appellant,
v.
CENTER ON DEAFNESS, Charitable Institution for the Deaf,
Defendant-Appellee.

No. 95-1136.

D.C. No. 94-K-1827.

United States Court of Appeals, Tenth Circuit.

Aug. 22, 1995.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

ORDER AND JUDGMENT1

Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.2

BALDOCK, Circuit Judge.

1

Plaintiff Franklin Steadman, appearing pro se, appeals the district court's order dismissing his complaint under Fed.R.Civ.P. 12(b)(6). We exercise jurisdiction under 28 U.S.C. 1291 and affirm.

2

Plaintiff is a deaf-mute individual. Defendant is a private non-profit corporation organized under the laws of Colorado that provides advocacy and support services for the deaf community in the Rocky Mountain region. On August 8, 1994, Plaintiff filed pro se a complaint in the district court against Defendant. Plaintiff's complaint alleged Defendant: (1) discriminated against Plaintiff "on the basis of race, color, national origion [sic], disability, sex and religion" in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. 12112-12213; (2) violated Plaintiff's rights under the First, Fourth, Fifth, Eighth, Thirteenth, and Fourteenth Amendments to the United States Constitution; and (3) violated his rights under the "Privacy Act of 1974 (5 U.S.C. 552) [which] protect[s] the Plaintiff against the misuse of the personal information and the slander." Plaintiff requested compensatory and punitive damages.

3

Defendant moved to dismiss under Fed.R.Civ.P. 12(b)(6) on the grounds that: (1) Plaintiff had not exhausted state law remedies before he filed his ADA claims; (2) money damages are not available in individual actions under Title III of the ADA; (3) liberally construing Plaintiff's constitutional arguments as claims under 42 U.S.C.1983, Defendant, a private non-profit corporation, did not constitute a person acting under color of state law for purposes of 1983; and (4) the Privacy Act of 1974 does not apply to private non-profit corporations such as Defendant. Plaintiff did not respond to Defendant's motion to dismiss.

4

On March 7, 1995, the district court granted Defendant's motion and dismissed Plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6). This appeal followed.

5

On appeal, Plaintiff contends the district court erred in dismissing his ADA and constitutional claims.3 Plaintiff requests that we appoint counsel to represent him, reverse the district court, and remand with instructions to reopen the proceedings. Additionally, Plaintiff appears to want to amend his complaint to name Defendant's attorney as an additional defendant.

6

We have reviewed the briefs of the parties, the pleadings, the district court's order, and carefully examined the entire record on appeal. Based upon our review of the record, we find no reversible error and AFFIRM.

7

AFFIRMED.

1

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 the court's General Order filed November 29, 1993. 151 F.R.D. 470

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); 10th Cir. R. 34.1.9. The case therefore is ordered submitted without oral argument

3

Plaintiff also argues on appeal that the district court erred because he was entitled to a sign language interpreter under the provisions of Colo.Rev.Stat. 13-90-201 to -210. We have difficulty comprehending Plaintiff's argument that he was entitled to a sign language interpreter because the entire case was decided on the pleadings without a hearing. However, we do not consider Plaintiff's argument under Colo.Rev.Stat. 13-90-201 to -210 because he failed to raise this issue in the district court below. See Singleton v. Wulff, 428 U.S. 106, 120 (1976) ("It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below."); Walker v. Mathers (In re Walker), 959 F.2d 894, 896 (10th Cir.1992)