UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ DENISE-BRADFOR D: HOLMES, Plaintiff - Appellant,

v. TOWN OF SILVER CITY; JAVIER HERNANDEZ, Silver City Police Officer, Defendants - Appellees. No. 19-2169 (D.C. No. 2:19-CV-00448-JAP-CG) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before PHILLIPS , BALDOCK , and CARSON , Circuit Judges.

________________ _________________ Denise-Bradford: Holmes, a ppearing pro se, appeals the district court’s orders granting Silver City’s motion to dismiss and Officer Javier Hernandez’s motion for summary judgment in her suit alleging vari ous violations of he r civil rights stemming from a 2019 arrest. 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

### August 28, 2020 Christopher M. Wolpert Clerk of Court2 I. BACKGROUND On February 18, 2019, O fficer Hernandez, a Silver City law-enforcement officer, was dispatched to investigate a female driv ing a truck without a driver’s license, registration, or insu rance. During the ensuing tr affic stop, Officer Hernandez noticed “[t]he license plate on the pickup di splayed ‘Bradford Repu blic Diplomat.’” R. at 67. Officer Herna ndez told Ms. Holmes he st opped her because she did not have a license plate on the vehicle, to which Ms. Holmes res ponded “she did not [need] a license plate because she was not a US citizen[;] [rather,] she was a ‘state national.’” Id . Ms. Holmes further ad mitted she did not have a driver’s license and failed to produce a registration or proof of insurance. Officer Hernandez wrote Ms. Holmes three citations: driving without a license, driving an unregistere d vehicle, and driv ing without proof of insurance. But when Officer Hernandez asked Ms. Holmes to sign the citations, she refused: I had [Ms. Holmes] sign the citations and she wrote where she was supposed to sign [only her name,] “UCC 1-308.” [Ms. Holmes] signed [her name] under it and I told her to only si gn the citation and not write anything more. On the second citation [Ms. Ho lmes] wrote in “UCC1-308” again. I took the pen away from her and told he r not to [] write that anymore. On the third citation [Ms. Holmes] started to write “UCC” and at that time I hold [her] to place her hand s behind her back. I plac ed handcuffs on [Ms. Holmes] . . . [and then] placed [her] in my patrol car and transported her to the Silver City Police Department for paperwork. Id

. When Ms. Holmes arrived at the police sta tion, Officer Hernandez observed that “her right hand had blood from where the ha ndcuff was and a bruise. [She] was3 transported to [the local hospital] for a medical clearance and then to the . . . [d]etention [c]enter for booking.” Id . at 67-68. The next day, Officer Hernandez fi led a criminal complaint charging Ms. Holmes with four violati ons of New Mexico law: (1 ) intentionally resisting or abusing a peace officer in the lawful perform ance of his duties; (2) driving without a valid driver’s license; (3) fa iling to produce proof of insu rance; and (4) failing to produce a registration. The prosecutor decl ined to prosecute because “it would not [be] in the best interests of justice to pursue this matter : to wit, [Ms. Holmes] has been declared not competent to stand trial three times in 2018.” Id . at 69. Ms. Holmes filed suit against Officer Hernandez and Silver City under 42 U.S.C. § 1983. Officer Hernandez move d for summary judgment on the basis of qualified immunity and Silver City moved to dismiss for failure to state a claim. The district court granted both mo tions. Ms. Holmes appeals. 1

1 Ms. Holmes filed a motion to reconsid er, which was denied by the district court. The court also denied Ms. Holm es’s second motion to alter or amend the judgment. But because Ms. Holmes does not address any of the gr ounds for denial of these motions as required under Federal Rule of Appellate Procedure 28(a)(8)(A), she has waived an appellate challenge to th ese ruling. “Although a pro se litigant’s pleadings are to be construe d liberally and held to a le ss stringent standard than formal pleadings drafted by la wyers, this court has repeat edly insisted that pro se parties follow the same rules of pro cedure that govern other litigants.” Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10t h Cir. 2005) (brackets, citation and internal quota tion marks omitted). Where, as here, issues “are not adequately briefed,” or in this case, not briefed at all, th ey “will be deemed waived.” Id . at 841 (internal quotation marks omitted).4 II. DISCUSSION A. Officer Hernandez 1. Qualified Immunity “The doctrine of qualified immunity protects government officials from liability for civil damages in sofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan , 555 U.S. 223, 231 (2009) (int ernal quotation marks omitted). “When a defendant raises the qualified-immunity defense, the plaintiff must . . . establish (1) the defendant violated a fede ral statutory or cons titutional right and (2) the right was clearly established at the time of the de fendant’s conduct.” Ullery v. Bradley , 949 F.3d 1282, 1289 (10th Cir. 2020)

. The court has discretion to decide which of the two prongs of the qualified immunity analysis to address first. Pearson , 555 U.S. at 236. 2. Standard of Review “We review the grant of summary judgm ent on qualified immunity grounds de novo. Generally, summary j udgment is warranted where th ere is no genuine issue as to any material fact and the movant is en titled to judgment as a matter of law.” Kapinski v. City of Albuquerque , 964 F.3d 900, 904 (10th Cir. 2020) (citations omitted). “But our review of summary judgment orders in the qualified immunity context differs from that applicable to other summary judgment decisions.” Id

. (ellipsis and internal quot ation marks omitted). “[W] here a defendant asserts5 qualified immunity at the summary judgment st age, the burden shifts to the plaintiff to show that: (1) the defendant viol ated a constitutional right, and (2) the constitutional right was clearly established.” Id . at 905 (internal quotation marks omitted). “If, and only if, the plaintiff meet s this two-part test does a defendant then bear the traditional burden of the movant for summary judgment.” Id . (internal quotation marks omitted). 3. Analysis i. Fifth Amendment According to Ms. Holmes, Officer He rnandez violated her Fifth Amendment rights during her arrest because he fa iled to inform of her rights under Miranda v. Arizona , 384 U.S. 436 (1966). But even if this allegation is true, a Miranda violation “requires, at most, only that any confession made in the absence of such advice of rights be excluded from evidence. No rati onal argument can be made in support of the notion that the failure to give Mira nda warnings subjects a police officer to liability under [§ 1983].” Bennett v. Passic , 545 F.2d 1260, 1263 (10th Cir. 1976). Therefore, we affirm summary judgment on Ms. Holmes’s Fift h Amendment claim. ii. False Arrest Although constitutional torts are not based on any specif ic state’s tort law, “courts have used the common law of tort s as a starting point for determining the contours of claims of constitutio nal violations under § 1983.” Pierce v. Gilchrist , 359 F.3d 1279, 1286 (10th Ci r. 2004) (internal quotati on marks omitted). Under New Mexico law, there is no claim for false arrest when the “fac ts available to [a]6 detaining officer would warrant [a] pers on of reasonable caution to believe [the] detention [is] appropriate.” Romero v. Sanchez , 895 P.2d 212, 215 (N.M. 1995). In other words, the inquiry on a false arre st claim is whether the officer had a reasonable basis for the detention. “Reas onable grounds or probable cause exists when, at the moment the arrest was made the facts and circumstances within an officer’s knowledge were sufficient to wa rrant a prudent man in believing that the accused had committed or was committing an offense.” State v. Johnson , 930 P.2d 1148, 1153 (N.M. 1996) (ellipses, brackets and internal quotation marks omitted). We agree with the district court th at “when Officer Hernandez observed [Ms. Holmes’s] vehicle did not have a valid license plate, and when Officer Hernandez discovered that [Ms. Holmes ] had no vehicle registration, no valid driver’s license, and no proof of insurance, he was entitled to either arre st or issue citations for those traffic offenses,” R. at 118-19 (citing N.M. Stat. Ann. §§ 66-5-16, 66-5-229(C), & 66-3-13). Furt her, although Officer Herna ndez initially determined to issue Ms. Holmes citati ons for these offenses, once she continued to write “UCC1-308,” instead of simp ly signing her name as inst ructed, Officer Hernandez had probable cause to arrest her for obstructing an officer in the lawful discharge of his duties in violation of New Mexico law. See N.M. Stat. Ann § 30-22-1(D). There was no false arrest and summary judgment was proper on this clai m. iii. Malicious Prosecution “A malicious prosecution cl aim brought under the Fourth Amendment requires a showing that (1) the defendant caused th e plaintiff’s continue d . . . prosecution;7 (2) the original action termin ated in favor of the plai ntiff; (3) no probable cause supported the original arrest . . . or prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained damages.” Stonecipher v. Valles , 759 F.3d 1134, 1146 (10th Cir. 2014) (int ernal quotation marks om itted). As explained infra , there was probable cause to arrest Ms. Holmes, and therefore her malicious prosecution claim also fails. iv. Ninth Amendment The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to de ny or disparage othe rs retained by the people.” U.S. Const. amend. IX. But “[t] he Ninth Amendment is not an independent source of individual rights; ra ther, it provides a rule of c onstruction that we apply in certain cases.” Jenkins v. Comm’r , 483 F.3d 90, 92 (2d Cir. 2007) (internal quotation marks omitted). As such, Ms. Holmes cannot pursue a claim for an alleged violation of the Ninth Amendment in a suit under § 19 83, so summary judgment was proper.

v. Foreign Sovereign Immunities Act We also agree with the district c ourt that summary judgment was proper on Ms. Holmes’s claim under the Forei gn Sovereign Immunities Act (FSIA). Ms. Holmes asserts that she is not a United States citizen but rather a diplomat of the foreign state of the Bradford Republic. Even if we ac cepted those claims as true, however, Ms. Holmes cites no authority, and we are aware of none, that FSIA confers on her a private right of action agains t Officer Hernandez.8 B. Silver City 1. Municipal Liability Absent a showing of constitutional injury , a municipality cannot be liable for damages, regardless of the exis tence of a policy or custom. See Hinton v. City of Elwood , 997 F.2d 774, 782 (10th Cir. 1993) (“ A municipality may not be held liable where there was no underlying constitutional viol ation by any of its officers.”). 2. Standard of Review “We review de novo a district court’s decision on a Rule 12(b)(6) motion for dismissal for failure to state a claim .” Waller , 932 F.3d at 1282 (i nternal quotation marks omitted). “Under this standard, we must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff.” Id. (internal quotation marks omitted). 3. Analysis Because we affirm summary judgment for Officer Hernandez on the ground that no constitutional violation was committe d, the district court properly dismissed Ms. Holmes’s claims agains t Silver City. C. Judicial Bias Ms. Holmes, for the first time on appeal , argues the district court judge was biased against her as eviden ced by his rulings. Her fail ure to raise the issue in district court limits us to plain-error review. See Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1130 (10th Cir. 2011). But the problem fo r Ms. Holmes is that she has failed to argue for plain error, which “m arks the end of the road for an argument9 for reversal not first presente d to the district court.” Id . at 1131. We thus decline to consider the argument. III. CONCLUSION The judgment of the distri ct court is affirmed. Entered for the Court

Bobby R. Baldock Circuit Judge