UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ DAVID WARNER, Plaintiff - Appellant,

v. KATIE G. LUND; LISA ABEYTA; ANDRE BILLINGSLEY; NEW MEXICO STATE POLICE; NEW MEXICO TAXATION AND REVENUE DEPARTMENT, Defendants - Appellees. No. 23-2187 (D.C. No. 2:22-CV -00544-WJ-DLM) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , BACHARACH , and McHUGH , Circuit Judges.

________________ _________________ David Warner, appearing pro se, appeals the district court’s dismissal without prejudice of his amended complaint, which alleged claims under 42 U.S.C. § 1983 and New Mexico state law. Exercising jurisdic tion under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in 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. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 31, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-2187 Document: 010110992781 Date Filed: 01/31/2024 Page: 12 I. BACKGROUND
A. Amended Complaint Allegations Mr. Warner alleged in his amended co mplaint that New Mexico State Police Officer Andre Billingsley issued a traffic c itation to him but then failed to accomplish any one of three alternative st ate law requirements: obtain Mr. Warner’s signature on the citation, detain him, or br ing him before a magistrate. Instead, unbeknownst to Mr. Warner, Officer Billingsley filed the citati on and a criminal summons in state court. State Magistrate Judge Katie Lund held an arraignment hearing and issued bench warrants when Mr. Warner failed to appear. Mr. Warner was arrested and detained for three days until he posted bail. ROA at 46-50.
B. District Court Proceedings When Mr. Warner filed his original complaint, he moved to proceed in forma pauperis (“ ifp ”) under 28 U.S.C. § 1915(a). The fede ral magistrate judge granted the ifp request and noted that “[t]he statute governing [ ifp ] proceedings states ‘the court shall dismiss the case at any time if the court determin es that . . . the action . . . fails to state a claim on which relief may be granted.’” RO A at 28 (alterations in original) (quoting 28 U.S.C. § 1915(e)(2)). The ma gistrate judge concluded the complaint failed to state a claim, ordered Mr. Warner to file an amende d complaint, and said “[t]he Court will not order service of Summons and Complaint on Defendants at this time because the Complaint fails to state a claim over which the Court has jurisdiction.” Id . at 28-29. 1

1 The magistrate judge added that “[t]he Court will order service if Plaintiff files: (i) an amended co mplaint that stat es a claim over which the Court has Appellate Case: 23-2187 Document: 010110992781 Date Filed: 01/31/2024 Page: 23 Mr. Warner filed an amended complaint naming the original defendants—Officer Billingsley, Magistrate Judge Lund, and Magistrate Court Clerk Lisa Abeyta—and adding the New Mexico Stat e Police and the New Mexi co Taxation and Revenue Department as defendants. His § 1983 claims alleged violations of Amendments I, IV, V, VIII, IX, X, and XIV of the United States Constitution. His state claims alleged violations of the New Mexico Constitution and vari ous New Mexico statutes. He also alleged various state comm on law tort claims. The district court, noting the amended comp laint was “in large pa rt identical to the original Complaint,” ROA at 63, dismissed the federal claims against the individual defendants for failure to state a claim, di smissed the federal claims against the state entities as barred by the Eleventh Amendment, and declined to exercise supplemental jurisdiction over the state law claims, citing 28 U.S.C. § 1367(c)(3). As relevant to one of the issues presente d on appeal, the district court said that Magistrate Judge Lund had judicial immun ity from suit for monetary damages. ROA at 67-69. Although the amende d complaint alleged that she “le[ft] the Court House, [went] to the New Mexico Department of Mo tor Vehicle[s] (herein DMV) and personally search[ed] plaintiff’s record[s] at the DMV,” ROA at 40, the court said the allegations did not establish an exception to judi cial immunity—that she “was acting in complete absence of all jurisdiction.” Id . at 68-69.

jurisdiction; and (ii) a moti on for service which provides e ach Defendant’s address.” ROA at 29. Appellate Case: 23-2187 Document: 010110992781 Date Filed: 01/31/2024 Page: 34 The district court entered judgment dismissing the case without prejudice.
II. DISCUSSION
A. Issues Presented in Mr. Warner’s Brief Mr. Warner lists four issues for review: 2
1. “Refusing to issue ‘Summons’ to Appella nt.” He mentions due process and Federal Rules of Civil Procedure 4 and 5 and argues about the summons giving the Defendants notice. Aplt. Br. at 3.
2. “Service of Process/Notice a nd Opportunity.” He makes a similar argument about lack of notice due to withholding the summons to the Defendants. Id

. 3. “Katie G. Lund investigating Appellant’s driving record at the Department of Motor Vehicles . . . .” He appears to argue that Magistra te Judge Lund acted outside her jurisdiction and therefore la cked judicial immunity to suit. Id

. 4. “Appellees/Defendants acted in their pers onal capacity as well as under color of law . . . .” He recounts several filings he made in district court and again references his concerns about the summon s, but his argument is otherwise not clear. Id . at 3, 5. In addition to this list, Mr. Warner ar gues he should be allowed to amend his complaint. Id . at 4.
B. Analysis Because Mr. Warner appears pro se, we construe his filings liberally. See Erickson v. Pardus , 551 U.S. 89, 94 (2 007) (per curiam); United States v. Pinson , 584 F.3d 972, 975 (10th Cir. 2009). But we do not “fashion . . . arguments for him,” United States v. Fisher , 38 F.3d 1144, 1147 (10th Cir. 1994), and we may not “assume

2 Mr. Warner does not contest on appeal mu ch of the district court’s analysis and its conclusions on ma ny of his claims. Appellate Case: 23-2187 Document: 010110992781 Date Filed: 01/31/2024 Page: 45 the role of advocate,” Yang v. Archuleta , 525 F.3d 925, 927 n.1 (10th Cir. 2008) (quotations omitted); see also Pinson , 584 F.3d at 975. With the foregoing in mind, we understand Mr. Warner to contend (1) based on issues 1, 2, and 4 of his brief, the distri ct court erred in failing to issue summonses for service on the defendants; (2) the court erred in dismissing the § 1983 claims against Magistrate Judge Lund based on judicial immun ity; and (3) he should be granted leave to amend the complaint.
Summons and Service Mr. Warner complains that th e district court did not issue summonses for service on each defendant. But when, as here, the plaintiff proceeds ifp under 28 U.S.C. § 1915(a), a court must screen th e complaint and “dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915 (e)(2)(B)(ii) (emphasis added). The district court here sua sponte dismissed the complain t for failure to state a claim. Section 1915(e)(2)(B)(ii) “authorizes the dismissal of a case prior to service of process if the court determines that the acti on fails to state a claim upon which relief can be granted.” Collier v. Nelson , 246 F.3d 679, 679 (10th Cir. 2000) (unpublished). 3 The

3 See also Kersey v. Becton Dickinson & Co. , 2017 WL 11622234, *1 (1st Cir. 2071) (“The district court was not required to issue summonses until after it screened the complaint and amended complaint under 28 U.S.C. § 1915(e)(2).”) (unpublished); In re Wolf , 696 F. App’x 599, 600 (3rd Cir. 2017) (“If the District Court grants [petitioner’s] application to proceed in forma pauperis, it will then be required to screen the complaint pursua nt to 28 U.S.C. § 1915 (e)(2)(B) before issuing any summonses.”) (unpublished); Haba v. Arthur , 851 F. App’x 405, 406 (4th Cir. 2021) (“[S]ervice was not required before dismissi ng the action for failure to state a claim Appellate Case: 23-2187 Document: 010110992781 Date Filed: 01/31/2024 Page: 56 district court properly followe d the statute and did not err in failing to issue summonses for service before screening the ifp complaint under § 1915(e)(2)(B)(ii). Magistrate Judge Lund Mr. Warner takes issue with the district court’s determination that Magistrate Judge Lund’s alleged search of his DMV reco rds was “complete[ly] abs[ent]” from her jurisdiction and, “[a]t most,” was in excess of her jurisdiction. RO A at 67-68; Aplt. Br. at 3. He does not contest on appeal that judicial immunity applies to Magistrate Judge Lund’s other alleged actions. As to th e DMV search, rather than parse the amended complaint to determine wheth er it alleged she acted “in comp lete absence” or “in excess” of jurisdiction, ROA at 67- 69, we affirm dismissal on an alternative ground. Even if a New Mexico magistrate judg e should not search a defendant’s DMV records, Mr. Warner alleged in only two sent ences that Magistrate Judge Lund did so, ROA at 40, 48, and he has faile d to allege sufficient facts to show that she violated his constitutional rights. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘sta te a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)); see Strain v. Regalado , 977 F.3d 984, 989 (10th Cir. 2020).

[under] 28 U.S.C. § 1915(e)(2) . . . .”) (unpub lished). Unpublished cases are not binding precedent, but we may consider them for their persuasive value. See Fed. R. App. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 23-2187 Document: 010110992781 Date Filed: 01/31/2024 Page: 67 Request to Amend Mr. Warner requests us to remand with in structions to allo w him to amend his complaint. We reject this request because he did not move for leave to amend in district court and asks to amend for the first time on appeal. See Pyle v. Woods , 874 F.3d 1257, 1267 (10th Cir. 2017) (denying plaintiff's request to amend because plaintiff could have made request in district court but instead chose to appeal); Dahn v. United States, 127 F.3d 1249, 1252 (10th Cir. 1997) (notin g that the amendment of a complaint is a procedure to be addressed in the fi rst instance by the district court).
III. CONCLUSION We affirm the district court judgment.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge Appellate Case: 23-2187 Document: 010110992781 Date Filed: 01/31/2024 Page: 7