                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                        August 28, 2020
                         _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
DENISE-BRADFORD: HOLMES,

      Plaintiff - Appellant,

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

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before PHILLIPS, BALDOCK, and CARSON, Circuit Judges.
                   _________________________________

      Denise-Bradford: Holmes, appearing 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 various violations of her civil rights stemming

from a 2019 arrest. 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                 I. BACKGROUND

      On February 18, 2019, Officer Hernandez, a Silver City law-enforcement

officer, was dispatched to investigate a female driving a truck without a driver’s

license, registration, or insurance. During the ensuing traffic stop, Officer Hernandez

noticed “[t]he license plate on the pickup displayed ‘Bradford Republic Diplomat.’”

R. at 67. Officer Hernandez told Ms. Holmes he stopped her because she did not

have a license plate on the vehicle, to which Ms. Holmes responded “she did not

[need] a license plate because she was not a US citizen[;] [rather,] she was a ‘state

national.’” Id. Ms. Holmes further admitted 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 unregistered vehicle, and driving 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,] “UCC1-308.” [Ms. Holmes] signed [her
      name] under it and I told her to only sign the citation and not write anything
      more. On the second citation [Ms. Holmes] wrote in “UCC1-308” again. I
      took the pen away from her and told her 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 hands behind her back. I placed 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 station, Officer Hernandez observed that “her

right hand had blood from where the handcuff was and a bruise. [She] was



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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 filed a criminal complaint charging

Ms. Holmes with four violations of New Mexico law: (1) intentionally resisting or

abusing a peace officer in the lawful performance of his duties; (2) driving without a

valid driver’s license; (3) failing to produce proof of insurance; and (4) failing to

produce a registration. The prosecutor declined 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 moved 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 motions. Ms. Holmes appeals.1




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         Ms. Holmes filed a motion to reconsider, which was denied by the district
court. The court also denied Ms. Holmes’s second motion to alter or amend the
judgment. But because Ms. Holmes does not address any of the grounds for denial of
these motions as required under Federal Rule of Appellate Procedure 28(a)(8)(A), she
has waived an appellate challenge to these ruling. “Although a pro se litigant’s
pleadings are to be construed liberally and held to a less stringent standard than
formal pleadings drafted by lawyers, this court has repeatedly insisted that pro se
parties follow the same rules of procedure that govern other litigants.” Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (brackets,
citation and internal quotation marks omitted). Where, as here, issues “are not
adequately briefed,” or in this case, not briefed at all, they “will be deemed waived.”
Id. at 841 (internal quotation marks omitted).
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                                  II. DISCUSSION

A. Officer Hernandez

      1. Qualified Immunity

      “The doctrine of qualified immunity protects government officials from

liability for civil damages insofar 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) (internal quotation marks omitted).

“When a defendant raises the qualified-immunity defense, the plaintiff must . . .

establish (1) the defendant violated a federal statutory or constitutional right and

(2) the right was clearly established at the time of the defendant’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 judgment on qualified immunity grounds de

novo. Generally, summary judgment is warranted where there is no genuine issue as

to any material fact and the movant is entitled 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 quotation marks omitted). “[W]here a defendant asserts

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qualified immunity at the summary judgment stage, the burden shifts to the plaintiff

to show that: (1) the defendant violated a constitutional right, and (2) the

constitutional right was clearly established.” Id. at 905 (internal quotation marks

omitted). “If, and only if, the plaintiff meets 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 Hernandez violated her Fifth Amendment

rights during her arrest because he failed 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 rational argument can be made in support of

the notion that the failure to give Miranda 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 Fifth Amendment claim.

      ii. False Arrest

      Although constitutional torts are not based on any specific state’s tort law,

“courts have used the common law of torts as a starting point for determining the

contours of claims of constitutional violations under § 1983.” Pierce v. Gilchrist,

359 F.3d 1279, 1286 (10th Cir. 2004) (internal quotation marks omitted). Under

New Mexico law, there is no claim for false arrest when the “facts available to [a]

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detaining officer would warrant [a] person 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 arrest claim is whether the officer had a

reasonable basis for the detention. “Reasonable 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 warrant 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 that “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 arrest 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). Further, although Officer Hernandez initially determined

to issue Ms. Holmes citations for these offenses, once she continued to write

“UCC1-308,” instead of simply signing her name as instructed, 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 claim.

      iii. Malicious Prosecution

      “A malicious prosecution claim brought under the Fourth Amendment requires

a showing that (1) the defendant caused the plaintiff’s continued . . . prosecution;

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(2) the original action terminated in favor of the plaintiff; (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) (internal quotation marks omitted). 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 deny or disparage others retained by the

people.” U.S. Const. amend. IX. But “[t]he Ninth Amendment is not an independent

source of individual rights; rather, it provides a rule of construction 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 § 1983, so summary judgment was proper.

       v. Foreign Sovereign Immunities Act

       We also agree with the district court that summary judgment was proper on

Ms. Holmes’s claim under the Foreign 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 accepted 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 against Officer Hernandez.



                                            7
B. Silver City

      1. Municipal Liability

      Absent a showing of constitutional injury, a municipality cannot be liable for

damages, regardless of the existence 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 violation 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 (internal 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 committed, the district court properly dismissed

Ms. Holmes’s claims against Silver City.

C. Judicial Bias

      Ms. Holmes, for the first time on appeal, argues the district court judge was

biased against her as evidenced by his rulings. Her failure 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 for Ms. Holmes is that she

has failed to argue for plain error, which “marks the end of the road for an argument

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for reversal not first presented to the district court.” Id. at 1131. We thus decline to

consider the argument.

                                 III. CONCLUSION

      The judgment of the district court is affirmed.

                                                Entered for the Court



                                                Bobby R. Baldock
                                                Circuit Judge




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