UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ KHALID MOHAMMAD, Plaintiff - Appellant,

v. ALBUQUERQUE POLICE DEPARTMENT, Defendant - Appellee. No. 17-2080 (D.C. No. 1:17-CV -00319-RB-KBM) (D.N.M.)

__________________ _______________ ORDER AND JUDGMENT *

__________________ _______________ Before BRISCOE , HARTZ , and BACHARACH , Circuit Judges.

__________________ _______________ This action grew out of an arrest and detent ion in Albuquerque, New Mexico. The arrestee, Mr . Khalid Mohammad, sued the Albuquer que Police Department, invoking 42 U.S.C. § 1983 and the New Mexico Tort Claims Act, N.M. Stat. Ann. § 41-4-12. The district court dism issed the complaint without prejudice, and we affirm.

* Oral argument would not be helpful in this ap peal. As a result, we are deciding the appeal based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This order and judgment does not constitute bind ing precedent except under the doctrines of law of the case, res judicata , and collateral estoppel. But the order and judgment may be cited for its persuasive value under Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### October 27, 2017
Elisabeth A. Shumaker Clerk of Court2 I. Standard of Review “We review de novo the dismissal of a complaint for failure to state a claim . . . .” Childs v. Miller , 713 F.3d 1262, 1264 ( 10th Cir. 2013).

II. The Albuquerque Police Department is not a “person” under 42 U.S.C. § 1983. Mr. Mohammad invokes 42 U.S.C. § 1983, which co vers “person[s].” 42 U.S.C. § 1983. But the Albuquerque Police Departme nt is not a “person” under § 1983. See , e.g. , Martinez v. Winner , 771 F.2d 424, 444 (10th Cir. 1985) (holding that the City of Denver Police Department “is not a separate suable entity”), modified on other grounds , 778 F.2d 553 (10th Cir. 1985), vacated on other grounds sub nom. Tyus v. Martinez , 475 U.S. 1138 (1986). Thus, the police department canno t incur liability under § 1983 and this claim wa s properly dismissed.
III. Mr. Mohammad failed to challenge the district court’s holding on notice with respect to the cl aim under the New Mexico Tort Claims Act. Mr. Mohammad also sued under the New Mexico Tort Claims Act. The district court dismissed this claim on grounds that the Albuquerque Police Department was not a suable entity and that Mr. Mohammad had failed to provide statut ory notice under N.M. Stat . Ann. § 41-4-16(A). Mr. Mohammad challenges the district court’s holding on whether the police department was a suable entity, but he does not ch allenge the district court’s alternative holding on the issue of statutory notice. And3 “[w]hen a district court dismisses a claim on two or more independent grounds, the appellant must ch allenge each of those grounds.” Lebahn v. Nat’l Farmers Union Unif. Pension Plan , 828 F.3d 1180, 1188 (10th Cir. 2016). The failure to appeal th e holding on notice is fatal. See id

. (affirming because the appellants did not challenge one of the district court’s two reasons for a ruling).
IV. The district court did not err in ruling on the po lice department’s motion to dismiss wi thout ruling on Mr. Mohammad’s discovery motion. Mr. Mohammad contends that the dist rict court should have ruled on his discovery motion before dismissi ng the complaint. After the police department filed a motion to dismi ss, Mr. Mohammad moved for an order seeking free service of a subpoena. At that point, the di strict court could rule on either the di scovery motion or the motion to dismiss. Cf. LaFleur v. Teen Help , 342 F.3d 1145, 1153 (10t h Cir. 2003) (approvi ng the magistrate judge’s stay of discover y until after a motion to dismiss was decided because any discovery woul d become unnecessary if the motion to dismiss were granted). The court chose to rule on the mo tion to dismiss first, rendering the discover y motion moot. The court did not err in ruling on the motion to dismiss before the discovery motion.4 V. Disposition For the foregoing r easons, we affirm. Entered for the Court

Robert E. Bacharach Circuit Judge