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 jurisdiction under 28 U.S.C. § 1291, we affirm. 

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

unanimously that oral argument would not materially 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive 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

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I. BACKGROUND 

A. Amended Complaint Allegations 

 Mr. Warner alleged in his amended complaint that New Mexico State Police 

Officer Andre Billingsley issued a traffic citation to him but then failed to accomplish 

any one of three alternative state law requirements: obtain Mr. Warner’s signature on the 

citation, detain him, or bring him before a magistrate. Instead, unbeknownst to 

Mr. Warner, Officer Billingsley filed the citation 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 federal 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 determines that . . . the action . . . fails to state a 

claim on which relief may be granted.’” ROA at 28 (alterations in original) (quoting 

28 U.S.C. § 1915(e)(2)). The magistrate judge concluded the complaint failed to state a 

claim, ordered Mr. Warner to file an amended 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 complaint that states a claim over which the Court has 

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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 State Police and the New Mexico 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 various New Mexico statutes. He also 

alleged various state common law tort claims. 

The district court, noting the amended complaint was “in large part identical to the 

original Complaint,” ROA at 63, dismissed the federal claims against the individual 

defendants for failure to state a claim, dismissed 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 presented on appeal, the district court said that 

Magistrate Judge Lund had judicial immunity from suit for monetary damages. ROA 

at 67-69. Although the amended complaint alleged that she “le[ft] the Court House, 

[went] to the New Mexico Department of Motor 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 judicial immunity—that she “was acting in complete 

absence of all jurisdiction.” Id. at 68-69. 

jurisdiction; and (ii) a motion for service which provides each Defendant’s address.” 

ROA at 29. 

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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 Appellant.” 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 and 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 Magistrate Judge Lund acted 

outside her jurisdiction and therefore lacked judicial immunity to suit. Id. 

4. “Appellees/Defendants acted in their personal capacity as well as under color of 

law . . . .” He recounts several filings he made in district court and again 

references his concerns about the summons, but his argument is otherwise not 

clear. Id. at 3, 5. 

In addition to this list, Mr. Warner argues 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 (2007) (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 much of the district court’s analysis 

and its conclusions on many of his claims. 

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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 district 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 immunity; and (3) he should be granted leave to 

amend the complaint. 

Summons and Service 

Mr. Warner complains that the 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 the 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 complaint 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 action 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 pursuant 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 dismissing the action for failure to state a claim 

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district court properly followed 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 records was “complete[ly] abs[ent]” from her 

jurisdiction and, “[a]t most,” was in excess of her jurisdiction. ROA 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 the DMV search, rather than parse the amended 

complaint to determine whether it alleged she acted “in complete absence” or “in excess” 

of jurisdiction, ROA at 67-69, we affirm dismissal on an alternative ground. 

Even if a New Mexico magistrate judge should not search a defendant’s DMV 

records, Mr. Warner alleged in only two sentences that Magistrate Judge Lund did so, 

ROA at 40, 48, and he has failed 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 ‘state 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) . . . .”) (unpublished). 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). 

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Request to Amend 

Mr. Warner requests us to remand with instructions to allow 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) (noting that the amendment of a complaint is a 

procedure to be addressed in the first instance by the district court). 

III. CONCLUSION 

 We affirm the district court judgment. 

Entered for the Court 

Scott M. Matheson, Jr. 

Circuit Judge 

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