UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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VINCENT GABRIEL, 

 Plaintiff - Appellant,

v.

EL PASO COMBINED COURTS; 

DAVID LEE SHAKES, individually and in 

his official capacity Judge of El Paso 

Combined Courts; GWEN PRATOR, 

individually and as employee of David 

Shakes; DANIEL MAY, individually and 

in his official capacity as District Attorney; 

DAVID GUEST, individually and as an 

employee; JOHN PARCELL, as an 

employee; BECCA KINIKIN, as an 

employee; ADAM BAILEY, individually 

and as an employee, 

 Defendants - Appellees.

No. 20-1020

(D.C. No. 1:19-CV-02248-DDD-KMT)

(D. Colo.)

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ORDER AND JUDGMENT*

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Before LUCERO, HOLMES, and EID, Circuit Judges.

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

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

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 This order and judgment is not binding precedent 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 8, 2021

Christopher M. Wolpert

Clerk of Court
2

Vincent Gabriel appeals the district court’s dismissal of his 42 U.S.C. § 1983

claim against judicial and prosecutorial officials in El Paso County, Colorado. He

argues that the district court erred in dismissing his claim that the defendants

wrongfully denied his attempts to expunge his arrest and criminal records. 

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

I

Following a shoplifting incident, Gabriel pled guilty to a single charge of 

menacing. He was sentenced to complete a Veterans Trauma Court program and he 

also agreed to an approved aftercare program. He further stipulated that unless he 

completed both programs, he waived his right to have his arrest and criminal record

sealed. 

After he completed the Veterans Trauma Court program, but not the approved 

aftercare program, Gabriel filed motions in state court seeking to expunge or seal the 

records. The District Attorney objected to expunction or sealing, and Judge David 

Lee Shakes denied Gabriel’s requests because Gabriel failed to complete the required 

aftercare program.

In his complaint, Gabriel admits that he did not complete the aftercare 

program. However, he contends that his strong performance during the Veterans 

Trauma Court program obviated the need to complete the aftercare program. He 

claims that the prosecutorial defendants’ objection to his attempt to expunge or seal 

the records and the judicial defendants’ failure to expunge or seal them violated his 

constitutional rights and state law.
3

The prosecutorial defendants filed a motion to dismiss. Gabriel sought a 

60-day extension to respond to the motion and to amend an affidavit he had 

incorporated into his complaint. A magistrate judge granted his motion in part, 

giving him an additional 21 days to file a response, but she denied all other relief. 

Gabriel did not file a response during the extended time period. The judicial 

defendants then filed a motion to dismiss, which was granted before Gabriel 

responded to it. 

In its order granting both motions to dismiss, the district court reasoned that 

Gabriel was not entitled to have his record expunged because he failed to complete 

the aftercare program, which was a precondition to which he had agreed in his plea 

agreement. The district court also determined that the judicial and prosecutorial

defendants had absolute immunity from civil liability for the performance of actions 

taken in their judicial and prosecutorial roles, and the El Paso County Combined 

Courts lacked the legal capacity to be sued. 

Gabriel filed a motion for reconsideration, which was denied. He then filed 

this timely appeal. 

II

“We review de novo a district court’s conclusion on the question of absolute 

immunity.” Gagan v. Norton, 35 F.3d 1473, 1475 (10th Cir. 1994). Gabriel’s other

challenges are reviewed for an abuse of discretion. See Jensen v. W. Jordan City, 

968 F.3d 1187, 1201 (10th Cir. 2020) (leave to amend a complaint); Rachel v. Troutt, 

820 F.3d 390, 394 (10th Cir. 2016) (extensions of time); Toevs v. Reid, 685 F.3d 
4

903, 916 (10th Cir. 2012) (appointment of counsel in a civil case). “A district court 

abuses its discretion when it renders a judgment that is arbitrary, capricious, 

whimsical, or manifestly unreasonable.” Carter v. Bigelow, 787 F.3d 1269, 1278 

(10th Cir. 2015) (quotation omitted). We construe Gabriel’s pro se pleadings 

liberally but do not serve as his advocate. United States v. Griffith, 928 F.3d 855, 

864 n.1 (10th Cir. 2019). 

A

The district court correctly determined that the individual defendants were 

entitled to absolute immunity.1

 “[A]bsolute immunity defeats a suit at the outset, so 

long as the official’s actions were within the scope of the immunity.” Imbler v. 

Pachtman, 424 U.S. 409, 419 n.13 (1976). “In determining whether particular actions 

of government officials fit within . . . absolute immunity . . . we apply a functional 

approach, which looks to the nature of the function performed . . . .” Benavidez v. 

Howard, 931 F.3d 1225, 1230 (10th Cir. 2019) (per curiam) (quotation omitted).

1 Gabriel does not challenge the district court’s conclusion that the El Paso 

County Combined Courts lack capacity to be sued. In his reply brief he characterizes 

this conclusion as a “non-issue.” In addition, although it appears Gabriel intended to 

sue the defendants in both their individual and official capacities, he does not 

adequately develop a separate argument in his opening brief concerning the dismissal 

of the defendants in their official capacities. We therefore decline to address these 

issues. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e 

routinely have declined to consider arguments that are not raised, or are inadequately 

presented, in an appellant’s opening brief.”). For similar reasons, we also decline to 

address Gabriel’s argument that the district court failed to provide him with 

injunctive relief, a request which was not presented to the district court.
5

Gabriel’s complaint sought damages against Judge Shakes and his clerk 

because the judge failed to grant his motion to expunge his criminal record. A judge 

acting in his judicial capacity is immune from suit unless he acts in the clear absence 

of all jurisdiction or is sued for a non-judicial act. Mireles v. Waco, 502 U.S. 9, 11 

(1991). Neither exception applies here. Judge Shakes’ actions in denying Gabriel’s 

motion to expunge or seal records were those “normally performed by a judge,” and 

Gabriel “dealt with the judge in his judicial capacity.” Stump v. Sparkman, 435 U.S. 

349, 362 (1978). Accordingly, Judge Shakes is immune from suit. His clerk is

likewise immune for exercising functions related to Gabriel’s attempt to obtain 

expunction or sealing of his criminal record.

Gabriel’s claims against the District Attorney and other prosecutorial 

employees likewise fail because the defendants are entitled to absolute immunity “for 

activities intimately associated with the judicial process.”2

 Gagan, 35 F.3d at 1475

(emphasis, ellipsis, and quotation omitted). The prosecutorial defendants’ actions in 

opposing expunction or sealing in the state-court proceeding were intimately 

associated with the judicial process. The district court therefore properly granted

them absolute immunity. 

2 The complaint also included allegations of “stalking, email attacks, text 

messages attacks and planted individuals” intended to harass Gabriel, including 

“threats of home invasion.” These generalized allegations fail to state a plausible 

claim for relief against any defendant. See Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009) (“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.” 

(quotation omitted)). 

 
6

B

Gabriel next argues that the district court erred in dismissing his complaint 

with prejudice rather than without prejudice. A dismissal with prejudice is 

appropriate when the defendants are immune from suit and further amendment of the

plaintiff’s complaint would be futile. See McKinney v. Okla., Dep’t of Human 

Servs., 925 F.2d 363, 365-66 (10th Cir. 1991). Because Gabriel cannot overcome the 

bar of absolute immunity, these conditions are met here, so the district court did not 

abuse its discretion in dismissing the complaint with prejudice. 

Similar reasoning applies to Gabriel’s assertion that the district court 

dismissed his complaint before he had the opportunity to respond to the motions to 

dismiss and without having first ruled on his objections to the magistrate judge’s 

denial of his request for additional time. “[A]lthough we disfavor . . . dismissals 

before the losing party has an opportunity to respond, this court has held that such a 

dismissal . . . is not reversible error when it is patently obvious that the plaintiff 

could not prevail on the facts alleged and allowing him an opportunity to amend his

complaint would be futile.” Knight v. Mooring Cap. Fund, LLC, 749 F.3d 1180,

1190 (10th Cir. 2014) (alterations and quotation omitted). Such a dismissal does not 

violate due process because “[a] litigant whose complaint has been dismissed with 

prejudice could file a motion to alter or amend the judgment under Rule 59(e) or for 

relief from the judgment under Rule 60(b),” and “can also bring an appeal.” Curley 

v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001).
7

Finally, Gabriel argues that the district court erred in denying his request for 

appointed counsel. However, even with counsel, Gabriel cannot overcome the 

defendants’ absolute immunity from suit. Accordingly, the district court did not err 

in denying his request.

III

We affirm the district court’s challenged orders and its judgment. We deny as 

moot Gabriel’s motions to add exhibits and to submit additional attachments to his 

brief, as the relevant documents are already part of the record on appeal. His motion 

to strike the appellees’ briefs is denied.

Entered for the Court

Carlos F. Lucero

Circuit Judge